YEUNG & HWANG

[2020] FamCA 91

FAMILY COURT OF AUSTRALIA

YEUNG & HWANG [2020] FamCA 91

FAMILY LAW – CHILDREN – Where the father consents to the mother having sole parental responsibility for the child, for the child to live with the mother, and for the mother to be permitted to travel to Country J with the child – Where the father seeks an interim order to allow him to comply with orders made two years ago for him to undertake various programs and engage in supervised time with the child – Where the father has had ample opportunity to complete the programs and failed to do so – Where the father has not seen the child (other than briefly at a family report interview and at a shopping centre) since at least February 2018 despite there being an order for him to spend supervised time with the child – Where the Court makes a positive finding that the father engaged in family violence against the mother and in the presence of the child – Where the father poses an unacceptable risk of harm to the child by reason of family violence, his fixation on the asserted medical problems of the child, his troubling personality traits which deprive him of empathy and cause him to be quick to anger, and his inability to meaningfully relate to the child – Where the father will spend no time with the child and is restrained from communicating with the mother or the child, approaching the mother or the child, and approaching and/or communicating with the child’s school/s, medical practitioners, and/or extracurricular activities.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
Briginshaw v. Briginshaw (1938) 60 CLR 336
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Mr Yeung

RESPONDENT: Ms Hwang

INDEPENDENT CHILDREN’S LAWYER: Ms Cleeland, Sarah Cleeland Family Lawyers

FILE NUMBER: BRC 3623 of 2017

DATE DELIVERED: 19 February 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 13 - 15 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Martinovic
SOLICITOR FOR THE APPLICANT:	Keyworth Harris & Lowe Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Oakley

SOLICITOR FOR THE RESPONDENT: KLM Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Carlton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

Order

1. The mother, Ms Hwang, have sole parental responsibility for the child, X born … 2015.

2. In exercising sole parental responsibility in relation to major long term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) the mother shall inform the father, Mr Yeung, via email, of the decision to be made and invite his input into the decision. If a reply from the father is received, the mother shall take the father’s views into account and shall inform him within 7 days of her decision via email and the reasons for it.

3. The child shall live with the mother.

4. The father spend no time with the child nor communicate with him.

5. The child, X (a male) born … 2015, be removed from the Family Law Watchlist.

6. The child be permitted to travel with the mother to Country J and countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction.

7. Save as provided by this Order, the father be restrained and an injunction hereby issues restraining him from:

   (a)       Communicating with the mother or the child verbally or electronically including via email or text message;

   (b)       Approaching the mother or the child; and

   (c)       Approaching or communicating with the child’s school and/or health practitioners and/or extracurricular activities.

8. The mother be authorised to provide a copy of this Order to the child’s school/s.

9. The independent children’s lawyer be authorised to release this Order and reasons for judgment to the Department of Child Safety, Youth and Women (Qld).

10. Pursuant to s 11 of the Australian Passports Act 2005 (Cth), this Order allows/empowers the mother to obtain passports or a renewal of passports for the child in the exercise of her sole parental responsibility and without the need for the signature or consent of the father.

11. Each party is to keep the other informed at all times of an email address at which they can be contacted pursuant to this Order or in case of emergency.

NOTATION

A.It is noted that the father did not oppose the mother having sole parental responsibility for major long term issues as long as he was consulted and did not oppose the order sought by the mother as set out in paragraphs (3), (5) and (6) above and consented to paragraphs (8), (9) and (10) above.

B.It is further noted that the parties exchanged email addresses prior to leaving the court precinct.  

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yeung & Hwang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3623 of 2017

Mr Yeung

Applicant

And

Ms Hwang

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. MrYeung is the father and Ms Hwang is the mother of a little boy, X born in 2015. The child has not spent any time with his father since at least February 2018, apart from a brief interaction at a shopping centre in June 2019 and for the purposes of a family report interview on 18 October 2019. The parents are unable to agree about whether or not the father should be permitted to spend time with the child in the future.

2. This is a case which involves family violence, including physical abuse, and despite the father having the benefit of an order that he spend time with the child in a supervised setting, he has not done so. Nor has the father complied with various orders of the Court requiring that he undertake programs designed to address family violence issues and to assist him as a parent.

