Y & T - [2001] FMCAfam 171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Y & T

[2001] FMCAfam 171

FAMILY LAW – Residence – contact – relationship of parents – cultural issues – Family Law Act 1975, s 60B, s 65E, s 68F(2).

H & W (1995) FLC 92-598, Hall & Hall (1979) FLC 97-13, B & B (1995)
FLC 92-755.

Applicant:

Y H Y

Respondent:

C S T

File No:

ZP 1147 of 2001

Delivered on:

7 September 2001

Delivered at:

Parramatta

Hearing Dates:

15, 16, 21 & 22 August 2001

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Schroder

Solicitors for the Applicant:

Mr O’Donnell Legal Aid Commission of NSW PO Box 1113 Campbelltown

Counsel for the Respondent:

Mr Sansom

Solicitors for the Respondent:

Ms Warda Coleman and Greig
DX 8226 Parramatta NSW

ORDERS

The children of the marriage: W W Y T born 6 September 1992, H Y T born 2 November 1995 and H J T born 4 June 1997 are to reside with the mother except for the periods set out in order 2 hereof.
The said children are to reside with the father as follows:
(a)except for school holidays, each alternate weekend from 6 pm on Friday to 5 pm on Sunday commencing on Friday
14 September 2001 provided that if the Monday following such weekend is a public holiday then residence for that weekend is to conclude at 5 pm on the Monday,
(b)for the first half of each of the autumn, winter and spring school holidays commencing at 9 am on the Saturday after school term finishes and concluding at 5 pm on the middle Sunday of each of the said holiday periods,
(c)for a period of two weeks in the January school holidays commencing at 9 am on the first Saturday in January in each year and concluding at 6 pm on the Sunday two weeks later,
(d)for not less than two hours on each of the children’s birthdays where such birthday falls on a school day and for not less than four hours where such birthday falls on a day when the children do not have to attend school,
(e)from 9 am to 5 pm each Father’s Day,
(f)for not less than two hours on the fathers birthday where such birthday falls on a school day and for not less than four hours when the father’s birthday falls on a day when the children do not have to attend school,
(g)for not less than two hours on the first day of the Chinese New Year where such day falls on a school day or from 9 am to 5 pm when that day falls on a day when the children do not have to attend school,
(h)from 9 am to 4 pm on Christmas Day, 25 December 2001 and each alternate year thereafter,
(i)from 9 am to 4 pm on Christmas Eve, 24 December 2002 and each alternate year thereafter,
(j)at such other times as the parties shall agree.
The children will not reside with the father on Mother’s Day or on the mother’s birthday.
The father is to have contact with the said children by telephone each Tuesday and Thursday between the hours of 7 pm and 7.30 pm and for the purposes of such telephone contact the mother shall telephone the father or arrange for him to be telephoned and ensure that the children are available for such telephone contact and encouraged to speak to the father.
The father and mother are to have joint responsibility for the long term care, welfare and development of the children.
Each of the father and mother shall have responsibility for the day to day care, welfare and development of the said children when the children are residing with them.
The father is to collect the children from the mother at the Campbelltown railway station at the commencement of each period of residence with him and is to return the children to the mother at the Strathfield railway station at the conclusion of each period of residence with him.
Neither party is to remove or attempt to remove all or any of the children from the Commonwealth of Australia without the written consent of the other party or the leave of the Federal Magistrates Court.
The mother and father are to do all things necessary to cause each of the children to be enrolled at a Chinese school on a weekend for the purpose of studying the Cantonese language. Such school to be agreed upon between the parties and in default of agreement to be the school which was previously attended by any of the said children.
The parties are to ensure that each of the children continues to study the Cantonese language until such child completes the course of study available at the school referred to in order 9 hereof.
The mother is to authorise the principal of each of the children’s schools to forward a copy of all school reports to the father at his current residential address and to advise the father of all school activities which parents are normally invited to attend.
The father is permitted to attend each of the children’s schools at any time when a function is being held to which parents are normally invited to attend but shall not attend at such school at any other time.
The mother is to advise the father forthwith of any medical condition of any of the children requiring hospitalisation or specialist medical treatment.
Neither party is to question any of the children about the other party whilst any of the children is in their care.
Neither party is to criticise, denigrate or abuse the other party in the presence or hearing of the children or permit any third person to do so.
Within one month from the date of these orders the father and the mother are to make an appointment to see the intake officer of the Keep in Contact Program provided by Unifam at 27 Hassell Street Parramatta for the purpose of assessing their suitability to attend a post-separation parenting program.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 1147 of 2001

