Wen and Lam

[2008] FamCA 705

FAMILY COURT OF AUSTRALIA

WEN & LAM [2008] FamCA 705

FAMILY LAW – CHILDREN - Best interests – where the father has been diagnosed with a terminal illness – where the child is opposed to spending time with the father - whether it is in the best interests of the child to spend time with the father

Family Law Act 1975 (Cth)

APPLICANT: Mr Wen

RESPONDENT: Ms Lam

INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring

FILE NUMBER: SYF 4061 of 2001

DATE DELIVERED: 11 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 8 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Valenti & Valenti

COUNSEL FOR THE RESPONDENT: Ms Carr

SOLICITOR FOR THE RESPONDENT: E H Tebbutt & Sons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Holmes
Slade Manwaring

Orders

1. The court notes that final orders have been made on the 15th July 2002 providing for the child to live with the mother.

2. The court notes that the father has terminal cancer and is only expected to have a further 6 to 12 months to live.

3. These orders provide for the time that the child is to spend with her father and other ancillary matters and do not disturb the residence order.

4. Orders are made pursuant to paragraphs 1,2,4,5 and 6 of exhibit ICL2 as set out and attached hereunder:

   ICL2

   1.That [the child] spend time with her father on not less than one occasion within the next 28 days and at such further times as deemed appropriate by the Family Consultant [Ms C] but being not more than once each month and that the mother do all acts and things necessary as required by the said Family Consultant to facilitate such time.

   2.        That the time [the child] spends with her father pursuant to Order 1 be:

   a)facilitated and supervised as appropriate by the Family Consultant

   b)be for such length of time as the Family Consultant considers appropriate

   c)be conducted at the Sydney or Parramatta Registry of this Court as determined by the Family Consultant

   d)conditional upon the father undertaking in writing to be provided to the Family Consultant

   i)that he will not denigrate the mother, the mother’s husband and the mother’s family in any way at all; and

   ii)that he will not put to the child his version of the events of the marriage between the father and the mother.

   …       

   4.That the mother give all necessary directions and authorities to the Principal of [the child’s] school to provide copies of all future school reports as and when they issue, directly to the father.

   5.That the mother do all acts and things necessary to provide [the child] with the emotional security and comfort to enable her to be open minded in her meeting with her father including:

   a)        dissuading her from any notion that her father is a threat to her

   b)        dissuading her from thinking that her father is contagious.

   6.        That prior to the implementation of Order 1 the Family Consultant:

   a)        be given a copy of these Reasons

   b)        confer with [Ms M]

   c)be given any reasonably obtainable updates on the health of the father from his treating doctors

   d)        be authorised to explain to [the child] the father’s health prognosis.

5. The orders made herein are binding on the mother who is to ensure the orders are complied with. For the purpose of having [the child] presented to the Family Consultant Ms [C] the mother is to ensure that [the child] is delivered to and collected from the meeting as required by Ms [C]. The mother may seek the assistance of her father or any other person known to the mother and [the child] to deliver and collect [the child] on the subject occasion.

6. Within 14 days the mother provide to the Independent Children's Lawyer copies of [the child]’s school reports for the last 3 years. The Independent Children's Lawyer is thereafter at liberty to provide those reports to the father.

7. Prior to [the child] seeing her father the Family Consultant [Ms C] is to meet with [the child] (on the day of the meeting) for the purpose of satisfying herself, armed with all the information provided to her, that in the meeting with her father both [the child]’s and her fathers’ behaviour will be appropriate. Should she not be so satisfied she is not to facilitate the meeting.

8. Ms [C] is to make the arrangements for the day of the prospective meeting so that [the child] does not see her father in the Family Court building before Ms [C] is ready to facilitate the meeting.

9. Ms [C] is authorised to cease the meeting between [the child] and her father at any time she deems appropriate.

10. In the event of Ms [C] not being available for whatever reason to facilitate the meeting the father and/or the Independent Children's Lawyer has leave to re-list the matter before me for the purpose of seeking an alternate order.

11. The father may provide a letter, with translation by an accredited translator and a DVD with accredited translation to the Independent Children's Lawyer for the purpose of making these available to [the child] at some time in the future. The Independent Children's Lawyer having read and observed the items is to lodge them with the court as part of the court file if he is satisfied they are appropriate to show [the child]. The Independent Children's Lawyer is to further inform [the child] by telephone of the existence of the material and how she might access the material in the future.

12. The Registry Manager or his nominee is authorised to provide [the child] with the letter and DVD at any time in the future should she request same.

13. I decline the application of the Independent Children's Lawyer that I meet with [the child].

14. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4061 of 2001

Mr Wen

Applicant

And

Ms Lam

Respondent

REASONS FOR JUDGMENT

1. This is a tragic case in many respects.  The father, Mr Wen, is dying of liver cancer and has between six and 12 months to live.  He has not seen his daughter who was born in October 1997, now nearly 11 years of age, since about late 2003.  The mother, Ms Lam, is apparently permeated with hatred for and disgust of the father.  So much so that she really doubts he is actually ill, let alone dying.  This is notwithstanding Professor N having given evidence in the hearing before me that the father has inoperable liver cancer and his life expectancy is only six to 12 months.  The child has expressed the most negative statements about her father including a wish that he die.

