Xie and Yan

[2016] FCCA 3055

FEDERAL CIRCUIT COURT OF AUSTRALIA

XIE & YAN [2016] FCCA 3055

Catchwords:
FAMILY LAW – Parenting – Interim orders – Consideration as to having periods of time supervised by a Mandarin speaking supervisor.

Legislation:

Family Law Act 1975 ss.60B, 60CC, 65DAA

Applicant: MR XIE

Respondent: MS YAN

File Number: SYC 2968 of 2016

Judgment of: Judge Lapthorn

Hearing date: 15 November 2016

Date of Last Submission: 15 November 2016

Delivered at: Sydney

Delivered on: 17 November 2016

REPRESENTATION

Solicitors for the Applicant:	Wang Lawyers Pty Ltd
Solicitors for the Respondent:	Doolan Callaghan Family Lawyers
Solicitors for the Independent Children’s Lawyer:	Kd Holmes Solicitors

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The child X born (omitted) 2010 live with the Mother.

2. Within seven (7) days the parties do all things necessary to undertake the intake process at the (omitted) Contact Service.

3. Upon the (omitted) Contact Service having a place for this family, the Child spend supervised time with the Father for two (2) hours each fortnight, provided such supervision is conducted by or with a Mandarin speaker.

4. The parties have liberty to apply on seven (7) days notice in the event the contact service is unable to accommodate the family in accordance with these Orders.

THE COURT ORDERS BY CONSENT THAT:

1. Each parent inform the other parent as soon as it is practicable to do so if either the Child becomes ill or is injured or requires admission to a hospital.

2. Each parent inform the other parent of any medication prescribed for the Child and provide that parent with the medication and appropriate instructions for its administration at any handover.

THE COURT ORDERS BY CONSENT PENDING FURTHER ORDER THAT:

1. The Applicant and Respondent, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the Child from the Commonwealth of Australia for a period of two (2) years.

2. It is requested that the Australian Federal Police give effect to Order 7 by placing the Child X born (omitted) 2010 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist for the said period, or until the Court orders its removal.

THE COURT FURTHER ORDERS THAT:

1. The proceedings be transferred to the Family Court of Australia to be listed for directions before a Registrar on 27 February 2017 at 10.30am with a request that this matter be considered for inclusion in the Magellan list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2968 of 2016

MR XIE

Applicant

And

MS YAN

Respondent

EX TEMPORE JUDGMENT

1. I have before the Court an application for interim parenting orders in relation to a six year old child, X.  The parties agree that the child should continue to live with the mother but disagree as to whether the child should spend time with the father. 

2. In his outline of case document, the applicant father invited the Court to make orders for the parties to have equal shared parental responsibility, for the child to live with the mother, for the child to spend time with the father during school days every Monday to Friday between 8.30am and 9am, and every Sunday, 9am to 9pm.  He also sought an order that he have telephone or video visual communication with the child every Wednesday, 6pm to 7pm.  A number of other orders were set out in his outline of case document.

3. The respondent mother sought orders to have sole parental responsibility, for the child to live with her and the child to spend no time with the father.  The mother argued that if the Court did not accept her argument for a no time order, then any time needed to be supervised by a Mandarin-speaking supervisor. 

4. The Independent Children's Lawyer argued for the child to spend time with the father, supervised at the (omitted) Contact Service.  He did not support the need for a Mandarin-speaking supervisor.  He also supported the father’s proposed order for telephone or video visual communication but argued the order should include a provision that the mother be present during the communication to monitor the exchange.

5. The documents to which I have had regard are those that are set out in the respective outlines of case document and exhibit C1, the child dispute memorandum dated 25 July 2016;  C2, the chronology from the Independent Children's Lawyer, which I note the events recorded therein were conceded by counsel for each of the parties; and ICL1, which was a file produced under subpoena from Family and Community Services.

6. By way of brief background, the father is 37 years of age, having been born on (omitted) 1979.  He is a self-employed (occupation omitted) and he lives in a one bedroom unit in the Sydney area.  The mother is 34.  She was born on (omitted) 1982.  She lives in the former matrimonial home, which is a unit at (omitted) with the child and she is employed by a (employer omitted) firm. 