Y H Y

Applicant

And

C S T

Respondent

REASONS FOR JUDGMENT (Ex Tempore)

Application

This is an application by the mother that the three children of the marriage should reside with her. She also seeks orders relating to their contact with their father. The father in his response seeks that the three children should reside with him, that they should have contact with their mother.
The father was born on 30 January 1962; the mother was born in October 1965. The parties were married in December 1991 and separated on 30 August. There are three children: W W Y T born on 6 September 1992. As it will be seen W has just attained the age of nine years. H Y T was born on 2 November 1995. He will be six in a couple of months time. H J T was born on 4 June 1997. He has only recently reached the age of four. The parties are of Hong Kong Chinese background and arrived in Australia in November 1991 and married shortly thereafter. The relationship between the parties appeared to deteriorate in June of last year and by late August had reached an extremely difficult stage resulting in the mother leaving the father and taking the children with her.
In the few days prior to the actual separation there was considerable degree of tension in the household. The father telephoned his mother in Hong Kong relaying to her his fears that not only did the wife form a relationship with another man but this person was going to have him killed. He wished to have one of his brother come out from Hong Kong in that circumstance to look after the children and take them back to China. The mother moved into one of the children’s rooms and slept there saying that she feared that the husband would do her some harm when he was walking around at night with plastic bags which the husband said were used just to line the garbage bins.
The mother left with the children and went to live in a refuge and now lives in south western Sydney at an address that she does not wish the husband to know. The children did not have contact with their father although the mother telephoned the father to say they were safe until November of that year. There were interim orders made on 3 November that the children would for the time being reside with the wife, the husband would have graduated contact starting for a period of a couple of hours and then going up to daytime contact plus contact by telephone.
There was an incident in November, later that month, and the mother said she was concerned about the father following her. The mother had commenced apprehended violence proceedings and obtained an apprehended violence order from the Parramatta local court. The evidence seemed to be based as much on her fears that the father would attempt to remove the children and take them to China or to Hong Kong as such rather than a particular fear for her own safety. The husband brought his own application for residence.
Contact has taken place since then although it has been marked by certain incidents which have caused the mother some concern. The father spent some time placing gifts with the mother in the children’s bags. One occasion however was on 24 December which is Christmas Eve which is perhaps not an unreasonable time to do so. The father’s mother, the paternal grandmother, had arrived from Hong Kong and was residing with him. She is still in Australia. There was an incident early this year between the mother and the grandmother at contact changeover where the mother complained that the grandmother was following her. The grandmother wished to speak to her about her distress over the break-up of the marriage and had concerns for the children.
The grandmother gave evidence and there was no doubt about her obvious distress at the way things had developed between her son and her daughter in law. It was disturbing for the father in January. He sought to bring an affidavit to his wife’s attention by placing that document in the children’s bag. Later on the father gave maps to the children. The reasoning for these maps coming from a street directory was to some extent explained by the father and the father has also provided the children with a rather questionable pamphlet relating to ethnic gangs.
The matter came before the Federal Magistrates Court for what was originally intended to be a one day hearing on the question of contact only. The father, however, made it clear that, this is on 10 May, that contact was not just the issue, that he still wished the children to reside with him. The court ordered a family report. The order asked the report deal with residence, contact and cultural issues and noted that a Cantonese interpreter would be required. The matter was listed for hearing for two days. It in fact took five, including submissions.
The family report was prepared and made available. The counsellor, Ann Pitts, was cross-examined by the husband’s counsellor at some length. The family report related to interviews between the counsellor and the parents, with Mr W T, the father’s brother and with the three children. The children were observed with both the parents, with their uncle and the children were spoken to individually. There is a clear recommendation in the report that the children should reside with the mother. The counsellor formed the view that a residence order for the father would not provide a viable option for these children and it would be contrary to the children’s expressed wishes.
The counsellor expressed some concerns about the father’s ability to meet the children’s needs both on a practical and emotional level and she also expressed concerns about the disruptive effect of a change of residence. It was the counsellor’s views that the children’s closest emotional attachment was their mother. I would say the counsellor was cross-examined on that point and I am of the view that the evidence relating to the father’s practical ability to meet the children’s needs is in fact far stronger than it would appear on reading the counsellor’s report. He has made arrangements with his employer that he can have time off to meet the children’s needs and some of the criticisms of, say, his culinary skills appears not to have been borne out.
The children were observed with their father. The father was observed to greet the children with enthusiasm but the older children were described by the counsellor as seeming a little restrained and the youngest child, H J, remained sitting at the table and to some extent was not responsive to his father. It was not until the father’s brother, Mr W T, entered the room that H J was observed to communicate directly with his father and make eye contact. The counsellor noted that when this session was at an end the child, W, behaved in a somewhat defiant way refusing to kiss her father goodbye but the two boys waved to him cheerfully as he left the room.