3. For the reasons which follow, the father will not be permitted to spend time with or communicate with the child.

Issues

1. With the assistance of the parties and the independent children’s lawyer (“ICL”) the following issues were identified as significant matters requiring determination:

   a)Whether either parent poses an unacceptable risk of harm to the child given the competing allegations of family violence, and the impact of past family violence, if any, on the parents’ capacity to co-parent;

   b)Whether or not the father has a narcissistic personality disorder and, if so, the impact of that or the impact of his personality traits upon his parenting capacity and his parenting capacity generally; and

   c)The impact on the child of any reintroduction to the father, and the likelihood of the father maintaining a relationship with the child.

proposals

1. The father did not oppose the mother having sole parental responsibility. Nor did he oppose the child living with the mother. The father ultimately sought to spend time with the child on alternate weekends, holidays, and special days after an initial 12 months of supervised time followed by gradually increasing time over a further period of six months. The father’s time with the child on his proposal is to be contingent upon the father completing a number of parenting and behavioural change programs.[1]

   [1] The precise terms of the order sought by the father is set out in exhibit 2.

2. The mother proposes that the father not spend any time with the child nor communicate with him. The mother also proposes that she have sole parental responsibility.[2]

   [2] The precise terms of the order sought by the mother is set out in her Case Outline filed 8 January 2020 save that the mother did not oppose a requirement for her to consult the father prior to making any decision about a major long term issue concerning the child.

3. The ICL supports the child living with the mother and spending no time with the father. The ICL also supports the mother having sole parental responsibility but with an opportunity being provided to the father to express his views about any major long term issue.

Background

1. The parents were married in Country J in 2015, having commenced cohabitation in Australia in May 2014. They first separated in August 2014 and then reconciled in October 2014. They separated again in March 2015 before reconciling in May 2015 and again separated in October 2015 before reconciling in April 2016. Their final separation occurred on 4 October 2016. They divorced in 2018.

2. In 2015, the child was born. He is the only child of each parent and has at all times lived with the mother. The father spent no time with the child during the six month separation that commenced in October 2015, nor did he spend any time with the child after the final separation in October 2016 until 22 August 2017, and has spent no time with the child since at least February 2018 (other than on the two occasions already identified in 2019).

3. The father is 44 and first moved to Australia in 1990. He does not work and was evasive about how he supports himself. It seems his only source of income is from his mother and siblings who live in Country J. He nevertheless contributes $500 per month to the child’s support.

4. The mother is 42 and moved to Australia in 2009. She works full time in a finance position.

5. The parents lived together in Country J from May 2015 until 4 October 2015 when they returned to Australia. Both parents have rights to live in Australia permanently.

6. The parents each make allegations of family violence against the other and each parent denies being the perpetrator of family violence. A protection order was made in favour of the mother on the application of police after an incident on 3 October 2016. The father filed his own application for a protection order in November 2016 and the mother consented to that order without admission. The mother said during cross-examination that her reason for consenting to the order was that she was “very exhausted going in and out of court” and her consent was given after conferring with the duty lawyer. 

7. On each occasion of separation after the birth of the child, the mother proposed that the father spend time with the child at a contact centre under supervision. The father rejected the need for supervision and as a consequence he did not see the child until after a Court order was made on 21 August 2017 specifying that the father was to spend time with the child each Tuesday between 10.00am and 2.00pm, with changeovers to occur at McDonalds until a contact centre was available to conduct the changeovers. A prior order had been made on 17 May 2017 for the father to spend unsupervised time with the child for no less than four hours once per week. Both parents were unrepresented at the May and August 2017 hearings and the mother had not filed any material prior to the May hearing. The mother required the assistance of a Court provided Mandarin interpreter during the trial before me. Between 22 August 2017 and 7 December 2017, the father spent time with the child for about four hours each week and on one occasion on or about 5 December 2017 for a longer period from about 9.00am until 5.00pm. There is no evidence that the child came to any harm on any of the occasions he spent time with the father. Although, I note that at that time the father was living with his mother who was available to assist him.

