Torney & Gong
[2023] FedCFamC2F 238
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Torney & Gong [2023] FedCFamC2F 238
File number(s): NCC 1432 of 2020 Judgment of: JUDGE BETTS Date of judgment: 10 February 2023 Catchwords: FAMILY LAW – Parenting – one child aged 10 years – where both parents seek sole parental responsibility – where the child has been living with the father and spending time with the mother for 4 nights per fortnight – where both parties have perpetrated family violence – where the parties agree that the parent who is not granted sole parental responsibility should have unsupervised time with the child – where the Court must consider the risks in each party’s household and determine which parent the child should live with – whether the child should be permitted to travel overseas in circumstances where the mother is Chinese – best interests of the child Legislation: Family Law Act 1975 (Cth), Pt VII Division: Division 2 Family Law Number of paragraphs: 278 Date of last submission/s: 23 November 2022 Date of hearing: 7-9 March. 31 October, 1 and 3 November 2022 Place: Newcastle Counsel for the Applicant: Mr Moon Solicitors for the Applicant: Court Solicitors & Barristers Counsel for the Respondent: Mr Allen Solicitors for the Respondent: Baker Love Lawyers Counsel for the Independent Children’s Lawyer: Ms Callander Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Newcastle Family Law ORDERS
NCC 1432 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TORNEY
Applicant
AND: MS GONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BETTS
DATE OF ORDER:
10 FEBRUARY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders relating to the child X born in 2012 (“the child”), are discharged.
Parental responsibility
2.The Father have sole parental responsibility for the child.
3.In relation to decisions the Father is required to make about the child’s education in accordance with Order 2 herein, the Father will undertake the following actions:
(a)Provide the Mother with no less than fourteen (14) days’ notice in writing of any such proposed decision; and
(b)Consider any written response by the Mother before making the decision;
(c)Provide the Mother with written confirmation of the decision he has made, within fourteen (14) days of making the decision.
4.The child live with the Father.
5.The child will spend time with the Mother by agreement in writing from time to time between the parents but failing agreement as follows:
(a)During school terms, commencing on the first Thursday after the making of these Orders and continuing each alternate Thursday thereafter, from 3pm or after school Thursday until 9am or the commencement of school the immediately following Monday.
(b)During all school holiday periods up to the conclusion of the Christmas school holidays in 2025/2026 (when the child is 13 years old):
(i)the pattern of time the child spends with the Mother in accordance with Order 5a) herein shall continue throughout the holiday period with such time to be extended by one additional night so that the time concludes at 6pm on the Tuesday and is a total of 5 nights in duration;
(c)Commencing from the end of the Term 1 school holidays in 2026 onwards and continuing in school holidays thereafter:
(i)during the Term 1, 2 and 3 school holiday periods in even years, the child spend time with the Mother from after school Friday to 5pm on the middle Saturday;
(ii)during the Term 1, 2 and 3 school holiday periods in odd years, the child spend time with the Mother from 5pm on the middle Saturday until commencement of school on the Monday;
(iii)during the end of Term 4 school holidays in even years, the child spend time with the Mother from 12 noon on the first Saturday until 12 noon Saturday three (3) weeks later;
(iv)during the end of Term 4 school holidays in odd years, the child spend time with the Mother from 12 noon on the fourth Saturday until recommencement of school on the Monday.
6.Notwithstanding any other Order contained herein, the child shall spend time with the parties on special occasions as follows:
(a)At Christmas:
(i)In odd numbered years:
A.From 3pm Christmas Eve until 3pm Christmas Day with the Father; and
B.From 3pm Christmas Day until 3pm Boxing Day with the Mother.
(ii)In even numbered years:
A.From 3pm Christmas Eve until 3pm Christmas Day with the Mother; and
B.From 3pm Christmas Day until 3pm Boxing Day with the Father.
(b)At Easter:
(i)In odd numbered years:
A.From 3pm on the Thursday prior to Easter until 3pm Easter Saturday with the Father; and
B.From 3pm Easter Saturday until 3pm Easter Monday with the Mother.
(ii)In even numbered years:
A.From 3pm on the Thursday prior to Easter until 3pm Easter Saturday with the Mother; and
B.From 3pm Easter Saturday until 3pm Easter Monday with the Father.
(c)On Mother’s Day with the Mother from 9am to 5pm.
(d)On Father’s Day with the Father from 9am to 5pm.
7.For the purpose of the time the child spends with the Mother, unless otherwise agreed, any changeovers that do not take place at school shall take place by the parent with the child delivering the child to the home of the other parent by ensuring they see the child entering the other parent’s home but not exiting their car.
Passports and overseas travel
8.When the child turns 14 years of age, the parties are to do all acts and things necessary to renew the child’s passport within three (3) months at their equal cost.
9.The Father will retain the child’s passport and is to provide a copy of the passport to the Mother for her records.
10.For the purposes of section 65Y of the Family Law Act 1975 (Cth), the child is permitted to travel overseas with either parent during their time with the child pursuant to the Orders. In the event of such travel, the travelling parent is to provide the following information to the other parent, not less than 56 days before the intended departure date or unless otherwise agreed in writing;
(a)The time and date of departure from Australia and time and date of return to Australia; and
(b)The address and contact details of where the child will be staying throughout the trip including the names of hotel and other accommodation; and
(c)A copy of the flight or other transport details and any available itinerary; and
NOTING that in relation to Orders 8 to 10 the parents may agree in writing to different timeframes in relation to passport and travel arrangements in the future.
11.The parent the child is living or spending time with will actively encourage and support the child to communicate with the other parent by telephone or video call if he so requests.
12.All communication between the parents must be by way of email or text with the parties to provide their respective email address to the other parent within seven (7) days of the date of these Orders.
13.Unless otherwise agreed by email, any text message communication between the parents must only occur if there is a need to notify the other parent at short notice and only in relation to matters immediately and directly related to the child’s car arrangements, such as a parent running late for a changeover or being late delivering the child.
Miscellaneous
14.The parents are to keep each other informed in writing of their current contact details to the extent necessary and for the purpose of complying with and facilitating these Orders and taking into account their obligation to facilitate and support the child’s relationship with the other parent.
15.The parties must not record each other when they communicate verbally or record the other’s communication with the child or with any other person without the other party’s consent.
16.The parties must not denigrate the other parent or members of their family in the presence or hearing of the child and the parties must ensure that the child is not exposed to any other person denigrating the other parent or members of their family by immediately removing them from that person’s presence.
17.If both the parties attend upon the same school, sport or other extracurricular event for the child, they are to do their best to avoid coming into close proximity to one another but in the event that contact between them occurs, they are to behave in a polite manner towards one another.
18.For the protection of the child, pursuant to Section 68B of the Family Law Act the parties are restrained from doing the following:
(a)Administering physical discipline to the child or permitting any other person to do so;
(b)Exposing the child to any kind of family violence.
(c)Discussing in the hearing or presence of the child details of the Court proceedings.
(d)Asking the child questions about the other party’s life or household.
19.These Orders authorise the child’s school to provide any school-related information to each parent (at that parent’s expense). Without limitation this includes school reports, school photograph order forms, any incident report or school correspondence.
20.The father provide a copy of this Order to any school attended by the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Torney & Gong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION & OVERVIEW
These proceedings concern the future parenting of X born in 2012 (“young X”). Young X is presently 10 years old, and he attends B School. He is the child of the applicant father in these proceedings, Mr Torney (“the father”) and the respondent mother Ms Gong (“the mother”).
The father is Australian. The mother is Chinese. This is but one significant difference between the parties in terms of many of their attitudes to parenting and perhaps more generally in terms of their life attitudes. There is also a significant age gap between the parties. The father was born in 1950 and is presently seventy-two (72) years old. The mother was born in 1971 and is presently fifty-one (51) years old.
The parties met, seemingly through the internet, in 2008 or 2009. They commenced a relationship thereafter and were married in Australia in 2010. After the marriage, the father travelled back to China to stay with the mother for a period of time while they waited for the Australian Government to approve a visa for the mother to return to and live in Australia. That occurred in 2011 and, at that time, the mother and her two (2) older children to a previous relationship moved to Australia with the father and have remained living here ever since.
The mother’s two (2) older children are Mr C born in 1998 (now 24 years old) and Mr D born in 2007 (now 15 years old). They were both born in China. Their Chinese father agreed to them moving to Australia to live with the father and with the mother as part of a family unit.
The relationship between the parents was, on any view, rather volatile. It was characterised by mutual family violence, at times high levels of conflict and, fundamentally, many clashes in terms of their respective attitudes.
In the case of the father, he had been sexually abused by a schoolteacher when he was a child. In later life as a young man, he had served in the Australian military, where he had seen active service in the War E. Around 1994 when he was still only in his mid-40s, he retired from the military and began to receive a Department of Veterans Affairs (“DVA”) pension. He has been diagnosed with post-traumatic stress disorder, a not uncommon medical condition among servicemen and women who have seen active service. The father also suffers from anxiety and hypervigilance.
These were on full display during his relationship with the mother where, on any view, he was hypervigilant in relation to young X in a number of respects, which I will refer to later. One example of such hypervigilance was his decision to feed young X out of a baby bottle even up to the age of eight (8), by way of giving him some sort of formula/vitamin drink before bedtime. The father did this because he was, in my view, hypervigilant about young X’s weight and his health in general.
The father’s hypervigilance has been a marked feature of this case in terms of conflict with the mother but also in relation to the circumstances post-separation.
With respect to the mother, the evidence establishes that she has very different attitudes towards parenting, which she would put down to cultural differences. Put shortly, by Australian standards she has been a disciplinarian of the highest order - indeed, at times, she has positively been physically abusive and harsh. I should say that she has not behaved in that manner towards young X but, by way of example, she effectively evicted her older son Mr C from home when he was just fifteen (15) years old because of his apparent “laziness” and lack of direction and his inability or unwillingness to apply himself at school.
The contrast between her actions in that respect, and the father’s actions in feeding young X out of a baby bottle at the age of eight (8), speaks volumes about just how far apart these parents are in terms of their attitudes to parenting.
I should also add that the mother had, on any view, a marked temper and a capacity to become physically aggressive quite quickly. I will address these matters in the course of these reasons.