The counsellor observed the children as having a more natural interaction with their mother and in effect competing with each other for their mother’s attention. The mother’s evidence was that she still had fears of her husband and it was quite clear that she wished to have as little to do with him as possible. The father appears still to have a fixation about some of the actions or attitudes of the mother, appears not to have been emotionally separated from her. It is noteworthy that W, the eldest child, is reported by the counsellor as being angry about the father’s questioning the children about the mother and about running the mother down and it’s clear from the father’s evidence that he is not, as I said, emotionally separated from her.
At the time of separation he formed the view that the mother had a boyfriend who may well threaten his life and he seems not to have departed from that position. There is no evidence to show, one, that the mother has formed a relationship with another man let alone that that person or any other person poses any threat to the father’s life or well-being. It’s disturbing that the father could still discuss these issues with the children.
There is an issue between the parents over the question of lessons in the Chinese language. The family is from Hong Kong. The language which they spoke was Cantonese. The father’s mother speaks Cantonese and apparently speaks no English. The children had been learning Cantonese at a weekend school in the Eastwood area, not far from the former matrimonial home in Dundas Valley. The mother took the children out of Cantonese school and said that not only was there no school teaching Cantonese nearby but has placed them in a weekend school to learn Mandarin. The father is strongly opposed to this as the background of the family is Cantonese.
The mother’s explanation for this is that at the previous school Cantonese is only taught to about year 4 or 5. When the children moved on to a higher level they would have to learn Mandarin anyway. Mandarin is harder than Cantonese and is in fact more of a written language so her explanation was that if the children moved earlier into Mandarin they’d get a better grounding in the language when they moved up later. The father remains opposed to this course pointing out the Cantonese background of the family and indeed whilst the mother pointed out that the children still spoke Cantonese at home the evidence was that H J, the youngest child, has never been to Cantonese classes.
I look at the principles which a court exercising jurisdiction under this Act must apply in matters involving children. The object and principles of the law are set out in section 60B of the Family Law Act. Subsection 1 says the object of this part is to ensure the children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. The principles underlying these objects are:
a)that except when it is or would be contrary to a child’s best interests children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, never married or have never lived together; and
b)children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development; and
c)parents 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.
In dealing with these issues the court must also look at the principles set out in section 65E of the Family Law Act, that in deciding whether to make a parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration. Section 68F(2) sets out a number of matters that the court must consider when determining what’s in the child’s best interests.
One of the issues that appears in this case relates to contact between the children and their father since separation. I am mindful of section 60B(2)(a) which says that children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated etcetera. There’s clear evidence here that the wife has neglected to ensure that the children have had sufficient contact with the husband, certainly from the time of separation until orders were made early in November. It is understandable that in the circumstances of a separation as they were, where the mother took the children and went to a refuge that it would take some time for contact arrangements to be re-established.
It’s hardly surprising that a woman who leaves the matrimonial home hurriedly in a state of some distress with the children would not immediately sit down to work out a contact programme. It’s a matter of concern, however, that sometime later when she rang the husband to say that the children were all right, the children weren’t put on the phone to talk to their father. She says they didn’t ask to and in any event they were eating a meal. Each party has a duty to see that the children have a relationship with the other party. Certainly since November there have been contact arrangements in force which were graduated taking into account the fact that the children had been separated from their father for a while and that contact steadily increased up to Christmas.
Section 60B(2)(b) says that children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development. When the children do spend contact time with their father this gives them the opportunity to have contact with their uncle, Mr W T, and particularly with their paternal grandmother who lives with the father. There is concerning evidence before the court that the children’s relationship with the grandmother has in fact deteriorated sharply since separation. That’s a matter to be regretted.
Section 60B(2)(c) says that parents share duties and responsibilities concerning the care, welfare and development of their children. One of the things that is important for children of a background other than born in Australia European Australian is instilling in them a regard for their cultural heritage. These are children with a Chinese background, notwithstanding the fact that they were all born in Australia. Their family is Cantonese speaking Chinese. They have a cultural history of a proud and educated learned people with a rich culture and this is something that’s clearly to the benefit of their children that they should learn. It is particularly important that language skills are something that the children should learn and it’s well-known that children learn languages at a young age and are able to be bi-lingual and I am of the view that language skills in young children are something which should be encouraged.
As recently as yesterday in proceedings before this court I observed the ability of a solicitor who is fluent in Cantonese as well as in English to assist her client. This is clearly a matter of benefit to the community at large and is something which courts should encourage. Parents should agree about the future parenting of their children says section 60B(2)(d). These parents certainly don’t and it would appear that there would be a need for some ongoing counselling.