8. As a result of the father’s behaviour at a family report interview conducted by Ms B on 7 December 2017, the ICL filed an application to suspend the father’s unsupervised time with the child and for his time with the child to be supervised. On 9 February 2018, an order was made suspending the father’s time with the child and the matter was adjourned to enable the father to obtain legal advice.

9. The father was assessed by a psychiatrist, Dr C, on 25 June 2018 who opined that the father was likely to have a narcissistic personality disorder.

10. On 2 August 2018, an order was made for the parents to register at a named contact centre within 7 days so that the father’s time with the child could resume under supervision. The father did not register with the contact centre. The father was also ordered to complete a Family Support Program and a Men’s Behavioural Change Program and both parents were ordered to complete a Parenting Orders Program. The father did not and still has not completed any of those programs. The mother has completed a Parenting Orders Program.

11. On 27 June 2019, the father was ordered to file an affidavit setting out, among other things, the reasons why he had failed to exercise supervised time with the child. The father’s reason was articulated in very general terms to the effect that he had been travelling overseas. He resisted attempts during the trial to particularise his overseas travel and failed to produce material in his possession that would have clarified the situation.  

12. On 18 September 2019, trial directions were made setting the matter down for final hearing commencing 13 January 2020 and the significant issues for determination at trial were identified. A fourth issue identified on 18 September 2019, namely, whether the child has any medical condition that requires ongoing treatment and the impact on the child if the parents disagree about that was ultimately removed as an issue by consent on the first day of trial.

13. Interviews for an updated family report were undertaken by Ms D on 18 October 2019.   

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[3]

   [3]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

3. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

6. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

8. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[4] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[5] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”. ^[6]

   [4] M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [5] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.

   [6] See Johnson & Page (2007) FLC 93-344, [68], [71].

9. The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[7] and said:

   [7] [2019] FamCAFC 198.

   38.  In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   39.  It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

   40.  The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:

   151.       …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …

   41.  As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

1. The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:

   51. The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[8] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[9]

   [8]Baghti & Baghtiand Ors [2015] FamCAFC 71.

   [9]M & M (1988) 166 CLR 69.

3. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

4. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

5. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

6. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

7. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

8. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[10]

Whether either parent poses an unacceptable risk of harm to the child given the competing allegations of family violence, and the impact of past family violence, if any, on the parents’ capacity to co-parent

[10]Banks & Banks (2015) FLC 93-637.

1. Turning then to consider the particular issues identified with the assistance of the parents and the ICL, I note firstly that the father does not contest the child living with the mother nor were any submissions made that the mother posed an unacceptable risk of harm to the child. I was not taken to any evidence that would support a finding that the mother posed an unacceptable risk of harm to the child. Despite the issue (as particularised above) being identified and confirmed as a significant issue requiring determination, the only submission made by the father in relation to family violence was to minimise it as being “historical”.  

2. The mother contends that the father has perpetrated serious family violence against her and in the presence of the child. While the father denies the mother’s allegations of family violence, the mother was not challenged during cross-examination about the veracity or reliability of her detailed allegations. The only reference to this aspect of the case during cross-examination of the mother focussed on how the mother was able to provide specific dates for the alleged violence perpetrated upon her by the father and certain records from the police and the Department which are said to cast some doubt on the mother’s allegations of physical violence.[11] By contrast, the father was cross-examined at some length about each allegation made against him by the mother.

   [11]Exhibit 1 - Record from Queensland Police Service dated 27.10.15 where the mother is reported as denying physical abuse and a further record dated 3.10.16 which reported the mother as saying that she had thrown a place mat and chop sticks at the father when she says in her affidavit that she threw them on the floor; record from Department of Child Safety, Youth and Women dated 28.4.16 where an unidentified person said that the mother said the father had not harmed the child and she did not think he would.