The fact is that in this particular case, each parent has certain vulnerabilities in their parenting style and approach, and in some ways it is a wonder their relationship lasted as long as it did. Conflict was a feature of the parties’ relationship and, ultimately, they separated for the last time on 20 November 2018 under the same roof. The father remained living in the home the parties owned at Town F, and the mother lived in the self-contained granny flat on the property. (I should add that when I say the granny flat was self-contained, it seems that the mother still needed to come into the main home to cook meals.)
By the time of separation, Mr C was no longer living at home. Mr D, the mother’s other son, lived primarily with the mother in the granny flat, while young X was primarily living with the father in the main home.
This matter effectively took a number of unfortunate turns in the post-separation period, which ultimately led to these proceedings.
In September 2019, the mother violently assaulted Mr D with a shoehorn multiple times. It is a matter I will refer to later in these reasons, but it suffices for now to observe that as a result, an Apprehended Violence Order (“AVO”) was put in place to protect Mr D from her. She was also charged with assault occasioning bodily harm (“AOBH”) and, ultimately in March 2020, she pleaded guilty to that offence and a conditional release order (“CRO”) was imposed on her.
Within days of that Court appearance, the mother again assaulted Mr D in less serious circumstances but, nonetheless, also in breach of the AVO.
After the first assault, Mr D had left the home for six (6) weeks. After the second assault, he left the home for another three (3) days. On each occasion he stayed with the same family.
Once again, the mother was back before the Local Court, where she was sentenced in respect of the assault, sentenced for the breach of AVO and re-sentenced for the original AOBH offence. The end result is that she was placed on a community corrections order (“CCO”) for eighteen (18) months.
On 19 April 2020, the father assaulted the mother in circumstances that are disputed. I have a video-recording taken by the mother of at least some of that event. The father most definitely assaulted the mother on that occasion, behaving like a bully towards her and in an intimidating and aggressive manner. The effect of this was that the father was charged with assaulting the mother, and a provisional AVO was put in place to protect the mother from him. Ultimately, he pleaded guilty to assaulting her on the basis that he had only “pushed her”, and a final AVO was put in place for two (2) years.
This is effectively when the bubbling difficulty and animosity between the parents broke into an all-out war. The father attempted to retrieve young X later in the day after attending the Police Station, but the mother’s son Mr C was present and he would not hand young X over. This only contributed to the animosity that the father already felt towards Mr C by that stage.
Ultimately, a day or two later, the father decided to leave the home without telling the mother and moved into an undisclosed location. He moved young X from the school that he was attending at Suburb G to a school at Suburb B without telling the mother and he would not tell the mother his address.
The mother was having no time with young X, nor was young X spending time with his older brothers Mr C and Mr D (technically his “half-brothers” but referred to in these reasons as “brothers”).
On 7 May 2020, the father filed an Initiating Application seeking a “no time” order as between young X and the mother but also, for reasons known only to the father, he also sought “no time” between young X and either of his brothers. It was one of many disturbing things the father has done in this case in terms of demonstrating a negative and hostile attitude towards the mother and her other children.
On 29 June 2020, this Court made interim orders for young X to spend time with the mother at the H Contact Centre at times as could be facilitated. Given the lengthy waiting list, the mother proposed to use a different service, J Children’s Contact Services, which is a much more expensive but flexible service wherein a supervisor is able to supervise time between a parent and a child outside of a formal contact centre environment. The father was only agreeable to this occurring if the mother paid all of the fees. He was not willing to contribute to any of them. The mother reluctantly acquiesced.
The mother wanted to have sessions longer than one (1) hour. The father refused to agree to extending the sessions to two (2) hours, even though the mother was paying for them. The father also refused permission for Mr C to attend the visits, as well as indicating an ongoing resistance or reluctance to Mr D attending, though perhaps not with the same vehemence as with Mr C.
The matter required a Child-Inclusive Conference (“CIC”) on 8 September 2020, which was in fact the first time that young X had seen his mother in nearly five (5) months (supervised time not yet having commenced), which is rather a shame. It is clear that young X wanted to spend more time with his mother; he said as much to the author of the CIC Memorandum.
As a general statement, the mother continued to have one (1) hour of supervised time per week with young X right up until just before this matter came on for trial in March 2022. In that period, the Court had ordered a private Family Report, which was prepared by Ms K and which became exhibit 1 in the proceedings.
Just before the trial commenced, the father agreed that the mother’s supervised time should increase to two (2) hours per fortnight.
THE HEARING BEFORE ME
The hearing was originally listed to run for three (3) days from 7 – 9 March 2022. At the hearing, Mr Moon of counsel appeared for the father, Mr Allen of counsel appeared for the mother and Ms Callander (solicitor advocate) appeared on behalf of the Independent Children’s Lawyer (“ICL”).
The mother, though in my view having a working grasp of the English language but definitely at a disadvantage in that respect, was provided with a Mandarin interpreter for the purposes of the hearing.
The hearing took longer than anticipated and had to be adjourned part-heard.
In the meantime, on 17 August 2022 the Court made a specific order for an updated “Wishes Report” from a Mr L, an “in-house” counsellor with Legal Aid NSW. His report was of assistance to the Court and I will refer to it a little later.
The trial resumed before me on 31 October and 1 November 2022, with submissions concluding on 23 November 2022 at which time judgment was reserved.
At the hearing, Mr Moon relied upon his Case Outline Document filed 4 March 2022 and the father’s Amended Initiating Application filed 7 February 2022. I pause here to observe that in that Amended Initiating Application, the father had sought sole parental responsibility, supervised time between young X and the mother for two (2) hours per week at a professional contact centre, that there be “no time” between young X and his brother Mr C and that there be specific injunctions to stop Mr C from approaching young X, including at his school.
Those proposed orders were however rendered somewhat redundant because when the trial adjourned part-heard on 9 March 2022, the parties consented to some interim orders whereby, for the first time since separation, the mother was to have unsupervised time with young X:
·initially for some daytime periods;
·then for two (2) nights a week;
·before quickly progressing within a couple of months to alternate Wednesday nights from after school until commencement of school on the Thursday; and
·alternate weekends from after school Friday to before school Monday - that is to say, four (4) nights per fortnight.
In the history of this case, that order was a momentous change for the better for young X.
Against that backdrop, by the time the trial in fact concluded, the father had tendered exhibit 8, which set out his updated proposed orders. Notably, they included increases in the mother’s time during holiday periods, as well as provision for contact on “special days” and for various injunctions. The father did however continue to oppose overseas travel, a consistent theme of his in the course of this hearing, and so that remained a “live” issue.
In terms of affidavits, Mr Moon relied upon the father’s trial affidavit of 7 February 2022, as well as the affidavit of the father’s adult daughter, Ms M filed 7 February 2022.
Mr Allen, on behalf of the mother, relied upon her Amended Response filed 7 February 2022. The mother was seeking, inter alia, that she have sole parental responsibility and that the father have supervised time with young X until he provided the mother with a letter from his treating psychologist/counsellor/psychiatrist:
…evidencing that the father had completed six (6) months of therapy regarding the father and the child’s psychological needs.
I pause here to note that this order relates to issues concerning the emotional boundaries, or lack thereof, between the father and young X which were raised as issues in the proceedings and particularly in the Family Report. The mother’s Amended Response also sought that the father have unsupervised time upon providing evidence from the said psychologist, counsellor or psychiatrist, with such time to graduate to alternate weekends, half holidays, as well as there being provision for the usual “special days”.
Like the father’s proposal, the mother’s proposal was also superseded by the end of the hearing. By the close of the trial, the mother had tendered as exhibit 9 a different proposal, whereby she was effectively contending that the father could spend immediate alternate weekends with young X unsupervised. However, his time with young X was not to increase until he provided the aforesaid letter from his treating psychologist, counsellor or psychiatrist, as referred to in the Amended Response. Upon such report being furnished, the father was to spend six (6) nights per fortnight with young X during school terms, which was effectively tantamount to equal time, as well as half holidays and provision for “special days”.
The mother pleaded an alternative position if her primary case was unsuccessful, namely if the child was not ordered to live with her. In that event she sought a week-about arrangement be implemented.
In terms of affidavits, Mr Allen relied upon the mother’s trial affidavit filed 7 February 2022, as well as an affidavit of the mother’s son Mr C filed 7 February 2022.
On behalf of the ICL, Ms Callander relied upon a Case Outline Document filed 4 March 2022 and the affidavit of Mr L filed 27 October 2022 annexing a “Wishes Report” of 10 October 2022. Mr L is a social worker with extensive experience in interviewing children and preparing reports in family law matters, typically at the request of “in-house” Legal Aid ICLs. He had been briefed with a copy of the Family Report, the trial affidavits of the parents and the interim orders of 9 March 2022. Mr L had interviewed young X by video link on 5 October 2022, the father having taken him to the interview but not having participated at all in the interview itself.
In addition to the above material, the parties tendered various exhibits, primarily documentary exhibits, and I will refer to these where relevant.
THE REAL ISSUES IN THIS CASE
The real issues in this case were agreed to be:
(1)the allocation of parental responsibility, with each parent seeking sole parental responsibility and it being common ground that the Court should not order equal shared parental responsibility;
(2)where young X should primarily live, with each parent suggesting that they ought to have primary care; and
(3)the time that young X should spend with the other parent, including appropriate injunctions or other orders as required.
As I have indicated, overseas travel was also a significant issue to be determined by the Court.
Essentially, each parent contended that they had the better home environment for young X and that the other parent posed greater risks to young X’s wellbeing. The ICL contended that in this case there was, in fact, risk to young X in both homes but that, ultimately, the risks to young X in the mother’s home were higher than in the father’s home. Ultimately, the ICL contended that the Court should make an order that young X continue to live with the father but that he spend extended alternate weekends with the mother and time during school holidays.
THE LAW
Parenting proceedings are determined pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Pursuant to section 60CA of the Act, the Court is obliged to make parenting orders that are in the “best interests” of the child concerned; that is to say, the best interests of the child are expressed to be the paramount consideration.
Section 60CC of the Act sets out various mandatory “best interests considerations” to which the Court is obliged to have regard. I do not propose in these oral reasons today to recount each of those subsections verbatim, but I will direct that a copy of them be included in the written reasons when they are prepared.
