Wang and Jong

FAMILY COURT OF AUSTRALIA

WANG & JONG

[2009] FamCA 1150

FAMILY LAW – CHILDREN – Whether presumption of equal shared parental responsibility rebutted on ground of family violence – whether in the best interests of the child to make an order for sole parental responsibility on terms – issues of child sexual abuse, family violence and unacceptable risk of such abuse – issues of with whom the child shall live and supervised periods of time with a parent

M v M (1988) FLC 91-979
B and B (1993) FLC 92-357
Sedgley and Sedgley (1995) FLC 92-623
Re Andrew (1996) FLC 92-692
B and B, Family Law Reform Act 1995 (1997) FLC 92-755
A v A (1998) FLC 92-800
Johnson & Page (2007) FLC 93-344.

Family Law Act 1975, ss 60, 60B, 60CA, 60CC, 61DA, 65L, 65AA
Evidence Act 1996 (Cth), s 140(2)

APPLICANT:

Ms Wang

RESPONDENT:

Mr Jong

INDEPENDENT CHILDREN’S LAWYER:

Matthews Folbigg, Solicitors

FILE NUMBER:

SYC

8430

2007

DATE DELIVERED:

30 November 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rose J

HEARING DATE:

19-23, 28 & 29 October 2009

WRITTEN SUBMISSIONS:

2 & 19 November 2009 (Mother)

12 November 2009 (Father)
19 November 2009 (ICL)

REPRESENTATION

APPLICANT:	Mother in person
RESPONDENT:	Father in person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms E Boyle

Orders

That the child Z also known as … (“the child”) born … September 2005 live with the mother.
That the mother have the sole parental responsibility for the following major long-term issues for the child:
(a)      the child’s education (both current and future); and
(b)      the child’s religious and cultural upbringing; and
(c)      the child’s health; and
(d)      the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with her parents.
PROVIDED that prior to the mother making a decision in relation to any of such major long-term issues she consult the father for the purpose of her taking his views into account upon seven (7) days written notice subject to any emergency.
That the father spend time with the child as agreed between the parties and failing agreement as follows:
(a)At W Contact Centre, unless he gives 24 hours written notice to the mother of his inability to do so on any particular occasion, at least once a week and each occasion to be for at least two hours or such longer time as the Contact Centre can facilitate and that each party shall pay the costs of the Contact Centre in equal shares.
(b)Following the father complying with Orders 4 and 5 and after the expiration of 14 days after such compliance, unsupervised time each Sunday from 10.00 am to 5.00 pm for a period of two (2) months.
(c)Thereafter from 10.00 am Saturday to 5.00 pm Sunday each alternate week and from 5.00pm Thursday to 9.00 am Friday in each intervening week.
(d)Such alternative or other periods of time that the parties may agree upon.
(e)Upon the child commencing school in 2011 and after the father has complied with Orders 3(a) and 3(b), 4 and 5:
(i)During school terms, from after school Friday, or 3.00 pm Friday if it is a non-school day, to before school Monday, or 9.00 am Monday if it is a non-school day, each alternate weekend to commence the first weekend of each school term.
(ii)For one half of all school holidays as agreed between the parties, and in default of agreement for the first half in all years ending in an odd number and for the second half of all years ending in an even number commencing at 9.00 am on the first day and concluding at 5.00 pm on the last day which in the second half of school holidays shall be the Saturday prior to the commencement of the new school term.
(iii)During the weekend containing Father's Day, in the event this is not already a weekend that the child is with her father, from 5.00 pm Saturday to before school Monday, or 9.00 am Monday if it is a non school day.
(iv)Such alternative or other periods of time that the parties may agree upon.
That the father shall as soon as possible attend counselling with and obtain a report from such psychiatrist or psychologist as recommended by Dr L to address anger management, emotional regulation issues, and the matters referred to in Order 5, and upon receipt of that report the father shall forthwith provide a copy of the report to the mother and the independent children’s lawyer.
That the report referred to Order 4 address the following matters:
(a)The father’s understanding of the significance for the child of conflict between her parents;
(b)The father’s understanding of the impact on the child of any aggressive behaviour by him towards the mother;
(c)The father’s understanding of the impact on the child of any aggressive behaviour by him towards any person, including the child;
(d)The father’s understanding of the impact on the child of his losing his temper.
(e)The opinion of such psychiatrist or psychologist that the father has made substantial progress in anger management and overcoming his emotional regulation issues.
(f)Such psychiatrist or psychologist has read copies of the Orders made and judgment delivered this day.
That the independent children’s lawyer have leave to provide to the recommended psychiatrist or psychologist referred to in Order 4 a copy of the judgement and Orders made this day, Dr L’s report being Exhibit 4, and the transcript of his evidence, AND for the purpose of this Order, Dr L shall inform the independent children’s lawyer of the recommendation that he has made to the father.
That in the event that Mother’s Day falls during any period that the child is spending time with the father, then that time shall be suspended and the mother shall spend time with the child from 5.00 pm Saturday to before school Monday, or 9.00 am Monday if it is a non school day.
That for the purpose of these Orders the school term is deemed to commence at 9.00 am on the first day of the school term and school holidays are deemed to commence at 9.00 am on the first day after the public school term ceases and changeovers shall occur at 5.00 pm on the day in the middle of the school holiday period.
That for the purpose of change-over in Orders 3(b), 3(c) and 3(d) when it is a non school day the mother or her nominee shall deliver the child to the father or his nominee, at the E Railway Station at the commencement of the father’s time with the child, and the father or his nominee shall return the child to the mother or her nominee at N Police Station at the conclusion of the father’s time with the child, or as otherwise agreed between the parties.
That for the purpose of change-over in Orders 3(b), 3(c) and 3(d) when it is a school day the father or his nominee shall collect and deliver the child to and from school at the commencement and at the conclusion of his time with the child, or as otherwise agreed between the parties.
That each of the parties attend a Parenting After Separation course through Relationships Australia, and enrol in such a course within 14 days of these Orders and complete such a course within four (4) months of the date of these Orders and provide a certificate that they have completed such a course to the other parent and independent children’s lawyer forthwith upon completion.
That the mother shall authorise the principal of all pre-schools and schools attended by the child from time to time to furnish the father upon his request and at his expense copies of all preschool and school reports, notices, correspondence and school photographs in relation to the child.
That in the event of the child suffering a serious injury or illness whilst in the care of one of the parties, then that party shall inform the other party as soon as possible of the detail of such injury or illness and the name and address of any relevant medical practitioner or hospital concerned with the treatment of the child.
That unless there is an emergency, communication between the parties about matters concerning the child’s education, general health and requests to vary arrangements occur via email or by text message.
That each party be restrained from denigrating the other party or their family to, or in the presence or hearing of the child, or causing or permitting any other person to do so.
That each party be entitled to attend at events at the child’s school to which parents are invited.
That the mother born … 1974 and the father born … 1975 and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child Z also known as … born … September 2005 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
That the father may communicate with the child by telephone and/or webcam on Tuesday and Thursday between 6.00 pm and 7.00 pm and the mother shall ensure that her mobile phone is charged and switched on during that period, and that her computer is turned on and the webcam is available to be used during that period.
That the mother may communicate with the child by telephone and/or webcam on one occasion each day that the child is in the unsupervised overnight care of the father between 6.00 pm and 7.00 pm and the father shall ensure that his mobile phone is charged and switched on during that period and that his computer is turned on and the webcam is available to be used during that period.
That each party shall keep each other notified of a current mobile telephone number, postal address, email address and skype address.