3. The specific allegations of family violence made against the father by the mother include the following:

   a)On 24 May 2014, after the mother had completed an English exam, the mother provided the contact details of her migration agent to a man who had also undertaken the exam. The father witnessed the mother hand a piece of paper to the man and the man then waved goodbye to the mother. The father approached the stranger and pushed him using both of his hands on the man’s shoulders. The mother describes this incident as an example of the father’s “controlling” behaviour;

   b)In or about August 2014, the mother describes the father as angry with her and wanting her to leave the house. She says that he pushed her and forced her into the car. As the father was shoving her into the car she lost her balance and hit her head on the rear view mirror, causing her pain;

   c)On 17 March 2015, when the mother was four months pregnant, the father and mother had an argument about a man the mother had met twice while she and the father were separated. Despite the mother providing details of each encounter, the father continued to interrogate the mother and would not let her go to sleep. At or about 1.00am the father yelled at the mother – “Leave my house without taking the child with you”. The father shouted at the mother that he was going to hit her stomach with a wooden stick in order to cause a miscarriage. When the mother told the father that would be a crime to do such a thing the father responded – “there is no death sentence in Australia”. The father continued to interrogate the mother before finally letting her go to sleep. The day after this incident, the mother cancelled their wedding and moved in with a friend for two months before moving back to Country J;

   d)After the child’s birth, the father frequently yelled at the mother up to a few times each week, which caused the child to cry. The father repeatedly issued instructions to the mother, e.g. to lie down while breastfeeding the child, and if she did not agree with his instruction the father forcibly removed the child from her arms;

   e)On 18 October 2015, the mother attempted to breastfeed the child but the father would not permit her to. He pushed the mother from behind causing her to stumble such that she had to grab a chair to avoid falling to the ground. The father then forced the mother out of the house and put all of her belongings at the front of the house. He blocked the mother from entering the living room to feed the child. The mother called the police who assisted her to leave the home with the child;

   f)In April 2016, the mother disagreed with the father about the child continuing to see a chiropractor. They were driving at the time. The father threatened to kick the mother out of the car while it was still moving;

   g)On 5 August 2016, during an argument, the father locked the mother and child inside the house and left, knowing that the mother did not have a key or other means of exiting. The mother broke a lock in order to escape; and

   h)On 3 October 2016, during an argument, and as the mother was retrieving the child from a playpen in the home, the father kicked her in the lower back. While she was holding the child in her arms and screaming in pain and shock, the father tried to prise the child from her arms and punched her on the right side of her face. The father violently pulled the child from the mother’s arms. The mother experienced pain and was crying. The police attended and removed the father from the home and assisted the mother to collect some belongings and leave. The mother and child thereafter lived in a refuge for five months before moving to independent accommodation.

4. The mother attended upon a doctor on 4 October 2016. The medical records confirm that the mother gave an account of the assault consistent with her evidence in this trial and upon examination, the mother was noted to have swelling to the right side of her face and severe localised tenderness on her lower back and sacral area.

5. Ms B, the family report writer, opined that the mother presented during the 7 December 2017 family report interviews as “a vulnerable woman who is highly influenced by Mr Yeung, noting that the mother appeared unable to confidently assert her views with the father”. I note in this context that the mother agreed to extend the father’s time with the child to a full day.  She explained that this decision arose due to a need for child care while she worked pending the arrival of her mother in Australia and also a perception that the Court had determined that the father was not a risk to the child.

6. Persons other than the mother have also witnessed the father’s aggressive and threatening behaviour, including a police liaison officer and a family report writer.

7. On 27 October 2015, a police liaison officer, Mr E, was present at the F Group in Suburb G during a mediation involving the parents.  The police liaison officer witnessed the father “to be aggressive in his language and mannerisms” with the mother, and police were called. The mother was advised by the police liaison officer to wait for police inside a locked motor vehicle. When police spoke to the father, he said that he wanted to have week about with the then three month old baby who was being breastfed by the mother. The police record indicates that both the mother and father said that their arguments were limited to verbal ones and that there was no physical violence or property damage. This is inconsistent with the mother’s evidence of the incident alleged to have occurred on 18 October 2015 when she says the father pushed her from behind. The mother was not challenged about this apparent inconsistency.  However, I note that nothing in the police record purports to be a quote from the mother and when the mother applied for a protection order on 6 November 2015, her application confirms the history of violent and aggressive behaviour including the physical violence. A temporary protection order was made on 6 November 2015, which was later withdrawn when the parents reconciled. The father denied during cross-examination that he had been aggressive at all during the mediation and said he had no idea why the police were called. I do not accept his denial and find that he acted in the way described by the police liaison officer.

