VAN & CHONG

[2019] FCCA 3825

FEDERAL CIRCUIT COURT OF AUSTRALIA

VAN & CHONG [2019] FCCA 3825

Catchwords:
FAMILY LAW – Relocation – determined on an interim basis – reliance upon social housing – Department of Housing – where there has been allegations of family violence – where there has been interventions by the Department of Health and Human Services – supervised time – where the parties are of limited means to travel between locations.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(3) and 67Z

Applicant: MS VAN

Respondent: MR CHONG

File Number: DGC 3453 of 2019

Judgment of: Judge McNab

Hearing date: 10 December 2019

Date of Last Submission: 10 December 2019

Delivered at: Dandenong

Delivered on: 10 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Foo of Counsel

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Ms Borger of Counsel

Solicitors for the Respondent: MIR Lawyers

ORDERS

Until further order:

1. The mother and the father have equal shared parental responsibility for the child X born in 2017 (“the child”).

2. The child be permitted to remain living at Suburb A with the mother.

3. The child spend time and communicate with the father in Melbourne as follows:

   (a)from 9.00am to 12.00noon on 11 December 2019;

   (b)from 2.00pm to 6.00pm on 25 December 2019;

   (c)from 10.00am to 12.00pm on 26 December 2019;

   (d)from 3.00pm to 6.00pm on 15 January 2020;

   (e)from 9.00am to 12.00pm on 16 January 2020;

   (f)from 3.00pm to 6.00pm on 29 January 2020; and

   (g)from 9.00am to 12.00pm on 30 January 2020.

4. Changeover for the father’s time spent with the child take place at the commencement of time and conclusion of time at KFC in E Street, Suburb F.

5. The mother and the father forthwith submit to a hair follicle drug test at their own costs and provide such results of the test to the solicitors for the other party and the independent children’s lawyer within 14 days of this order.

6. The father be restrained from consuming alcohol to excess and using or being under the influence of any illicit substances during any time spent with the child.

7. The father, his servants and/or agents be and are hereby restrained by injunction from denigrating the mother or her family in the presence or hearing of the child and from allowing any other person to do so.

8. Pursuant to s.68L(2) of the Family Law Act 1975 the child (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they makes such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

   (a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;

   (c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at ( and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   (d)The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.

9. Pursuant to section 11F of the Family Law Act 1975, the parties and the child attend upon a Family Consultant of the Federal Circuit Court of Australia (“the Family Consultant”) for the purposes of a Child Inclusive Conference on 7 February 2020 and:

   (a)the parent with the child to attend at 9.00am; and

   (b)the other parent to attend at 10.00 am,

   at Level 1, 53-55 Robinson Street, Dandenong.

10. Pursuant to Order 9 above the Family Consultant shall provide an oral report on 7 February 2020 at 2.15pm to the Court and to the parties.

11. The matter be adjourned to Federal Circuit Court of Australia at Dandenong on 7 February 2020 at 2.15pm for Interim Defended Hearing.

AND THE COURT NOTES THAT:

1. The spent time arrangements fixed reflect circumstances where the father has not seen the child since 28 September 2019. The father may not be in a position to maintain arrangements at this level of frequency due to lack of resources.

2. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

3. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

4. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

5. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

6. If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Van & Chong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3453 of 2019

MS VAN

Applicant

And

MS CHONG

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. This application involves the applicant mother, Ms Van, who was born in 1980, and the respondent father, Mr Chong, who was born in 1963. They have one child, X born in 2017, who is two years of age.

2. The initiating application was filed on 17 October 2019. That application seeks the following interim orders:

   1. The child, X born in 2017 (“the child”) live with the Mother.

   2. The child be permitted to remain living in Suburb A with the Mother.

   Father’s time

   3. Until further order, the Father spend time with the child at Family Life Children’s Contact Centre in Suburb G or any other Supervised Contact Centre agreed between the parties, on such days and at such times as directed by the supervisory centre.

   4. Both parties do all things reasonably requested of them by the supervisory centre including but not limited to attending an intake session for the purpose of commencing supervised time between the child and the father.

   5. The time the child spends with the Father be subject to the Father continuing to take the medication prescribed or him and attend upon his health professional as directed by any of them.