Section 60CC How a Court determines what is in a child’s best interests
Primary considerations
(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.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
“Parental responsibility” is defined in section 61B of the Act as referring to all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C provides that each parent has parental responsibility subject to court orders.
Section 61DA of the Act creates a rebuttable statutory presumption that, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility: section 61DA(1). However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence: section 61DA(2). Moreover, even if the presumption does apply, it can still be rebutted by evidence that satisfies the Court that the making of such an order would not in fact be in the child’s best interests: section 61DA(4).
There is a statutory pathway that must be followed in the event that the Court makes a decision that the parents ought to have equal shared parental responsibility for a child: section 65DAA.
In this case, for reasons that I will explain, both parents have perpetrated family violence, the mother at a much higher level than the father. The mother has also perpetrated abuse of the child Mr D and, in my view, her actions in relation to Mr C would likely also constitute abuse. In short, the statutory presumption does not apply: section 61DA(2).
If the presumption did apply, as I indicated earlier, there is a statutory pathway that is to be followed in the event that the Court, in fact, orders equal shared parental responsibility. That pathway is set out in section 65DAA. In short, the Court must consider making an equal time order as the first option and, failing that being in the child’s best interests or reasonably practicable, then the Court must consider ordering that the child live primarily with one parent but spend substantial and significant time with the other. If that is not in the child’s best interests or is not reasonably practicable, the Court must consider ordering some other arrangement.
In this case, I propose firstly to deal with questions and issues that have been raised against the mother acting as primary parent for young X. Then I propose to address the factors and issues which are said to militate against the father acting as primary parent for young X. Having attended to a consideration of all of those issues, I will then address the section 60CC considerations more globally.
Inevitably, the issues raised, and which I will now address in relation to both the mother and the father, tend to cut across multiple of the mandatory considerations in section 60CC of the Act. This is unavoidable. Section 60CC consists of a broad range of considerations which overlap.
ISSUES & CONCERNS ABOUT THE MOTHER AS PRIMARY CARER
I begin with the issue of family violence.
I am satisfied on the evidence before me that the mother perpetrated family violence in her relationship with the father. I am satisfied that she pushed and hit him on occasions. The mother accepted in her Family Report interviews (paragraph 39) that:
…shouting while arguing with a spouse and occasionally pushing and shoving each other during an argument is accepted and common behaviour and culturally accepted in China.
I accept the father’s evidence that the mother behaved in such a manner towards him, although, as I will indicate later, he also engaged in family violence towards her.
I have evidence before me, as part of exhibit 13, that the father had to call Police to attend the home in response to an argument between the parents about passport issues. In the oral evidence, there was some confusion as to whether this event occurred in 2014 or 2015 but, on balance, the Police records would seem to indicate that it occurred in 2015.
The Police attended the home at the father’s request. They observed that the mother was very angry and that she had effectively “parked the father in” at the property so that he could not get out. It is notable that the mother maintained her anger at quite a high level even in the presence of Police, something which they noted, although eventually she relented and the father was able to move his car and the Police left the home.
In May 2017, the father says that the mother punched him in the face and assaulted him while he was driving a car. The mother denies doing so and says that it was a fictitious event in his affidavit. The father says in his affidavit that the next day, the mother took his car keys from him and would not give them back because he had apparently not completed her Citizenship papers for her.
Confusingly, this may be the same event to which I have referred in 2015. It would seem to be that that is so, as it would be too big a coincidence that the events would be so similar involving the father calling the Police to attend because of an inability to move his car. It is however possible they are two separate events.
In any event, I prefer the father’s evidence to the mother’s evidence as to these issues, and I accept that she assaulted him in a violent manner on this occasion. Such a finding is well and truly open on the evidence before me and having regard to all of the other violent behaviour in which the mother has engaged.
In December 2018, the mother assaulted the father again when the parties were in Sydney. They were staying at a friend’s house in Suburb N. The father says that the mother became drunk and argumentative; she wanted to talk to him and he was refusing. Ultimately he tried to turn away from her, she entered the room and grabbed him by the neck and turned his face around. She ended up scratching his neck and making it bleed. After this event the father left and returned to Town F. I accept the father’s evidence about this assault, notwithstanding the mother’s denial.
In January 2019, the mother’s explosive anger was again on display when the father’s adult daughter, Ms M, visited from Country O. To be fair, there is a bit of context here that needs to be noted, namely that the father and his daughter had been estranged for some years and that the mother had never met her. Nor did the mother know that Ms M was going to be staying at the home with her son, P who was then about eleven (11) or twelve (12) years old. Incidentally, the father had not yet met P himself.
It should be noted that, before Ms M arrived, the father had forewarned her that the mother might behave in an aggressive or even a violent way. It seems that Ms M dismissed this warning as perhaps being exaggerated or unreasonable.
Ironically Ms M should not have dismissed the father’s warning quite so easily, as the mother did, in fact, behave quite aggressively, including physically aggressively, during her visit.
The interaction between the mother and Ms M did not start off particularly well. The father had taken the mother’s Motor Vehicle 1 to go and collect Ms M and P from the airport. The mother was away in Sydney at the time. She had no idea and had not agreed to the father borrowing her car.
When the mother arrived home later, she discovered from the odometer reading that her car had been driven. It would be fair to say that she “flew off the handle” (my expression).
She screamed at the father about having brought his daughter into the home. She made Ms M feel extremely unwelcome, and I broadly accept the evidence of Ms M as to the disrespectful and, frankly, “somewhat unhinged anger” displayed by the mother on this occasion. I accept her evidence that the mother was barraging the father with yelling and screaming and that the neighbourhood, or at least people who were at home, could well have heard what was said. Indeed, she says that one of the neighbours closed their window, and I accept her evidence about that as well.
In short, the mother completely flew off the handle. Perhaps some of her behaviour was cultural in nature, though that does not excuse it. I accept that the mother felt disrespected as the father’s wife by not being made aware that his daughter, whom she had never met, was coming to the home, and also by the father taking the mother’s vehicle.
I do not think that the father handled that situation appropriately at all but, equally, the mother simply showed no capacity to contain herself.
I accept the evidence of Ms M that during the succeeding three (3) or four (4) days that she was staying there, she witnessed the mother giving her father what she would call a constant verbal barrage, making demands of him and that he responded somewhat sheepishly.
I thought that in giving her evidence, Ms M was quite frank in the way in which she answered questions. When asked how things had gone over those days, she said that “the sightseeing had been good” which was perhaps a somewhat amusing reference to the fact that, as long as she was not at the home, everything was alright.
Worse was to come on the last day that Ms M was there. It seems – and again, I broadly accept Ms M’s evidence as to what happened – that the father and the mother got into another verbal argument but that, by this time, the decision taken by Ms M was to “stand up” for the father and to effectively tell the mother to “back off”.
This infuriated the mother, who Ms M describes as going “absolutely berserk with anger” a description which I accept.
Again, I consider that issues of the mother’s perception as to Chinese culture and her own upbringing were at play. The mother considered that she was being disrespected and treated poorly by someone who was staying in the house, although, ironically, the parties were living in separate accommodation at the one property. Moreover, given her indignation at the father’s use of her Motor Vehicle 1, it is perhaps a little odd that she was so offended that the father had his daughter stay in the house he occupied.
In any event, I accept the evidence of Ms M as to what occurred and that the mother again, as had happened on the first day she arrived, “flew off the handle” and, quite frankly, behaved like someone who had little or no control over her emotions. I accept Ms M’s evidence that the mother tried to spray fly spray in her direction and that the father physically got between Ms M and the mother because the mother was lunging and clawing towards Ms M.
Rather sadly, P was witness to this violent affray, and he began to cry. I accept Ms M’s evidence that he was frozen in fear and that tears were rolling down his cheeks.
There is little more for me to say about this particular event beyond observing that, once again, the mother displayed extreme levels of emotionality and reactivity, including making abusive references to Ms M by telling the father that she was not his daughter at all, that she was “fat and ugly and short” and the like, which the mother effectively admitted she had said to her in anger.
In my view, the wife was perpetrating family violence not only against the father but also against Ms M, but as I have said earlier, there is some history and background to the matter. Things are rarely black and white. I accept that things got off to a bad start between the mother and Ms M because of the father’s decision, at least in part, to not tell the mother that Ms M was coming and also to borrow the mother’s car without permission.
Interestingly, one aspect of the evidence was that during the time of Ms M’s stay, the mother presented to her a document in handwritten form for her to witness, pursuant to which the parties agreed to some sort of “equal time” arrangement for young X. Ms M signed that form as a witness, even though she was not particularly happy to do so because she was not convinced that “equal time” for young X was anything like a good idea.
I turn, then, to the events of February 2020 as set out in paragraph 64 of the father’s affidavit. The father accuses the mother of coming into the house uninvited, becoming angry and telling him to get out of the house. He deposes that she picked up the main television and threw it outside onto the grass and then did the same to the television stand, that she pulled the sheets, blankets and pillows off the bed and threw them outside and then grabbed the phone out of his hand and ran outside and threw it down the concrete driveway, smashing it. He ended up losing hundreds of baby photos of young X, who was present during this event. I accept the father’s recount of that event.
It is convenient now to refer to some of the violence between the mother and her son, Mr D, which I touched upon earlier.
On 3 September 2019, the mother and Mr D got into an argument relating to various things Mr D had or had not done. He was accused of not cleaning his room properly and breaking a phone charger and the mother was “disappointed” (if not furious) that he had, despite her very genuine efforts, failed to do sufficiently well at school as to get into Q School, a selective school.
I accept without hesitation that the mother values education to a very high level, and perhaps there are cultural aspects to her beliefs in that respect as well. It suffices though to say that the mother became extremely angry with Mr D. In the course of chastising him verbally, the mother then grabbed a large plastic shoehorn about a metre long, and struck Mr D multiple times on the legs and torso area. Mr D ended up grabbing the mother in a headlock to try to stop her from hitting him, and she grabbed him around the throat area, seemingly choking him to some extent and perhaps simply trying to get herself free from his grip.
Once the mother was free, she then began hitting Mr D again, and he retreated to the lounge, where he defended himself by pushing her away with his feet and his hands, before ultimately wrestling the shoehorn out of her possession.