8. On 7 December 2017, the father spoke aggressively to the mother during the family report interview insisting that she answer his questions. He persisted even after the mother had answered his questions and despite the intervention of Ms B, the family report writer. The father was also aggressive towards Ms B and when the father refused to leave the premises, Ms B called the police. The father left the premises before police attended. Ms B says the following in her report:

   113. … Mr Yeung advised that he was refusing to leave the premises, despite being asked on three (3) separate occasions, at which time he was informed by the writer that in the event he did not leave Police would be contacted. Mr Yeung was observed to become more argumentative and intimidating toward the writer, stating “well call them then, I am not going.”

   …

   120. … Mr Yeung was directly observed during the assessment to intimidate and coerce the mother, using verbally aggressive and physically intimidating behaviour in an attempt to force her compliance with his requests.

9. While the father initially conceded he had behaved inappropriately at the family report interviews, he denied having to be asked to leave three times and maintained that he left immediately upon being requested to do so by Ms B. He also denied saying to Ms B “well call them then, I am not going”. Ms B’s evidence was not challenged and I accept it. During cross-examination the father tried to minimise or justify his behaviour during the interviews. The father said he had no idea why the police were called but suggested it might have been for his safety because the mother could be violent to him. He suggested that the only reason he insisted on the mother producing a bottle of antibiotics that he had purchased for the child and given to the mother was so that he could dispose of them. His evidence was ludicrous. Ms B opined in her report that the father demonstrated no insight into the effect of his behaviour on others including the child, who was present throughout this incident. I accept her opinion.

10. On 25 June 2018, the father was interviewed and assessed for the purposes of these proceedings by Dr C, a psychiatrist. The father was uncooperative and refused to provide information when requested. Dr C was provided with a range of material including Ms B’s family report. Dr C opined:

    Mr Yeung is therefore a person who does not like being told what to do, especially by women. He has an inflated view of his self-importance. He lacks a capacity to empathize [i.e. care about the impact of his behaviour on others]. He thinks he knows a lot about a lot of things.

    This means that Mr Yeung’s personality style can be threatening. This is because he will anger quickly if thwarted or his world view is challenged.

    …

    Mr Yeung has a set of core beliefs centered (sic) on the premise that he is right.

    …

    I opine that Mr Yeung has set ideas about a range of issues [he is right and the person is wrong] and will be inflexible to compromise about these issues.

    …

    Mr Yeung presents with a personality style that centres his energy primarily on meeting his needs as opposed to the needs of others.

    This aspect of his basic nature will impact adversely on his parenting style and on his actions in any post separation parenting plan that will evolve.

    …

11. As to Ms B’s experience of the father during the family report interviews, Dr C describes Ms B’s account as “harrowing” and opined:

    There is an ongoing risk of a recurrence of this sort of behaviour by Mr Yeung which I strongly recommend be risk managed by appropriately trained security officials to minimise the risk of it recurring.

12. Dr C says he went out of his way not to aggravate or anger the father during his interview with him.

13. I find that the father has perpetrated family violence against the mother as alleged by her. The father’s conduct towards the mother on 3 October 2016, in particular, is reprehensible. I find that he kicked her in the lower back and punched her in the face while she was holding the child. The mother sustained facial swelling and soft tissue injury to her lower back. I find that the father has engaged in coercive and controlling behaviour and in particular, removed the child from the mother if she did not comply with his instruction e.g. to lie down while breastfeeding. The father used the mother’s affection for the child as a means of controlling and threatening her. On occasions he refused to allow the mother to breastfeed the child and locked her out of the room while the child cried. I find that the father threatened to cause a miscarriage by hitting the mother with a stick. The words used by the father to the mother in relation to the mother leaving the house without the child did not literally make sense given that the child was not yet born, but made sense if the threat was as claimed by the mother i.e. to cause a miscarriage. The father’s attempt to ridicule this allegation as making no sense and thus supporting his denial only add weight to the mother’s allegations.