   6. Each parent bears their own costs of travelling to the Contact Centre for the father’s time with the child. However, the Father will pay any fees charged by the Contact Centre for him to spend supervised time with the Child.

   7. The Father obtain a report from the supervisory centre in relation to the time he spends with the child.

3. The proposed orders also make provision for drug testing, which is an agreed position between the parties. The mother’s proposal asks for there to be restraints in relation to the father consuming alcohol to excess or being under the influence of any illicit substance during any time spent with the child and for there to be a non-denigration clause in the usual terms.

4. The father’s proposal is as follows:

   Parental Responsibility

   1. Until further order, the mother and father have equal shared parental responsibility for the child X born in 2017 (‘the child’).

   The child’s living arrangements

   2. The child live with the mother in the greater Town C area and within 30 kilometres of the father’s residence being B Street, Town C in the State of Victoria (‘the father’s residence’).

   3. Forthwith, and for the purpose of facilitating the mother’s compliance with order 2, the mother:

   3.1 Do all acts and things and sign all documents to obtain housing in the greater Town C area including applying for housing with the assistance of:

   3.1.1 Real estate agents managing private rental accommodation; and/or

   3.1.2 Government departments managing government funded short and/or long-term accommodation; and/or

   3.1.3 Non-government organisations managing partial or fully funded and/or long-term accommodation

   (together “housing applications”).

   3.2 Keep the father’s solicitors informed as to all housing applications made by her;

   3.3 Provide information within 7 days of any written request to do so by the father’s solicitor updating the father’s solicitor on the progress of any housing applications

   4. If, by no later than Friday 31 January 2020, the mother has not complied with order 2 and the child’s residence is not one being within the greater Town C area and within 30 kilometres of the father’s residence, the child live with the father.

5. Order 5, in summary, proposes that the child spend time with the father in an unsupervised setting each Monday between 5.30 and 6.30pm, each Wednesday between 5.30 and 6.30pm, and each Friday between 5.30 and 6.30pm. There is also provision for Skype and other spend-time arrangements, including spend-time arrangements through Christmas.

Interim issue to be determined

1. The fundamental point of difference in this matter is that the mother wishes to remain living in Suburb A, and the father wishes her to return to live in the Town C area. That is the central issue to be determined on this interim application.

2. The parties have helpfully prepared a statement of agreed facts which are as follows:

   2012 Parents meet in Country H

   2013 Parties marry in Country H

   2016 Mother arrives in Town C

   2016 Mother has to go to a refuge for a month and continues relationship with the Father and contacts Father during that time

   2017 Mother obtains Permanent Residency

   2017 X is born

   19 April 2017 Mother goes to a refuge for a brief period of time and contacts Father during that time

   18 May 2017 Parties separate

   26 May 2017 Mother obtains transitional housing

   24 July 2017 [Department of Health & Human Services (‘DHHS’)] intervenes and issues a Protection Application; Child placed with Father pursuant to an Interim Accomodation Order, Mother has supervised contact, gradual reunification plan

   5 October 2017 DHHS receive information about X's shoulder

   26 February 2018 DHHS withdraws and the child is placed back with the Mother in the full time care

   May 2018 Application for Family Dispute Resolution Service

   2[7] September 2018 Family Violence Incident - differing views

   24 October 2018 FDRS not able to proceed

   12 November 2018 Final Intervention Order, parties sign a parenting plan for the child to live with the Mother and for the Father to spend supervised time at the Region J Family Centre

   12 July 2019 Father commences supervised time with the child - agreed 7 times at the Centre, Mother informs Centre

   11 October 2019 Dept of Housing gives permanent housing to the Mother [in Suburb A]

   17 October 2019 Mother files Initiating Application.

   2 December 2019 First return

   5 December 2019 Father files Response

   6 December 2019 Mother files subsequent affidavit

   10 December 2019 Interim Hearing

3. The parties have differing views about what occurred on 27 September 2018 and how serious or severe the violence was. In any event, there was an intervention order made arising from that. The father admitted that he kicked the mother’s door, but denies that there was any violence involving a knife. He said he was angry because he had been deprived of access to X by the mother without any proper cause;