Mr D later went to school where he sought help from staff. Ultimately, when they saw his injuries they contacted the Police, and Mr D ended up being taken to the R Hospital for an assessment pursuant to the relevant care and protection legislation in NSW.
I have that medical evidence before me, and it is disturbing to say the least.
Dr S, a general paediatrician, took photographs of Mr D’s injuries and provided a detailed report. There were fifteen (15) separate marks on Mr D’s body consistent with being hit with the shoehorn. I do not propose to recite the report in detail beyond observing that, on any view, fifteen (15) strikes with a shoehorn is excessive and an assault. On any view, it is “abuse” of a child as defined in section 4 of the Act. Mr D was injured in multiple parts of his body in what could only have been a terrifying and high-level violent encounter.
To hit a child with an implement once in anger might constitute “abuse” or an assault, but it might be something a Court could look at with a degree of empathy from the point of view of a parent in the sense that sometimes parenting is difficult and people might lose their temper. It may not be lawful, but it is a matter of Courts looking at the human realities and the frailties of parents.
Fifteen (15) strikes, however, is a phenomenal number, which is indicative of extreme anger on the mother’s part. For the record, I calculate the fifteen (15) strikes by reference to the content of the report, where there are fifteen (15) separate injuries consistent with being hit with the shoehorn. To avoid confusion and to be transparent in how I arrive at the figure of fifteen (15) shoehorn strikes, I would simply refer to Dr S’s report; paragraph 10 (1 strike); paragraph 11(a) (2 strikes); paragraph 11(b) (2 strikes); paragraph 12(a) (2 strikes); paragraph 12(b) (2 strikes); paragraph 12(c) (2 strikes); paragraph 13 (2 strikes); paragraph 14 (2 strikes). The photographs in that report speak for themselves.
I should add that there were also other scratches and abrasions on the child.
As a result of this event, Mr D was briefly taken into the care of the Minister of the then Department of Communities and Justice (the NSW child protection authority), and was placed with another family for about six (6) weeks as I have indicated earlier.
It is noteworthy that in the course of being interviewed by the authorities in relation to this particular event, that Mr D said that the mother had often been violent towards him and that the mother had previously chased him with a crowbar and whipped him with a cord but not resulting in injury. The mother vehemently denied ever hitting or chasing Mr D with a crowbar, and I make no positive finding about that beyond observing that on the weight on the evidence, it is highly unlikely – indeed probable – that the mother had physically assaulted Mr D with implements on other occasions but just not at the level of seriousness that she did with the shoehorn.
As I have indicated, the mother was dealt with for the AOBH offence, and an AVO was put in place following this event.
The Department of Communities and Justice subsequently referred the mother to T Family Counselling in October 2019, where she began to attend regularly. Indeed, she was attending there up until at least February 2022 during the trial. They assisted her by dealing with such topics as emotional regulation, cultural differences and how to maintain respect and authority as a parent without being abusive.
Notwithstanding the counselling that began in October 2019, as I have already indicated, the mother assaulted the father in February 2020. This is the event where she had thrown property out onto the driveway, as referred to earlier, which was another example, in my view, of “family violence”, though not a physical assault per se.
The Local Court dealt with the AOBH charge (and the associated AVO to protect Mr D) on 4 March 2020. Now, despite her receiving a “wake-up call,” one would think, in relation to her actions, including that Mr D ended up out of the home for six (6) weeks, the mother nonetheless got into another violent altercation with him just six (6) days after the making of the AVO.
On this occasion, once again, it was a matter of a disciplinary dispute between the mother and Mr D. She wanted him to do some chores and not to leave the home until he did so. Mr D refused. The mother grabbed him by the schoolbag and pulled him backwards; he was briefly choked by the backpack and ended up with scratches on his neck.
Mr D ended up calling out to the father to help him. The father came in to assist at this point, and I accept the father’s evidence that he saw that the mother had Mr D in a headlock, that Mr D looked terrified and that the father told her to let him go. The father ended up prising Mr D out of her headlock, but the mother then pushed Mr D into the fridge before turning on the father and scratching him across the stomach. They all ended up outside, where the mother then dragged Mr D into the granny flat. Mr D later got out and came back into the house, by which time the father had called the Police.
Given the recent AVO and the involvement of the Department of Communities and Justice, it is unsurprising that Police did attend and that they charged the mother with common assault and breach of the AVO.
The mother told T Family Counselling about this event. In their notes of 9 June 2020, which form part of exhibit 13 – she told them that:
…there had been another incident between herself and [Mr D] where he had attempted to leave the house for school against her wishes, and she had grabbed his backpack to prevent him from leaving. She reported that [Mr Torney] had rung the police to report that she had assaulted [Mr D].
[“Mr Torney” being a reference to the father as distinct from “young X”]
She reported that she now had another Court case to attend regarding this assault on 20 July. I agreed to write her a support letter for this court case. [Ms Gong] reported that her relationship with [Mr D] had greatly improved and that they were now negotiating and compromising more together.
I accept that there had been some improvement in the mother’s relationship with Mr D by that stage, but there is a distinct lack of any remorse demonstrated in the notes or even perhaps any deep insight into how Mr D might have felt in this situation. Indeed the mother – in my view quite unreasonably – painted the father as being somehow responsible for her getting into trouble with the Police.
I have already indicated that, as a result of this further assault and breach of AVO, the mother was re-sentenced for the earlier AOBH offence (involving the shoehorn) and that she was sentenced to a CCO for eighteen (18) months.
This was another example of the mother perpetrating family violence against Mr D and, in my view, her assault also constituted “abuse” of him as defined in section 4 of the Act. Again, as I indicated, Mr D stayed with another family for some three (3) days after this event.
To be fair to the mother, things settled down between her and Mr D. The Department of Communities and Justice closed their file by early July of 2020. I should also add that the mother’s relationship with Mr D has since greatly improved, and the mother, no doubt through her own hard work and industry, has pushed and promoted Mr D in terms of his education by linking him in with a study group and encouraging him to sit the Q School exam, which he was successful at. It is perhaps proof that family bonds can survive even assaults and family violence and that things are not always black and white. Nonetheless, the mother’s actions are an obvious concern in relation to Mr D.
Another matter raised in relation to the mother’s alleged anger and violence issues concerns a subsequent partner of hers, one Mr U. His involvement in this case has been rather “shadowy” at best. The mother seems to have had a tumultuous, on and off relationship with him. Mr U was not interviewed for the Family Report and, indeed, the mother downplayed the prospect of having any partner at the time of the Family Report interviews in March 2021. Yet the record shows that Mr U was very much a feature of her life at that time and that – just as in her relationship with the father, in her relationship with Mr D and in her interactions with Ms M – the mother demonstrated violence, aggression and, at times, an inability to control her emotions.
According to exhibit 2, on 9 July 2020, the mother, presumably in some form of argument with Mr U at that time, had taken his car keys – a theme that echoes something she had earlier done to the father. Mr U had to call the Police to get his keys back.
Three (3) days later on 12 July 2020, there was a more significant argument between the mother and Mr U. He wanted to separate from her, and he returned some property back to her home. The mother ended up going back to Mr U’s home afterwards, wanting some more property that she said he still had. Mr U would not open the door. The mother became verbally aggressive towards him, but there is no evidence that she threatened him as such. Police ended up being called. They spoke to the parties and no action was formally taken, but it was clearly a high conflict situation.
On 6 April 2021 – and this appears at 442 and 443 of the subpoenaed notes which form part of exhibit 13 – the mother and Mr U again came to the attention of the Police in a much more serious way. At that stage, the mother and Mr U were having relationship difficulties, and the mother had made some sort of arrangement to go to Mr U’s house and later drink with him at a local pub.
When the mother attended Mr U’s house that night however, he did not want to come. He told her that he had his twelve (12) year old daughter at home with him in the house, and he was not going to leave her alone while he went out with the mother.
The mother agrees that when she arrived Mr U accused her of having been drinking already, despite being behind the wheel of the car, and that he accused her of having an alcohol problem in general. She denies that either of those allegations were true. What is clear is that he did not want to go with her to the pub and he wanted her to leave, but that she physically tried to gain entry to the house regardless, by trying to get through the gate at the side of the house. The mother pulled on the gate. Mr U tried to keep it shut, and pushed her over. It is possible that he punched her, although that is quite unclear on the evidence before me. Certainly, the mother suggested that he did.
In any event, Mr U at least pushed the mother, and she accepted that she had ripped his shirt and bitten him, presumably in self-defence on her version of events.
The Police were called, and the mother was charged with AOBH, and an AVO was taken out against her to protect Mr U.
The mother told the attending Police she had not called them herself because “family fighting is normal in Chinese culture”. However, it is evident that, by that stage, the mother well knew that such behaviour was not acceptable in Australia. Indeed, she had told the Family Report writer just a couple of weeks earlier that she would not engage in pushing and shoving-type encounters with partners again because she now knew that it was not culturally appropriate and that it constituted family violence.
The mother also should have known, from her ongoing counselling with T, that family violence issues needed to be addressed and considered carefully by her. That is, she needed to perhaps take a deep breath and learn to manage situations without violence and without escalating.
I should also add that the mother had told - or rather, downplayed - any suggestion of being in a relationship with Mr U in that same Family Report interview a few weeks earlier. When cross-examined about it at trial, the Family Report writer clearly thought that had been rather evasive on the mother’s part.
Notably, in the witness box when the mother was asked if she would have done anything differently when Mr U shut the gate on her on the night in question, the mother’s clear response was to say “I refuse to answer the question.” This was a very poor answer on her part, but a considered one.
I should also note that the mother did not mention this incident when she went to counselling at T Counselling Services on 15 April 2021, just nine (9) days after the event, at a time when she was still facing the AOBH charge and an AVO. The first time the mother mentioned the event to T Counselling was on 13 May 2021. It is quite clear from their notes that there is a distinct absence of any regret or remorse, consistent with her refusal in the witness box to answer the question as to whether she would have done anything differently.
It is quite clear from the T Counselling notes that the mother’s focus was on the strategic consequences of her actions in terms of the parenting proceedings with young X, rather than the bigger picture, namely:
·the toxic interpersonal relationship she had with Mr U (which, to be fair, she seemed to admit was toxic when speaking to counsellors); and
·the stability of the home environment that she could provide for young X.
Notably, Mr U later approached the Police who ultimately agreed to drop the AOBH charge and withdraw the AVO application.