When looking at the particulars set out in section 68F(2) of the Family Law Act there are a number of matters which appear to me to be of relevance, not the least of which is that set out in section 68F(2)(a) saying:
“Any wishes expressed by the child, any factors such as the child’s maturity or level of understanding that the court thinks are relevant to the weight that it should give to the child’s wishes.”
The wishes of the children have been the subject of consideration by the Full Court of the Family Court of Australia in Harrison v Woollard which is reported as H v W 1995 FLC 92-598 where Fogarty and Kaye JJ held that the wishes of the children are important and proper and realistic weight should be attached to any wishes expressed by the children. As a matter of practical day to day experience the problem in this area usually relate to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the court will attach varying degree of weight to a child’s stated wishes depending upon, among other factors, the strength and duration of the wishes, their basis and the maturity of the child including the degree of appreciation by the child of the factors involved in the issue before the court and the longer term implications. Ultimately the overall welfare of the child is the determinant, and I refer to section 65E of the Act.
In that same case Baker J looked extensively at the wishes of the children. His Honour said on pages 81967 and 81968:
“In my opinion a child’s wishes must not only be considered but must be shown to have been considered in the reasons for judgment of the trial judge. Furthermore if the trial judge decides to reject the wishes of the child then clear and cogent reasons for such a rejection must be given. The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in each individual case. Such an exercise would require a consideration of both the child’s level of maturity and understanding.”
His Honour, Baker J, cited a considerable amount of psychological research which he said indicated that children from the age of seven are capable of expressing a choice between parents in evaluating the respective environments which each has to offer. His Honour says, and I quote:
“The weight to be given to these wishes will depend upon the child’s cognitive age and level of maturity in each particular case.”
That’s at page 81966. I was referred to two cases concerning the wishes of the children and/or family reports by Mr Sansom of counsel for the father. He referred to the more recent decision of R v R, a decision of the Full Court last year which I would have to say I found of not a great deal of benefit in this particular case. In that case there had been wishes expressed by children that they should live with their father. The trial judge considered those wishes, assessed them as strong evidence that the children wished to spend more time with their father as they hadn’t seen him for some length of time as he had been working in Thailand, left the children with their mother but made substantial orders for contact.
The Full Court took the view that that was an appropriate consideration of the wishes of the children and declined to disturb the orders made by the trial judge. I was also referred by Mr Sansom of counsel to the decision of the Full Court in Hall v Hall reported in 1979 FLC 97-13 where the Full Court made some observations about the way a court at first instance should deal with the Family Report. There’s no magic in a family report. A judge is not bound to accept it and there should never been any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities.
Family reports are meant to be and almost invariably are valuable and relevant material to assist the judge in forming his ultimate conclusions. While the counsellor’s views will normally have weight with the court because of his expertise and experience the counsellor does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination to make findings of fact based on evidence before the court which might not have been available to the counsellor. Hence the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong, sometimes the family report will necessarily be neutral, whether the report contains a positive recommendation or whether it be neutral, whether the report is accepted by the judge or whether it’s not the report will still serve the court well and assist the court’s investigations, it follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged, where there’s proper reason for cross-examination the court will be assisted and finally and perhaps more importantly no party should leave the court with the belief that justice has not been done because an opportunity to test part of the evidence has been denied.