PROCEDURAL ORDERS

That on or before 5.00 pm, 7 December 2009 the independent children’s lawyer and the father seek the assistance of the Director of Child Dispute Services or her nominee to arrange for Ms S, the family consultant and a Mandarin speaking interpreter to meet with the paternal grandparents so that they can have interpreted for them the Reasons for Judgment and Orders made in these proceedings and discuss any matters arising with the family consultant and the father shall use his best endeavours to ensure that the paternal grandparents attend any appointment made with the family consultant and the Mandarin interpreter.
That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
That the parenting proceedings be removed from the Active Pending Cases List.
That all documents produced on subpoena be returned to the person who produced the same.
That the pending property proceedings be listed for directions before the Case Management Judge or as he may direct on a date and time fixed by him.

NOTATION:
A.The Court notes the undertakings of the paternal grandparents contained in Exhibit 18 annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC8430 of 2007

MS WANG

Applicant

And

MR JONG

Respondent

REASONS FOR JUDGMENT

Introduction

By her Amended Application filed 9 October 2009 the applicant Ms Wang, who for convenience in these proceedings will be referred to as “the mother”, sought parenting orders that the child of the parties Z born in September 2005 (“the child”) live with her and that she have sole parental responsibility for the long-term care, welfare and development of the child.
In addition, the mother also sought orders that the father have supervised periods of time with the child each Saturday from 11.50am to 5.30pm at the W Contact Service. Other orders in relation to communication between the parents of the child were sought as well as an injunction restraining the father from taking the child to a location outside Sydney, subject to certain terms and conditions.
The respondent Mr Jong who for convenience I shall refer to as “the father”, opposed the orders sought by the mother. The substantive orders sought by him pursuant to his Amended Response filed 14 October 2009 are almost a mirror image of the orders sought by the mother.
The father has sought orders that the child live with him and that he have sole parental responsibility for the day-to-day and long-term care, welfare and development of the child. In addition, he has sought orders that the mother may spend time with the child each Saturday from 9.30am to 5.30pm as well as on other specified occasions. Injunctions were also sought against the mother requiring her, amongst other things, to return the child’s passport, birth certificate and Medicare card to the father and that the mother be restrained from taking the child to locations outside the Sydney metropolitan area. In addition, an order was sought that the Australian Federal Police place the name of the child on the airport watch list.
The father also sought orders for property settlement pursuant to his amended response. Those proceedings were not listed for hearing before me.
Each of the mother and father have been unrepresented throughout the hearing. The Independent Children’s Lawyer has briefed counsel.
Throughout the hearing, the parties have had the services of an interpreter for the purpose of translation from English to Mandarin and when appropriate, a reverse translation. The parties gave their evidence principally in English as well as having mainly conducted cross-examination in that fashion.
Each of the parties impress me as being above average intelligence and hold degrees in tertiary education, both in China and in Australia. The mother is a long-term employee as a financial analyst whilst the father is employed by another employer as a business analyst. They are both Chinese citizens and have permanent residency in Australia.
The conduct of the hearing proceeded in accordance with the less adversarial trial practice and procedure.
The appointed single expert Dr L, psychologist, provided a comprehensive report which is Exhibit 4. Exhibit 2 is a report by another psychologist, Ms O, who was consulted by the mother and the child on two occasions namely 11 December 2008 and 15 January 2009 due to the mother’s concerns in relation to emotional and behavioural issues of the child.
Three prominent issues for determination in these proceedings are:
(1)Family violence allegedly perpetrated by the father against the mother.
(2)Whether the father has sexually abused the child.
(3)Whether there is an unacceptable risk of sexual abuse of the child by the father.
The last two issues are at the heart of the professional disagreement between Dr L and Ms O. Each was cross-examined.
There are also cultural issues to be assessed and given appropriate weight, especially in terms of the role that has been played by the paternal grandparents being a significant feature of the family dynamics both prior and subsequent to the separation of the parties. There are other issues in terms of relevant considerations pursuant to s.60CC(2) and (3).
The parties married in China in 1999 and separated whilst living in Australia on 4 November 2007. They have lived separate and apart from each other since that time.
So far as I am aware, a divorce certificate has not been granted absent evidence or information to the contrary.
At the time of separation, the household of the parties and the child also included the paternal grandparents.
Subsequent to separation the father has continued to live with the paternal grandparents in Sydney. The mother has lived with the child in Sydney in different premises.