On 18 December 2021, the mother and Mr U got into another effectively violent dispute when, on this occasion, she went to his house to arrange a time and date to collect some personal property. He did not want to talk about it with her and tried to leave in his car. The mother was having none of that, and she tried to stop Mr U by opening the driver’s side door and grabbing the steering wheel. In turn, he pushed her over. It was clearly a violent altercation.
The mother said in the witness box that she was not angry at the time. In my view, by this stage (in the witness box), she was very much alive to the criticism that she had a very short temper; her answer that she was not angry was more an example of defensively covering herself than giving a truthful answer. I cannot imagine that she would have grabbed the steering wheel in this altercation if she was not at least somewhat angry and emotionally reactive.
After this event, the mother herself went to the Police, seeking an AVO against Mr U. Notably, they declined to prosecute an AVO on her behalf as, from her version of events, they considered that Mr U had been trying to get away and that the mother was the aggressor.
I should say that by this stage, the mother had been in counselling with T Counselling Services for more than two (2) years, yet she was still finding herself in physical altercations with an intimate partner with whom she clearly had a difficult relationship.
In the witness box, the mother consistently denied having any problems with anger or with regulating her emotions. I suspect she would be the only person in my Court room who would have had that view. The Family Report writer considered that she did have anger and emotional regulation issues and that, ultimately, she needed to undertake a multi-week domestic violence perpetrator’s course like “Taking Responsibility”.
The mother seems to remain in denial about the extent of her anger issues and her capacity to escalate to physical violence. Despite substantial counselling and even allowing for cultural differences on the mother’s part, she has been awfully slow to demonstrate insight and change. In the case of Mr U, I am also troubled because, although the mother says she is no longer in a relationship with him, she says that he remains a current business partner of her son Mr C, and she has described him in evidence as still being a “good friend”. Mr U is clearly still in the mother’s life.
These matters greatly concern me in terms of the mother’s propensity for family violence and abuse and all of the consequent risks to which such behaviour potentially exposes young X. Although the mother says that she has “grown” in an emotional sense at T Counselling and that she will not hit young X – and indeed there is no evidence that she has hit him – I remain seriously concerned about the mother’s propensity for anger and violence, which she has engaged in for a very long time and which she has thus far been rather resistant to change.
I turn, then, to a few other issues of concern surrounding the mother. As indicated earlier, she effectively evicted her son Mr C from home at the age of fifteen (15), telling him that he was too lazy. She still maintained that it was culturally appropriate that he get out of the home and find a different way forward, given that he was not trying very hard in school: see paragraph 107 of the Family Report. Notably, the Family Report writer thought that her decision to effectively send him to a government hostel/refuge was, in her words, “appalling”. I agree.
The mother’s attitude to parenting is also a concern in terms of her instability of accommodation. Frankly, I do not understand the mother’s evidence as to what her current living arrangements are, and it was a matter that perplexed me at the hearing.
Exhibit 11 reveals that the father’s lawyers were writing to the mother’s lawyers in May 2022 querying the mother’s accommodation and bedding arrangements for young X. Her lawyers responded on 25 May 2022.
(a)She was asked whether she was still living at V Street, Town F, being the former matrimonial home. It was suggested that Mr D was in fact living there on his own.
The mother’s response was that she was still living there. By implication, Mr D was not being left unsupervised, and the mother asserted that young X shared a bedroom with her at Town F.
(b)The next question or issue raised was whether the mother was staying at a share house with her son Mr C at an undisclosed address and who might be living there. It was suggested that young X said he had been sleeping on a mattress in the lounge room.
The mother’s response was that she was staying with Mr C in a seven (7) bedroom house and that young X slept in the same bedroom as the mother. However, in cross-examination, the mother then said that she was living at this particular property (at Suburb W) during the week, and that sometimes on weekends she would be back at Town F. That is to say, there was no real routine as to where she was staying.
(c)When asked the address of this Suburb W property, the mother could not give it and said she relied on a GPS, although she did offer to get the address off her phone. That offer was never taken up by the father’s counsel, nor was it the subject of any re-examination by the mother’s counsel. The mother said that the Suburb W property was a four (4) bedroom home at one stage, and at another point she seemed to suggest it was a five (5) bedroom home. It was unclear who was living there. At one point, the mother said that Mr C and his girlfriend, his friend and girlfriend, and the mother and Mr D were there, so that there were six (6) people in total in the home, together with young X on occasions when he visited.
Overall, the mother’s evidence as to the stability of her housing arrangements, and who was living in any given house on any given day, did not reflect any clarity and left me wondering as to what basic routine, if any, the mother could provide for young X.
Somewhat confusingly, young X had told Mr L that the mother slept on the couch at her home and that he slept in her bed. The mother also suggested that this was true in her evidence, despite in her solicitor’s letter saying that young X slept in the same bedroom as her.
In my view, the mother’s incapacity, or unwillingness as the case may be, to provide a stable and predictable home environment and to give the Court basic reliable information about her living circumstances strongly militates against the Court determining that she ought to now become the primary carer of young X. If there is one thing that this boy needs on the evidence before me, it is stability. The father offers that stability in spades, but that comes with its own problems, which I will turn to shortly.
There are some other issues in relation to the mother; namely, the father accuses her of being an alcohol abuser. He paints the picture that she drank alcohol pretty much every night during the relationship, mainly wine, champagne or rice wine or even home-brewed rice wine. The mother does not deny drinking alcohol, but her evidence is that she does not have a problem in terms of drinking to excess, and that it is effectively a non-issue and an example of the father being over-protective or unreasonable.
The mother undertook a CDT test on 14 September 2020. She also undertook a hair strand test on 19 February 2021. Both results were in the normal range and appear at annexure “H” to her affidavit. She has no drink driving offences.
I am unpersuaded that this is a serious risk on the evidence before me. In saying this, I note that the father himself had a problem with excess alcohol consumption in the 1970s, and he is effectively a non-drinker now. I consider that he would be somewhat hypervigilant about alcohol-related issues, but on the evidence before me, I cannot find that the mother’s alcohol use gives rise to a significant or unacceptable risk of harm.
Another issue raised by the father is a more broad-brush issue, which by its nature is rather difficult to pin down with any precision. That is, the father paints the picture of the mother effectively being on the edge of what might be called the “criminal world”. He says that she was very wealthy in China, that he saw her beat up a person (another woman, I should say) who owed her money, and that the mother seemed to have access to “cash” and property that was suggestive of her gaining such property illegally.
The father gives examples of an alleged “scam” entered into by the mother and another person, and he gives evidence – fairly colourful evidence – about some money being wasted at a casino by a debtor of the mother and that she then went with the father to the debtor’s house to take physical possession of some of his property in satisfaction of the debts.
The father also says in his material that he found in the mother’s glovebox, a passport and wads of cash. The passport belongs to a Chinese national, and the father suggests that the mother was blackmailing him in some way because this man owed her money.
The father’s affidavit annexes photographs of some significant bundles of cash, although, to be fair, his evidence was not entirely consistent with his trial affidavit in that respect. The father, in fact, made a complaint to the Minister for Immigration about the mother being a “criminal” and that complaint went nowhere.
The mother’s living arrangements are somewhat confusing. The evidence as to the bundle of cash or bundles of cash that the father produces is somewhat confusing. I know that the mother works as a cleaner, although her income seems to be somewhat unpredictable. None of these things, either individually or collectively, give rise to any serious concern on the Court’s part in terms of risk or in terms of criminality. They perhaps reflect the father’s hypervigilance and, indeed, his tendency to draw the worst possible conclusion about the mother. I do not make any positive findings about these allegations insofar as the mother is concerned. On the evidence before the Court, it is impossible for the Court to draw adverse conclusions about the mother being potentially engaged in criminal or other such activity.
ISSUES & CONCERNS ABOUT THE FATHER AS PRIMARY CARER
I turn, then, to the concerns raised about the father as primary carer. There are two (2) primary concerns, both of which are legitimate.
The first is that he has a history of being unable or unwilling to promote the relationship between young X and the mother, as evidenced by the events post-separation; and, secondly, that he “sequesters” young X or is otherwise over-protective and lacking in boundaries such that the child is not able to develop in a healthy independent manner. These are the two primary concerns about the father, and such concerns are shared by the ICL.
I begin with the father’s inability or unwillingness to promote the mother’s relationship with the child. It is quite clear that just after separation the father took young X for five (5) months and that the mother was unable to see him. This was a rather extreme reaction on his part, even in light of the mother’s violent aggression towards Mr D in the preceding months. He knew that the mother had not physically hit young X in the way that she had hit Mr D. He was being over-protective and exclusionary of the mother.
It was part of a broader pattern of behaviour that the father had in fact exhibited ever since young X had been little. Sadly, both Mr C and Mr D used to call him “good dad” during the relationship, but it is common ground as between Mr C and Mr D that, once young X was born, the father was extremely over-protective of him. The father himself admitted as much to some extent.
The father did not like Mr D or Mr C, but particularly Mr C, hugging young X. He kept a close eye on their physical interactions. He was suspicious that something might happen or that they (particularly Mr C) might hurt him in some way. The father was concerned, in particular, about the possibility of Mr C perpetrating sexual violence to young X, and I will turn to that allegation a little later. It suffices to say that the father was markedly over-protective and, post-separation, exclusionary of the mother.
Having moved away to Suburb B, the father began the proceedings seeking a “no time” order as indicated earlier. The father refused to agree to an increase from one (1) hour supervised visits to two (2) hour supervised visits.
When the father attended the Family Report interviews, he rather spectacularly destroyed any prospect of the report writer forming a good impression of him in terms of his attitude towards the mother. Some of the comments he made to the report writer are really quite extraordinary.
At paragraph 42 of the Family Report, the father said the mother was a criminal who could “be psychologically abusive” of young X in the future, that she was blackmailing a Chinese national etcetera (as referred to earlier) and that he had written to a Parliamentarian, Mr Peter Dutton (presumably the Minister for Immigration at the time), attempting to have the mother deported.
The father said that if the mother was deported, it would have no effect on young X because she had nothing to offer him as a mother. He said that the mother had “zero” parenting skills.