Taking those principles in both hands, Mr Sansom, cross-examined the counsellor at some length. He was critical of the relative paucity of comments about the cultural issues involved in children from a Chinese culture living in Australia. Apart from the question of language which I consider the counsel covered in appropriate detail the report quite clearly does not go into those details other than cultural beliefs and perceptions and that criticism of the report should stand. This does not mean however that the report is of no value or that it should not otherwise be considered even though as the Full Court said in Hall v Hall the trial judge or federal magistrate should not abdicate his or her responsibilities and that it is not the decision of the counsellor which will prevail but that of the judge based on all of the information.
Before I go into more detail about those I look also at the interaction of section 60B of the Family Law Act, section 65E and section 68F(2). The Full Court considered those in B v B Family Law Reform Act 1995 reported in 1997 FLC 92-755. The court made it clear that in proceedings relating to parenting orders the best interests of the particular child in that case remains the paramount consideration. The court must consider the matters set out in section 68F to the extent that they’re relevant in a particular case, the weight to be attached to any one consideration depending upon the circumstances of the individual case. It’s a discretionary exercise by the trial judge. Ultimately it’s a question of applying in a common sense way the individual section so as to achieve the best interests of children in a particular case.
I have already commented about principles set out in section 60B(2), particularly concerning children’s contact not only with parents but also with other members of extended family about the importance of cultural heritage, about the importance of ongoing counselling for the future parenting of their children and about the criticisms the court must make about the amount of contact that the husband was able to enjoy as a result of actions or non-actions by the wife. Looking at the section 68F(2) factors particularly with the question of the wishes of the children it is noteworthy that each child had something to say to the counsellor about these issues.
The eldest child, W, has just reached the age of nine years. Her two brothers, H Y and H J are aged five years and ten months and four years three months. The court would give the wishes of the two boys relatively little weight due to their age and level of maturity but would give a greater weight to the wishes expressed by their elder sister. All three children expressed a wish to remain living with their mother. W in fact, at page 12 of the family report, expressed some strongly negative views about her father. H Y expressed positive views about his relationships with both parents at page 13 of the family report. H J who still attends pre-school also expressed positive views about his contact with both parents.
Rather sadly I thought at page 14 of the report H J was reported as perceiving that his father spent more time with the other two children than they did with him. H J understood that he normally saw his father on a Sunday. He agreed that he enjoyed some positive activities with his father but couldn’t enlarge on this. However, he perceived that his father played and interacted more with his older sister and brother than he did with him. H J also said that he enjoyed playing with his mother. H J indicated that he wanted to live with his mother and didn’t want his current living arrangements changed. When it was suggested to H J that the father be invited in to play the child originally shook his head and indicated that he didn’t want his father to come into the room, however, when reassured he didn’t object to his father entering the observation room.
As I commented earlier when Mr W T entered the room it was there that H J was observed directly to communicate with the father making eye contact with him. When he, the littlest of the three, left he was one of the two boys who waved cheerfully at the father. The description of H J is perhaps rather poignant. He’s the youngest of three children caught between separated and estranged parents who is expressing a view, as far as a four year old pre-schooler can do, of wanting the current arrangements to continue but also expressing, as well as he can, some views that he really would like to spend more time with his father and there is certainly a lesson for the father that

