Tian & Heng (No 3)
[2024] FedCFamC1F 75
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tian & Heng (No 3) [2024] FedCFamC1F 75
File number: SYC 3144 of 2021 Judgment of: CAMPTON J Date of judgment: 16 February 2024 Catchwords:
FAMILY LAW – PARENTING – Where the father makes an interim application for the child to live with him and spend video-call time with the mother pending the final hearing in the Sydney Rolling List commencing 11 March 2024 – Where the father has lived in Country B for two years while the child and the mother lived in Australia – Where the father arrived in Australia in early 2024 – Where the father contends that the child made disclosures to him as to physical violence occasioned by the mother – Where the father took the child to the police station at 1.00am – Where the police interviewed the child at school and later the mother – Where the father did not adduce evidence as to what was said in those interviews – Where the father engaged a lawyer to interview the child after the Police investigation concluded– Where the Court is not satisfied that the mother poses an unacceptable risk – Application dismissed. Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC and 69ZW
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 9 and 16
Cases cited: Goode and Goode (2006) FLC 93-286
Isles & Nelissen (2022) FLC 94-092
MMR & GR (2010) 240 CLR 461
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 16 February 2024 Place: Sydney Counsel for the Applicant: Mr Berman Solicitor for the Applicant: JC Legal Practice Counsel for the Respondent: Ms Wallace Solicitor for the Respondent: E Berman & Co ORDERS
SYC 3144 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TIAN
Applicant
AND: MS HENG
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pending further order, any orders made as to the father spending time with the child X born 2016 (“the child”) be suspended.
2.Pending further order, the father shall spend time with the child supervised by a community-based supervision agency, including but not limited to E Contact Service, for the period of up to 5 hours each Sunday and each Wednesday from 4pm until 7pm, both parties to equally meet the cost of such supervision.
3.For the purposes of changeover, for time spent, the mother shall do all such things as to ensure the child is produced to the father and the supervisors at F Shopping Centre or such other changeover place as agreed in writing between the solicitors for the parties and the supervisor and the father shall return the child to the mother at F Shopping Centre or the agreed place in writing at the conclusion of the time spent.
4.Pending further order, the mother do all such things as to facilitate face time or video conferencing time between the father and the child on each day the father does not spend time with the child between 7.30pm and 8pm.
5.Pursuant to section 69ZW of the Family Law Act 1975 (Cth) is it requested that the Department of Communities and Justice (the Department) provide to the Court the following documents and information for the period 1 April 2023 to date by no later than 4:00pm on 1 March 2024:
(a)any notifications to the Department of suspected abuse of X born 2016 or of suspected family violence affecting X including but not limited to any intake reports;
(b)any assessments of the Department of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;
(c)any reports commissioned by the Department in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and
(d)in the event the Department have an ongoing investigation in relation to X any recommendations for the future arrangements of them taking into account the orders sought by the parties in these proceedings.
6.And provided that no document need be provided which identifies directly, indirectly or be reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer) and to achieve compliance with this order and with s69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated form the documents so produced.
7.Neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department without the Court’s leave.
8.The father’s application for a child impact report as contained in his Response to an Application in a Proceeding filed 15 February 2024 is dismissed in circumstances where there is no evidence that such report can be obtained prior to the trial.
9.Pending further order, the Father, Mr Tian born 1985 and the Mother, Ms Heng born 1988 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 (Cth) from removing or attempting to remove or causing or permitting the removal of the child, X born 2016 (male) from the Commonwealth of Australia.
10.Order 5 made 15 February 2024, restraining the father from leaving Australia is discharged.
11.Both parties’ costs of and incidental to the Application in a Proceeding filed 15 February 2024 and the Response to Application in a Proceeding as filed 15 February 2024 are reserved to the trial.
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 pseudonyms Tian & Heng has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are substantive parenting proceedings initiated by Mr Tian (“the father”), pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) as to the parenting of X, born 2016, commenced by way of an Initiating Application filed 1 May 2021 in what was then the Federal Circuit Court of Australia. By way of a Response filed 19 July 2021, Ms Heng (“the wife”) sought differing orders as to the parenting of the child.