The father said that he was able to provide young X with everything he needed, that the mother was not interested in young X’s future and that he should have no contact with her. When asked what the impact of such an arrangement would be on young X, the father said there would be “none.” A more devastating set of statements made by a parent to a Family Report writer is difficult to imagine. The father even told the report writer that the mother had only had young X to get the $5,000 baby bonus, which I find rather extraordinary in circumstances where, on any view, the mother in fact had quite significant assets and income, as the father himself admitted.
I suspect that much of the commentary the father made about the mother during his interview that day was borne out of resentment and anger towards her and perhaps a sense of defensiveness and hypervigilance, rather than being founded in any objective or realistic assessment on his part. He also criticised her in a way that suggested possible racism by saying that:
She just throws out the Chinese card, you know, “Me no speak English”.
In counselling with his psychologist, Mr Y, the father labelled the mother a “dirty player”, a “violent person”, and a “menace to society” whose interactions with young X needed to be “supervised forever”.
Although the father came to the hearing with the benefit of a Family Report that cast real aspersions on his attitude towards the mother, he nonetheless initially maintained his position, saying that her time should be supervised only. He did, however, indicate a willingness to proceed to unsupervised time if she had “a full psychiatric examination.”
Not all is bad, however, when one looks at the father’s attitude towards promoting a relationship with the mother. As I indicated earlier, cases are rarely black and white. A few matters assume real significance in this case in relation to the father’s credit.
The first and most significant is that on 9 March 2022, the father consented to an interim order for the mother to have unsupervised time with young X. Now, I suspect quite frankly that his consent came about, at least in part, because of some probably “robust” legal advice that he may have received. I say this as it was quite apparent to me in the first tranche of the trial in March 2022 that the biggest risk, or one of the biggest risks, in his case was the father’s own attitude (towards the mother). However, it still takes a certain amount of gumption for people, especially in emotional matters concerning children, to just take legal advice - if that is what he did - and to agree to an order. But the father did so.
It seems to me that, by and large, the interim order has worked. Yes, there are some complaints from young X that his mother did not attend on occasions and, yes, it is suggested by the mother that there were some communication problems and that the father had been difficult with her on occasions, but the reality of the matter is that the orders have, by and large, worked. I regard that as a significant matter.
Courts sometimes like to think that by making orders for counselling, or for parents to undertake certain educational courses, that people’s attitudes can change. Sometimes that is right. Sometimes – and this is one of those cases – perhaps all that the Court can hope for is that the parties simply comply with orders and that they are able to do what is required of them. That may be all that the Court can hope for in the case of the father. In my view, he has complied adequately with the interim order.
I should also record that the father provided young X to Mr L for the “Wishes Report” as indicated. That report does not, in my view, contain indicators of alignment or alienation on the father’s part.
This is not so in the case of the Family Report where young X said some negative things about the mother, indicative of him being at the lower end of the continuum of alignment. Things have calmed down to some extent, because of the simple implementation of the orders of 9 March 2020.
I also add that at the close of the hearing, the father formally sought an order that the mother spend four (4) nights per fortnight with young X, as well as other time as referred to earlier.
Mr Allen submitted that the Court cannot trust the father’s attitude because it is such a dramatic change, it is only recent and it happens effectively under the auspices of Court orders and when the Court is “watching”, as it were. That is a legitimate submission, and the Court has a degree of concern about the father’s ongoing willingness to promote a relationship. It is a legitimate issue, and it is a matter that troubles me.
However the father has, as I indicated, shown some significant progress in recent times, which does ameliorate the risk somewhat. I would also observe that “some of the heat has dissipated” out of the parental conflict.
I also consider that as young X gets older, he is going to be better be able to voice his own opinions more and more and to be able to tell his father that he wants to spend time with his mother and with his brothers.
Pursuant to the interim orders of 9 March 2022, young X was spending quite regular time with both of his parents, as well as Mr C and Mr D. There is a degree of ongoing interaction and visibility in terms of his family and also in terms of his community through his school and social connections.
I turn then to the risk of the father “sequestering” or not allowing young X to develop independently or, putting it another way, keeping him in a more infantile and perhaps dependent state, rather than allowing him to develop in his own way and with appropriate boundaries.
There are a number of real concerns in this respect, and the Family Report writer echoed those concerns as well.
The father lives in a one (1) bedroom unit at Suburb B in the same room as his son. This is hardly going to be a good long-term option as young X gets older. It is something that needs to be addressed in the short to medium term.
The father’s evidence was that he can’t afford a two (2) bedroom home in the Suburb B area and that the apartment in question is convenient and close to the school, and it has secure parking. These things may be so, but, in my view, the father does need to move out and into a bigger property at some point in the not-too-distant future.
I have referred to the baby bottle the father has been giving young X. This is referred to in paragraph 70 of the Family Report. The father described it as a “milkshake” that had all the vitamins young X needed. He admitted that it was an advanced formula specifically for babies, and when asked by the Family Report writer what might happen to young X if his peers at school found out about it, the father was unrepentant, saying he “didn’t know and he couldn’t care less” what they thought.
At paragraph 79 of the Family Report, the father is recorded as refusing to agree to contact sports for young X due to the risk of injury. He did not want young X to play soccer for that very reason. The father also told the report writer that the greatest majority of young X’s out-of-school activities were done with him, rather than with his peers, and that the father kept a close eye on his nutrition, weighed him weekly and was giving him the baby formula with added vitamins and supplements, as referred to earlier.
The Family Report also records that:
When speaking of his relationship with [X], the father became quite emotional and intense and stated, “My son is my whole life. I never want to be separated from him”.
The father also said that there had been no impact on young X in not being able to see his mother or his brothers for about five (5) months.
It is true that after separation the father discouraged the relationship between young X and Mr C. This relates to issues of sexual concern about Mr C that I will turn to shortly. It is also true that the father has not always been fully encouraging of young X’s relationship with Mr D.
In the Family Report interviews, young X was asked who his family was, and he said, “Dad. No one else”. No doubt this contributed to Ms K’s concern that young X was already at the lower end of the continuum of alignment as at the date of that report. She expressed a concern that the father seemed to be aligning young X towards him, perhaps by reason of hypervigilance (at least in part), but that it was possible that young X could reject his mother in years to come. Young X also told her that he thought that the father would have preferred it if he was “fully Australian” rather than “half Chinese.”
Mr Allen also raised some concerns about the father from the “Wishes Report” of Mr L. Mr Allen highlighted that young X talked about playing golf with his father, watching NRL on TV with his father and of watching Show Z (some sort of TV program I gather) with his father and, ultimately, not having any (or many) external hobbies.
Mr Allen submitted that, if young X is left with the father, the Court cannot be confident that he is going to have the opportunity to live a developmentally normal life, engaged with other people his own age and in social activities appropriate to his age.
Ms K considered that the father needed to undertake some counselling in order to assist him to manage anxiety and to properly manage issues of boundaries and the like in terms of his relationship with young X. The father has never had any such counselling but, equally, it is not quite clear what the shape of any such counselling would entail and who would be the appropriate counsellor and what, if any, would be the appropriate benchmarks for success.
It is convenient at this point to touch on a few other issues concerning the father and his attitude. One relates to his attitude towards Mr C, namely, his concern that Mr C may be a risk of sexually assaulting young X. To be fair, the evidence on this topic is thin, if not non-existent but, clearly, it has been an issue that has troubled the father, and it may perhaps fall within the rubric of over-protectiveness or alienation, being the two major issues of concern raised about the father.
The father gives evidence that he has good instincts in relation to whether something is “not right” and he considers that there is something not right about Mr C. His affidavit gave an example of Mr C and the mother having a discussion quite close to young X’s genital area when he was having his nappy changed. Because they were talking in Mandarin, the father was, to some extent, concerned about what they were saying.
Frankly, it is quite unclear to me what the father is actually accusing Mr C of in that paragraph of his affidavit.
The father also deposed that about a month later, he was having a shower and that Mr C came in, pointed to his penis and said, “I can help you with that” or something to that effect. The father says that he told Mr C to get out.
He also deposed that when Mr C used to visit the home at Town F, Mr C would get young X on the couch and be virtually sitting on him, with his hands all over young X and pressing his face into young X’s face until he would be pushed away by the child. The father said that he told Mr C, “Look mate stay away from X. Keep your hands off him” and that Mr C would reply “What the fuck are you going to do about it?”
At paragraph 16 of the Family Report, the father admitted that his relationship with Mr C had broken down after young X was born, as he did not like the fact that Mr C always wanted to touch and/or hold young X. He was concerned that Mr C was – and this is the father’s expression – “a paedophile”. The father was concerned that Mr C always wanted to hug and hold young X at an age where the father thought it was inappropriate, which he clarified as being between about four (4) and seven (7) years of age.
The father also gave some oral evidence that the headmaster of Mr D’s school had rung him on an occasion in 2016 to tell him that Mr D had made a complaint of Mr C sitting on him and asking, “How would you like that in you?” presumably being a reference to Mr C’s penis. There was no independent evidence of this. It was not in the father’s affidavit, and it would be a rather extraordinary omission if, in fact, such an event had occurred.
The father’s view that Mr C was grooming or potentially grooming young X and that he was too “hands on” was overkill and, in my view, entirely over-protective and exclusionary of young X’s brother in his life. Mr C gave evidence by affidavit and was cross-examined, and I am comfortably satisfied from seeing Mr C give evidence and watching his responses and listening to the evidence he gave, that he has been nothing but a loving brother towards young X and that he has absolutely never sexually assaulted X in any way.
If Mr C made some statement to the father when he was in the shower, which Mr C did not remember doing, I would not find that anything sinister was intended. In observing the witnesses in the case and noting the evidence as it stands, it seems to me that to a large extent, if not overwhelmingly, the father’s concerns about Mr C arise out of the father’s own very unfortunate sexual abuse as a child.
To be fair to the father, he was himself serially sexually abused by a school teacher in a position of trust, in which the father felt no doubt vulnerable. What happened to the father is a tragedy. It is inexcusable criminal conduct. However, in my view, it does not mean in any objective way that the Court should view the conduct of Mr C towards young X as being anything other than innocent. Particularly on the weight of all of the evidence, I am of the view that hypervigilance drove the father’s concerns.