14. There is a consistent pattern in the evidence. The father insists that he is right and becomes angry when challenged. Even a very experienced psychiatrist felt it unwise to challenge the father for concern it would provoke an angry response, as it did with Ms B. During the trial, the father was still seeking to justify his behaviour at the family report interviews on 7 December 2017. The father seems incapable of considering the impact of his behaviour on other people including, importantly, the child, who witnessed family violence including on 7 December 2017.

15. Historically, the father resented being told he could only see the child under supervision by the mother and then by the Court (which might be understandable if there was no basis for such a requirement) but irrespective of whether the requirement was justified, the father could not prioritise the child’s need to maintain a relationship with his father over his own feelings of being “misjudged”.

16. It is not only the father’s past behaviour that causes me to find that he presents an unacceptable risk of future harm to the child but also the father’s continued failure to demonstrate any insight into the impact and effect of his behaviour on others.  

Whether or not the father has a narcissistic personality disorder and, if so, the impact of that or the impact of his personality traits upon his parenting capacity, and his parenting capacity generally

1. I do not find it necessary to make a positive finding that the father has a narcissistic personality disorder, although Dr C seems to consider it likely. With or without a formal diagnosis of such a disorder, the fact remains that the father has a number of personality traits which compromise his capacity to appropriately parent the child. His conviction that he must be right at all times jeopardises his ability to act in the child’s best interests. The father remains fixated on his belief that the child has, or probably has, a spinal injury. This is despite a specialist in Country J and a general medical practitioner in Australia disagreeing with the father. The father has had available to him since June 2017 a letter from this general medical practitioner in which he said:

   I have previously examined [X] (DOB … 2015) who in my opinion is not suffering from any spinal disorder that would benefit from either allied health or chiropractic treatment. He is developmentally normal, and his mother [Ms Hwang] (sic) Hwang has previously shown every evidence of being an exceptionally caring and vigilant mother regarding his continuing maternal care.  

2. The father feigned ignorance of this letter when asked about it during cross-examination. I do not believe him as it was annexed to the mother’s affidavit filed in June 2017, and the father takes issue with this particular doctor by name in his own affidavit.

3. In October 2015, the father insisted that the child be treated by a chiropractor whom the father asserted had diagnosed some issue. Even assuming a chiropractor had the expertise to make such a diagnosis, the father did not produce any evidence from the chiropractor to support his assertion. In April 2016, the father reacted violently when the mother said she did not want the child to continue to see the chiropractor. It was plain during the father’s evidence that, if he could, he would take the child back to the chiropractor. Despite the absence of any evidence that there is anything wrong with the child’s spine, the father remained somewhat fixated on his view that the child has a spinal problem. Interestingly, during the 7 December 2017 family report interviews the father presented as fixated not only about the spinal problem, which he attributed to the mother’s “mishandling” of the child, but also in relation to minor cuts and bruises on the child, even insisting on the presence of “a red mark on his face/chin” when Ms B said that no such mark was apparent.

1. During the observation of the interaction between the father and child by Ms B on 7 December 2017, she notes:

   105.… The father was observed to immediately conduct a physical inspection of X by way of staring at his face, whilst stroking the child’s chin; running his hands over X’s legs and his feet, and rubbing X’s back, all whilst remaining eerily silent. Further, Mr Yeung was observed to stare intently at X for an extended; and unsettling period of time whilst running his hands over the child’s spine. …

   106.Mr Yeung was asked to provide an explanation for his behaviour, at which time he confirmed that he was physically inspecting X as he had not been offered an explanation by the mother of what he perceived were facial injuries. Mr Yeung advised that he had observed a red mark on X’s face that was unexplained, reporting that he was conducting an inspection of X’s physical presentation due to concerns regarding what he perceived were physical injuries. ***It is noted that the marks visible to the father were not visible to the writer and no concerns were noted regarding X’s physical appearance during the time he was observed at the consulting rooms. However, it is noted that the father alerted the writer to a minor bruise on X’s back which could be seen and was the size of a five (5) cent coin.

2. Ms B opined that:

   110.… The relationship between X and the father was not observed to be familiar, nor demonstrative and Mr Yeung was observed to experience difficulty engaging with X in a child focused manner.

