Tao & Ruong
[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:
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.
The issue presently before the Court arises as a consequence of a statement made by the child to his teacher and to the mother that the father had hit the child. Due to this incident, the respondent mother (“the mother”) contends that the progression to overnight time as contemplated by the current orders should not occur. The father seeks that the mother’s application should be dismissed and that overnight time commence immediately. The Independent Children’s Lawyer (“the ICL”) submits that there has not been established a change of circumstances sufficient to warrant varying the orders, but proposes that the parties undertake a form of therapy which all parties have agreed to.
Documents relied upon
The mother relies upon the following documents:
(1)Amended Application in a Proceeding filed 6 May 2022;
(2)Affidavit of mother filed 22 July 2022; and
(3)Affidavit of Ms B (treating psychologist) filed 22 July 2022.
The father relied upon the following documents:
(1)Response to an Application in a Proceeding filed 19 May 2022;
(2)Affidavit of father filed 19 May 2022;
(3)Undertaking of father filed 19 May 2022; and
(4)Affidavit of father's partner filed 19 May 2022.
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; and
ii.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.
It is agreed that the father spent time with the child until 30 March 2021, when the child made a disclosure to both his school teacher and the mother.
The mother suspended the child’s time with the father but time subsequently resumed on 23 April 2021. Notwithstanding the orders made by consent on 29 November 2021, time has not proceeded to overnight time.
The mother gives evidence as to the following:
22. [X] spent time with [Mr Tao] on Wednesday 30 March 2022 from 3.30pm to 6.30pm.
23. That evening after he returned home, [X] and I had a conversion to the following effect in English:
[X] said to me without prompting: “Dad hit me today”.
I was shocked and asked:” What happened? Why did he hit you?”
[X] said:
“I was doing my maths homework. I think dad thought I was very slow.”
I asked: “Then what happened?”
[X] said:
“Dad got upset with me. He yelled and screamed at me. I asked him to leave me alone. Dad became angry and slapped my face. I was very scared. I hid in a corner of the room so dad could not see me. I kept doing my homework while I was hiding in that corner.”
I asked: “Did this happen before?”
[X] said: “Yes, dad slapped me, kicked me and smashed me a few times before.” When [X] said the word “smash”, he was using his fists to punch his arms and legs.
I asked: “Were you playing games at the time?”
[X] said: “No, he hit me for no reason.”
I asked: “Was it always on the Wednesday when you see dad?”
[X] said: “No, sometimes on Weekends too.”
24. I observed an expression of the fear and stress on [X]’s face while he talking to me. He was shivering and on the verge of crying.
25. The next day on Thursday 31 March 2022, I attended a scheduled parent teacher conference with [Ms E] at 8.30am at [X’s] school. After discussing about [X’s] academic performance at school, [Ms E] asked [X] to go and play outside and enquired about the time arrangement with [X]’s father. I was surprised that [Ms E] asked the question.
26. [Ms E] said to me words to the following effect:
“[X] is under huge stress. [X] came to see me right before school finished yesterday. [X] started crying and said to me that he did not want to go to dad’s place. So, I asked him ‘What happened at your dad’s place?’ [X] said that his dad kicked him and slapped him. You have to address this. [X] is a good boy, how can his father hurt him like this. This has to be changed. Maybe [X]’s time with his dad needs to be reduced. This way [X] will not be so stressed. This will impact on his school performance.”
27. I remember [Ms E] in my conversation with her, said to me three times that “you have to address this.” [Ms E] further recommended that [Mr Tao] and [X] go see a psychologist to assist with the situation.
(As per the original)
Documents produced under subpoena from the child’s school became Exhibit 1 in the proceedings. Part of Exhibit 1 is an email from the child’s teacher to the headmistress of the school to the following effect:
This afternoon I noticed [X] had his head in his lap while sitting on the floor and looked teary. I asked him what was wrong and he said that he had to go to his dad’s today. I asked why he didn’t want to go. He said “he is mean to me…and also my mum”. I asked how was he mean. He said “he ignores me” and “he punches and kicks me” I asked how often does that happen? He said on most occasions. I am also concerned about his stutter that appeared to come about around the same time that his dad came into the picture late last year. I am meeting with his mother, [Ms Ruong], tomorrow morning.
Part of Exhibit 1 also is an email from the school teacher to the Headmistress following her meeting with the mother on 31 March 2022.
I had a meeting with [X]’s mum today.
She said that [X] mentioned to her that his dad slapped him on the face last night for not finishing his work fast enough. Later in the day, [X] came up to me and said that his dad slapped him on the face last night and that his cheek was still sore, I noticed him rubbing it. He said that he locked his bedroom door so he could stay away from his dad for the rest of the night.
