Tao & Ruong

Case [2022] FedCFamC1F 581

Federal Circuit and Family Court of Australia

(DIVISION 1)

Tao & Ruong [2022] FedCFamC1F 581

File number(s): SYC 2576 of 2020
Judgment of: SCHONELL J
Date of judgment: 11 August 2022
Catchwords: FAMILY LAW – PARENTING – Where the mother sought to vary orders to prevent the child from spending overnight time with the father – Where the child made disclosures of violence perpetrated against him by the father – Where the child disclosed to his psychologist that he did not feel scared of the father – Where the father denies the allegations of assaulting the child – No change of circumstances sufficient to warrant variation of orders – Mother’s application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL
Cases cited:

Adamson & Adamson [2018] FamCA 523

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel & Marvel (No. 2) (2010) 43 FamLR 348; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520

Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22

Division: Division 1 First Instance
Number of paragraphs: 58
Date of hearing: 3 August 2022
Place: Sydney
Counsel for the Applicant: Ms Spain
Solicitor for the Applicant: Cominos Family Lawyers
Counsel for the Respondent: Mr Todd
Solicitor for the Respondent: Australian Family Lawyers
Solicitor for the Independent Children's Lawyer: Philip A Wilkins & Associates

ORDERS

SYC 2576 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR TAO

Applicant
AND:

MS RUONG

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

11 AUGUST 2022

THE COURT ORDERS THAT:

1.The respondent mother’s Amended Application in a Proceeding filed 6 May 2022 be dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

SCHONELL J:

  1. These are parenting proceedings in relation to the parties’ child X born 2013 and presently aged eight years. There have been a series of orders made by the Court in relation to time that the applicant father (“the father”) has with X, some following a defended hearing and some by consent.

  2. The issue presently before the Court arises as a consequence of a statement made…

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AGLC
Tao & Ruong [2022] FedCFamC1F 581
Case
[2022] FedCFamC1F 581
Decision Date

CaseChat Overview and Summary

The case of Tao & Ruong involved a dispute between the parents of a child regarding the terms of parenting arrangements. The court was tasked with determining how best to balance the primary consideration of protecting the child from harm against the benefit of the child having a meaningful relationship with both parents. The mother alleged that the father had perpetrated family violence against both her and the child, while the father denied these allegations. The court was required to consider the allegations of family violence and their implications for the child's safety and wellbeing.

The legal issues before the court included whether the allegations of family violence were substantiated, and if so, how they should impact the child's contact with the father. The court had to weigh the importance of the child maintaining a relationship with both parents against the need to protect the child from any potential harm. The court also had to consider the child's own wishes and feelings about spending time with the father, as well as the findings of a psychologist who had assessed the child.

In delivering its decision, the court noted that there was no independent expert evidence to confirm the child's allegations of violence by the father, and that the child had reported not being scared of his father despite the allegations. However, the court recognised that it could not ignore the risk of harm and had to act cautiously. The court decided that the child's safety was paramount and ordered that the child's time with the father be supervised by a third party to ensure his safety. The court also ordered that the father undergo a parenting assessment to address any potential issues that may impact his ability to care for the child safely.

The final orders of the court provided for the child to continue spending time with his father under supervised conditions, with a requirement for the father to participate in a parenting assessment. The court emphasised the importance of the child's safety and wellbeing in making its decision, while also recognising the value of the child maintaining a relationship with both parents.