I should add that the father had also accused the mother of being a sexual risk to young X at one point - because she had apparently rolled over on him in bed, and he had been unable to get out from under her. Initially the father was very angry and distressed about that event, thinking that the mother was sexually assaulting young X in some way. However, in more recent times, as a result of some discussion with a family member, the father said he had formed the view that it was more likely that the mother was simply “drunk” and perhaps in some form of “drunken psychosis” at the time.
Again, there is no evidence to justify the father’s concerns at all, and I would record that young X laughed when he spoke to the Family Report write about the mother laying on him. He clearly thought it was all a game.
There are a few indicators that the risks posed by the father in terms of over-protectiveness are dissipating somewhat. He has removed his strict injunction request in relation to Mr C. He agreed to young X spending quality time with Mr C, Mr D and the mother in the interim orders. This position does not really change in his proposed final orders, although some anxiety no doubt remains because he seeks a specific injunction that the mother be “present at all times when young X is with her” which is overkill in my view and I do not intend to make that order.
There has been some “loosening of the apron strings” as it were, in the father’s home in the sense that the child clearly has been able to develop friendships at school. Young X had a best friend “AB” who is referred to in the Family Report. In the report of Mr L, there is another best friend called “AC” who is referred to, and it is noted by Mr L that this boy and young X have been able to strengthen their friendship through visiting one another’s homes. That is a good thing for young X, and it highlights his visibility in the community and among his peers, which tends to ameliorate the risks associated with the “sequestering” attitude of the father.
The other issue that I wish to raise in relation to the father is family violence. The father, in my view, perpetrated family violence against the mother during the relationship. The mother says that he physically pushed her during the relationship, and notwithstanding his denial, I accept that this occurred on some occasions.
I also have before me the evidence of a rather nasty event which occurred on 19 April 2020, which was partially recorded by the mother. This was just around the time of separation. The mother had been out and came home wanting to collect young X. It is clear that the father was agitated and angry. At that time young X had recently told him about the mother laying on him (or rolling on him) in bed, and I consider that the father had been “stewing” on that issue.
It is quite clear from the video produced by the mother and from the documentary evidence that the father was very angry and upset with her and about what she had allegedly done to young X.
The father called the mother, who just wanted to collect young X, “a piece of shit, a fucking deviant”. He told her he did not care who she was, that she should “get her fucking arse out of here” (the house) while she still could. The father said that he had complained to Police about her sexually assaulting “my fucking son”. He told her she was not going to be taking him away from the house ever. By this stage the mother had started recording and it is common ground that the father at the very least pushed her - but the mother also says that he slapped her.
I have watched the video, and I accept the father’s evidence that he was trying to push the mother’s mobile phone camera away. But, equally, at one point just near the end of the video, the father swings his hand above the level of the mother’s phone – not aiming for the camera but above it – at what on balance would have been her head, at which point there is a distinct “slapping sound.”
I reject the father’s evidence that he did not slap the mother. I am satisfied that he did and that it was a heinous act of family violence on his part.
The father’s behaviour in that video is nothing short of contemptuous and, in my view, plainly constituted family violence.
Now, that is not to say that this is how the father always behaved or that it was demonstrative of a more general propensity to violence on his part, at least at that level. However, it is quite clear that he was very angry on this occasion, and his aggression towards the mother is really quite noticeable on the video.
I consider that the father was acting, in some way, out of over-protectiveness; that for reasons best known only to him and arising out of his own experience as a sexual assault victim, he thought the mother had, in fact, sexually assaulted young X. Now, this does not give him an excuse per se, but it is obvious to me that this was an issue that was very much playing over in the father’s mind.
The father was interviewed by Police. He denied slapping the mother. He was ultimately convicted of assaulting her (on a plea of guilty), on the basis of pushing her only. However, as I indicate, I am satisfied he slapped her. He has downplayed his actions. He has generally portrayed himself as a victim that day. He was not. He was the aggressor.
Having said these things, the evidence does not permit a finding that the father is in any further relationship or that the child is at further risk of family violence at this stage, at least insofar as an unacceptable risk of violence is concerned. I am a lot less concerned about the father’s temper/anger/propensity for violence than I am about the mother’s.
BEST INTERESTS
I turn now to a broad summary of the “best interests” findings, noting that many of the findings I have already made traverse the relevant considerations in section 60CC.
I am satisfied that the child would benefit from having a meaningful relationship with both parents. Indeed, it is inescapable that this would be so.
The family report writer maintained in her oral evidence that the father needed to undertake some counselling in relation to his sex abuse as a child, his post-traumatic stress disorder, his hypervigilance and anxiety.
I consider that there is a risk in the father’s care that young X may not have the opportunity to develop a meaningful relationship with the mother, given some of his alienating and exclusionary attitudes and sequestering of the child. However, such risks are not, in my view, “unacceptable” in terms of him being the primary carer.
In terms of section 60CC(2)(b), I am concerned that both parents have perpetrated family violence, and that young X has been exposed to family violence including the father exposing young X to that violence on 19 April 2020.
In this context, the greater risks – indeed, the far greater risks – are on the mother’s side of the ledger, as it were. In her oral evidence, the Family Report writer was concerned about the mother’s family violence, and maintained that she should be doing a perpetrator’s course.
In terms of section 60CC(3)(a), the child’s wishes, it is difficult reading this material not to feel some empathy for young X. He has been between “a rock and a hard place” in this case, as is so often the case for children. According to the evidence of Ms K, young X was, at that time, much less enthusiastic about Chinese food, at least insofar as what he was willing to tell his father, than was in fact the case. He clearly was feeling the pressure, either expressly or by implication, from his father to want to stay living with him.
Notably, at paragraph 159 of the Family Report, young X told Ms K that he wanted to tell his parents:
“Don’t fight. It’s not nice to be fought over. And, Dad, you have to share me a little bit more”.
I find that a very interesting observation by young X because he clearly did not want to hurt his father’s feelings. And when he said that the father had to share him a little bit more, I think that was likely to be a gentle understatement. He was not afraid of unsupervised time with the mother, even though the father had clearly shared his own fears about the mother potentially violently disciplining him: see paragraph 160 of the Family Report.
Troublingly, although young X wanted unsupervised time with his mother, he was worried what the father might think: see paragraphs 164 and 165 of the Family Report.
By the time of the Mr L report, things had improved insofar as the capacity of young X to express a view was concerned. He was able to say that he liked each parent’s food; that neither parent pressured him; that his overnight time with the mother was going “alright” and “pretty good”; and he said he had fun with the mother most of the time.
Apart from some “usual” sibling fights referred to in the report of Mr L, there was really nothing overly remarkable. It was a much more “normal” child interview than the one I read in the Family Report.
Ultimately, young X said to Mr L at paragraphs 24 and 25 of his report that his wishes were:
Regarding the future, [X] said he would like things to continue much as they are. He said he would not be keen to live with his mother full time, but is happy to see her every second weekend. He told me his preference is to continue to live mostly with his father and see his mother as described. When I asked [X] about school holidays, he told me decisively that he’d prefer the alternate weekend contact to continue during the holidays, rather than spend a block of time with his mother. [X] said he doesn’t feel unsafe at any time with his mother, and, as mentioned earlier, he doesn’t feel unsafe with his elder half-brother, [Mr C].
Of course, the father may have intentionally or unintentionally pressured young X in relation to those wishes, but broadly speaking I accept that young X still wants to live with the father. There may be an element of young X downplaying his time with the mother, particularly in relation to future holidays, given that he obviously has an awareness of some of the conflict in this case, and of some of his father’s concerns about the mother.
At the hearing, the Family Report writer was still somewhat concerned about the father needing to allow young X to develop independently and to have some ongoing counselling, as referred to in her report. However, she was also of the view that things had improved in a fairly significant way since the making of the orders of 9 March 2022.
In relation to section 60CC(3)(b), young X’s closest family relationship, in my view, is with the father, who has been a very large part of his life. Looked at objectively, one would really say that the father has been a disproportionate part of young X’s life. They spend a lot of time together, do lots of activities together and sleep in the same room. The father is very much at the centre of young X’s world.
Young X has a good relationship with his mother. That is evident from paragraphs 169 and 170 of the Family Report, as well as the Wishes Report. I am not persuaded that young X and the mother are as emotionally close as he is with the father, but equally, I have no concerns about emotional enmeshment between young X and the mother.
Young X has a good relationship with Mr C and with Mr D. He also has a relationship with the father’s daughter, Ms M, and her son, P. Technically, young X is P’s uncle, but it would seem more like a cousin relationship to me, looked at through young X’s eyes. Young X has relationships with school friends as well.
In terms of section 60CC(3)(c), each parent has actively participated in the child’s life. The father has excluded the mother to some extent. The mother cannot be criticised. She has done everything she reasonably can to pursue a relationship with young X, and has endured significant periods of supervised time to do so. She should be commended for the efforts that she has made to maintain a relationship with him in the face of a degree of passive resistance, especially in the earlier periods after separation.
Section 60CC(3)(ca) does not really loom large in this case.
Section 60CC(3)(d), the likely effect of change in circumstances, will be weighed up at the end as part of my conclusion.
There are no practical difficulties and expenses arising in the context of section 60CC(3)(e).
I have already addressed each parent’s capacity (section 60CC(3)(f)) and attitude (section 60CC(3)(i)) at length in the findings I have made. As I have already mentioned, I have concerns about both parents.
In terms of young X’s characteristics as referred to in section 60CC(3)(g), the fact is that he is half-Australian and half-Chinese, and always will be. He is ten (10) years old. He has been through a lot of tumult since these parents separated. He has experienced anxiety at school, as was demonstrated in May of 2021: see exhibit 13. Notably, young X has had anxiety, depression, withdrawal and some somatisation of anxious symptoms into physical ones – mainly stomach illness. It does seem from exhibit 13 that the father was somewhat oblivious to some of young X’s issues, and that perhaps they had gone unnoticed in his care. The father needs to be alive to such things.
Pleasingly though, young X does seem to be doing better in more recent times, and in my view his regular ongoing interaction with his mother and brothers will only help in that regard, as will a reduction in the conflict in this case.
In my view, young X needs stability and a predictable routine as well as regular time with both of his parents and his brothers. I should also add that young X also needs to be as immersed in his Chinese culture as he reasonably can be. He has a Chinese name. I think it is “AD” which is a reference to “AE” as he was born in the Chinese Year of the AE. Both of his brothers have similar Chinese names as well. It might fairly be said to be more of a nickname than a formal name – it does not appear on young X’s Birth Certificate – but it is a part of who he is.