The mother’s evidence

1. The mother has filed two affidavits, one being on 17 October 2019 and the other affirmed on 6 December 2019. The mother’s affidavit of 17 October 2019 outlines the history of the matter, which, largely, has been dealt with in the statement of agreed facts. She deposes to an instance of family violence, and it is apparent from the narration of the facts that these parties were really not together as a family or as a married couple for very long once the mother arrived from Country H. What she deposes to is that in mid-June 2017 she felt very low emotionally and isolated, with no social supports in Town C. She says at [33] of her affidavit of 17 October 2019:

   I desperately wanted to move to Melbourne or Adelaide, where there is a larger Country H community. The father was well connected to the small Country H community in Town C, and this isolated me even more. I was receiving support from services, but I still felt alone. In Country H culture, children are raised by extended family, who often live together, and offer constant support. I found the concept of raising X alone very difficult and confronting, in addition to the isolation I was feeling and the impact of the father’s behaviour since I had arrived in Australia.

2. The mother also makes allegations that the father is a gambler and that she was harassed by members of the Country H community in Town C as a result of his gambling debts. He denies being a gambler or having gambling debts. The mother also is frank in her disclosure of the involvement of DHHS. She says that she strongly disagrees with X being taken out of her care and disagrees with the allegations that the child protection had acted on. Those allegations include that she had advised a local Country H grocer that she would jump off a bridge with the child. The mother attended a Forensic and Clinic Neuropsychologist, Dr D, whose comprehensive and detailed report (dated 27 September 2017) is attached to the mother’s affidavit.

3. Dr D expressed the opinion that at the examination of the mother on 31 August 2017, the mother did not currently present with any clinically significant psychological symptoms, and expressed at [39] of the report:

   […] [The mother] has likely experienced significant situation distress due to multiple stressors giving rise to an Adjustment Disorder to have greatly resolved at present. At present, [the mother] does not present with any clinically significant psychological disorder which conveys an unacceptable risk to X. […]

   (errors in original)

4. Dr D did recommend that the mother engage with mental health services.

5. The mother deposes to an incident of family violence on 27 September 2018. The mother deposes that after the family violence incident she spoke to a support worker about her desire to move away from Town C. She obtained assistance to make an application to transfer housing to a property in or around Melbourne. She said that she did this because of the incident in July 2017 and the ongoing monitoring. She did not feel comfortable associating with the small Country H community in Town C. She also says that her employment opportunities in Town C were limited, where she works as a labourer.

6. In November 2018, the mother received confirmation that DHHS had received her housing application, and on 10 January 2019, she received confirmation that her priority housing application had been approved and that she was on a waiting list.

7. I heard in the course of the proceeding today that she was initially offered housing in Suburb K but did not take that offer as she did not consider it an appropriate area for X. On 18 September 2019, she received a letter from the Department of Housing offering her a house in Suburb A, near Suburb F. The mother moved into this house in 2019 with X and another of her children, L (who is, as I understand it, 10 years old).

8. The mother deposes that whilst in Town C, X was attending an early learning centre four days per week. She further deposes that there is also a similar early learning centre close to her current home in Suburb A. Her daughter, L, is enrolled in a primary school in Suburb A. She says that she has friends in the Suburb F and Suburb M areas who are part of the Country H community there.

9. In summary, the mother has said she was in a very unhappy situation with the father, that she was unhappy living in the community in Town C, had limited employment options. She took the opportunity to move from Town C for those reasons.

The father’s evidence

1. Both parties are in receipt of either Centrelink payments or health benefits, are not employed, and, accordingly, both parties’ funds are extremely limited.

2. The father has filed an affidavit in response. Whilst he admits that there was a family violence incident on 27 September 2018 when he attended the applicant’s home and kicked the door, he denied threatening the applicant with a knife. He, in fact, says that the mother was the perpetrator of family violence and was irrational and was making constant demands for money.

3. The father refers to the involvement of DHHS, with the child being placed in his care for a period of about seven months. This, he says, points to his capacity to act responsibly as a parent and ensure that X’s best interests are met. He did agree to enter into a parenting plan which had him spending supervised time with X. Throughout his affidavit he makes reference to the tensions between him and the mother. The tensions are, he deposes, often in relation to money and the substance of his allegations is that the mother was behaving unreasonably towards him.

4. The father points to the distance between Town C and Suburb A and puts a submission, effectively, that if the mother is to remain in Suburb A he will be unable to have a meaningful relationship with the child.