7. In 2009, the father was detained at the Villawood Detention Centre.  The parties married at that centre in (omitted) the following year.  On (omitted), the father was released from detention, and the parties commenced to live together. 

8. X was born on (omitted) 2010.  He is attending a local (omitted) primary school in his kindergarten year.  He lives primarily with his mother.  The mother, I note, was granted permanent residency to this country on (omitted) 2013 and, upon receiving such, she then sponsored the father’s application for permanent residency.  She has now withdrawn that sponsorship as of 22 April this year.

9. In 2015, the parties had a tenant, Mr J, who is a witness in this case.  The parties separated on 14 January this year.  A few days later, there was an incident of family violence between the parents and each make various allegations against the other.  The father alleged that the mother threatened him with a knife and cuts were inflicted.  The mother said she was grabbed by the throat by the father.  The mother was ultimately charged with offences and an apprehended violence order issued.

10. The mother left the former matrimonial home that day and did not return until 29 March 2016.  The child remained living with the father.  The mother sought counselling the day after this incident.  The apprehended violence order application was ultimately dismissed on 29 March, and the mother returned to the former matrimonial home and the father vacated the property.

11. The mother gives evidence of the father making a number of telephone calls of a threatening nature.  In April, the mother alleged the father attended at the home and made threats to her.  A further interim apprehended violence order was made in the Burwood Local Court, this time with the father being the respondent.  That was made on 28 April. 

12. On 2 May, the father attended the child’s school and he was ultimately charged with stalking and intimidation of the respondent.  The interim apprehended violence order and the charges were ultimately withdrawn and dismissed on 3 August this year.

13. On 13 May this year, the father brought these proceedings, which include both property and parenting orders.  The mother filed her response on 6 July this year.  I have already indicated there is a child dispute conference memorandum before the Court.  The parties, without the child, were interviewed on 25 July this year.

14. All parenting proceedings are governed by the provisions of part VII of the Family Law Act. In determining their outcome, the Court is required to have regard to the objects and principles that underlie that part and must consider the best interests of the child as the paramount consideration.

15. The objects of part VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives, that the children are protected from physical or psychological harm, that they receive adequate and proper parenting and that the parents fulfil their duties and meet their parental responsibilities. 

16. Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests, the principles are:

    (a)children have the right to know and be cared for by both their parents;

    (b)children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

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

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

    (e)     children have a right to enjoy their culture...

    As can be seen by that recitation, children have the rights and parents have the responsibilities.

17. The legislative framework which must be followed in all parenting cases mandates that, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.  This presumption, though, may be rebutted in cases of child abuse and/or family violence or where the evidence establishes that it is not in the child’s best interests for it to apply.

18. During the course of the hearing earlier this week, I indicated to counsel and the Independent Children's Lawyer that I would be unlikely to make an order for parental responsibility at this point in the litigation, notwithstanding each of the parties has sought an order for parental responsibility.  Counsel did not pursue the issue after I raised it. 

19. The reason for this approach is that the evidence of the parties is so at odds that I am simply unable to determine where the truth lies. This, however, will be an important issue at the final hearing. Given that approach and the issue of the child’s primary care is agreed to at this interim stage, I am not required to consider the factors set out in section 65DAA.

20. In determining what is in this child’s best interests, I must have regard to a number of factors set out in section 60CC so far as they are relevant to this interim determination. The two primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both parents;  and

    (b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

    The latter of these two is to be given greater weight. 

21. The mother’s case is that the need to protect this child from the father’s conduct is so real that any benefit of having a relationship with him must give way.  That is why she is arguing for a no time order.  Her alternative position is that if there is to be time, it must be supervised and by a Mandarin speaker.  Although the father does not concede any need for supervision, his position was that if the Court does not make the orders for time that he seeks, he would accept supervised time. 

22. The Independent Children's Lawyer argued for supervision but did not press for the Mandarin interpreter, arguing such a requirement may stifle the ability of the contact centre to provide the service, and the concerns could otherwise be accommodated by a non-Mandarin speaker picking up on the child’s body language as to any inappropriate things that may be said.

23. What are the concerns, though?  The mother alleges that this child is at risk because this child has been abused in that he has been hit by the father, he has been locked in a small dark room by the father, he has been exposed to sexually inappropriate behaviour by the father and the child has been left alone at home by the father.  The father denies the mother’s allegations.