The substantive proceedings are listed for trial in the Sydney Rolling List commencing 11 March 2024. A comprehensive Family Report dated 9 September 2022 was produced by a single parenting expert, Ms C. The father has not filed affidavit evidence for the purposes of the forthcoming trial, notwithstanding directions being made some time ago for him to file and serve that material.
The parenting of X is regulated by orders made by a Senior Judicial Registrar on 31 January 2022, broadly providing for:
(a)The child to live with the mother, noting that the father proposed to travel to Country B for an indefinite period;
(b)The father to spend time with the child pending his departure for Country B from Saturday afternoons until Sunday evenings each week; and
(c)The child to continue to attend G School.
By way of substantive relief, the broad proposal of the mother was for she and the child to continue to live in Australia subject to obtaining migration status to do so. The father proposed for the child to return to live with him in Country B.
The father is 39 years of age and a citizen of Country B. The mother is 35 years of age and is also a citizen of Country B. It is an agreed fact that the mother achieved a visa in January 2024, enabling her to permanently remain in Australia.
The parties married in 2013 and disagree as to their date of separation. The parents and the child arrived in Australia in early 2019 and occupied a two-bedroom unit at H Street, Suburb J. In late 2019, the mother and the child moved to the mother’s current address, being a two‑bedroom unit at K Street, Suburb J. The maternal grandmother also lives at those premises.
The father returned to Country B in early 2022. He travelled to Australia in mid-2023. The mother facilitated time between the father and the child from Sundays through to Tuesdays during that time.
The father did not spend any further physical time with the child until early 2024. The evidence is clouded as to whether the mother continued to facilitate FaceTime or video conferencing time between the father and the child during 2023.
The child commenced year 3 at G School in February 2024.
The evidence of the single expert, albeit somewhat antique, recorded that the child was well cared for by the mother and the maternal grandmother, that the child missed his father and had a clear desire to see him and spend time with him. The expert opined as to the child’s memories being easily influenced and a propensity to adapt to the perspective of a parent, usually the perspective of the parent with whom they were then living. The expert recorded that the father’s time and interactions with X at the date of the interviews for the report were “unpredictable”.
The expert opined that at the date of the report, X had established a close and secure relationship with his mother, is established at school, was achieving academically, and had formed friendships. The evidence as at today does not indicate any change to those circumstances.
The father advised the expert that he was required to work in Country B and could not get a working visa to remain in Australia. He told the expert that he had little confidence that the mother would encourage X to have a positive relationship with him or to facilitate any ongoing relationship with him in the future.
At the time of the interview with X, the expert recorded that X’s command of English was good, albeit he was interviewed in the presence of a Country B language interpreter. She said that he was difficult to understand on occasions and that the interpreter assisted in clarifying his understanding of questions and some of his responses. The expert observed that X’s responses to questions about his family were of a repetitious character.
The mother makes a complaint as to the father actively engaging with both the Commonwealth Department of Home Affairs and her employer, providing information so that she would be occasioned hardship. The father’s response to this contention is somewhat unclear. The mother submits that the father approached the Country B Embassy sometime in late 2022 to obtain a passport for the child and that such approach was unsuccessful.
The mother says that the father came to Sydney in January 2024 from Country B after she obtained her visa enabling her to remain in this country permanently. The respective solicitors for the parties engaged in an exchange of correspondence to enable the child to spend time with the father in Tasmania over a period of four days. Somewhat unusually, the father requested the child’s Medicare card and passport for the purposes of that trip. I am told today that the passport was required for some accommodation reason at a hotel. The child’s passport was not provided. The father’s solicitor communicated with the hotel to overcome that difficulty.
There is no evidence as to the child making any disclosures to the father over the period they spent in Tasmania.
By way of exchanges between the parties’ solicitors, the father further spent time with the child from Sunday, 28 January 2024 until 30 January 2024, and again from 4 February 2024 until the start of school on 6 February 2024. Again, there is no evidence of disclosures made by the child to the father during each of these further periods of time spent.
Further time was facilitated between the child and the father commencing on Saturday, 10 February 2024, scheduled to conclude at the start of school on Tuesday, 13 February 2024, such time to include Lunar New Year. The father gives evidence by way of his affidavit filed 15 February 2024 as to an exchange that occurred when he picked up X from school on 12 February 2024 (his affidavit incorrectly records the date of this exchange as 10 February 2024). He said that he and X had the following conversation:
Me: “[X], remember to focus on your study and to video call me after you returned home.”