H J, the youngest of the three, needs perhaps some special attention that he’s not receiving.
I look at section 68F(2)(b), the nature of the relationship of the child with each of the child’s parents. The counsellor saw the mother as having a good relationship with all three of the children. W is certainly reported as having negative views as far as her father is concerned which would appear to be as a result of a specific loyalty to the mother. Certainly in the light of what is perceived as constant criticism by the father of the mother. It’s noteworthy that H Y in particular spoke highly of relationship with both parents and H J as I have commented rather wistfully saw the father spending more time with the older children than with him which is a matter for consideration.
Section 68F(2)(c) The likely effect of any changes in the child’s circumstances. The father’s proposal for residence would see the child return to the former matrimonial home where they left now over a year before. This would be a major change although there was a major change a year ago when the mother left. There is some concern from the attitudes expressed by the father that there may be difficulties with contact with the mother and the counsellor in her report expressed views that such a matter would be disruptive.
Section 68F(2)(d) the practical difficulty and expense of the child having contact with a parent. I do not see that as a major issue. Apart from the fact that they’re living in different suburbs of Sydney there is no reason why contact can’t take place on a regular basis.
Section 68F(2)(e) the capacity of each parent to provide for the needs of the child is a matter of some relevance in this case. Both parents cannot escape without some critical comments from the court. There is clearly a need for the children to spend time with each parent. The mother’s attitude to contact until November in particular and perhaps less so now does not show awareness of the children’s needs to have an ongoing, fruitful relationship with their father. There is also a considerable concern about the father’s constant discussion of the mother with the children, with the reference to the mother’s supposed boyfriends and discussion of his fear of being murdered by them. This is quite inappropriate. It’s quite unsettling for young children and as it is done without any evidence whatsoever it’s a matter that causes the court serious disquiet.
There is also evidence of the father providing the children with a pamphlet relating to ethnic gangs in the Sydney area. The father explained that as relating to questions raised by the eldest child, W. The pamphlet itself which was received into evidence related to the activities of and areas of operation of various ethnic gangs. It may well be a pamphlet that would commend itself to the Premier of New South Wales but to my view it is highly inappropriate to be shown to any of the children, particularly to two little boys aged four and five. Whilst it was put to me that the younger children would be unlikely to understand it in any event one would comment that the children are unlikely to understand something why should they have it. My concern is that speaking to children about organised crime in the area or ethnic based gangs cannot for children of that age be of any benefit and can only be seen as disruptive and unsettling.
Section 68F(2)(f) the child’s maturity, sex and background. I’ve previously commented about the maturity levels of the children through their ages. There are two boys and one girl. The eldest child, a girl W, strongly identifies with the mother. I am of the view that with the two younger children, both boys, there is a need for a positive male role model. I am mindful of the fact that the children are of a Chinese background and the question of Cantonese language is a real issue. I am of the view that the mother has acted in a way that is not entirely excusable as far as the question of Cantonese language classes is concerned. It is a matter that has caused the father deep concern and indeed if the children are going to speak to their grandmother, from who they seem to be to some extent estranged, they have to speak in Cantonese. They have relatives who speak Cantonese.
The mother’s explanation that they’re going to have to learn Mandarin eventually because that’s the language of commerce and you can’t have Cantonese classes past a certain age, to my mind is not one that the court would readily accept. The father with some justification sees the mother’s rejection of Cantonese language teaching as in a way analogous to a rejection of him and his family and his background causes him deep disquiet. The mother’s reasons for it to my mind lack credibility. Language forms part of culture.