Historical Background

The following are further brief relevant historical matters.
In July 2006 the father travelled to Australia. He has furthered his tertiary education and gained employment in Australia. The mother remained in China, caring for the child.
In November 2006 the mother travelled to Australia and has also furthered her tertiary education and gained employment with B Company, being her employer previously in China. The child remained in the care of the paternal grandparents in China.
On 17 May 2007 the paternal grandparents travelled with the child to Australia. They then lived with the parties in a rented three-bedroom apartment in Sydney.
On 4 November 2007 the parties separated to which earlier reference has been made.
On 9 November 2007 in the Local Court the following orders and determination were made:-
a)An Apprehended Violence Order for a period of 12 months against the father for the protection of the mother.
b)The father was found to be guilty of the offence of common assault against the mother.
c)The father was required to enter into a good behaviour bond for a period of 12 months.
On 20 February 2008, Johnston JR made interim parenting orders which provided for the child to live with the mother until 6pm 17 March 2008 and that in the interim, the child spend time with the father from 10am to 4.30pm each Sunday. Directions were made.
On 17 March 2008 Johnston JR made further interim parenting orders. Such orders provided for the child to be in the care of the father between 9.00am and 5.00pm each Sunday, Tuesday and Wednesday with the place of changeover to be at S Station for the purpose of the father collecting the child and the mother to collect the child from him at E Station. An order was made that the child continue to live with mother at all other times.
A further interim order was then also made providing for the parties to have equal shared parental responsibility for long-term decisions relating to the child and each to have sole responsibility for the day-to-day care of the child whilst she is in his or her care respectively. The Independent Children’s Lawyer was appointed. Directions were made.
On 13 November 2008 the first day of the hearing pursuant to the Less Adversarial Trial practice and procedure was conducted by me. Procedural orders were made. In addition, the mother was required to seek information from the First Light Care Association Inc at Harris Park in relation to the availability and earliest commencement of mediation services for the parties and she was also required to provide the father with that information. The father was ordered to promptly participate in the services, programs and/or courses provided by First Light Care Association. He failed to do so. An order was also made requiring the mother to obtain a written report or assessment following examination of the child at Westmead Children’s Hospital in relation to her possibly having hepatitis and to furnish a copy of such written report or assessment to the father. The relevant medical reports of the child and the mother are Exhibits 6 and 7.
On 14 January 2009 in the Local Court an interim Apprehended Violence Order was made against the father for the protection of the child.
On 13 February 2009 I made interim orders as sought by the Independent Children’s Lawyer. Those orders suspended the order made on 17 March 2008 which had provided for the father to spend periods of time with the child and substituted an order for the father to have supervised periods of time with the child at the W Contact Service. Dr L was appointed the Single Court Expert and ordered to prepare a report in relation to the welfare of the child.
On 9 March 2009 in the Local Court Manly a further interim Apprehended Violence Order was made against the father for the protection of the child. The proceedings were adjourned to 15 May 2009.

On 15 May 2009 in the Local Court Manly no further apprehended violence orders were made.
On 10 June 2009 following the release of Dr L’s report being Exhibit 4, I noted the issues for determination in the parenting proceedings. Directions were made for the filing and service of affidavits and leave granted to the Independent Children’s Lawyer to issue certain subpoenas to produce documents. The continuation of the hearing of the parenting proceedings was fixed for five successive days commencing at 10.00am 19 October 2009.
On 29 September 2009 I made orders in chambers extending the time for the parties to file and serve affidavits.
The hearing of the substantive proceedings continued on the 19 to 24 October 2009 when the evidence was completed. The proceedings were adjourned for submissions at 10.15am 28 October 2009.
On 28 October 2009 pursuant to the Application of the Independent Children’s Lawyer the proceedings were adjourned for submissions to be made at 2.00pm 29 October 2009. The reason for the adjournment was that the mother was supporting the child in hospital. The Independent Children’s Lawyer stated that on the information she received the child had a stomach complaint but now appeared to be recovered or recovering. The Independent Children’s Lawyer undertook to maintain telephone communication with the mother to inform her of the order I made and so that the Independent Children’s Lawyer would also be informed in the event of any further circumstances which made it difficult for the mother to appear in Court. The father was suitably informed by the Independent Children’s Lawyer.
On 29 October 2009 submissions were made. Due to the submission by counsel for the Independent Children’s Lawyer that it would be desirable for written undertakings to be given to the court by the paternal grandparents “without admissions”, I decided to allow seven days for the father to discuss that documentation with the paternal grandparents so that if they were prepared to do so, they could complete sign and have delivered the relevant documentation to the independent children’s lawyer. As a consequence, the orders I made were as follows:
1. That the father provide to the paternal grandparents the amended form of undertakings which are part of Exhibit 18, amended by including the words “without admissions” and that document be emailed to the father on or before 12 noon on 30 October 2009 and copied to the mother.
2. That the father inform the paternal grandparents that if they are prepared to sign such amended form of undertakings then those documents must be completed, signed and delivered either by hand or by express post to the offices of the Independent Children’s Lawyer no later than 5.00pm 6 November 2009.
3. That the Independent Children’s Lawyer email the Associate to Justice Rose with his statement as to whether or not the amended undertakings referred to in Orders 1 and 2 have in fact been received by him or his staff in accordance with those orders and that copy of that email be provided to each of the mother and father.
Judgment was reserved.
Completed and signed written undertakings by the paternal grandparents were received by my Associate in accordance with the last mentioned orders. Those written undertakings have been marked Exhibit 18.
On 2 November 2009 my Associate received a written submission from the mother which she sought leave to rely upon. Given that both she and the father are unrepresented, I permitted her to do so. I subsequently made directions which permitted written submissions to be made by the father, the Independent Children’s Lawyer and the mother in reply within a specified time limit with a subsequent brief extension of time due to the date of receipt of the father’s submissions. Such written submissions were received. I rejected the father’s request to provide further written submissions in reply to the mother’s written submissions (in reply) as the chain of written submissions may be never-ending. In any event through my Associate, it was made clear to the father, the mother and the Independent Children’s Lawyer that subsequent to the mother’s initial written submissions, the other written submissions would be taken into account so far as they were in reply and based solely on the evidence given at the hearing.