   …

   122. It is my professional opinion that Mr Yeung’s presentation when engaging with X during the observation period was inconsistent with typical parenting behaviour. I observed Mr Yeung to behave in a manner that was not child focused, and his actions when conducting a physical inspection of X highlighted concern. …

3. I accept the accuracy of Ms B’s observations. I also accept her consequent opinions.

4. The child’s interaction with the father was most recently observed by Ms D at the interviews for the second family report on 18 October 2019. The child was observed to be happy to see the father and “their interactions were appropriate and child focused”.

5. Unfortunately, Ms D’s observations of the father and child were compromised by the father. The Court order required the father’s time to be supervised at a contact centre where an appropriately briefed supervisor would undertake supervision and, contrary to instructions provided to the father by Ms D, he attended Ms D’s rooms unannounced and provided the child with presents unbeknown to Ms D or the mother. The mother was being interviewed by Ms D at the time and the father took the opportunity to see the child in the waiting area. A friend of the mother’s was minding the child.

6. When cross-examined about his behaviour, the father gave an elaborate and ultimately inconsistent account of the reasons for his attendance at that time. I find it more likely than not that the father sought to manipulate the child and the process by providing the child with presents prior to Ms D conducting the observation session and with the intention of creating a favourable encounter with the child when the formal observation occurred. I can place little weight, therefore, on the seemingly positive observations described by Ms D.

7. The only other time the father has encountered the child since at least February 2018 was an occasion when the father and mother inadvertently ran into each other at a shopping centre in June 2019. The mother had the child with her and she describes the father’s odd response to the child. He bent down on his haunches at the child’s height and rubbed the child’s back. He said nothing to the child and the child did not respond to the father in any way. The father’s only query to the mother was to ask how many days the child spent in day care. Given the striking similarity of the mother’s description of the father’s behaviour on this occasion to that witnessed by Ms B in 2017, I prefer the mother’s account of what occurred on this day to the father’s account, which was that he did not check the child’s neck and back and did speak to the child. I have also found the father to be less than reliable in his evidence about a range of matters, e.g. not having seen the letter by Dr H his reasons for attending Ms D’s rooms early, and his denial of punching and kicking the mother on 3 October 2016.

8. Curiously, during the second family report interviews with Ms D on 18 October 2019, the father criticised Ms B’s comments about his interaction with the child, suggesting that she had not taken into account the fact that he had not seen the child for some time and he (the father) was like a stranger to him. It is common ground that the father had been spending four hours each week with the child from 22 August 2017 and had spent a whole day with the child only two days prior to the first family report interviews on 7 December 2017.

9. The father told Ms D on 18 October 2019 that Dr C had suggested that the father may have Post Traumatic Stress Disorder due to the current situation. Dr C denied making any such suggestion and there is nothing in his report nor in the transcript of his interview with the father to support the father’s assertion. I do not believe the father.

10. What is striking about the father’s personality traits is that he has no insight into the self-destructiveness of his own actions. His insistence on being ‘right’ has sabotaged any prospect he had of reconnecting with his son at this time. He could have been seeing his child for the last two years in a supervised setting had he registered with the contact centre. If he had undertaken the programs he was ordered to undertake and engaged in personal therapy to gain some insight into the impact of his behaviours on others, he may have been able to demonstrate that he had changed and was not a risk to the child.

11. Ms B’s opinions and recommendations were very clear as long ago as December 2017. She said, among other things:

    123.Further concerns with respect to the father’s behaviour during the assessment relate to Mr Yeung’s seemingly limited understanding of X’s developmental and primary care needs. Mr Yeung was observed to be unable to communicate effectively with X within the contrived space, and whilst it is acknowledged that the father may have been intimidated whilst being observed, his behaviour when engaging with X exposed limited confidence in his independent parenting skills.  

    124.… It is my professional opinion that X’s best interests could be upheld by way of the father increasing his understanding of child development and practical parenting techniques before progressing to unsupervised time. It will form a recommendation of this assessment that Mr Yeung’s time with X be supervised by professional staff at a children’s contact centre and that he undertake practical intervention to increase his awareness and understand (sic) of child development.

12. Unfortunately, the father chose to dismiss the opinions and recommendations of Ms B as someone who was biased against him.