2. The family consultant, Ms M, has produced a number of family reports for the case.  She has given oral evidence.  Her opinion is that if the father dies without he and the child being able to meet and say goodbye, the child will come to regret this later in life when she has her emotional independence from her mother and has time to reflect on the appalling way in which she was drawn into the conflict between her parents.

3. Before proceeding further I must record my observations of the mother.  She is without a doubt one of the most extraordinary people who I have ever seen in my Court.  She is apparently devoid of any compassion for the father, a person who she apparently once loved and the father of her child.  She presented as angry and apparently loudly protesting in her evidence.  She was intractable in her stance to the father's application. Although saying the choice was the child’s whether she saw her father or not, it was clear from the mother's evidence that she thought the child should not see her father.

4. The mother has re-partnered and has another child.  I was left with the impression that the mother took the view that she and the child have now moved into another family unit and that the father is a threat to that new family.  It is most likely the child has a form of anxious attachment or insecure attachment to her mother.  She has had a very disrupted younger life with her strongest attachment probably being with her maternal grandmother.  The child had been sent to China to live with her grandmother when she was 18 months old and did not return until September 2000.  On 15 July 2002, final parenting orders were made.  The orders provided for the child to live with her mother.  They also provided for the child to be able to be sent to China to live with her grandmother between 2002 and 2004.

5. The parties have a very high level of conflict.  The family reports reflect this.  The parties attended on Unifam to try and reduce conflict.  This seems to have been ineffective.  I am satisfied the mother is not interested in repairing her relationship with the father.  She wants him out of her life and out of the child’s life.  In a most unusual facet of this case the Independent Children's Lawyer tendered a transcript of a recent interview with the child.  She was emphatic that she did not wish to see her father.  She spoke of having her own dad and his name was D.  She said Mr Wen was not her father any more.

6. I accept that this notion of having a new father would have been encouraged by her mother. The child said her father was selfish, mean and a very bad man. The child attributed hateful and hurtful statements to the father which she said were spoken to her at Court by the father.  Her father denies this statement.  The mother confirms there were negative statements made.  I accept the father's evidence on this point.

Relevant Law

Legal Principles

1. The principles governing this case are set out in the Family Law Act 1975 (Cth). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.

2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).

3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. I here set out the provisions of section 60B:

   FAMILY LAW ACT 1975 - SECT 60B

   Objects of Part and principles underlying it

   (1)  The objects of this Part are to ensure that the best interests of children are met by: 

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)  For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)  to develop a positive appreciation of that culture.

4. I am required to consider matters set out under section 60CC(4) and (4A) of the Act.  Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires that: “… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

6. Subsection (4) provides as follows: “…The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

7. Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility. 

The Evidence of the Family Consultant

1. Before proceeding further to deal with s.60CC I propose to review the evidence of the Family Consultant, Ms M, who has been of great assistance to me in the determination of this most difficult and complex case.  The real complexity in this case is trying to determine what is causing the child to have the incredibly negative view of her father.  At the end of the hearing I became convinced that the case was really about the legacy to the child of an opportunity to meet with her father one last time before he dies.  Is that legacy to be of benefit or detriment to her development?

2. In her most recent report dated 5 December 2007, Ms M provided the following information which I have noted:

   The mother made no attempt to shield [the child] from the mother's views and vitriol about the father and the Court proceedings.  The mother was combative and mistrustful of the Family Consultant.  She demanded proof of the father's liver cancer.  She would not answer any questions about [the child] seeing her father until she had that proof.  This included not even answering hypothetical questions.  The mother said the father had a highly infectious disease.

3. When Ms M saw the child, the child told her the father might spread disease to her.  She said it affects the whole family.  Ms M clearly understood the child would not see her father.  Ms M has grave concern for the child and the future feeling of guilt the child might have about not seeing her father before he died.

4. The earlier reports all reiterate a continuing utter resistance by the child to seeing her father.  In her oral evidence Ms M reminded me that the child had wished her father dead in earlier information provided to Ms M.  She said that could compound for the child a sense of guilt in the future.  Ms M said that there would be a real concern if a meeting between the child and her father turned into a rejecting or insulting episode for the child.  That is, that the child would reject or insult her father.  Ms M said this would only add to the child’s future guilt. She also conceded that if the mother was not completely supporting of the meeting between the child and her father then the probabilities would suggest the child would be rejecting of her father. In questioning from the Independent Children's Lawyer, Ms M agreed that both the child and the mother were law abiding people. 

Section 60CC Considerations

1. I now turn to s.60CC and refer to the subsections by their subsection numbers.  Subsection (1) deals with making orders that are in the best interests of the child and advising that the Court must consider the matters in subsection (2) and (3) of s.60CC.  Subsection (2) refers to the benefit of a child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, or being exposed to abuse, neglect or family violence.  In this case there is no meaningful relationship between the child and her father.  The historic basis for this and the factual basis for this is impossible to accurately and objectively portray.  Suffice to say that no orders being considered in this application will lead to a meaningful relationship.  The matter under review for the benefit of the child in this case is whether an opportunity to meet with her father one last time might assist her later in her life.