[X]: “Dad, I have been beaten by mum for asking to have video call with you.”
Me: “When did it happen?”
[X]: “About one month ago. There was also another time when I asked to video call you, mum used her fist beating me on my collarbone. I was so frightened, and I cried in pain. I asked mum why she hit me. She said she did not hit me, and I tell you, she will beat me again. She also she is not afraid of police.”
Me: “Did you get beaten up because you wanted to talk to daddy?”
[X]: “No. Mum hits me for small things. Sometimes she hits me when she is in bad mood. Sometimes I got beaten for no reasons. She would use her elbows, knees and other parts to hit my joints or bones. My mum is an insane woman!”
The father in the affidavit records at paragraph 16 that:
[X] did not tell me about his mother’s abusive behaviour when I last spent time with him in [mid] last year.
The father omitted to include the failure of the child to disclose any abusive behaviour occasioned by his mother over the periods of time he spent with him in 2024. The father says that after the conversation on 12 February 2024, the child said to him:
Please don’t tell Mum the things I’ve just told you, as she would beat me to dead.
The father then presented the child at Suburb L Police Station some hours later at or about 1.00am on 13 February 2024. No evidence was placed before the Court as to what was said by either the father or the child to the police at Suburb L in the early hours of that morning.
The father took X to school on 13 February 2024. X was interviewed by the police in the presence of the school principal, Mr N. It is the father’s evidence that the interview was recorded both by vision and audio.
On 14 February 2024, the father’s solicitors forwarded correspondence to the mother’s solicitors saying:
The police informed our client that they have interviewed [X] at school yesterday and they are going to press criminal charges against your client. The police informed our client that a court attendance notice will be served on your client in due course.
The letter goes on to record what X allegedly disclosed to the police. The father’s source of knowledge as to what X disclosed to the police is unknown.
The letter then records the solicitors expressing the father’s views that X has been exposed to an unacceptable risk of harm in his mother’s care and advising the mother that, subject to the investigation of the New South Wales Police, X should live with the father on an interim basis.
The letter advises that the father proposed to file an urgent application to vary the existing orders in due course. Such application was not filed by the father as foreshadowed on 14 February 2024. His order sought took the form of a response to the mother’s urgent application, as identified later in these reasons.
The father says that when he attended Suburb J Police Station on 14 February 2024, he spoke to an unidentified person at the front desk who said:
We will definitely arrest and charge the mother. I can see from our system that she will be charged.
His affidavit evidence records his solicitor speaking to Suburb J Police Station on a number of occasions on that day.
The father says that he collected X from school at 2.30pm, prior to the end of the school day, to “protect [X]”. The father gives evidence, possibly waiving legal professional privilege, as to what his solicitor told him after the solicitor spoke to the police. He says that the solicitor told him that the police would now not press any charges.
The father says that he facilitated X speaking by way of video call with the mother and heard X say:
I want to go to school tomorrow, but I want to stay with Dad after school.
The mother saying:
I don’t care what you want. You need to come home with me.
The father says that after that conversation, X cried and said to him repeatedly:
I’m a dead man. Mum will beat me to dead.
He says that X was afraid to go to school and that he does not want to see his mother.
It is the father’s evidence that he will remain in Australia indefinitely until the parenting matter is resolved.
The father adduced evidence of an email from Mr M dated today, 16 February 2024. Mr M is a practising solicitor with P Lawyers in Sydney. He gives his experience in criminal law for several years. He records in his email that it was on 11 February 2024 that X disclosed to the father that he had been subject to assaults by his mother, and that on 4.00pm on 11 February 2024 the father made a telephone call to 000 to report the incident to the police. The dates as to the police interviews with X in Mr M’s email are incorrect on the father’s evidence.
The email from Mr M records the legal practitioner with criminal law experience undertaking an interview with the child on 14 February 2024 in relation to the alleged assaults occasioned upon the child by the mother. It is somewhat unclear, but it appears that the father retained Mr M for the purposes of either and/or advice in respect of these proceedings and/or for forensic purposes to be applied in the proceeding.