5. The father also points to the fact that the mother’s health has been such that the child has needed to have two parents available to assist, and raises the fact that he stepped up and assisted the mother when she was in a low place which required the intervention of DHHS. In what were very clear submissions put on behalf of the father, it was put that the child had a very difficult early history, with a history of the child needing both parents, and if the father had not been in Town C, the child would have gone into departmental care. Whilst the father is subject to intervention orders, he has not contested those orders, and there is genuine dispute as to the level of family violence and who is responsible for it.

6. In the course of his affidavit, the father has made reference to the fact that he has a daughter who is 30 years of age, who has two children who he sees regularly in Melbourne. The Court sought clarification in relation in relation to that and was told that the father’s relationship with his daughter is not straightforward. It was described as a difficult relationship. He also has a difficult relationship with his grandchildren’s father. As such, he spends daytimes with the grandchildren when he does see them on a handful of times he comes to Melbourne. He has an 85-year-old mother who lives in the Suburb M area, but he stays in a hotel when he visits.

7. The father stressed that the Court should make an order for the mother to return to Town C in order to allow the parties to be in the same place and for the father to spend meaningful time with the child on a regular basis. It is said this would place the Court in the best position to make a decision as to the best interests of the child at final hearing.

Section 67Z Report

1. The Court and the parties’ legal representatives were provided with a copy of a section 67Z notice from DHHS dated 24 October 2019 which outlines the issues which have been raised earlier in relation to the mother’s capacity to look after X for a period of time and also in relation to the father’s health, with particular focus on his mental health. The summary provides in part that:

   Regarding the family violence, this is said to have occurred during the parental relationship. The parents are now separated and this reduces the likelihood of X’s exposure to further family [violence].

1. The section 67Z report further states:

   The current information does not indicate that X is at significant risk that would warrant Child Protection involvement at this time.

Consideration

1. This is an interim decision. It is not a final decision. I am not making a decision which is forever. This is a decision which is to deal with the situation before any final order is made. I am not in a position to, nor am I entitled to, make final findings of fact. I am making this decision on the basis of the material before me without coming to any conclusion.

2. In making a decision, even on an interim basis, the most important consideration is the best interests of the child. I must consider the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. I must also have regard to the considerations under section 60CC(3) of the Family Law Act 1975 (Cth).

3. For interim matters, as pointed out to me by counsel for the father, I must consider:

   a)the best interests of the child;

   b)whether there are reasonable grounds for making the order; and

   c)whether, for reasons of hardship, family violence, and/or prejudice to the parties or children, the order is necessary.

4. This decision is not straightforward or an easy one for the Court to make. My concern, which was raised through the course of the hearing, was the difficulty that was imposed on the father of having an ongoing and meaningful relationship with the child if an order was not made to require the mother to return to Town C.

5. The distance from Town C to Suburb A is significant. The father is dealing with financial constraints and he has a limited range of venues that he can use to visit the child. Against that is the situation that the mother is now in, where she is in the very happy and lucky circumstance of having stable and affordable accommodation.

6. The fact that the mother now has access to stable and affordable accommodation is a most significant consideration, and in my view, this is the factor that weighs most heavily in my consideration. The proposal put by the father that the mother give up this accommodation – which I treat as a matter of judicial notice that such accommodation is notoriously hard to access and has very long wait lists – would require her to return to Town C. To require the mother to return to Town C would place her in an uncertain housing situation and would create practical difficulties for the mother and, therefore, for X who, let us remember, is only two years of age. This outweighs the benefits, at this stage, of being closer to the father.

7. In summary, I am not minded to make orders requiring the mother to return to Town C at this time. However, I do not believe that there is any evidence before the Court that there is an ongoing need for the father to spend supervised time with the child.

8. I think an Independent Children’s Lawyer should be appointed, in particular because of the complex history of the matter between the parties and their own limitations in terms of capacity to properly investigate the matters. The matter will return on 7 February 2020 at 2.15pm for Interim Defended Hearing, before Judge Stewart in Dandenong.

9. If the parties are able and have the capacity to draft orders that reflect what I have decided, I will make orders in those terms. Otherwise, I will hear the parties as to the time the father spends with the child.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  22 January 2020