13. When the father was challenged by Ms D about turning up at her rooms unannounced and contrary to her clear instructions, he was dismissive and attempted to rationalise his behaviours. In Ms D’s opinion, which I accept, the father preferred to focus on his own needs rather that the child’s, whom he had not seen for a very long time. Ms D concurred with the opinion of Dr C that the father “is therefore a person who does not like being told what to do, especially by women” and that “Mr Yeung presents with a personality style that centres his energy primarily on meeting his needs as opposed to the needs of others”.

14. Quite apart from his personality difficulties, the father has virtually no experience in caring for a young child. While there is no evidence that any harm came to the child during the limited occasions the child spent with him at the end of 2017, it seems that the father would have had the assistance of his mother at those times as he was living with her. His mother is now apparently unwell and living in Country J.  

The impact on the child of any reintroduction to the father, and the likelihood of the father maintaining a relationship with the child

1. The child is very young but did express a wish to Ms D to spend time with the father. While I am sure the child has a curiosity about the father, the child’s wishes cannot be afforded significant weight given his age, and priority must be given to his physical and psychological protection.

2. The child does appear to know that he has a father and who that person is but he has no relationship with the father.

3. Even if the father were not an unacceptable risk of harm by reason of family violence, I cannot be satisfied that even if supervision were ordered, the father would maintain a commitment to see the child regularly and consistently. He has not done so in the past. The child would likely be at least unsettled if not devastated to be reintroduced to the father only for him to disappear again from his life.

4. At the conclusion of the evidence, and without prior notice to the mother or the ICL, the father’s counsel submitted that the Court should make an interim order and adjourn the trial pending the father’s completion of the programs that had been recommended as early as December 2017 and ordered on 2 August 2018. It was also submitted that the Court should order the father to undertake personal therapy, however, I note Dr C’s evidence that requiring the father to undertake therapy against his wishes may make matters worse and may cause an escalation in aggressive behaviour. While it is true that the ‘sins of the father’, so to speak, should not be visited upon the child who has a right to know and be cared for by both parents, the father has had more than ample time to demonstrate to this Court his commitment and focus on the child and has failed to do so. I see no benefit for the child in adjourning the matter to give the father “one more chance”. In some ways, this demonstrates yet again the father’s focus on himself rather than the child’s need for stability and an end to litigation.

5. In any event, no parenting order is truly final. If the father can demonstrate at some future time that he has completed the programs he was ordered to undertake and engages in personal therapy to address the issues raised in this judgment, he may be able to persuade the Court that he has changed and that the Court should give further consideration to whether or not it is in the child’s best interests to spend time with him.

Conclusion

1. It is a significant step to deprive a child of his rights to spend time with and be cared for by his father. However, as already indicated, I have found that the father presents an unacceptable risk of harm to the child because of his history of family violence to the mother and in the presence of the child. Additionally I have found he has a fixation on the asserted medical problems of the child without evidence to support his assertions. The father has troubling personality traits which deprive him of empathy and cause him to be quick to anger. Finally, he has no ability to meaningfully relate to the child. In those circumstances an order for no time is in the child’s best interests.

2. This is a case where the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility does not apply given my findings about family violence. In any event, the father does not oppose the mother having sole parental responsibility and the child continuing to live with the mother. The father seeks to be consulted about any major long term issues and the mother agrees to do so.

3. The father has had ample time to undertake the various programs and therapy in order to address the matters raised as early as December 2017 but has chosen not to do so. The father’s beliefs that he is ‘right’ and that he has been unfairly treated has taken priority over his child. It is tragic for this child that he will grow up without a father because it is generally accepted that a child will benefit from having a meaningful relationship with both parents. However, the safety and best interests of the child must take priority.

4. There is no current protection order in place and although there is no evidence that the father currently knows the mother’s residential address, or the address of the child’s day care, I have an obligation to include in the order any safeguards that are considered necessary for the safety of those affected by the order. Accordingly, I propose to accede to the mother’s request to include an injunction in the order restraining the father from communicating or approaching the mother and/or child contrary to the order.

5. Finally, the father does not oppose the child being removed from the Family Law Watchlist, which will enable the mother to visit her family in Country J.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 19 February 2020.

Associate: 

Date:  19.02.2020