Mr M in the email identified that on 15 February 2024 he spoke to Officer Q at Suburb J Police Station, who advised him that the police would not act because the mother had provided a conflicting version to that of the child. He said he then requested to speak to the domestic violence liaison officer and spoke to Officer R, the Domestic Violence team leader. Implicitly, Officer R has specialised training and experience in family violence.
Mr M records that Officer R confirmed that X had been electronically recorded in an interview with Officer S and:
…that the interview had disclosed various assaults [by the mother]
In his email, Mr M records that he continued to query why the police were not applying for a provisional Apprehended Violence Order for the protection of the child, identifying ss 9 and 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). He recorded that Officer R said to him:
…that the police had no fears for his (the child’s) safety.
No submissions were made as to the apparent conflicting versions of these hearsay conversations.
No evidence was tendered in the father’s case arising from the police engagement in the matter or that of the school.
The mother denies the allegations. She puts into issue the contention that she poses an unacceptable risk to the child.
The father seeks that the order made 31 January 2022 for the child to live with the mother be suspended to further order, that Order 3 made 14 July 2023 be suspended pending further order, and that the child live with him on an interim basis. He proposes to facilitate video calls between the child and the mother each day between 7.30pm and 8.00pm. He seeks orders restraining the mother from approaching the child’s school or residence, undertaking to take the child to school every day. He additionally seeks preparation of what he describes as a short child impact report to identify specified s 60CC matters to be conducted by an external provider for the purposes of the upcoming trial, and for an order to be made pursuant to s 69ZW of the Act for the production of material by child welfare authorities and police.
The mother seeks orders that the child be returned to her care; that the orders made providing for the father to spend time with the child on 31 January 2022 be discharged or suspended; and that the father spend supervised time with the child, such supervision to be undertaken by a community-based supervision agency such as E Contact Service for a period of three hours each Sunday, with the father to meet the costs of that supervision. She further seeks orders restraining the removal of the child from Australia and restraining the father from attending the Country B Embassy in Australia or any Country B Consulate for the purposes of attempting to secure international travel documents for the child.
The Independent Children’s Lawyer (“ICL”) has not attended for the purposes of the hearing today. The ICL forwarded an email to chambers earlier this morning advising as to notice of the listing today being received late and as to his appearance as an advocate in a lengthy trial at Parramatta. He sought to be excused, advising that he was unable to engage any other representative to appear on his behalf at short notice.
Yesterday, on 15 February 2024, the following orders were made on an ex parte basis on the mother’s application in chambers:
1.The Application in a Proceeding filed 15 February 2024 is listed before His Honour Justice Campton at 10am on 16 February 2024 in person.
2.The mother is to serve a copy of the Application in a Proceeding and affidavit on the father and the Independent Children’s Lawyer as soon as possible.
3.The father is to do all acts and things to bring the child [X] born […] 2016 to the Sydney Registry, childcare with Court Child Services, Level 2 at 9.30am.
4.Pending further order, the Father, [Mr Tian] born […] 1985 and the Mother, [Ms Heng] born […] 1988 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 (Cth) from removing or attempting to remove or causing or permitting the removal of the child, [X] born […] 2016 (male) from the Commonwealth of Australia.
5.[Mr Tian] born […] 1985 (male) be and is hereby restrained from leaving the Commonwealth of Australia.
6.AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until further Order of the Court.
Both parents have attended in person for the purposes of the hearing of the applications today. The child, in compliance with the orders made yesterday, has been produced to Court Child Services this morning.
The mother in her case has raised concerns as to how the allegations of risk have been articulated by the father, and highlights matters underscoring the contended risk.
The relevant principles in relation to parenting proceedings on an interlocutory basis have been set out in Goode and Goode (2006) FLC 93-286, and the High Court in MMR & GR (2010) 240 CLR 461, affirming those principles. In applying the relevant law to the facts, s 60CA of the Act provides that in deciding whether to make a parenting order, the Court must regard the child’s best interests as the paramount consideration. The matters which the Court must consider in determining a child’s best interests are set out in s 60CC of the Act. I will identify those factors as identified within the section as are relevant.
