TONG & GILL
[2020] FCCA 581
•20 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TONG & GILL | [2020] FCCA 581 |
| Catchwords: FAMILY LAW – Parenting – how a father’s time with his daughter should progress in circumstances where the mother accuses him of family violence and questions his parenting capacity. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B. 102NA |
| Cases cited: Mazorski v Albright [2007] FamCA 520 |
| Applicant: | MR TONG |
| Respondent: | MS GILL |
| File Number: | MLC 5481 of 2017 |
| Judgment of: | Judge Small |
| Hearing date: | 13 December 2018 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | The father in person |
| Solicitors for the Applicant: | None |
| Counsel for the Respondent: | Ms Wiener |
| Solicitors for the Respondent: | Perry Weston Lawyers |
| Counsel for the Independent Children's Lawyer: | Dr O'Brien |
| Solicitors for the Independent Children's Lawyer: | MacGregor Barristers and Solicitors |
ORDERS
All previous parenting Orders in relation to the child X born in 2016 (“the child”), including the Watch List Order made on 30 August 2017, are hereby discharged.
The mother shall have sole parental responsibility for the child.
In the exercise of her sole parental responsibility:
(a)as soon as the mother becomes aware of a major issue in relation to the child’s care, welfare and development which requires a decision, she shall raise the issue with the father;
(b)the mother shall communicate with the father in writing, by email, text message, or other electronic means including a parenting application such as “2houses” or “My Family Wizard”, and state concisely the matter requiring decision, and her proposed course of action;
(c)the father shall respond to the mother’s proposal by the same means within 7 days; and
(d)the mother shall take the father’s response, if any, into account, and shall inform the father of her decision within 7 days of receipt of his response.
The child shall live with the mother.
Until the commencement of Term 2 in the year in which the child commences school, the child shall spend time and communicate with the father as follows:
(a)from 10:00 a.m. to 4:00 p.m. on both Saturday and Sunday on each alternate weekend for 6 visits commencing on the Saturday after the date of these Orders;
(b)thereafter from 4:00 p.m. on Saturday to 10:00 a.m. on Sunday each week for 6 visits;
(c)thereafter on each alternate weekend from 4:00 p.m. on Saturday to 4:00 p.m. on Sunday for 6 visits;
(d)thereafter on each alternate weekend from 10:00 a.m. on Saturday to 4:00 p.m. on Sunday for 6 visits;
(e)thereafter on each alternate weekend from 4:00 p.m. on Friday to 4:00 p.m. on Sunday;
(f)by telephone, Skype, Facetime, or other electronic means each Wednesday between 5:30 p.m. and 6:00 p.m. with the father to place the call, and the mother shall ensure that the child has access to a fully charged telephone, tablet or computer, that she is available to take the call, and that she is afforded privacy during the call;
(g)from 4:00 p.m. on Christmas Eve to 4:00 p.m. on Christmas Day each year;
(h)for 4 hours on the child’s birthday each year by agreement and failing agreement from 10:00 a.m. to 2:00 p.m. in even numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
(i)from 6:00 p.m. on the evening before Fathers’ Day to 4:00 p.m. on Fathers’ Day each year should the child not otherwise be spending time with the father on that weekend pursuant to these Orders;
(j)On the father’s birthday each year by agreement between the parties and failing agreement from 3:00 p.m. or the conclusion of school, whichever is the earlier time, to 7:00 p.m. if a weekday, and from 10:00 a.m. to 2:00 p.m. if a weekend;
(k)At other times by agreement between the parties from time to time.
Commencing on the first weekend of Term 2 in the child’s first year of school, the child shall spend time with the father:
(a)During school terms on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday;
(b)For four consecutive nights in the Term 2 school holidays in the child’s first year at school by agreement, and failing agreement from the conclusion of school on the last day of term to 6:00 p.m. on the day four days thereafter;
(c)For five consecutive days in the Term 3 school holidays in the child’s first year at school by agreement, and failing agreement from the conclusion of school on the last day of term to 6:00 p.m. on the day five days thereafter;
(d)For two separate weeks in the long summer holidays at the end of the child’s first year of school by agreement, and failing agreement from the conclusion of school on the last day of the school year to 6:00 p.m. on the day seven days later, and from 6:00 p.m. on the second Saturday after 1 January to 6:00 p.m. on the next Saturday;
(e)For half of each of the school term holidays from the commencement of the child’s second year of school by agreement, and failing agreement from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in even-numbered years, and from 6:00 p.m. on the second Saturday to the commencement of the next school term in odd-numbered years;
(f)Each alternate week on a week-about basis in the long summer holidays at the end of the child’s second year of school, commencing at the conclusion of school on the last day of the school year, with the child to live with the mother for the first week, and the holidays shall be deemed to conclude at 6:00 p.m. on the Saturday before the commencement of the next school year;
(g)For half of the long summer holidays each year commencing at the end of the child’s third year of school by agreement, and failing agreement the first half in that year and in each alternate year thereafter, and the second half in the next year and in each alternate year thereafter, and the holidays shall be deemed to commence at the conclusion of school on the last day of the school year and to conclude at 6:00 p.m. on the Saturday before the commencement of the next school year;
(h)by telephone, Skype, Facetime, or other electronic means each Wednesday between 5:30 p.m. and 6:00 p.m. with the father to place the call, and the mother shall ensure that the child has access to a fully charged telephone, tablet or computer, that she is available to take the call, and that she is afforded privacy during the call;
(i)from 4:00 p.m. on Christmas Eve to 4:00 p.m. on Christmas Day each year;
(j)for 4 hours on the child’s birthday each year by agreement and failing agreement from 10:00 a.m. to 2:00 p.m. in even numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
(k)from 6:00 p.m. on the evening before Fathers’ Day to 4:00 p.m. on Fathers’ Day each year should the child not otherwise be spending time with the father on that weekend;
(l)For four hours on the father’s birthday each year by agreement between the parties and failing agreement from the conclusion of school to 7:00 p.m. if a school day, and from 10:00 a.m. to 2:00p.m. if a non-school day;
(m)At other times by agreement between the parties from time to time.
If necessary, the child’s time with the father shall suspend on the following occasions:
(a)from 6:00 p.m. on the evening before Mothers’ Day to 4:00 p.m. on Mothers’ Day each year;
(b)for 4 hours on the child’s birthday each year by agreement and failing agreement from 10:00 a.m. to 2:00 p.m. in odd-numbered years and from 2:00 p.m. to 6:00 p.m. in even-numbered years;
(c)for four hours on the mother’s birthday each year by agreement between the parties and failing agreement from 2:00 p.m. to 6:00p.m.;
The child’s time with the father specified in paragraph 6(a) hereof shall suspend during all school holidays and shall resume after the holidays as if the holidays had not intervened.