Relevant Legal Principles

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to children of their parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
a)children having the right to know and be cared for by both parents;
b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
c)the joint sharing by parents of duties and responsibilities in relation to their children;
d)the imperative for parties to agree about future parenting of children; and
e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that section 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the two children, the subject of these proceedings.[2]
[2] B and B, ibid.
Section 61DA(1) provides a presumption “that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 61DA(2) provides that such presumption does not apply should one or other of the following grounds be established, namely:-
(1)Should there be “reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.”
(2)That the Court may exercise its discretion for the purpose of rebutting the presumption should it be satisfied “that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

Relevant matters pursuant to s.60CC

Section 60CC(1) states that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] s.60CC(1)
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.”[4]
[4] s.60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the nature of the relationship that a child has with each parent and the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”.[5]
[5] s.60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Views expressed by the child and relevant factors

There is no direct evidence of the child’s views which is unsurprising given that she is very young, having recently turned four years of age.
Each of the parties has given evidence which either directly or indirectly supports a conclusion that the child has expressed views of wanting to spend substantial periods of time with each of them.
Given the positive findings that I will make with regard to the nature of the relationship between the child and each of the parties as well as the paternal grandparents and the maternal grandmother, I infer that the child’s views are to spend substantial periods of time with each of them.

The nature of the relationship of the child with each of the parties and other persons

Subject to the findings that I will make with regard to the issue of family violence, I accept the assessment of the independent child expert Dr L psychologist, in Exhibit 4, being his report dated 6 April 2009 that the child “clearly has a very strong relationship with all of the parties”. He also concluded that “there is no doubt that [the child] has a calm, comfortable and safe relationship with all parties in this dispute”. Exhibit 3 contains a memorandum of Ms K, Family Consultant dated 3 March 2008 in which the parties both identified the paternal grandmother as the person to whom the child is closest. As the parties were interviewed only a few months after they finally separated and that memorandum itself is approximately 18 months old, I prefer to give more weight to Exhibit 4 and in particular the subsequent oral evidence given by Dr L. The period of time that has passed since Ms K’s memorandum is very significant given the child’s very young age of 4 years. I emphasise that matter as the father frequently referred to and relied upon Ms K’s memorandum.
I also find that it is not a matter of controversy that the mother is the primary carer of the child and that was also the situation whilst the parties lived together in China. It is also common ground that for the period from early November 2006 until mid-May 2007 the paternal grandparents were the primary carers of the child in China whilst the parties resided in Australia. There is also no dispute that for the period from mid-May 2007 until 5 November 2007 the parties and the paternal grandparents resided in the same premises and that they were all concerned in the care of the child to varying degrees during that period.
In addition, the maternal grandmother assisted the mother in the care of the child in Australia for the period from mid-May 2007 until 5 November 2007. There is no evidence to suggest that her care for the child was other than appropriate and in the child’s best interests.

Family violence and any family violence orders

Family Violence Orders and a determination of the father’s guilt in relation to the offence of common assault against the mother have been made as referred to in paragraphs [23], [28] and [30] hereof.
In the mother’s primary affidavit she provided detailed evidence in support of her allegations of the father’s violent behaviour towards her both in China and in Australia.[6] The substance of that evidence is set out in the following paragraphs.
[6] Affidavit affirmed 9.10.2009.
In January 2000 following the father having played computer chess, he shouted at and abused his game adversary on the internet. Upon the mother requesting him to log off the internet and go to bed, he slapped her across the face and punched her in the chest causing her to fall down. The father kept playing chess.
In May 2000, after the father became furious at losing an internet game of chess and upon him seeing the mother sitting in a corner, he assaulted her by slapping her, dragging her on the ground and kicking her. The mother moved away into the kitchen. He followed her. The mother picked up a knife to defend herself whereupon he commenced to loudly laugh and approached her take the knife. In the ensuing melee the father was cut with the knife. The mother left the parties’ apartment in her pyjamas and without shoes.
On a subsequent unspecified occasion, but implicitly shortly after the last incident of violence, the mother telephoned the paternal grandmother who recounted her history of being assaulted by the paternal grandfather and counselled her to avoid disobeying the father.
In 2003, upon the mother querying the father in relation to his online chatting with other women, he allegedly verbally abused her or struck her.
During 2005 and whilst the mother was pregnant he allegedly verbally abused her.
In July 2005 whilst the mother was being driven by the father to hospital for a health check and whilst he was speeding on the road, he is alleged to have abused her and suggested she jump out of the car.
In mid-May 2007 after the child commenced living with the parties and the paternal grandparents in a rented three-bedroom unit in E, the father allegedly became angry and yelled at the child as she was crying and insisted on going out to play despite it being 10.00pm. Whilst the mother was comforting the child, the father allegedly said “I would drop you off the balcony to let you out to play if that’s what you want.” The child and the mother were frightened. The mother took the child away to the bedroom and closed the door.
The parties separated after the following events on 4 November 2007. The father entered the child’s room where the mother was sleeping with her during the afternoon on that day. He demanded that the mother immediately get up and go with him to buy groceries. The mother refused and stated that the child wanted her to remain with her. The father then became angry, pulled the pillow and quilt away from the mother and the child. The mother’s further evidence is that:
“He grasped my legs and pulled me from the bed. I fell to the ground. The father then used his open hand to slap my face and then used his fist to hit the top of my head many times. I was crying and when I tried to move back to avoid more hitting on the head, I found [the child] had moved from the bed to the ground and was standing behind me. [The child] was frightened and tried to hold my head and she was crying loudly ‘Mummy – Mummy – Mummy’.”
The mother further contended that the door of the child’s bedroom became open. The paternal grandparents were sitting in the living room and saw the violence, but did nothing to stop the father. The paternal grandmother did not speak, but just took the child away. When the mother was crying the paternal grandfather allegedly said to her “control the voice volume of your cry, don’t let the neighbours hear you”.
The mother changed and took the child with her and left the home unit. The mother called the police. The mother met the police during the afternoon in the park nearby and recounted what had occurred. After a discussion with the police, she did not follow their suggestion of proceeding with them whilst they arrested the father and took them both back to the police station for the purpose of making a statement. The mother who says she was still “very distressed and dared not go back home because I was frightened”. The mother went to a friend’s place and stayed there until about 10.00pm before returning to the home accompanied by a friend.
The mother claims that late that evening and just after she left her friend’s house and was proceeding home she received a mobile telephone text message from the father “Go die, don’t back”. The father admitted having sent the mother that message but stated that he also sent other messages expressing his love for the mother and concern for the child. I accept his evidence.
When the mother arrived at the home with the child the father allegedly told her to leave and said to the mother’s friend, “It’s over, she will no longer belong to the family”.
The mother proceeded to collect personal belongings for the child in order to leave with her. The paternal grandmother then took the child away and in the course of the mother attempting to take the child back the paternal grandmother allegedly said “that’s our baby, you can’t take her away”. The child was then given by the paternal grandmother to the paternal grandfather who took the child to his bedroom. The mother followed him. However, the father pushed her out of the room and told her to leave immediately. The father kept pushing her until she fell to the ground. The paternal grandmother came out of her bedroom and said to the mother, “this is our baby”.
The mother left the home without the child and then called the police again. The mother subsequently made a statement to the police which is in evidence.
The mother returned to the home the next day accompanied by the police and removed the child.
The father was charged with common assault in relation to his alleged assault of the mother and required to appear at the Local Court on 9 November 2007. The police fact sheet is in evidence.[7] It refers to two alleged assaults by the father on the mother on 4 November 2007. It is clear from the document that the mother did not wish the police to take action in relation to the first alleged assault. In relation to the second assault, it is alleged that the father repeatedly pushed the mother to the point where she fell to the ground. The mother was “crying and screaming for her baby girl before being calmed by her friend”. The police attended the location. The father allegedly made an admission to the police by stating “Yes I pushed her”. The father was then charged.
[7] Affidavit of the father affirmed 10.3.2008 annexure “A”.
As the father concedes in his affidavit, he pleaded guilty to the charge of common assault.[8] The Local Court accepted the plea and made the determination and orders referred to in paragraph [23] hereof.
[8] Ibid, paragraph [2].