24. In relation to the allegation of the child being left alone by the father, there is some independent evidence to support that, given the evidence of Mr J, who is a former tenant of the parties. Mr J also gives evidence of the father being violent towards the family dog. Such violence or abuse falls within the definition of family violence in the Family Law Act.

25. The father, for his part, questions the mother’s mental health status.  He alleged the mother assaulted him with a knife in January 2016 and that the child witnessed this.  He also alleged that the mother would encourage the child to insult him.  Notwithstanding these allegations, he is content for the child to continue to live with the mother.  Although the father denies the mother’s allegations, given their serious nature, I propose to act cautiously at this stage.  The Court is not able to determine disputed questions of fact, but the affidavit of Mr J, to which I have already referred, lends some corroboration to the mother’s allegations.  It gave evidence of observing the father being cruel to the dog, as I have already mentioned, and of leaving the child alone at home.  He also relied heavily on others to care for the child.  The documents tendered from Family and Community Services - who I will refer, throughout this judgment, as FACS - indicate that this child has expressed some fear of the father and disclosed that he had been physically hurt by him. 

26. The child was interviewed on 29 August this year and the documents record that X reported that:

    He has no worry or fear when staying with mum.  He said that he was scared when he was with dad.  X said that the father had hit him with an open hand and had kicked him, sometimes with shoes on.  He said that the father had hit him on his face, nose, lips, penis and bottom.  He said that he had got red marks from hitting but had not required any medical attention.  Mum and grandma usually asked father to stop and he did stop.  X said the father had locked him in a dark room outside of the house and he felt sad and scared.  He said that mum and grandma would get him out not long after.

27. The department also considered the other allegation raised by the mother that she had found a video on the father’s phone on 5 January this year in which X was lying on a bed masturbating.  The mother said that she saw that the child was fully naked and playing with his penis and had said in Chinese, “Penis is getting bigger.  Getting bigger.”  She said the video was about 40 seconds long.  She said they separated soon after discovering this video and did not have a chance to discuss it with the father, although she did seek out from other males that she knew as to whether this sort of conduct was appropriate. 

28. The father denies the video.  The evidence, of course, that is before the Court is not tested.  I have not had an opportunity to observe either party or their witnesses in the witness box and given that there are significant disputes - factual disputes between the parties, I’m not able to determine the truth or otherwise of their evidence.  Notwithstanding that, and taking into account that the child had not seen the father for about four months when he was interviewed by officers at FACS, and given the nature of the allegations of excessive discipline, family violence and possible abuse of a sexual nature, I am satisfied there is a need to protect this child and that that need must be given significant weight. 

29. I am satisfied that the child could be protected by either ordering no time or supervised time.  If I was to order supervised time, I accept the mother’s submissions that such supervision should be conducted by a Mandarin speaker.  I do not accept the ICL’s argument that any untoward comments that trouble the child would be noticeable by his reactions.  It is important that the supervisor be able to understand what is said.  The notes of a supervisor may be significant from an evidentiary point of view down the track.  If the supervisor is not able to do anything more than record the child’s interaction with the father by way of observations of body language, such a report will not be of much value. 

30. There also is a risk of unfairness to the father in that any body language may be misinterpreted.  Having said that, I do take the valid point of the Independent Children’s Lawyer as to the delay and practical problems but this needs to be weighed up with the allegations of violence - that includes verbal abuse. 

31. Turning, then, to the benefit of the child having a relationship with the father.  The mother would prefer a no time order.  She might, ultimately, be persuasive, but at this point I’m not satisfied a no time order is appropriate.  The evidence is in dispute as to the nature of the child’s relationship with the father.  The mother alleges the father did not spend much time with him.  I note, though, that the mother left the house in January 2016 and the father was the primary carer for this child for about two months.  Noting, of course, Mr J’s evidence about the quality of that care.  But on the evidence it’s highly likely that the child has received care from the father and, given the child’s age, would have had a relationship with him.  The father has not seen the child, now, since April.  If he is, ultimately, successful in obtaining orders to spend unsupervised time with the child but is precluded from spending time with him in the interim, the disruption to the child’s relationship with him could be profound, particularly given the delays in the Court system and the need for further investigation and reporting to assist the Court to ultimately make its determination. 