I let her know what [X] had told me the day before and she said that she is aware that his dad gets angry and aggressive, and has a short fuse, which is the reason why she separated from him. She said that anger management courses were recommended for [X]’s father. [X]’s mum agreed that his stutter was probably related to being around his father. She said it became worse when he stayed the night there, and became better during covid when he no longer stayed nights. She was thankful for the information.
And then a file note of a meeting with the father on 6 April 2022:
Meeting with [X]’s father and his partner.
•[X]’s father, [Mr Tao], asked about his academic progress and we discussed his stutter. [Mr Tao] said the stutter first started in pre-school.
•[Mr Tao] asked about what [X] had said to me [(Ms E)].
•I explained what he said and [Mr Tao] said that it was not true and that they have a good relationship.
•Halfway through the interview, [X] stopped by the classroom door and had a shocked look on his face. [Mr Tao] said hello to [X] but [X] did not say a word and then he walked away.
•[Mr Tao] said that this is interesting timing for this issue to arise as they have final court proceedings in April.
•[Mr Tao] said that he will get an independent child lawyer involved to interview [X] at some point.
•[Mr Tao] thanked me for the interview and asked that he be kept in the loop if [X] says anything again.
The mother agreed that she did not, despite the child reporting to her that the father had “slapped me, kicked me and smashed me a few times before”, referencing using his fists to punch his arms and legs, observe any bruising or injuries to the child (mother’s affidavit, paragraph 23). Nor had the child made any prior complaint to his mother of such assaults.
The mother arranged for the child to see a psychologist, Ms B. The psychologist has prepared a report, which relevantly records the following:
2. If applicable, the reason why [X] was referred to your service;
[X] was recommended to our service after his schoolteacher noticed he was appearing more withdrawn and less interested in his learning towards the end of term 2, 2022. [X]’s teacher had observed that he didn’t appear to be taking a positive approach to recent challenges in class. [X] reported to his teacher that he was bored and wanted more difficult work. Upon further questioning by his schoolteacher, [X] also reported that he was stressed because he had to see his dad Wednesday afternoons and that sometimes his dad becomes physical with him by hitting him which makes him feel nervous and uncomfortable.
…
6. Your opinion on the underlying reason for [X’s] mental health issues that became apparent during your session based on your observation and analysis;
There are two primary reasons that may have precipitated [X]’s mental health issues.
Firstly, [X] has reported feeling bored in class and would like more challenge in his learning. [X] has reported this is the reason he feels less interested and engaged in his schoolwork. [X]’s mother has requested that his classroom teacher provide some extension work for [X] to help challenge him in his learning. [X] is happy with his friends at school, likes his teacher and is looking forward to Term 3, 2022 beginning.
Secondly, [X] has also reported to his classroom teacher and myself that he feels stressed going to have visits with father. [X] explained that he feels his father doesn’t help him with his homework, doesn’t play games or have an interest in him and sometimes will hit him. [X] reports that he has asked his father to stop hitting him, but it doesn’t make a difference. [X] said he doesn’t feel scared of his father but feels nervous, worried and stressed on the days when he has the visits with his dad. [X] does not talk to his dad’s partner [Ms F] and [X] did not know her name when I asked in our third session. [X] reported that [Ms F] does not talk to him when he visits. [X] has reported that he doesn’t want the visits to continue with his father now as he feels uncomfortable and stressed. According to [X]’s mother, he had some overnight stays with his father before the last lockdown in 2021 and that it was around this time that [X] developed a stutter. [X] feels self-conscious and anxious about his stutter. I did not observe his stutter during the three therapy sessions we have had to date.
The mother’s counsel submits that there has been a change of circumstances as a consequence of the child’s disclosure of alleged violence perpetrated upon him by the father. The mother’s counsel said that the child is anxious and reluctant to see his father. He says that the mother is attempting to strike a balance between ensuring that the child has a relationship with his father but is also safe and protected from the father. The mother’s counsel places significant emphasis on aspects of the Family Report, where the Family Consultant recommends as follows:
53. [Ms Ruong] made allegations of family violence perpetrated by [Mr Tao] and has raised concerns about [Mr Tao]’s capacity to manage his temper if he was caring for [X] for extended periods. If [Ms Ruong’s] account is accurate there could be concern about how [Mr Tao] may respond in situations of stress and frustration, were he caring for [X] for extended periods and there were circumstances of parenting stress. [X] might then be placed in situations which are physically and emotionally unsafe. Although [Mr Tao] denied that he was violent, he did refer to “close contact” in the context of escalated arguments. …
The mother’s counsel also points to the mother’s past allegations of family violence which are denied by the father, and also the observations of the Family Consultant to the following effect:
53.… Although [Mr Tao] denied that he was violent, he did refer to “close contact” in the context of escalated arguments. It is noted that [Mr Tao] is enrolled in an on line behaviour change program, however, as [Mr Tao] states that he does not believe he has an anger management problem, it appears that [Mr Tao] is perceiving his attendance as more of an academic exercise. The writer would suggest that [Mr Tao] would receive little real benefit from a non-interactive behaviour change program, as there is less opportunity for [Mr Tao]’s perceptions of his behaviour to be challenged.