The only admissions made by the father of the allegations of his violent conduct towards the mother have been his pushing of her to the extent to which she fell to the ground referred to in paragraph [86]; throwing a quilt at her on 4 November 2007 and what he described in his oral evidence as “pushes and shoves” early in their relationship. He claimed that each of them were active in that regard.
During the course of cross-examination by the independent children’s lawyer, the mother repeated her allegation that the father had threatened to drop the child over the balcony as referred to in her affidavit.
With regard to the father allegedly assaulting the mother while she was in the child’s room on 4 November 2007, she repeated that the father was angry and slapped her and that the paternal grandparents did not do or say anything.
The father cross-examined the mother at length. The mother repeated her affidavit evidence that whilst they lived together in China, he played online chess and when he lost he became very angry. The mother recollected one occasion when he even damaged the computer. The mother denied that it was she who smashed the modem.
With regard to the alleged violence on 4 November 2007 to which earlier reference has been made, the mother agreed that she and the father had argued although she had always tried to avoid arguing with him. The mother repeated that the paternal grandmother did see the father beat her. The mother stated that she felt very distressed and after she changed, she took the child to the park with her and then called the police.
With regard to the first alleged assault on 4 November 2007, the mother repeated again that the father had slapped her face which became red and that otherwise most of the hits that she received from him were about her head which did not leave a visible injury.
Whilst the father did put questions to the mother which elicited the answers on topics that I have summarised in paragraph [85], at no time did he suggest to the mother that she had either fabricated or exaggerated her allegations of his violent conduct towards her on 4 November 2007. That lack of questioning was made more apparent as on more than one occasion, he addressed me from the bar table on the basis that the mother had been lying and that no findings of violence should be made as the only evidence so far as he was concerned was the mother’s affidavit evidence and his denial in his affidavit. I pointed out to him that the findings sometimes can be made should one party’s evidence be accepted over the other’s and/or due to other relevant evidence.
At this point I note that the father, although unrepresented and with the difficulties that created for him as well as for the mother in that she was also unrepresented, impressed me as an intelligent, educated man with a good command of the English language and who was perfectly capable of cross-examining the mother about a variety of subjects, ranging from her Hepatitis virus to an incident in China when he was cut by the mother and the family role that has been carried out by the paternal grandparents. Consequently, I find that he was more than capable of cross-examining the mother to suggest that her allegations in relation to his violent conduct towards her were fabricated or exaggerated. However, he did not do so.
So far as the evidence of the father is concerned, he denies the mother’s allegations in relation to his alleged violent behaviour towards her both in China and in Australia, subject to having thrown “the quilt at her” when he was angry on 4 November 2007, pushing the mother out of his bedroom where the child was staying when “unfortunately she fell to the ground”. He volunteered that he was charged with common assault and pleaded guilty at the Local Court on 9 November 2007. In addition, during his oral evidence and as he conceded from time to time by statements from the Bar table that several years ago in China there were “pushes and shoves” between them.
Evidence was given by the paternal grandfather by affidavit[9] and orally in the course of cross-examination. The affidavit does not have a certificate that it was translated by any other person from English into Mandarin. However, I was informed by both the father and the paternal grandfather that he understood the content of his affidavit before he signed it due to a combination of his own knowledge of English and checking a dictionary in relation to words he did not understand. I have accepted those explanations and accordingly admitted the affidavit to be relied upon on behalf of the father.
[9] Affidavit affirmed 7.10.2009.
The affidavit is silent in relation to the mother’s allegations of family violence perpetrated by the father against her. It does have a number of derogatory opinions expressed by the paternal grandfather about the mother.
During cross-examination, the paternal grandfather denied having seen or heard any violent behaviour by the father to the mother on 4 November 2007 as alleged by her, except that he did see the father push the mother out of the home. He claimed that whilst the father was pushing the mother and perhaps immediately beforehand, the child was held by him in his arms and the child also had her arms around his neck. The child at the time was two years of age. The incident occurred during the night. The paternal grandfather’s evidence is that despite the child being only two years of age and held by him and having her arms around his neck and was frightened whilst the father was pushing the mother out of the unit, the door to the unit which was about a third of the way open, was closed by the child pushing it after the mother in turn had been pushed out by the father and fell to the ground. I do not accept that evidence which I find to be nothing other than fanciful.
During his oral evidence, the paternal grandfather stated that prior to November 2007 he had never heard the father raise his voice at the mother or indeed vice versa. However, he did describe the father as being “hot-tempered”. He stated that he described the father as “hot-tempered” because he has seen him become red-faced and raise his voice. Indeed, he had seen the father behaving in a hot-tempered way to the mother. He had cautioned the father not to be angry whilst driving.