Section 68F(2)(g) refers to the need to protect children from physical or psychological harm. There’s no physical harm to the children with either parent although some of the father’s comments about fear of being murdered, ethnic gangs, mother’s having mysterious boyfriends to my mind are quite unsettling to the children and cannot assist in the relationship with either parent. In fact the comments by W about her father to the counsellor indicate such comments are being counter-productive.
Similarly section 68F(2)(h) relating to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents has been covered already. I have referred particularly to the mother’s failings regarding contact, not providing information about the children’s schooling, her repudiation of the Cantonese language study are matters of concern. Against this the father’s over-seriousness and his inability to separate the children from his fixation with the mother are matters that cause concern.
Section 68F(2)(i) relates to any family violence involving a child or a member of the child’s family, that’s not applicable. (j) relates to any family violence order that applies to the child or a member of the child’s family. There has been an AVO taken out. There have been no proceedings to my mind against the father breaching that AVO. It is not the duty of this court to go behind the apprehended violence order which was made by a court of competent jurisdiction. The mother still expresses some desire not to have the father know where she lives and the apprehended violence order is still in force and it would appear that the father is complying with the apprehended violence order. There’s no further need for this court to deal with that.
Section 68F(2)(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. It’s always a difficult one for the court to decide. There are clearly needs here to settle the question of residence of these children. There are clearly needs to make reasonable workable contact arrangements. What is the proper decision for this court to take? The children have resided with their mother all their lives. They have certainly resided with their mother alone since separation and contact is now back on foot. Their mother clearly appears to be mindful of the children’s needs, clearly is capable of dealing with the children’s physical and emotional needs although her animosity to the father is a matter which must be resolved.
The father’s inability to separate himself emotionally from the wife, his fixation about violence and boyfriends are matters seriously concerning and not in the best interests of the children. The reality is that there is no good reason to remove the children from the care of their mother and place them within the full time care of their father. There is a need for more appropriate contact arrangements. There is a need for stronger consideration of the children’s need to have a better relationship with their father. The father’s argument that the children would not be able to love him if they didn’t live with him permanently is just not correct. There are literally millions of people in Australia who are separated parents whose children love each one of them even though they can’t live together. There is no reason why this should not be the case.
Against this the children to my mind are not having sufficiently organised contact with their father. If there were more frequent contact it is quite likely that the tensions would subside, the question of the Cantonese language is a matter of such importance that I am of the view that for the timebeing the children should learn Cantonese. The father has a preoccupation, and not an unreasonable one, with the education of the children. He needs to be able to know about their schooling and he needs to receive information about their schooling and be able to attend proper school activities. He has been capable of altering his work schedule to make it clear that he can spend time with the children for block periods of time and he needs to be able to spend more time with the children so that his fears that the children will lose their love for him will prove groundless.
The father must separate the children from his fixation about the mother. He must accept the fact that the relationship is over. He must cease discussing inappropriate matters with the children and spend more time with the children so that their time with him will be enjoyable. If he is not able to do that, if he is not able to move on, the children as they grow up will move on. It is for these reasons that I make the above quite lengthy orders:

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A.C.

Date: 30 October 2001