The mother’s counsel also placed emphasis on the psychologist’s report, where the child reports that he does not want his visits to continue with his father as he feels uncomfortable and stressed.
The father’s counsel contends that the mother is not supportive of overnight time, and that the Court should be sceptical that the incident that the child reported to the school and the mother occurred shortly prior to what was intended to be the commencement of overnight time.
The father’s counsel also contends that there is an absence of logic to the mother’s approach in contending that there is a risk to the child on an overnight basis but not a risk during the day. The mother’s counsel also points to the evidence of the child’s psychologist where the child’s psychologist reports:
6.… [X] said he doesn’t feel scared of his father but feels nervous, worried and stressed on the days when he has the visits with his dad. …
The issue in the proceedings is clearly, whether or not the orders that provide for overnight time should be suspended pending further order.
Applicable law
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many.
Notwithstanding such indisputable proposition, each counsel put various submissions to me to the effect that I should draw some conclusion from inconsistent assertions made by one or other party, that would permit me to presumably reach some conclusion on the disputed allegations. I am clearly unable to do so and will not do so. These are matters for a final hearing. The best I can do is resolve the matter on the undisputed facts and/or objective material.
However, just because I am unable to determine or resolve disputed facts or assertions does not mean that I ignore allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 FamLR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
88. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
100. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to "probabilities" does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, "possibilities" are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those "possibilities".
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
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.
Both parties placed some emphasis on the child’s views. The mother placed emphasis on the child’s views that the child did not want to spend time with the father, whereas counsel for the father placed emphasis on the child’s statement to the psychologist that he was not scared of his father.
I accept that the child has a relationship with each of his parents and that it is an important and significant relationship for the child. The evidence does not permit me to make any findings about the extent to which each of the child’s parents has taken or failed to take an opportunity to participate in making decisions about long-term issues.
It is not intended by either parent’s orders that there will be a separation of the child from either of the child’s parents.
There is no practical difficulty or expense of the child spending time with the other parent.
Of considerable focus for the purposes of these interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and (i), calling into focus the insight and capacity of the parents to place the child’s needs above their own, the attitudes of the parents of the child and the responsibilities of parenthood.
It is clear that the child is suffering some stress because of the conflict between the parents.
I note that the husband denies the allegations of assaulting the child. I note that the mother does not point to any occasion when the child has reported to her post-separation and prior to 30 March 2022 that the father was assaulting the child, nor does she point to any incident post that period of anything untoward in his interactions with the father.
I note the father has given an undertaking not to physically assault the child.
I note the mother’s application is that the father should spend time with the child but that it should not progress to overnights. Whilst I acknowledge that the mother is trying to strike a balance between ensuring the child spends time with the father and ensuring his protection, it is not clear to me nor has it been adequately explained why it is that overnight time is riskier or exposes the child to a greater risk than daytime. In one sense it could be viewed as less of a risk as the child would be asleep for some of the period of time.
I note the child is eight years of age and that the Family Consultant had, in the past, proposed that he should be moving to a regular regime of overnight time between the father and the child.
I note the Family Consultant was of the view, at the time of preparing her report which pre-dates these recent allegations, that the then current arrangements for the child, which were then overnight time, should progress in increments to include a Friday night and then to a Sunday night and eventually moving to a four-night block.
What is currently proposed under the existing orders is a long way from that proposition, seeking to only increase the child’s time to one night a fortnight.
I note the Family Consultant in her interview with X in July 2021 observed:
46. [X] did not appear to be caught up in the dispute between his parents and seemed to have little knowledge of Court proceedings when the purpose of the interview was explained to him. [X] had to be asked directly if there was anything that he would like to be different about the time he spent with his parents. [X] responded that he would like more time at his mother’s home only because it was more fun. He said that he was worried that he could “get stuck” at his father’s home for a week. He said that he would be extremely bored because he doesn’t have as many books or toys there.
It is troubling that approximately a year later this little boy seems to be stressed by the parenting arrangements between his mother and his father.
I am not satisfied that there has been such a change of circumstances sufficient to warrant the variation of the orders that the parties considered were in the best interests of their little boy in November of last year.
Accordingly, I dismiss the mother’s application.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 11 August 2022
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