Until the end of Term 1 in the child’s first year at school, all changeovers shall take place at a supervised children’s contact centre, and the father shall pay all costs, if any, associated with changeovers.
Commencing at the conclusion of school in the first week of Term 2 in the child’s first year at school, changeovers for time specified to commence or conclude at the conclusion or commencement of school shall take place at the child’s school, and otherwise, all changeovers shall take place at a supervised children’s contact centre or at such other venue as the parties might agree in writing no more than 48 hours before the particular changeover, and the cost, if any, associated with the children’s contact centre shall be shared equally by the parties.
The father shall ensure that the child sleeps in her own bed in a suitably furnished separate room while spending overnight times with him pursuant to these Orders, and during those times he shall ensure that she eats at least 3 appropriately nutritious meals per day.
If the mother enrolls the child in any extra-curricular activity that takes place on weekends (“the activity”), the father shall ensure that the child attends that activity during his time with the child, and he shall be at liberty to remain at the activity to observe the child subject to any protocols or requests of the activity’s operator, and the mother shall not attend the activity on days when the child is spending time with the father pursuant to these Orders, and neither shall the father attend the activity on weekends when the child is living with the mother.
If the child is too ill to attend her scheduled time with the father pursuant to these Orders, the mother shall inform the father by text message as soon as practicable, and, within 7 days of the scheduled time she shall provide to the father a medical certificate stating the child’s inability to attend for time with the father, and make-up time shall be provided on the next weekend or the next holiday period after the scheduled time period.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain to her any changes in her living arrangements as a result of these Orders, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)allowing the child to read, have read to her, or otherwise access any part of the Court’s Reasons for Judgment in this matter, or any document prepared for the purposes of these proceedings or tendered at trial.
The mother shall notify the father as soon as practicable in the event of the child suffering any serious illness or injury which requires the child to be admitted to a hospital while she is in her care (“the notification”), and the father shall be permitted to attend at the hospital to visit the child, and in that regard:
(a)the father shall not attend at the hospital while the mother is visiting the child without the express consent of the mother first having been obtained in writing, including by text message; and
(b)he shall abide by all requests of the mother and/or the hospital staff during such attendance, including leaving the hospital when asked.
In the event that the child suffers an illness or injury that requires professional medical assistance while in his care, the father shall notify the mother by text message as soon as possible, including the name and contact details of any doctor, dentist or other medical or allied professional who is treating the child, and he shall inform such medical professionals that the mother has sole parental responsibility for making decisions about the child’s health and medical treatment.
Each party shall advise the other of any medication prescribed for the child while she is in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child, and that any such medication is taken in accordance with its prescription.
The mother shall authorise any child care, kindergarten, school or extra-curricular activity in which the child is enrolled to provide to the father, at his expense, all information, notices, photographs, reports and like materials usually provided to parents.
The father is hereby restrained by injunction from attempting in any way whatsoever to discover the street address where the mother and the child live, and the mother shall be at liberty to advise any child care centre, kindergarten, school or extra-curricular activity in which the child is enrolled, or any doctor, dentist or other health practitioner who is treating the child, that they are not to allow the father to have access to that information.
The mother shall be at liberty to provide a copy of these Orders to any child care centre, kindergarten, school or extra-curricular activity in which the child is enrolled, and to any health professional who treats the child.
The parties and their servants and agents be and are hereby restrained by injunction from obtaining a passport for the child X born in 2016 until 4 January 2026, unless the parties agree in writing for a passport to be obtained for her before that date.
The parties, their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born in 2016 from the Commonwealth of Australia until 4 January 2026, or earlier date by agreement in writing between the parents.
The child X born in 2016 is hereby restrained from leaving the Commonwealth of Australia until 4 January 2026 without the express consent of both parents having been obtained in writing.
Should either parent wish to take the child overseas on or after 4 January 2026 (or before that date with the written consent of the other parent), he/she shall notify the other no less than two calendar months prior to departure and shall provide a full travel itinerary for the child, including times and means of travel, a copy of the child’s return ticket, accommodation details, and contact numbers where the child might be reached while she is away.
Neither party shall unreasonably withhold his/her consent to the child travelling overseas if the proposed time is within school holidays and occurs during the time the child is scheduled to be with the other parent.
The Order of Judge Small of 26 July 2017 appointing the Independent Children’s Lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Tong & Gill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5481 of 2017
| MR TONG |
Applicant
And
| MS GILL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between Mr Tong (“Mr Tong” or “the father”) and Ms Gill (“Ms Gill” or “the mother”).
There is one child of their relationship, namely X born in 2016 (“X” or “the child”).
X lives with her mother and currently spends time with her father in accordance with interim parenting Orders made by consent on 5 June 2018. Those Orders provide for X to spend time with her father from 10:00 a.m. to 4:00 p.m. on one day per week, and at other times by agreement between the parties, with changeover being conducted at a children’s contact centre.
The father seeks equal shared parental responsibility for X in relation to matters of religion, education and major health issues, and that X live with the mother and spend time with him in a regime that would see her being in his care for four nights each fortnight, for half of all school holidays, and for special days such as Christmas and birthdays. He also seeks an extension of the Watch List Order that currently prevents X from travelling outside the Commonwealth of Australia.
The mother seeks sole parental responsibility for X in relation to education and health issues, that X continue to live with her and spend time with the father during the day only, and that she communicate with the father by Skype or other electronic means on one day per week. She wishes changeover to take place at a supervised children’s contact centre unless the parties agree otherwise in writing.
The mother also seeks an order that would allow her to apply for, obtain and renew an Australian Passport for X, and that X’s name be removed from the Watch List so that the mother can travel with the child overseas, provided she gives at least twenty-eight (28) days’ notice of this intention, and provides an itinerary for the travel to the father.
The issues to be decided in this matter are:
A.Whether the parties should have equal shared parental responsibility for X, or whether Ms Gill should have sole parental responsibility;
B.How much time and in what circumstances should X spend with Mr Tong?
C.Whether X ought to be permitted to travel overseas; and
D.Whether changeover should continue to be supervised.
Background
Mr Tong is 36 years old, having been born in 1983 in Country A. Mr Tong came to Australia in 2003 to undertake higher education.
At the time of trial, Mr Tong was not in employment, although he holds a Bachelor’s Degree from B University. He advised the Court that he was enrolled in a Masters Degree in Studies, but that he had had to defer that enrolment as he had been so far unsuccessful in obtaining a scholarship to pay for his tuition fees.
The father had not repartnered at the time of trial. He is a permanent resident of Australia and a citizen of Country C.
Mr Tong lives in a two-bedroomed public housing apartment in Suburb D and spends time with X on one day each week from 10:00 a.m. to 4:00p.m. pursuant to the Orders made by consent on 5 June 2018.