I prefer the evidence of the mother to that of the father in relation to the issue of family violence. I also prefer the evidence of the mother to that of the paternal grandfather where it also conflicts in relation to that issue. My reasons are a combination of the following.
The lack of any challenge by the father in cross-examination of the mother regarding her allegations and the evidence that she has given in relation to his violent conduct towards her.
The father’s plea of guilty to the charge of common assault to which earlier reference as been made. In contrast to the father, the mother did cross-examine the father in relation to her allegations with respect to his violent and abusive conduct towards her, at times in the presence of the child.
In addition during the course of the hearing, the father’s conduct at times was bizarre. He had outbursts of laughter during the course of cross-examining the mother and was angry and abusive to her witness, Ms Y, in a manner which fitted the description of him given by the paternal grandfather as being hot-tempered, red-faced and raising his voice. It was only after he was admonished by me and being informed that his conduct may possibly be in contempt of Court, that he apologised. In addition, the father repeatedly used opportunities to criticise the mother under the guise of answering questions put to him in cross-examination.
By contrast, the mother has acted with dignity throughout the hearing and answered questions appropriately.
So far as the clash of evidence between the mother and paternal grandfather is concerned, I have already found that his evidence in relation to the child allegedly closing the door behind the mother as she was being pushed out of the home by the father during the night of 4 November 2007, as lacking credibility. That has not given me any confidence in accepting his denial of the evidence of the mother that he and the paternal grandmother saw the father being violent to the mother on that day.
There is also evidence of the father’s verbally abusive conduct to staff at the N Early Childhood Education Centre. This is the centre attended by the child and whose staff has had a responsibility for her care for the past approximate 18 months. Affidavit and oral evidence was given by the Centre Director Ms Y.[10] The occasion of the father’s alleged verbal abuse of staff and Ms Y took place at the Centre on 5 December 2008. The child was at the Centre. The Centre was attended by the father and the paternal grandfather.
[10] Affidavit affirmed 15.10.2009.
The father initially spoke by telephone to Ms Y on that day after the staff had not permitted him to see the child. The father had been allegedly abusive to the staff. Ms Y spoke to the father by telephone after being contacted by one of her staff. After Ms Y informed the father that he was not allowed to see the child whilst she was in the Centre’s care, he allegedly said to her:
“You are a bad person. How can you not allow me to see my daughter?.”
The father allegedly screamed so loudly to Ms Y over the telephone that she had to hold the receiver away from her ear and although she asked him to calm down and to stop yelling at her, he apparently continued. Ms Y then terminated the call and immediately made her way to the Centre where she remained for about 15 minutes. The father remained about the perimeter of the playground to the Centre. Ms Y spoke to him through the fence and he allegedly again was abusive to her and spoke to her in a loud manner. There were small children at the Centre who could hear the conversation. Ms Y informed him that the police had been called and she then walked away with the children. Shortly prior to the police arriving the father and paternal grandfather left the Centre. Staff at the Centre were upset.
During the course of cross-examination by both the Independent Children’s Lawyer and the father, Ms Y reiterated the essential features of her affidavit to which I have referred. The father cross-examined her at some length in relation to a draft letter that had been in her file. That was a draft of a letter addressed to the Chief Justice of the Court but not sent. Ms Y explained that she had gone on holidays, the letter was not sent and she had not had the opportunity at that stage to check it against the records of the Centre. I accept her evidence.
I observed the father to have verbal outbursts of anger to Ms Y as well as verbally abusing her in relation to that draft letter. That gave rise to my admonition of him to which I have earlier referred. Whilst the father made much of the draft letter so far as its inaccuracies were concerned, he never directed one question to Ms Y which suggested that her affidavit and oral evidence was wrong in relation to her allegations of his verbally abusive conduct towards her when speaking to her by telephone as well as at the Centre. In relation to those important matters, the paternal grandfather did not give any evidence which may have refuted the allegations of Ms Y in that regard. In contrast to the father, Ms Y maintained a respectful composure in the witness box, despite the pressure she was under as a result of the father’s unacceptable conduct towards her. I have no hesitation in accepting her evidence wherever it conflicts with the evidence of the father. So far as these allegations of the father’s abusive behaviour to Ms Y are concerned, the paternal grandfather did not give any evidence of substance which could be construed as supporting the father’s implicit denial of such conduct by him.
I also accept the evidence of Dr L set out in Exhibit 4 that the father “can get angry quite quickly” and as explained by Dr L in his oral evidence that the father can lose “emotional regulation” which represents three elements, namely, “the father being more inflexible in the way he thinks; may not exercise good judgement and behaviour becoming irrational or out of control.” Dr L also recognised that the father possibly acts as a “bully” to become aggressive in order “to get his own way.”
I also accept the number of disclosures made by the child to staff as N Children’s Services being material that is comprised in Exhibit 10.
Consequently it follows that I find that the father has engaged in family violence to the mother and has also been verbally abusive to her.