Section 60CC(3)

a)As I mentioned earlier, the child is intractably opposed to meeting with her father. 

b)The child has a close and possibly enmeshed relationship with her mother.  I have referred to the insecurities possibly attached to her bonding with her mother.  So far as her father is concerned it would have to be a reasonable conclusion that her relationship with him is very poor. 

c)It is clear in this case that the mother is not willing or able to facilitate a close and continuing relationship between the child and her father.  Whether that view has any reasonable basis is not capable of being determined by me in these proceedings.  The picture I get from the mother is that she and the child were effectively abandoned by the father both emotionally and financially. The father denies that and gave evidence about his payment of child support over a lengthy period of time. The mother suggested that his child support payment was minimal.  He denied that except for the period when he has been unemployed, which I surmise has been associated with his illness.

d)This subsection does not apply so much to this case as it is not intended that the child would be facing any significant change in her current arrangements. 

e)There are practical difficulties associated with organising some time for the child to spend with her father and in this case it needs to be supervised by a qualified person with an understanding of child development and also an understanding of the common language which the child and her father will use. 

f)I have been most critical of the mother in relation to this subheading.  I can only reasonably conclude that the mother does lack capacity to understand the impact on the child of the child not having an opportunity to mend the bridges in the relationship between she and her father before her father dies. 

g)The child is nearly 11 years of age.  Her views should be given weight.  She is clearly intractably opposed to meeting with her father. However, she is a law abiding child and although threatening not to comply with orders she has never in fact done so. 

h)This subheading has no application in this case. 

i)It is difficult to judge the extent to which the father has an appropriate attitude towards the child and has embraced the responsibilities of parenthood.  Clearly the mother has been responsible both emotionally and financially for the child for a considerable number of years. 

j)There are no incidents of violence, the subject of evidence before me, which are likely to impact on the orders of this Court. 

k)As far as I know there are no family violence orders in place. 

l)I will deal later in these reasons with whether or not there should be an interim as opposed to a final order made.

Subsection (4)

1. It is very difficult to deal with this subsection because all of the history of why the father has not been able to participate in the life of the child over the last few years has not been able to be ventilated and it has not been the subject of focus of the evidence in this case.  This is not a case to which s.61DA of the Act applies and s.65DAA has limited application.

Conclusion 

1. I conclude that the child should be given an opportunity to meet with her father before he dies.  In reaching that decision I have agonised about whether the impact of the meeting on the child could be less beneficial than more beneficial for her.  My concerns relate to the child’s current emotional and psychological state.  It seems that the child clearly wants to belong to the new family group consisting of her mother, D and her baby brother.  The child appears to be very emotionally dependent on her mother.  It is possible, if not probable, that her attachments in the past have not been primarily to her mother or her father.  Given the mother's demonstration of loud voice and anger in Court, I would have to suspect that she was like this at other times and so I have a concern that the child may have some level of fear of her mother.

2. That is all about the immediate. However, until the child is able to fend for herself financially and emotionally she has to live with her mother and is totally dependent on her.  Ms M’s concerns are more about the child’s future, especially as an adult.  On balance I conclude that the child should be given an opportunity to meet with her father before he dies.  The meeting should be strictly supervised by Ms C, the Family Consultant.  Ms C was recommended by Ms M because Ms C is able to communicate in the child’s and her father’s common language. She will understand what is being said by each and will therefore be able to intervene should anything inappropriate be said by either. The meeting should not proceed if Ms C feels the child is likely to insult her father or be rude to him.  This provision I conclude to be in the child’s best interest. 

3. The Independent Children's Lawyer suggests orders supported by the father which include provision of past school reports and future information. The mother opposes such orders unless the father pays half of the past school fees which she estimates at $12,000.  In my view the reports should be provided.  It may ultimately convince the child her father was interested in her.  The other orders suggested by the Independent Children's Lawyer appear, in the majority, to be in the child’s best interests. 

4. I think that one thing the father could do which might ultimately be beneficial for the child is to write a letter to her and to make a DVD for her to view at some time in the future should she be interested in finding out more about her father. It could be part of his future legacy to her which she may be able to enjoy when she can separate emotionally and financially from her mother.

Should orders be made as final orders or interim orders?

1. I propose to make a final order to attempt to take some pressure off the child.  She clearly wants the proceedings to conclude.  They have been going on in one form or another over many years. She deserves some respite.

Should I order a judicial interview?

1. I was asked by the Independent Children's Lawyer to meet with the child. I am not averse to seeing children whose parents are involved in parenting cases in my Court. However, there must be some clear benefit to be gained by this meeting and the children must be prepared to participate.  The child clearly does not want any further contact with the Court.  She recently met with the Independent Children's Lawyer and I have a transcript of that meeting.  On balance I do not believe the child would benefit from a meeting with me.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:  …

Date:  21 August 2008