Ms Gill also lives in a two-bedroomed apartment at an address unknown to the Court as she does not want Mr Tong to know where she lives.
Ms Gill is 32 years old, having been born in 1988 in Country A. She arrived in Australia to live in 2015, and she too is now a permanent resident. She has not repartnered. At the time of trial she was establishing an online business, and studying for a Certificate IV. She was attending classes on two days per week, during which time X was attending day-care.
The parties commenced a relationship online in 2014 whilst the husband was living in Australia and the wife lived in Country A. The mother visited the father in Melbourne in the summer of 2014-2015 and then returned to Country E, where she was working. She visited again in about 2015 before again returning to Country E.
The parties commenced cohabitation in 2015 upon the wife arriving in Australia permanently.
They were married in 2015, and X was born in 2016. A couple of days later, the maternal grandmother and aunt came to Melbourne to help the mother care for X. Her sister stayed only a couple of weeks but her mother stayed for three months.
On 7 April 2016, the mother and the maternal grandmother left Australia and flew back to Country A, leaving X, then only three months old, in the care of the father and the paternal grandmother, who was visiting from Country C.
The mother’s evidence at trial was that she was only away for three weeks, but the father said it was a longer absence of some months, and that he understood the parties to be separated at that time.
Evidence tendered at trial shows that the mother left Australia in April 2016 and returned in May 2016.
In June 2016, the parties again began to live together with X.
They formally separated on 9 August 2016, when Victoria Police assisted Ms Gill to move into a women’s refuge with X. It is Mr Tong’s evidence that he thought X was to be returned to him the following morning, but that did not happen.
While the parties were in touch by telephone and text message after separation, Mr Tong did not see X again, and says that he did not know where she and the mother were, until 26 October 2017, when he began spending supervised time with X pursuant to Court Orders.
Mr Tong filed his Initiating Application, Notice of Risk, and Affidavit in support on 6 June 2017.
Ms Gill filed her Response documents on 21 July 2017 and an Independent Children’s Lawyer was appointed by order of the Court on 26 July 2017.
The parties were divorced on 15 March 2018.
After several interim hearings and the preparation of a Family Report by Family Consultant Ms F (“Ms F”), the matter was listed for Final Hearing on 13 December 2018, but Mr Tong, who was self-represented, was clearly unwell on that day, and the Final Hearing was adjourned to 4 April 2019, when it ran for 2 days before being adjourned part-heard to 20 June 2019, when it ran for a further 3 days.
Witnesses at trial were the parties and Ms F.
The father was self-represented, and the mother and the Independent Children’s Lawyer were each represented by counsel. Both parties were assisted at trial by interpreters, although the father’s interpreter was assisting him by telephone on the June dates.
I note that had the trial taken place after 10 September 2019, and pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”), the father would not have been permitted to cross-examine the mother in person and would have needed to instruct counsel to represent him.
As it was, and in the absence of that legislation in June 2019, I allowed the mother and her interpreter to sit in a separate courtroom and observe the proceedings by video link while the father was giving evidence, and to have the father sit in the separate courtroom and appear by video link when she was giving evidence, such was the concern I had about the mother’s presentation.
Following the conclusion of evidence, and after receiving written submissions by all parties, the last of which was filed on 29 July 2019, I reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes, the trial transcript, and the demeanour of the parties at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: Whether the parties should retain equal shared parental responsibility for the child
An order providing for a parent to have responsibility for a child is a parenting order[1].
[1] See s.64B(1)(a) and s.64B(2)(c)
The law in relation to parenting orders is found in Part VII of the Act.
S. 60B sets out the objects and principles of Part VII and I set them out here 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 communicate on a 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).
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
Section 61DA(4) states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to equally share parental responsibility for the child.
In this case, Ms Gill alleges that Mr Tong was physically, verbally, financially and emotionally abusive towards her, causing the breakdown of the relationship.
I note that Ms Gill obtained an Interim Intervention Order against Mr Tong on 16 September 2016, about a month after separation, and that that Order was made final on 31 October 2016, some three months after police escorted her and X from the accommodation where they had been living with Mr Tong, taking them to a women’s refuge. The Final Intervention Order was for a period of 12 months.
Mr Tong consented to that Intervention Order without making any admissions as to the allegations set out in the Application and Summons issued on 16 September 2016, although it was his evidence at trial that he did not fully understand the Order, and was unaware that X was named as an Affected Family Member.
The mother’s allegations, which include that the father frequently slapped her head, grabbed her roughly by the arm, pushed her to the floor, withheld Family Tax Benefit payments from her, took her key to their home telling her not to come back, held her down and covered her mouth while he attempted to choke her, locked X’s pram in his car, which he then took with him so that Ms Gill and X could not go out, and frequently verbally abused her, are detailed and specific, despite all being categorically denied by the father.
Those allegations, and the Intervention Order that resulted from them, together with the mother’s and father’s oral evidence at trial, are enough for me to be satisfied that Mr Tong has engaged in family violence such that the presumption pursuant to s.61DA(2) of the Act does not apply. I will return in more detail to the issue of family violence, and the evidence in relation to it, later in these Reasons.
In addition, the matters set out in paragraphs 54 to 181 of these Reasons satisfy me that it is not in X’s best interests for her parents to share parental responsibility for her.
I note that when she was asked at trial about the concerns expressed in the Family Report about the “viability” of shared parental responsibility in this case, this issue, Ms F said:
[…] my concerns around the viability of shared parental responsibility lay predominantly in the allegations of family violence and the mother’s trauma response to those allegations of family violence. So there’s a layered response as to why I’m concerned as to that.
She described the mother’s “clearly very anxious” and “visceral” response to the father sitting outside the interview room when she and Ms Gill came out after the mother’s interview, and then went on:
So my concerns are around whether there is any capacity for the mother to contribute equally to a shared parenting arrangement, particularly given the cultural issues in relation to this. In that, the mother sees the father as having entitlements, being the father, and so there’s a cultural element to her strength of voice in that interaction and also in the father’s - at the time of this assessment, the father was very derogatory about the mother. His - he was very diminishing of her role in the parental relationship with the child. He - you know, he spoke of her enjoying his suffering by controlling his time with the child. So there - there’s numerous elements as to why I thought that lacked viability.
Decision: Issue A
Despite the above findings and concerns, it is a very serious matter to completely remove a parent from involvement in the major decisions in a child’s life.
I note that the mother seeks an Order for sole parental responsibility, but for there to be some consultation between the parties before she makes any decision.
In those circumstances, I will make an Order that the mother have sole parental responsibility for X, but that the father’s views be considered before she makes any major long term decision about X’s care, welfare and development.
Issue B: When, if at all, should X spend overnight time with her father?
X is now four years old. She has been spending time with her father for six hours every Sunday since Orders for that time were made on 5 June 2018.