Issue of child sexual abuse

I have summarised the affidavit evidence of the mother in relation to this important issue in the following paragraphs.
The mother noticed that since May 2008 the child had been returning from spending time with the father and touching her genitals in a way which caused the mother alarm. That has included touching her nipples and rubbing her vagina with one finger whilst on the toilet seat. In addition, the mother claims that the child said to her, implicitly in response to a comment made by the mother, “Daddy did it. Daddy teach me.”
The mother also alleges that the child, whilst speaking Mandarin, commenced to talk about a penis following her return from the father’s home.
On 30 November 2008 upon the mother collecting the child from the father at E Station, she noticed that the child was upset and withdrawn, did not speak but was on the verge of crying. The child opened her arms for the mother’s cuddle and refused to walk, with the result that the mother carried her to her car and the child was tightly hugging her all the way.
The child was quiet during dinner, finished her dinner quickly which the mother states was out of character for the child. Following dinner, the child drew a picture “like a big banana” on her magnetic drawing board and coloured it in. The child then showed it to the mother and said to her in Mandarin “That is a little brother.” The mother states that the expression “little brother” refers to a penis. The mother states that she “was shocked and realised that the picture [the child] drew was not a big banana but a man’s erect penis.” The mother also contends that later that evening and before the child’s bedtime she noticed that the child “touched her breast and rubbed her nipples when she was on the toilet seat.” Upon the mother asking her why she did that, the child did not answer but “just gave me a blank look.” The mother states that she then commenced to have fears for the child’s safety with the father.
On 1 December 2008 the mother attended N Police Station and reported the child’s statements and behaviour as described following the child’s return from being with the father on 30 November 2008.
On 15 December 2008 the mother’s application for an Order that the father see the child under supervision was dismissed. I am not in a position to make any observations in relation to that application as the evidence given and submissions made are not before me.
On 19 January 2009 following the mother collecting the child from childcare she noticed the child was happy and played on the way home. Upon arriving home and the child complaining she was uncomfortable and wanted to take off her underpants and as the child started to do so the mother saw dry leaves in the underpants. The child did not answer the mother’s question as to who put the leaves in her underpants.
On both 21 and 25 January 2009 upon the mother collecting the child from E Station presumably from the father or paternal grandparents the child fell asleep in the car on the way home. The mother noticed that all of the child’s clothes had been changed including her underpants.
On 1 February 2009 upon the child returning to the mother’s care after having been with the father and during the course of dinner with the mother, the mother noticed that the child was using one hand to remove her underpants and the other to touch her vagina. Upon the mother pointing out to the child that she should not behave in that way in front of others and that she should not allow anyone else to see or touch her “private area”, the child said to the mother, “Daddy already touched it.”
On 3 February 2009 upon the child returning to the mother after having been in the father’s care and whilst the child was having a bath, the mother noticed that the child was using two hands to touch her nipples at the same time. Upon the mother asking the child why she did that, the child did not answer.
On 4 February 2009, the mother collected the child from the father and returned home. In the evening after she had her bath the child refused to wear clothes and said to the mother “I like to be naked under the quilt, it’s comfortable.” The mother noticed that the child touched her nipples and private area again.
The mother became more concerned in relation to the child’s safety and having noticed that the child had become more withdrawn and at times would not answer the mother’s questions. Consequently the mother decided to arrange a consultation with Ms O, child psychologist.
Two consultations took place, namely on 11 December 2008 and 15 January 2009. The mother was not present during the interviews between Ms O and the child. At the second interview an independent interpreter stayed with Ms O and the child.
The mother contends that she was advised by Ms O that the child had claimed that, “I don’t like to see my Daddy, he hurts me. He hurts me three times.”
Ms O subsequently prepared and released a report dated 5 February 2009. A copy of that report is in evidence.[11]
[11] Affidavit of mother affirmed 9.10.2009 annexure “G”; Exhibit 2.
I will subsequently refer to Exhibit 2 in more detail. In Exhibit 2, Ms O’s assessment of the child is in the following terms:-
“The assessment of [the child], including observation and dialogue would suggest she is experiencing anxiety and there are concerns in regard to the perpetration of sexual abuse based on significant behavioural changes noted in [the child] in the past six months. Sexualised play has included a compulsive play with her nipples and her vagina in the absence of normal childlike masturbation. Rather, [the child’s] facial expression becomes serious and upset, according to her mother, with the regulation question, “Why does Daddy do it?”.
Exhibit 2 contains Ms O’s conclusion as follows:-
“[The child’s] presentation is compatible to that of a child who has experienced sexual abuse. Her disclosure in the presence of an interpreter on 15^th January 2008, suggests her father has ‘hurt her somewhere else’. She was clear in stating her father has hurt her, “Three times”. These details are unusual and this case was subjected to a DOCS notification, given the psychologist is a mandatory reporter.
[The child’s] disclosure in combination with a sudden onset of sexualized behaviour, bedwetting, nightmares and resistance to attend Access Visits with her after are of great concern in terms of [the child’s] emotional and developmental wellbeing.”
The father denies the allegations of child sexual abuse.
Expert evidence was also given by the single expert Dr L, psychologist. His evidence comprises of his report dated 6 April 2009, being Exhibit 4 and oral evidence.
In Exhibit 4 explained further by Dr L in his oral evidence, he stated that from his discipline as a psychologist, he did not conclude that the child had been sexually abused by the father. In response to my question, he also stated that in his view, there was not an unacceptable risk of child sexual abuse by the father.
During the course of cross-examination by the Independent Children’s Lawyer, the mother, when referring to her lack of confidence in the paternal grandparents in relation to protecting the child from the father’s “bad behaviour”, she made reference to sexual abuse including touching nipples, touching vagina and that the child once drew a big banana which she referred to as “little brother” being the Mandarin for penis. The mother reiterated her affidavit evidence that the child had said, “Daddy already touched it” by reference to her vagina.