There are no Aboriginality and Torres Strait Islander issues arising in this case: section 60CC(3)(h).
In terms of family violence, I have already addressed those at quite some length: sections 60CC(3)(j) and 60CC(3)(k).
In terms of avoiding future proceedings (section 60CC(3)(l)), this is a concern of mine, particularly in the context of overseas travel, to which I will turn separately in a moment.
WEIGHING UP THE COMPETING PARENTING PROPOSALS & POTENTIAL CHANGES TO YOUNG X’S CIRCUMSTANCES
When I weigh up the best interests considerations in terms of where X should live, the time he should spend with the other parent, and issues of parental responsibility, it seems to me, in a nutshell, that there are risks to him in both homes.
The biggest risk in the father’s home is that he may not promote the mother’s relationship to the extent that he should. That risk has ameliorated to some extent, but a degree of risk remains. The other major risk is the father’s emotional sequestering of the child, which is an ongoing risk that is somewhat more difficult to ameliorate. I have made clear that, in my view, the father does need to obtain larger and better accommodation with a separate bedroom for X in the short to medium term.
In the mother’s home, there is a degree of instability in terms of her housing and accommodation. She has a very different attitude to parenting to the father, so there is a significant adjustment involved for X in terms of going between the households. I have real concerns about the mother’s propensity for violence and aggression, particularly family violence when she is heightened. I do not propose to repeat myself beyond observing that there are real risks there.
When I weigh up each parent’s home, neither offers the perfect environment, but that is a pretty “standard” circumstance. Human beings are not perfect, much less parents. The father clearly is very close to young X, and, in my view, they have a relationship of significant depth. It is not entirely healthy, I might add, but it is one of significant depth. If I were to order that the child live with the mother, I consider that young X would, frankly, be devastated. I think part of that devastation would relate to his own adjustment to the change in circumstances, and a part of it would be sadness for his father.
I am also satisfied the father would be devastated. The very prospect of young X not living with the father was something that seemed incomprehensible to him when he spoke to the Family Report writer.
The father is not a young man and he is not getting any younger. He has ongoing health issues. I consider that if I were to move young X to the mother’s care at this stage of his life that it would be too dramatic and too tumultuous an upheaval for the child. I do not consider that he would cope. I do not consider that his father would cope. I consider that, overall, young X would be much worse off.
If I were to leave young X living with the father, then it is absolutely essential that he spend quality time with his mother and brothers. He is now used to doing so, and, in my view, he is thriving in that arrangement. What young X said to the Family Report writer – that he wanted the parents not to fight, that it was not nice to be fought over, and “Dad, you have to share me a little bit more” – resonates loudly in my mind for this young man. He was giving a clear message, even back at that difficult time, that he wants to see both of his parents. The father needs to promote time between young X and the mother.
I am satisfied – with some reservations – that the father can do so adequately.
Yes, the care offered by the father is somewhat cloistering, and there are inevitably, some risks, but it would be, in my view, emotionally devastating to move young X to live with his mother at this time.
In what is a difficult balancing act, I am satisfied that what is in the best interests of young X are, as indicated by the ICL, for him to remain living with the father, but to spend regular quality time with the mother.
In terms of parental responsibility, there is very little to say. The presumption does not apply. Each parent presses sole parental responsibility, and in my view the order should be that the father have sole parental responsibility.
I turn to the issue of travel to China. This is a particularly difficult decision for me. As I have indicated earlier, young X is half-Chinese. He does not speak Mandarin with the father, because the father does not speak the language at all. The mother does, and she regularly speaks to him in that language. The mother is vastly better placed to promote young X’s Chinese culture than the father is.
Now, to enable young X to travel over to China has an obvious benefit to him, as he can meet friends and relatives, including the mother’s parents, as well as enabling him to be immersed in his Chinese culture.
The problem here is that the father opposes any travel whatsoever. He wants the child placed on the Watch List, and I am quite satisfied that his hypervigilance is a strong driver of that.
The ICL adopted some sort of “middle ground” position, which was to the effect of the child being able to travel overseas “with the permission of the father for the purpose of things such as school excursions” – a sort of halfway house, if you like, designed to give young X all the opportunities of overseas travel, but in some way restraining or restricting such travel at the same time.
I am not much enamoured of limiting overseas travel to school excursions. It seems entirely artificial.
What are the risks to young X then, in terms of allowing overseas travel? On the father’s case, he is afraid that the mother may take young X away and never return. I accept that the father is genuine about his fear, and it troubles him enormously. The mother does have a history of behaving in aggressive ways, and sometimes in what might be called a “fit of pique”, as it were. However, if she were to travel to China and remain there with young X, then it would be disastrous for young X.
China is not a party to the Hague Convention. The prospect of the father being able to get him back to Australia would be slim indeed. Young X is far too young to be able to make his own way back to Australia, and it would be unreasonable to expect him to do so.
But what is the likelihood of that risk, in reality? Certainly, the effect of that risk coming to fruition would be dramatic, but is it realistic that it might ever occur?
The mother and Mr D became Citizens of Australia in 2017. The mother lives in Australia and has done for many years. Her two (2) sons, Mr C and Mr D, live in Australia.
The mother travelled to China during the relationship, on one occasion in 2018, when, to be fair, the relationship between her and the father was crumbling. The mother took young X on her own without the father being there.
She also travelled to China with the father between around November 2017 to January 2018, or between February 2018 and about May 2018, depending on whose evidence is believed (it does not really matter).
The fact of the matter is that the mother has made a life for herself in Australia ever since 2011, as have her children. I see no reasonable basis for the mother to want to secrete young X in China. The mother does not see her own future there, although she obviously maintains family relationships and likes to visit China, which is understandable.
I consider that the risk of the mother spiriting the child away to China is extremely low; however as I have indicated earlier, the consequences of her doing so would be dramatic.
To add into the mix is the mother’s evidence concerning the disciplinary practices for children in China. The mother was at pains in her evidence to emphasise that physical discipline was permissible in China. The father expresses a concern that if she took young X to China, that young X might be at risk of being physically assaulted over there, if not by the mother, then potentially by one of the other relatives.
I also note that, as I have indicated earlier, the father’s anxiety about overseas travel is real. He has, on any view, hypervigilance and anxiety at a high level. I am satisfied that he would be enormously stressed at the prospect of young X travelling to China any time soon, and that the impact of such stress and anxiety on him would have an adverse effect on his parenting.
Put shortly, the father is rather psychologically brittle, and I am concerned that if the Court were to make orders that permitted travel to China, that his anxiety would get the better of him, and that it could negatively impact the relevant relationships between young X and his mother, and perhaps with his brothers as well. I would not want the child to be exposed to the father’s anxiety and fears, or to himself become fearful.
In the end, a pragmatic approach seems to be called for in the best interests of this young man.
I propose to make orders that young X spend regular time with the mother, but there will be no significant blocks of time until 2026 on the orders I propose to make. There would be little value in the mother trying to take young X to China for a short visit – it would seem to be impractical – but after 2026, the opportunity should be there in my view. By that stage, X will be quite a bit older, and, in my view, much better able to communicate with authorities and to “handle himself”, for want of a better expression, in the event that he was in China.
I do not want to condemn these parties to coming back to Court for arguments about overseas travel. I cannot stop the parties coming back. There is no such thing as a perfect order. If I put in place an order that stops overseas travel indefinitely, then the onus will be on the mother or the father to come back and seek orders. That seems to be a tragic outcome for young X. On the other hand, if I put in place orders that facilitate overseas travel in around four (4) years time, limited to periods during which the parents have time with young X, and with appropriate guardrails in terms of itineraries and the like, I would be of the view that such time ought to be able to occur.
I accept that such an order may cause a degree of stress to the father, which may in turn impact on him, but he needs to understand and reflect on the fact that young X is half-Chinese, and that young X has an entitlement to know that other one half of his cultural and genetic background.
I again emphasise that I consider the risk of the mother trying to keep young X in China to be extremely slim.
I also emphasise two (2) other points. Firstly, that it would be open to the parties to come back to the Court, if they had to, in the event of a dispute arising in the context of overseas travel after 2026. I hope they do not, but that risk cannot be excluded.
Secondly, to look perhaps on the “flipside”, it is always open to the parties to negotiate some other overseas travel arrangement that is more flexible, and the orders will provide for that as well, although I see it as unlikely in the short term that any such flexibility would occur.
I note, in closing, that there is reference in the material to the father discussing with Ms M the prospect of her having young X live with him in the event he were to pass away. The father is not getting any younger, but it should be made very clear that there ought be no assumptions about where young X would live going forward in the very unfortunate event of the father passing away. There are no orders and no applications before me about that. Although I have not expressly referred to it in these reasons up to now, it is a matter that has caused me a degree of concern in terms of the father’s attitude towards promoting the mother’s relationship with young X. It is in the back of my mind.
On the father’s case, his concerns are said to relate to the mother’s violence, and other issues to which I have referred. I simply make the point that I can understand, from the father’s perspective, why he has reservations about the mother caring for young X in the tragic event of him passing away, but in my view, this is not a matter that is before the Court for consideration in terms of any orders today, and one would hope that such a situation does not arise.
The critical point is that on the orders I propose to make today, the father needs to promote young X’s relationship with the mother as best he can. He needs to comply with orders, and, frankly, for young X’s sake, these parties need to work together as best they can. If, in time, Ms M comes to Australia, as she indicates that she will, one would hope that her relationship, can no doubt be facilitated with young X, and that the parties can avoid further conflict for his sake.
For those reasons and against that background, I propose to make orders which are substantially in accordance with those proposed by the ICL in exhibit 10, with a number of amendments and alterations, which I will run through now.
CONCLUSION
For these Reasons, I make the orders set out at the commencement herein.
In closing, I wish to record my specific gratitude to Mr Moon of counsel, Mr Allen of counsel, and to Ms Callander for their very thorough approach to the conduct of this case, and to the helpful way in which the case was advocated on behalf of all parties. I record here that they assisted the Court. I also thank the ICL for her specific assistance in the matter.
I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 10 February 2023
0
0
0