Her father seeks an immediate progression to overnight time, saying that he is perfectly able to care for X and to meet her needs.
The mother is skeptical about the father’s ability to care for X overnight, and says that no order for that time should be made until X goes to school at the very earliest.
An order for a child to spend time with a parent is, unsurprisingly, also a “parenting order” pursuant to s.64B of the Act.
S.60CA of the Act states that when a Court is considering making a parenting order, the child’s best interests must be the Court’s “paramount consideration”.
Section 60CC then sets out the factors the court must consider when deciding what orders would be in the child’s best interests, and I will address each of those factors in turn.
There are two primary considerations set out in s.60CC(2) as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The meaning of the term “meaningful relationship” has been considered in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
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.
That is, the meaningfulness of a relationship between a child and his/her parents is measured by the quality of the time spent and not by the amount of time.
In this case, there is no doubt that X’s relationship with her mother is “meaningful” in the terms set out by Brown J. Ms Gill has been X’s primary carer for almost all of her life, and Ms F describes X as lighting up and becoming much more animated when she saw her mother at the interviews for the Family Report.
There is also little doubt that X’s relationship with her father is “meaningful” in the above terms. She has now been spending regular and frequent time with him since October 2017, and has been calling him “Daddy” since their second or third supervised visit. Mr Tong’s description of the time he spends with his daughter paints a picture of father and child being active together inside and outside his home, with time for quiet activities as well.
In Tait & Densmore (2007) FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In other words, the meaningfulness of a child’s relationship with his/her parents is enhanced when a parent provides a role model for the child and teaches the child by example what it is to be a citizen, a family member and a parent.
If what the mother says about the father’s behaviour is true, he has not provided a positive role model for X. One cannot be a good parent and an abusive partner at the same time, and the conflict between X’s parents has no doubt impinged upon the meaningfulness of her relationship with her father.
That conflict, as evidenced by the family violence and parental capacity allegations in this case, is, I think, one of the major risk factors this child faces.
Any Orders I make for X to spend time with her father must protect her from that conflict, as well as from any specific risks she might face in his care.
S.60CC (2A) states that when a court is applying the considerations set out in subsection (2), it must give greater weight to the consideration set out in paragraph (2)(b). That is, I must give more weight to the need to protect X “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” than to the benefit of her having a meaningful relationship with her father.
So, when I am weighing the evidence before the Court, I need to contemplate Orders that balance the benefit to X of continuing to develop her relationship with her father, with the need to keep her safe from being exposed to the conflict between her parents.
S.60CC(3) then sets out 14 “Additional considerations” as follows:
(3) Additional considerations are:
(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;
X is too young to express any meaningful views about how much time, and in what configuration, she should spend with her father. Any views she might express, at four years old, would carry little weight in the court’s deliberations.
(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);
There is no doubt that X’s relationship with her mother is one of trust, care, love and affection, and she has lived with her mother for all but about two months of her life. That relationship is described in very positive terms by both the contact centre staff in their report on the father’s supervised time with X in 2017-2018, and by Ms F in the Family Report in July 2018.
X’s relationship with her father has been less straightforward. She was in his care, with her paternal grandmother being present, for the three or four weeks between her mother leaving to accompany the maternal grandmother back to Country A on 7 April 2016, and her return to Melbourne on 1 May 2016, when X was still only about four months old.
She then returned to her mother’s sole care at the parties’ separation and did not see her father again for about 15 months after that. Given her very young age, it can be said that in those 15 months, there was essentially no relationship between X and Mr Tong.
Mr Tong did not appear to understand at that time that X, then 21 months old, would not know him when he met her again at the children’s contact centre, and that he would effectively have to rebuild his relationship with her from the start.
However, Mr Tong persevered with the supervised time, despite there being some hiccups along the way, to a position at the time of trial when he was spending one whole day with X each week on an unsupervised basis.
While the mother complained at trial that X came back to her hungry, and that X had stated that she did not want to go to spend time with her father in the weeks before trial, the Court has no concerns about the nature of the relationship between father and daughter. I will discuss the court’s concerns about his parenting capacity later in these Reasons.
X has also spent some considerable time with her paternal grandmother, who has visited Australia on more than one occasion since her birth. Mr Tong’s evidence is that X loves her grandmother and enjoys her company, and there is no evidence to refute that assertion.
(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;
Mr Tong has not been consulted about the only major decisions so far made about X’s life, such as the child care centre which X attends, or the doctor she sees. That is because of the lack of any real communication between the parties, and because the mother professes to be afraid of the father such that she cannot negotiate with him about such matters safely.
The father certainly wants to be so involved, but his behaviour towards X’s mother has made it very difficult for her to trust him.
Mr Tong did not seek to see X through court proceedings until almost a year after the parties separated, although that period did involve a family dispute resolution process which did not result in any agreements between the parties.
In the ensuing period since the first court Orders were made, he has taken every opportunity to spend time with X, and indeed has been seeking extended time with her since their time no longer needed to be supervised in early 2018.
Ms Gill left X, then only three months old, and accompanied her mother back to Country A after she had been visiting to assist the mother with X’s care.
The mother says that she needed to accompany her mother because her mother did not speak English and was afraid to travel alone. It was Ms Gill’s evidence at trial that Mr Tong would not consent to her obtaining a passport for X so that X could accompany her, but that does not explain why she left her very vulnerable infant daughter in the care of a man she says was abusive towards her for some three weeks. The paternal grandmother was staying in the parties’ apartment with the father, and was thus available to assist in X’s care, but X was nevertheless very young to have been left while her mother travelled overseas.
Since her return to Australia on 1 May 2016, the mother has taken every possible opportunity to spend time and communicate with X.
(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;
Mr Tong has not paid child support since separation.
It is his evidence that he has contacted the Department of Human Services (Child Support) (“the Child Support Agency”) on at least three occasions and has been told each time that Ms Gill would need to make an application for child support before a Child Support Assessment can be made.
While Ms Gill’s evidence is replete with complaints that Mr Tong does not pay child support, she conceded at trial that Centrelink had granted her an exemption from seeking child support from Mr Tong on the basis that she had been the victim of family violence.
She cannot have it both ways, and in Mr Tong’s evidence at trial, he was clear that he wished to support X financially as far as he was able. However, he supports himself with Centrelink benefits, as does Ms Gill, and any assessment made by the Child Support Agency is likely to be minimal in those circumstances.
(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;
Mr Tong seeks orders for X to spend overnight time with him immediately, and that that time progress to alternate weekends, half school holidays and other special days in the years before X goes to school.
Ms Gill says that X would not manage overnight time with her father until at least the year in which she begins school.
X is young enough that she does not remember ever spending a night away from her mother. Of course, that does not lead to a conclusion that she should never spend time with her father overnight, but a graduated regime of overnight time is usually appropriate for most children of her age.