I have accepted the expert evidence of Dr L combined with my findings of fact in relation to the father’s violent behaviour towards the mother and verbal abuse of her which together demonstrate the desirability for the father to receive professional assistance from a psychiatrist or psychologist. Attending for consultations with such a professional is one thing. However, to demonstrate that he has responded positively to professional advice and, if necessary treatment, is another. Consequently, to provide confidence to the mother that the father is less likely in the future to repeat his unacceptable behaviour towards her, I accept the submissions made by the Independent Children’s Lawyer that the terms and conditions for the father to move from supervised to unsupervised care of the child will depend upon him providing copies of the report from the relevant psychiatrist or psychologist with whom he consults which express his understanding of the relevant issues and opinion regarding substantial progress having been made by the father in that regard.
Accordingly, it is solely a matter for the father as to whether he will now demonstrate a genuine commitment to dealing with disturbing issues of his personality and behaviour so that the child can be in his care and indirectly that of the paternal grandparents in circumstances which are free from the potential of his violent and abusive behaviour to which I have referred. Such an approach can only be in the child’s best interests, rather than the potential trauma for the child of the father unleashing a tirade of verbal abuse to and/or violent behaviour to the mother not only at changeover of the child from one party to the other, but also to ensure, so far as it is possible to do so, that he conducts himself in a responsible way throughout all periods of time that the child is in his care.
Those terms and conditions relating to continued supervised care of the child by the father to unsupervised care by him should also produce a benefit of the child of a meaningful relationship with each of the parties. That benefit will be that the child will no longer witness or hear the father’s verbal abuse of the mother. The mother’s fear of the father will be alleviated, which will ensure that there is a far more relaxed atmosphere on changeover of care of the child from party to the other than has been the case which can only be for the child’s benefit and it will be less likely that derogatory or critical comments of the mother will be made by the father in the child’s hearing.
I have also taken into account and given weight to the mother’s deep anxiety in relation to the father’s potential future violent and/or abusive conduct towards her especially in the presence or hearing of the child. I have no doubt that the mother’s anxiety in that regard is genuine. Alleviation of such fear or anxiety, so far as it is possible to do so in the context of these proceedings, should further enhance the mother’s parenting of the child. These are relevant matters to be taken into account as has been established by past Full Court judgments.[20]
[20]B and B (1993) FLC 92-357; Sedgley and Sedgley (1995) FLC 92-623; Re Andrew (1996) FLC 92-692; A v A (1998) FLC 92-800.
The father has a close relationship with the paternal grandparents. I have made findings in relation to their negative attitude and behaviour towards the mother in relation to the child as well as on a personal basis. It is a matter of deep regret for me that I am satisfied on the balance of probabilities that such findings had to be made. It is a pity that I am not satisfied that reliance can be placed upon wisdom and sensitivity that the paternal grandparents should have been able to bring to lessen the acrimonious relationship between the parties and in particular to exercise family influence over the father to ensure that some of the disturbing aspects of his violent behaviour did not occur and particularly not in the presence or hearing of the child. Regrettably, the paternal grandfather’s own evidence and the allegations of his conduct which I have accepted show that he has been a source of validation to the father of his unacceptable behaviour. The paternal grandmother, a psychiatrist, has not been able or, has been unwilling to be a force for good so far as the dynamics and relationship between all parties and the child are concerned, as opposed to simply being supportive of the father since separation and maintaining her undoubted love of the child. The father has constantly emphasised the care and devotion that the paternal grandparents have displayed towards the child prior to the parties’ separation. However, that ignores the lack of them being a healing force for the parties since separation, not to mention the regrettable conduct of the paternal grandfather in particular to which I have made earlier reference, otherwise more detailed in both the affidavit evidence of the mother and which emerges from his own affidavit to which I have referred.
The father and the paternal grandparents have to understand that the father’s violent behaviour and verbal abuse of the mother are simply unacceptable in Australian society. That has been made clear by the prominence that has been given by the Federal Parliament to the need to protect a child from or being exposed to family violence. I have made earlier reference to this matter. The paternal grandparents need to understand that it does not assist the child for them to continue to be in denial of the father’s deplorable conduct of the mother or to find excuses for him to behave in that way.
Having considered the submissions made by each of the parties and the evidence that they gave in relation to the possible places of changeover of the care of the child from one to the other, I have concluded that it is in the best interests of the child to make Orders that reflect changeover at one point being at E railway station and at the other point at N Police Station. That is an approach which so far as the railway station is concerned is one with which the parties are accustomed. I accept the mother’s submissions that N Police Station is a preferable place due to the effect it might have upon the father’s propensity for verbal abuse or violent conduct. I am satisfied that N Police Station is a prominent police station in a commercial area of N with the likelihood that there will be parking available on one or other of the streets that are close to that police station.
Each of the paternal grandparents have given written undertakings to the Court, being Exhibit 19 to which I have previously referred. The paternal grandparents should understand that undertakings to the Court are serious matters of responsibility for them and in the event of any breach, there may be important legal consequences that follow, not to mention Orders being made which may limit or prevent them having further time with the child. Hopefully those circumstances will not occur. I will make orders to ensure that this judgment and the orders that will be pronounced are interpreted for them from English to Mandarin. Any expense in that regard will have to be paid by the father.
I will also make Orders that the parties attend a parenting after separation course through Relationships Australia. That prospect was raised and not opposed. Attendance at such a course by the parties can only potentially improve their relationship.
Additional Orders will be made to ensure that the father is kept informed of the child’s academic and other progress and each party ensure that the other party is informed as soon as possible of any serious illness or injury suffered by the child whilst the child is in her or his care respectively.
It was common ground between the parties that an Order should be made ensuring so far as it is possible to do so that the name of the child is placed on the airport watch list and that each of the parties is restrained from removing the child from the Commonwealth of Australia. The terms of such an Order will be extended to also include the parties “servants and/or agents” in accordance with the submissions made by counsel for the Independent Children’s Lawyer. That description will of necessity include the paternal grandparents.
I will also make an order pursuant to s 65L to provide for ongoing guidance that might be provided by the Director of Child Dispute Services in the Sydney Registry of the Court or her nominee to enable the parties to receive independent experienced advice from a Family Consultant so that an future problems between the parties can be hopefully resolved without the need for litigation.

I certify that the preceding two hundred and eighty-eight (288) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate

Date: 30 November 2009

[2009] FamCA 1150

30 November 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Abuse of Process