TONG & GILL - [2020] FCCA 581

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
Hague Convention on the Civil Aspects of International Child Abduction 1988

Cases cited:

Mazorski v Albright [2007] FamCA 520
Tait & Densmore [2007] FamCA 1383

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TONG & GILL

Details

AGLC: Tong and Gill [2020] FCCA 581
Case: [2020] FCCA 581
Decision Date: 20 March 2020

CaseChat Overview and Summary

This case concerned parenting orders for a child, X, born in 2016. The dispute arose from allegations of family violence and questions regarding the father's parenting capacity, made by the mother. The matter was heard by Judge Small.

The court was required to determine the primary considerations under section 60CC(2) of the *Family Law Act 1975* (Cth), namely the benefit to the child of a meaningful relationship with both parents and the need to protect the child from harm. Specifically, the court had to assess the quality of the child's relationships with each parent and consider how any parenting orders could protect the child from parental conflict and specific risks.

The court reasoned that a "meaningful relationship" is qualitative rather than quantitative, focusing on the importance, significance, and value of the relationship to the child, and the parent's role as a positive role model. While acknowledging that X had a meaningful relationship with both parents, the court found that if the mother's allegations of the father's behaviour were true, he had not provided a positive role model. The court identified the parental conflict, including allegations of family violence and capacity issues, as a major risk factor for the child and stated that any orders must protect X from this conflict and any specific risks in the father's care.

The court discharged all previous parenting orders, including a Watch List Order. It made orders for the mother to have sole parental responsibility, with specific communication protocols for the father regarding decisions about the child's care. The child was ordered to live with the mother, and detailed provisions were made for the child to spend time and communicate with the father, with a phased increase in the duration and frequency of these arrangements as the child aged, and specific provisions for holidays and special days. The court also made injunctions restraining the parties from denigrating each other in the child's presence, discussing proceedings with the child, and from removing the child from Australia or obtaining a passport for her until a specified date, unless by agreement.

Orders

Orders of the court

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;

(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;

(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.

10.

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.

11.

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.

12.

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.

13.

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.

14.

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.

15.

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.

16.

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.

17.

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.

18.

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.

19.

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.

20.

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.

21.

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.

22.

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.

23.

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.

24.

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.

25.

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.

26.

The Order of Judge Small of 26 July 2017 appointing the Independent Children’s Lawyer is hereby discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.