At trial, Counsel for the Independent Children’s Lawyer put to Ms F the possibility of a graduated regime of time that would see X spending two full days per week with Mr Tong before progressing to overnight time, and then increasing that to multiple overnights over an almost two year period. Ms F replied:
The structure that you laid out to me before seemed like a very sensible approach to developing a sense of security for X’s relationship with her father with a view that by the time it comes to overnights she’s more than ready because there has been that build-up of time. It seemed quite sensitive to her. X presented as a very sensitive two year old. She was quite a delicate little thing, and, I think, doing that more slowly is beneficial to X.
Ms F was critical of Mr Tong’s lack of understanding of X’s development, saying, of her conversation with Mr Tong about how X might cope with overnight time:
At that time he was looking at three nights a week with X from - within six months, an immediate introduction of overnight time, which, given that he had had no overnight time and no real build-up of time - he had only had two hours a fortnight for four months - it was just completely lacking in child focus.
And further:
[…] I would suggest something built up in a way slower formation than - than probably what the father would be happy with at this point. But I think what the father needs to understand is that if you jumped into an arrangement that was too much for the child, that’s actually going to undermine his relationship with the child long term because what you’re going to create is a sense of insecurity and he’s actually going to damage his relationship and if he did something that was a slower, more progressive build up that took into account the child’s sensitivities, then what you’re developing is a secure relationship so it’s actually going to result in a better relationship with the child if he progresses slowly.
It must be said in this context that Ms F had interviewed the parties more than a year prior to the June dates of the trial, and that X, who is now four years old, had been only two at the time of observation.
The court does have some lingering concern about the effect on X of commencing and increasing her overnight time with her father in too rapid a manner. It will be necessary to take her developmental needs into account when making such orders.
As Ms F said at trial:
I would rather suggest a more conservative approach and her to be chomping at the bit to do the overnight rather than rushing something and then having to take a step back because she’s experiencing, I don’t know, sleep disturbance or behavioural disturbance or regression in toilet training, that sort of thing.
Ms F was an impressive witness, and could not be shaken in her view about the timing and progress of X’s time with her father progressing to overnight time, and the possible deleterious effects on X if she were to be pushed too far in that regard.
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;
The father is unaware where the mother and X live, and so is the Court, but there appears to have been little practical difficulty for the mother in taking X to the children’s contact centre for changeover up to the present. It was apparent from evidence given at trial that she takes public transport, but I am unaware of any particular difficulty involved in that. I can therefore see little practical difficulty or expense involved in X being able to maintain her relationship with her father.
(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;
This is one of the major issues in these proceedings.
There is no doubt that Ms Gill has the capacity to care for X - she is developing well, meeting her milestones and generally is a happy young child. Ms Gill’s Affidavit descriptions of how she arranges X’s diet show a wide variety of foods, and she deposes to taking X to a playgroup so that she can interact with other children and “for her social and developmental skills”. She says that the playgroup also gives her the opportunity to interact with other parents and develop a support network.
The mother says that Mr Tong does not have the skills or the patience to care for X overnight, and she fears for X’s safety if overnight time were to progress too quickly.
She also complains that X comes back from her daytime visits hungry and that Mr Tong feeds her inadequately.
At trial, Mr Tong told the Court that he feeds X a rice porridge with fish and carrots, and snacks comprising mostly strawberries because that is the fruit X likes best. I did not get the impression that he was concerned about providing a particularly balanced or varied diet for X, but that he feeds her dishes that he is able to afford and cook, and fruits that she likes.
Ms Gill was also concerned that Mr Tong did not have appropriate bedding for X at his apartment, and said that when the parties lived there together, the second bedroom was filled with furniture and other items that Mr Tong had collected from the side of the road and from friends in order to repair and sell them.
It was her evidence that she and X had slept in the living room on a mattress on the floor, while Mr Tong slept in the master bedroom in a bed.
Mr Tong’s evidence at trial was that all three of the family had slept in the living room because that was the only room with a heater and it was the warmest room in the apartment.
He denied picking up furniture from the roadside, saying that the extra items of furniture in the apartment were given to him by Country C student friends who were returning home, and that he would pass them on to other friends who needed them. He said that he was not a carpenter and would not know how to repair furniture.
However, Ms F reports that both parents had told her that “the second bedroom was used as a store room for furniture collecting (sic) from the roadside with a view that Mr Tong would sell this furniture on at a future date”. In addition, notes subpoenaed from the G Hospital show that Mr Tong also gave that information to the social worker during one of Ms Gill’s prenatal visits.
That evidence gives the Court cause to have some doubts about Mr Tong’s credit in general in these proceedings.
It was Ms F’s evidence at trial that she was particularly concerned about the living conditions at Mr Tong’s apartment, as he had told her, too, that he and X slept on a mattress in the lounge room as that was the warmest room in the apartment.
She said she was unaware that the father had filed photographs, annexed to his Outline of Case Document, showing a single bed and toys in a separate room, albeit that the room also contained a desk with a computer on it, a cupboard, an ironing board and some adult-sized clothes on the floor.
Some time was spent at trial on those photographs, but overall, I am satisfied that, provided that appropriate bed linen is provided for X, the arrangement is suitable for her to spend overnight.
However, it is in the area of the father’s capacity to meet X’s emotional and psychological needs that the Court has considerable concerns.
When asked about that capacity at trial, Ms F, said the following:
I think there’s just a fundamental lack of knowledge about child development and a lack of knowledge about what, at that time, a two year old was capable of doing. And I think there was an element - and perhaps this is also cultural - of a child just does (sic). And it was - it seemed a very adult-focused way of approaching what was going to happen, so it was about meeting the father’s needs. So we spoke a lot about how it would assist his mental health, just having the child there, which is clearly not a child’s role in a parent’s life.
Ms F said further that she had the impression that Mr Tong saw his time with X as play time and that “if it wasn’t play, it wasn’t real time”. She said she was concerned that Mr Tong seemed to have little understanding of the “drudgery”, that is “the feeding, the changing, the putting to bed…”, and that she did not “get a sense that he recognised the other elements to parenting, which is the overwhelming majority of what parenting is”.
It is pertinent to note, in this context, that the father had completed several courses in parenting by the time of trial. However, when asked about what he had learned from them, he was unable to give much information at all.
His focus appeared to be on his sense of injustice that Ms Gill had denied him time with X, and apart from describing the playful activities that he engaged in with her, he did not give the impression that he understood her emotional needs at all.
(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;
X has a rich cultural background, with her mother being of Country A/Chinese background and her father being from Country C. She is bilingual, understanding and speaking both English and Mandarin, which will no doubt be of great benefit to her as she grows to adulthood.
It is important that she has access to and the opportunity of learning about her father’s Country C culture too, and Mr Tong, who speaks Country C, English and some Mandarin, will no doubt ensure that she is provided with that opportunity.