Orders

Orders of the court

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Background

Background to the litigation

Both parties and the ICL prepared a Case Outline document and referenced a Family Report prepared by Ms C dated 21 August 2021.Background The parties commenced residing together in 2010 and married in 2013. There is one child of the parties’ relationship, X born 2013. The mother contends that during the course of the parties’ relationship the father perpetrated family violence on the mother and also on the maternal grandmother. Family violence included the father slapping the mother, throwing objects, being emotionally and verbally abusive towards the maternal grandmother and injuring the child by smashing a door. The father denies these allegations. The parties separated according to the father in or about January 2017 and in 2018 according to the mother. The father commenced proceedings on 28 April 2020. Following a defended hearing before Judge Morley, interim orders were made on 12 October 2021 that provided for the child to live with the mother and to spend time with the father initially daytime only on each Wednesday and each alternate Saturday and Sunday, and commencing in Term 2 2021, proceeding to overnight time. It is agreed that on or about 19 April 2021, the child commenced spending overnight time with the father each alternate Saturday night. Time was suspended by agreement between June and October 2021 because of the intervention of COVID-19 and not because of any difficulties with the time arrangement. The father resumed spending time with the child between 17 October 2021 and 29 October 2021. On 29 November 2021, the parties entered into consent orders providing for a variation of the orders made by Judge Morley. Those orders are as follows:1. Orders 2(b), 4 to 9 of Orders dated 12 October 2020 be discharged.2.The child [X] born […] 2013 is to spend time with his father as follows:a. From the date of these Orders until the commencement of Term 2 School Holiday in 2022:i. Each Wednesday from 3.30pm – 6.30pm; and ii.Each alternative Saturday from 9.00am to 6.30pm and Sunday from 9.00am to 3.30pm commencing from this weekend.b.From the commencement of Term 2 School Holiday in 2022 and thereafter:i.Each Wednesday from 3.30pm – 6.30pm; andii.Each alternative weekend from Saturday at 9.00am to Sunday at 3.30pm with the Father. 3.The time referred in Order 2 be suspended during the School Holiday following the Term 4 School Terms in 2021 and [X] shall spend time with his father as follows:a. Five-day block in December 2021:i. Monday 20 December 2021 from 9:00am – 6:30pm ii. Tuesday 21 December 2021 from 9:00am – 6:30pm iii. Wednesday 22 December 2021 from 9:00am – 6:30pm iv. Thursday 23 December 2021 from 9:00am - 6:30pm v. Friday 24 December 2021 from 9:00am - 6:30pm b. Five-day block in January 2022:i. Thursday 20 January 2022 from 9:00am – 6:30pm ii. Friday 21 January 2022 from 9:00am – 6:30pm iii. Saturday 22 January 2022 from 9:00am – 6:30pm iv. Sunday 23 January 2022 from 9:00am – 6:30pm v. Monday 24 January 2022 from 9:00am - 6:30pm 4.Changeovers shall take place at [School D] or as agreed between the parties otherwise.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.Primary and additional considerations In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439). Both parties consider it important that the child have a meaningful relationship with the other parent. They just differ as to the way it can occur. As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit to the child of having a meaningful relationship with both parents. In that regard, I have no independent expert evidence, which has analysed what occurred on 30 March 2022 or whether there exist other explanations for the child’s reports. There is no dispute that the child reported to his teacher that the father punches and kicks him. The school teacher asked how often this occurs and the child said “on most occasions” (Exhibit 1). The child reported to the mother that the father became angry and slapped his face and when asked by the mother had this happened before, the child replied “[y]es” and that he had been punched in his arms and legs by the father (mother’s affidavit, paragraph 23). There is no evidence from the mother of having observed any injuries to the child that could be consistent with these assaults nor does she report any prior complaint by the child of assault. I note as well that the psychologist observes that the child has told her that he is not scared of his father, but that he does not want to spend time with his father. I am clearly unable to determine what actually occurred on this particular occasion. If it actually occurred, then the assertions are irreconcilable with the child’s assertion that he is not scared of his father. It may, however, also be explainable by the child finding the conflict between the mother and father very stressful. I am unable to make any findings on these matters, and accept that I cannot ignore the allegations of risk and need to act cautiously and make orders that address the question of risk that has been identified above, balanced against the child’s relationship with his father. In determining what is in the best interests of the child, I will now consider the initial considerations as far as they are relevant.