I am mindful that the Court must remain alive to the controversies the ultimate resolution of which may have a significant bearing on the child’s best interests. As for risk, or unacceptable risk, which is the heart of the father’s case, the Full Court clarified in Isles & Nelissen (2022) FLC 94-092 that past allegations of violence and abuse are to be determined by reference to s 140 of the Evidence Act1995 (Cth). The Full Court added that the assessment of an unacceptable risk cannot be measured by the civil standard of proof; rather, the Court is required to look at possibilities.
There is an absence of explanation in the father’s case at this time as to the terms of exchanges, if any, between he and the child as to complaints as to the mothers conduct over the four days of travel to Tasmania in late January 2024 and over the periods of time spent, each being a number of days, in the last week of January 2024, the first week of February 2024 and the first two days after 10 February 2024. That vacuum of evidence as to any complaint made by the father to the child over those days and nights was not the subject of evidence or submission.
The child’s complaint as made to the father occurred after the child was collected from school in February 2024, being the day that the child was to return to the mother. The father’s explanation about taking the child to Suburb L Police Station at 1.00am the following morning remains a mystery.
There are a number of inconsistent pieces of evidence in the father’s case. The lawyer the father retained, Mr M, for the purposes identified earlier in these reasons, confirms that the police, notwithstanding the electronic interview, had no fears for the child’s safety in the mother’s care. The adducing of this evidence in the father’s case attracts significant weight sourced from the leader of the domestic violence team of the Police Area Command. It is disturbing that the father engaged a legal practitioner with criminal law experience to undertake an interview of the child after the police had interviewed him as to the alleged risk posed by the mother and her conduct. This may be the subject of further evaluation at another time. The potential risk to the child in that process ought to be self-evident. It is further disturbing as to the role that the father’s solicitors have undertaken in these proceedings by reference to the contents of their correspondence and what the father has identified in his own affidavit. Again, this may be the subject of further evaluation at another time.
Taking the father’s evidence at its highest, X made an unprompted comment to him after his return from school. There is no evidence as to X making any complaint as to his mother’s conduct at any time to his school, whether by way of the principal, his teacher, or any other person at school. The volunteering of the disclosures by X after spending lengthy periods with the father immediately prior to X being returned to his mother’s care requires a degree of caution in their evaluation.
Weighing up all the evidence available before me now, it is important to consider the evidence that could have been adduced by the father or by other forensic processes that he could undertake for the purposes of this interlocutory application. That includes but is not limited to seeking a short adjournment on condition to urgently obtain material from the police and/or X’s school. No such process or application was pursued.
Weighing all the above matters, I am not satisfied to the requisite degree, on the evidence before me to date, that the serious finding as sought by the father as to the mother occasioning physical violence upon the child by way of beating the child on his collarbone, on his joints and bones, can be comfortably established. There is no evidence of the child making a complaint to any other person. The father gave no evidence as to the child presenting with bruising or any other signs of physical, emotional or psychological injury on the occasions when he spent time with the child in early 2024.
I am not of the view that it would be in X’s best interests at this time to disrupt the longstanding arrangements for his placement living with the mother. This conclusion is reinforced by the final trial being less than three weeks away. The trial process will provide the parties with an opportunity to fully ventilate their concerns and to test evidence.
I have attempted to identify in these short reasons, produced urgently in the circumstances, the process of reasoning in reaching the conclusion set out in earlier paragraphs. For ample clarity, my view on this matter is not concluded. It may well be, over the course of the trial, further evidence becomes available that would support the finding contended by the father and as to the mother presenting an unacceptable risk to X. It will be a matter at trial for the father, should he continue to press his case as to risk, to consider the evidentiary holes in the presentation of his case thus far and to adduce such evidence on those subject matters as he is advised.
Going forward, concerns exist as to the father’s conduct in all the circumstances in unilaterally retaining the child, in presenting the child at 1.00am to a police station, and specifically by way of engaging Mr M to interview of the child in February 2024. The controlling of the environment upon which the father spends time with the child between now and a trial will promote both the child’s and the father’s interests.
In those circumstances, it is in the child’s interests for that time to be supervised by a community-based contact supervising agency. They will be in a position to provide a report as to interactions between the child and the father during time spent.
For all of the above reasons, I make the orders as set out at the forefront of these reasons.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 20 February 2024
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