(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;
X does not have any Aboriginal or Torres Strait Islander heritage.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The mother’s attitude to the child is one of care and protection. She wishes to shield X from the abuse she says she experienced from Mr Tong, while ensuring that X is given every advantage in life.
She has been responsible for X’s care for almost the whole of X’s life, and she has ensured that she has been properly housed, fed and clothed, that she has been immunised, and that she has the opportunity to experience playing with children from other cultures in play groups and at child care.
That she has been able to fulfil those responsibilities so well, in a country alien to her, and with little practical support, is greatly to her credit.
The father’s attitude to the child is somewhat more complex.
While he loves her, he does not display the maturity of thought about her as an individual that is required for him to properly fulfil his responsibilities as her father. That that is the case even after he has completed several parenting courses is of some concern to the Court.
He will learn, as time goes on, that X is a separate person, with her own personality, needs, and likes and dislikes. She will not always do what he wants her to do as she learns about autonomy, and he will need to understand that, and develop ways of responding to her that take all of that into account.
I have no doubt that he genuinely wants to be a good father, but that takes more effort than he has so far had the opportunity to display.
(j)any family violence involving the child or a member of the child's family;
This is the other major relevant consideration in the Court’s deliberations in this case.
As already mentioned, the mother makes allegations that the father has abused her - physically, verbally, financially, emotionally and psychologically - and she has not wavered from the substance of those allegations throughout these proceedings.
Specific allegations are contained in her first Affidavit sworn and filed on 21 July 2017, at paragraph 17 of which she alleges the following:
•The father insisted on attending all of her prenatal medical appointments and “did all the talking”. On one occasion the hospital social worker took her aside and told her that hospital staff could see she was afraid of the father and that he was very controlling.
•The father hit her “on a number of occasions during my pregnancy and after the birth of X”, slapping her head “almost on a daily basis if I didn’t listen to him”.
•In June 2016, the father became angry and screamed at her, pushed her to the floor, “put his hands around my throat and started to press in my neck. I screamed and yelled for help. He covered my mouth with his hands and told me if I stopped shouting he would let me go. I was very scared and crying. I stopped yelling as I found it too hard to breath (sic) as the husband was pressing his hands over my mouth and I wanted him to stop.”
•She was too afraid to report the father’s abuse “as I was too scared of the husband and what he would do if he found out.” She did, however, take photographs of her bruises, and annexed them to her Affidavit. I note that the father attempted at trial to show that Ms Gill had not been in Australia on the dates when she says those photographs were taken, but it is clear from tendered documents that she was here on those days.
•The father yelled at her “almost each day and became worse after X was born”.
•The father behaved in a controlling manner, denying her access to his bank account so that she could not buy “essential baby items for X or food and drinks and household essentials for us”. He had the Family Tax Benefit deposited to his account so that she did not have access to it. She had to open a bank account of her own in secret, but he discovered its existence when he found a letter from her bank and opened it.
•The father took X’s pram with him in the boot of his car when he went out so that she and X could not go out for any length of time. “This meant I had to stay inside with X as a baby all day, which I found very isolating and lonely”. The father gave her access to his Myki card, but she had no way of transporting X without the pram.
•The father forced her and X to sleep on a mattress in the living room because he did not want to be woken during the night.
•The father demanded that she go to work “to earn money for our family for a period of 3 months to pay half of our rent and utility bills. […] He demanded I obtain work for this period on a full time basis.” He had arranged for his mother to care for X while the mother was to be at work, and arranged a job interview for Ms Gill on 9 August 2016.
It was the mother’s evidence that all of these incidents, which took place over a period of little over a year, culminated in her decision to leave the marriage, and after she had attended the job interview organised by the father, she sought the assistance of the social worker at the G Hospital, who arranged for her and X to obtain accommodation in a women’s refuge.
It is Ms Gill’s evidence that when she returned to the family’s apartment after seeing the social worker, the paternal grandmother would not let her in, and that the social worker called the police, who attended, and assisted Ms Gill to retrieve X and leave the marriage.
Ms Gill’s evidence is that the paternal grandmother knew about her son’s abuse, as she had witnessed it, but that she did not attempt to prevent it, telling the mother that she should simply do as the father said.
In the immediate period after she left, Ms Gill says that Mr Tong sent her “10-20 text messages a day” accusing her of destroying the family and demanding to see X.
After about a month, Ms Gill sought and obtained an Interim Intervention Order against Mr Tong, with both her and X being named as Affected Family Members.
It is her evidence that she had subsequently sought the help of the police to return to the apartment to retrieve documents including X’s Country C passport, which had been obtained when she was four months old, and her immunisation records. Ms Gill says that the father did not answer the telephone calls made by the police to arrange to obtain the documents, and he did not return their calls when they left messages. She was thus unable to retrieve the documents, and at the time of trial she was still seeking their return.
It is Ms Gill’s evidence that she remains “fearful of the husband and feel(s) intimidated and controlled by him”.
In her trial Affidavit sworn and filed 23 November 2018, Ms Gill describes two incidents which she says happened after changeover at the children’s contact centre.
It is her evidence, confirmed at trial, that on at least two occasions, she had left the contact centre with X after Mr Tong had delivered her at the conclusion of his time with her, only to find Mr Tong staring at her from across the road at the bus stop where she caught public transport to her home.
She says that she felt afraid and intimidated because Mr Tong should have left the contact centre at least 15 minutes after her, and, as he does not know where she lives, she was afraid he might follow her home.
Further, Ms Gill says that when she was leaving the interview room at the Commonwealth Courts building after her interview with Ms F on 18 April 2018, Mr Tong was sitting in a seat opposite the door, and glared at her in a menacing fashion. Again, she says she had not expected to see Mr Tong at that time, and felt very intimidated by his behaviour.
In relation to the second allegation, I note that Ms Gill’s evidence is supported by that of Ms F, who saw Mr Tong outside the family report interview room at a time when she had expected him to have left some time earlier.
Cross-examination of both the mother and Ms F at trial did not move either witness from her evidence that Mr Tong had been sitting opposite the interview room door and that he had glared at Ms Gill in an intimidating manner on the day of the Family Report interviews.
Mr Tong denies each and every allegation of family violence, and says that none of the incidents set out by the mother ever happened. He says she has fabricated that evidence in order to “win” in these proceedings and to deny him a relationship with his daughter.
I note that he deposes, in his Affidavit sworn and filed on 29 November 2018, that far from restricting Ms Gill as she alleges, he paid for all the family’s expenses, including the rent, food, and the mother’s mobile phone when the maternal grandmother was in Melbourne, as well as for a mortgage loan he claims Ms Gill has attached to a property she owns in Country A. Ms Gill denies owning the property, saying that it belongs to her brother, but was registered in her name because her brother was not able to obtain finance for the property’s purchase, and she had been working at the time.