32. A complete cessation of time or, in other words, a continuation of the current reality for this child could not be said to be in his best interests, pending a final hearing.  Although supervision at a contact centre is not an ideal environment, when I weigh up the need to protect the child from the risk of harm and the benefit of him having a relationship with the father, I am satisfied a formal supervised arrangement is the best option in the circumstances.  For these reasons and those in relation the need for a Mandarin speaker to conduct the supervision I will make the following orders:

    a)That within seven days, the parties do all things necessary to undertake the intake process at the (omitted) Contact Service.

    b)That upon the (omitted) Contact Service having a place for this family, the child spend supervised time with the father for two hours each fortnight, provided such supervision is conducted by or with a Mandarin speaker.  I will be granting liberty to apply, on seven days notice, in the event the contact service is unable to accommodate the family in accordance with these orders.

33. In coming to that conclusion, I should indicate I have taken on board the comments made by the family consultant in her memorandum, which suggested the current situation of no time should continue until further assessment. I am not satisfied there is sufficient evidence to warrant concern that the child is at risk in the mother’s care if the father is seeing the child, provided that the time is supervised by the Mandarin speaker which will be accommodated by my orders. In relation to the other section 60CC factors, they are not of any great significance at this stage, but I am satisfied the mother has the capacity to meet the child’s needs, notwithstanding the father’s allegations as to her mental health.

34. I note in the report from FACS they saw no concerns regarding X’s basic needs.  He was observed to be dressed in a clean school uniform during his interview and the school had no concern regarding his attendance and presentation.  FACS did a home visit and reported no concerns regarding the child’s physical living conditions.  The home presented as clean and reasonably tidy.  The department also noted there was no information to suggest that either of the parents have any drug and alcohol problem. 

1. I am therefore satisfied it is appropriate to make an order - indeed one that both parents and the Independent Children’s Lawyer seek, that is, the child live with the mother.  The father sought an order that he have telephone and/or video communication and this was supported by the Independent Children’s Lawyer provided the mother was present.  I accept the importance of this.  The child needs to be able to maintain a relationship with his father, when you take into account the amount of delay in getting the supervision up and running and the limited time that can be offered by the contact centre, it’s not surprising such an order is sought and supported by the Independent Children’s Lawyer. 

2. The difficulty, though, is that these parents each allege inappropriate conduct by the other and in the presence of the child.  There is a risk that this child could be further exposed to verbal abuse if the mother was to be present during the phone calls or video calls.  There is also a risk of inflaming the litigation by enabling the parties to make fresh allegations as to what was said during these calls.  For this reasons I will not make an order for telephone communication at this stage.  Given that I have ordered the supervised time and there are allegations that the father has been verbally abusive of the child, it would not be appropriate for the father to have unsupervised telephone communication. 

3. It, of course, may be possible to review this if the supervised time progresses well or a Mandarin speaker other than the mother is able to supervise the communication. 

4. I turn now to look at the future directions of this matter.  The family consultant recommended that this matter be expedited and consideration being given to it being transferred to the Magellan list in the Family Court of Australia.  There is also the property aspect of this litigation.  This part of the litigation involves a dispute as to whether a financial agreement is binding.  That issue alone may require the calling of a number of witnesses. 

5. When I weigh up the serious allegations in the parenting matter and the issues in the property matter, noting that the parties and some of the witnesses may need the assistance of interpreters, I am satisfied there is potential for this matter, if all issues remain outstanding, to require four days or more hearing time.  I am also satisfied that despite the police not pursuing criminal charges against either parent, the nature of the family violence, including the allegation that the mother used a knife in attacking the father, warrants this matter being considered for inclusion in the Magellan list. 

6. The allegation in relation to potential sexual abuse may, of course, also be considered but in and of itself, given the nature of the allegation, seems, at least on the face of it, to not warrant such inclusion.  Overall I am satisfied that this is a matter that should be transferred to the Family Court of Australia. 

7. I will be making orders that the child live with the mother, that the child spend time with the father in accordance with the orders that I indicated earlier in this judgment and orders 2.8, 2.9, 2.10 and 2.11 of the father’s outline document, which were not in dispute during the hearing.  I transfer this matter to the Family Court of Australia and request that Court give consideration as to whether the matter is suitable for inclusion in the Magellan list. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date: 25 November 2016