The father says that the mother had access to his Myki card, and that she could have driven his car at any time as she had a Country A driver’s licence. There is little or no understanding in that statement about how coercive and controlling behavior operates.
He claims further that the paternal grandmother came to Melbourne in June 2016 because the mother had told him she wanted to go back to work.
He particularly denied surveilling Ms Gill at the bus stop near the contact centre, saying that he did not know which bus stop she used, and that in any event, he was not permitted to leave the contact centre until 15 minutes after the mother and X had left.
He also denied having glared at Ms Gill outside the interview room on the day of the family report interviews. It was his evidence at trial that he was merely chatting to his interpreter after his interview and observation session with X, and that he did not know that Ms Gill would be exiting through that door. He said that when the door opened, he “glanced” at Ms Gill and went on speaking to the interpreter. He said that Ms F was supporting the mother’s version of events because she (the mother) was a woman.
Ms F’s description of Ms Gill’s demeanour on the day of the interviews was that she appeared to be genuinely in fear of Mr Tong, and that when she was describing the incident where he allegedly had her pinned to the floor with one hand over her mouth and the other around her throat, she appeared to be “reliving” the experience in an extremely traumatised manner.
Ms F described Ms Gill’s fear reaction in relation to Mr Tong as “visceral”, and she had no doubt that her fear was genuine.
I accept the evidence of Ms F and the mother in this regard.
Ms Gill’s evidence has not changed since the commencement of these proceedings, and Ms F was very sure in her version of the events that happened during and after the family report interviews on 18 April 2018.
Ms Gill’s oral evidence about the abuse she suffered during the marriage was detailed and consistent, even under cross-examination by the father in person, and I am satisfied, on the balance of probabilities, that Mr Tong treated her in a controlling and coercive manner during the marriage, with that behaviour often being in the form of verbal abuse, and sometimes involving physical assaults.
Mr Tong had completed a Men’s Behavioural Change Program during the proceedings, and when he was asked at trial what he had learned from that program, he gave one of the most comprehensive and detailed definitions of family violence I have ever heard from a witness in this Court.
He said:
It could be physical violence against a spouse or a child; it could be verbal - verbal abuse; it could be isolating - controlling somebody as if they were your slave; putting pressure on somebody, not allowing them to express their opinion; not allowing them to have friends outside and socialise or not allowing them to meet with family members. You have to be fair. If a person wants to work, you can’t prohibit them from working out of jealousy. That’s an example. You cannot suspect or accuse or claim that a person is having an affair without based on evidence (sic). Yes. And in terms of financial matters, you have to be open about the income. It has to be shared equally. Yes. So it shouldn’t be that the man has to pay for everything, like every bill like it happens in some Asian countries, and the woman has to look after the children. And, on the contrary, it wouldn’t be that the woman has to work all the time and the man has to look after the children while the woman pays for all the bills. Would you like more examples?
The following exchange then took place:
Counsel for the mother: Now, looking back with the knowledge that you now have - looking back, do you accept that you committed family violence?
Mr Tong: In my opinion, no.
Counsel: So do you think Ms Gill made it all up?
Mr Tong: Clearly.
Counsel: Yes. I see. So when she talked about you choking her, you think she made that up?
Mr Tong: It’s clear, isn’t it?
Mr Tong then went on to say that he thought that Ms Gill had been planning to make these allegations before she left the marriage.
Counsel then asked him whether he considered himself to be the victim in these proceedings. He replied that he did, and the following exchange then took place:
Counsel: Okay. And do you think - do you think she married you just in order to obtain residency? Is that what you think?
Mr Tong: Clearly.
Counsel: And you think she made up the family violence allegations in order to obtain an advantage?
Mr Tong: To get permanent residency.
Counsel: Yes. That’s why she did it?
Mr Tong: Yes.
He was then asked what he thought of Ms F’s evidence about Ms Gill appearing to be “reliving” the incident where she says he held her down, put his hand over her mouth and used his other hand to choke her.
He said: “It was wrong. Absolutely. But then, the observation of Ms F is not what I can judge”.
When I asked him whether Ms F’s judgment had been wrong “in seeing her as terrified of you”, Mr Tong said that he would prefer not to comment. He also preferred not to comment on Ms F’s view that Ms Gill was not “faking it”.
He then said, in response to further questioning:
You - you know that I didn’t do anything for violence to Ms Gill. […] So, then, if you asked me the opinion is fake or not, I wouldn’t judge Ms F make a fake statement. I wouldn’t say - accuse Ms F that she - her perception is fake. I didn’t want to comment on that. But I - I told you that I did not do any violence […] to Ms Gill.
Mr Tong did not impress at trial as an insightful man, despite his eloquence in relation to the definition of family violence. I had the impression that he was reciting that information learned by rote, rather than expressing a true understanding of what he was describing.
While perfectly polite and civil during the trial, he appeared defensive and self-serving at times, challenging the Court’s authority to order him to attend the Mens’s Behavioural Change Program, and stating that he was the victim in the proceedings.
His evidence was contradictory at times, and he saw the Independent Children’s Lawyer as biased because she did not agree with him.
He appeared to see the whole proceedings as an attempt to find him guilty of family violence, thus denying him what he sees as his right to see X for as long and as often as he chooses. He was determined to vindicate himself in that regard, but while he clearly knows intellectually what family violence is, he does not see his behaviour as constituting that most insidious form of abuse.
I am satisfied about this issue not only because of the evidence of Ms Gill and Ms F, but because of what I saw in Ms Gill’s demeanour at trial.
For the first part of the trial, she sat in court behind her counsel with her interpreter, and she was clearly very uncomfortable, looking down and not at anyone else in the room.
When I agreed that she could sit with her interpreter in another courtroom and participate in the trial by video link, she was much more alert, watching the screen and listening to the whole proceedings.
During her evidence she became quite emotional when talking about X’s needs, and it was clear that she saw the prospect of X spending overnight time with her father as a very difficult time not only for X, but for her. I certainly did not have the impression that Ms Gill was “acting” or attempting to mislead the Court in that evidence.
As previously stated, Ms Gill’s evidence about the abuse she suffered was detailed and unwavering, and had the ring of truth about it, and I am satisfied, on the balance of probabilities, that Mr Tong treated her in a controlling and coercive manner during the marriage, with that behaviour often being in the form of verbal abuse, and sometimes involving physical assaults.
In short, when the evidence of the father conflicts with that of the mother and Ms F in relation to this issue, I prefer the evidence of the mother and Ms F.
(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;
(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;
Ms Gill obtained a Family Violence Intervention Order against the father about a month after separation. That Intervention Order named both her and X as Affected Family Members.
At the Directions Hearing of that Application on 31 October 2016, Mr Tong agreed, he says on the advice of the duty lawyer, to consent to the Final Order without making any admissions as to the substance of the allegations contained in the Application and Summons.
That is the only Intervention Order the Court is aware of, and it expired at the end of October 2017.
(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.
The orders I intend to make are final orders and are intended to last until X is 18. They provide for a graduated regime of contact between X and her father which culminates in an arrangement where she spends alternate full weekends and half school holidays with him, as well as special occasions, and allows both parties to take X for holidays overseas once she turns ten.
It remains to be seen whether Mr Tong can be consistent in his parenting role, and the graduated regime will not only give X time to adjust, but will give that opportunity to Mr Tong as well.
My concern is primarily to keep X and her mother safe, while at the same time allowing X’s relationship with her father to develop appropriately, and I can see no reason why these arrangements should not last until X is 18 and leaves the jurisdiction of this Court.
(m)any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the Court thinks is relevant.
Conclusion: Issue B
There has been much media comment in recent times about the issue of children being ordered to spend time with fathers who have been abusive towards the children’s mothers.
Some commentators appear to think that fathers who have abused the mothers of their children should spend no time with their children at all.
That is not the position of the law as set out in the Family Law Act.
The test in matters like this, is whether the danger or risk to the child is “unacceptable” in each case.
In this case, while I believe the mother in relation to the family violence allegations, and it appears that the father has learned little from these and other proceedings about that issue, the risk to both the mother and X (if any) from the father, is found in situations where the parents are in the same place at the same time.
In terms of his relationship with X, the father has some deficiencies in his parental capacity, despite having undertaken various and multiple course designed to improve his parenting. However, they are deficiencies in the area of what I would call “benign neglect” rather than abuse or violence directed at the child.
The risk to X’s emotional wellbeing from her mother’s fear of her father is real, but the mother’s evidence at trial was that she has been consulting a psychologist in an attempt to address that fear, and if Orders can be made (as I believe they can) to relieve the mother’s fears of having to interact with the father, then X should be given every chance to develop a positive relationship with him.
I note that in this case, no-one is suggesting or submitting that X should spend no time with Mr Tong.
She has been spending full days with him once each week for more than 18 months now, and it is appropriate for that time to extend to overnight time in a sensitive and gradual manner.
I will therefore make Orders for the time X currently spends with her father to extend in a gradually increasing regime over the next couple of years so that, by the time she enters her third year of school, she will be spending alternate weekends and half school holidays, as well as special occasions each year, in her father’s care.
I will make Orders, however, for Mr Tong to provide appropriate space and bedding for her, and for him to provide her with appropriately nutritious food.
Issue C: Whether the parties ought to be permitted to travel overseas with the child
The Mother seeks Orders that would allow her to travel to Country A with X to visit her family.
The Father seeks that he be permitted to travel to Country A with X for the same purpose.
The father does not trust the mother to return to Australia if she is permitted to take X overseas, and it was that mistrust that resulted in the making of the Watch List Order in 2017.
It is the mother’s evidence that she is a Permanent Resident in Australia and that she sees Australia as her home and the country in which she wishes to raise X.
However, she says that she is very close to her family members and misses them very much. She wants to be able to take X to Country A so she can experience being part of her maternal family.
Her family members have come to Australia to visit her and X, and filed photographs showing the whole family having a good time at the snow, and on “Puffing Billy”, certainly support the assertion that the mother is part of a close and loving family.
Mr Tong, who is also a Permanent Resident of Australia, comes from a village in Country A, and he, too, wishes to take X to visit his family, although his mother appears to visit him in Melbourne relatively frequently.
Mr Tong says he is afraid that X will not return if her mother is permitted to remove her from Australia, and he has held that fear since X’s birth.
He did not seem to understand at trial that there was a contradiction between him seeking an extension of the current Watch List Order, and also seeking Orders that would allow him to take X to Country C to visit her paternal family.
Ms Gill was very concerned about the possibility of X travelling with her father until she is able to express herself fully and can manage long periods away from her mother. She says that will not be until X is much older than she is now.
As stated above, X is fortunate to have such a rich cultural heritage, and there is some force in the argument that a child cannot experience her culture if she never sees it or takes part in its rituals and traditions.
It is clearly in X’s best interests to experience both her parents’ cultures, and she cannot do that if she is unable to ever travel to her parents’ home countries.
Nevertheless, I note that neither Country A nor Country C is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1988 (“the Hague Convention”), which would make it well nigh impossible for either parent to retrieve X from the other’s home country should she not be returned to Australia.
Ms Gill was prepared to have her family come to meet her and X in Country E, which is a signatory to the Hague Convention, but the practical reality is that there is nothing this Court could do to prevent Ms Gill from taking X from Country E to Country A if she were permitted only to travel to Country E.
Decision: Issue C
Because of X’s young age, and because of both parents’ concerns, I will make Orders providing for the Watch List Order to be discharged, but to restrict the parties from allowing her to leave Australia until her 10th birthday so that she might travel to Country A and/or Country C in order to visit family members.
Of course, those Orders will allow her to travel with one or other parent to other places as well.
Both parents have chosen to live in this country, and both say that X, who is an Australian citizen, will have more educational and vocational advantages in this country as she grows up.
Ms Gill has begun to get involved in play groups and other social activities, and at the time of trial she had begun a business here, albeit an online business.
The Court is not concerned that either party will keep X in their country of origin against her will, knowing that both have chosen to live in Australia, and have had to go through not-inconsiderable processes in order to become Permanent Residents. It does not make sense that either of them would prevent X from experiencing growing up Australia.
Issue D: Whether changeover should continue to be supervised
There is no trust between these parties.
The mother remains afraid of the father and his influence over her, and the father, for all his protests to the contrary, clearly does not trust Ms Gill or respect her role in X’s life.
In order to keep X protected from her parents’ conflict, I find it necessary to make Orders that ensure that the parties do not meet face-to-face unless and until Ms Gill is no longer afraid and can manage such contact, and Mr Tong can recognise Ms Gill’s vitally important role as X’s mother.
Decision: Issue D
In those circumstances, I find it appropriate for the parties to continue to conduct changeover at a children’s contact centre until X goes to school, and eventually, most changeovers can occur at the commencement or conclusion of school so that the parties do not come into face-to-face contact with each other.
I will allow for the circumstance that Ms Gill may come to a place where she is able to meet Mr Tong unafraid in the future, and hope that in such circumstances, Mr Tong will be able to concentrate on X and her best interests rather than on criticising her mother.
Conclusion
X is now four years old.
Her father must learn that she is a person separate from him, with her own needs and wants, and he must be prepared to put aside his disappointment at the failure of his marriage, and his animosity towards Ms Gill, if he is to have the kind of relationship with X that he professes to want.
X deserves no less.
I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 20 March 2020