Details
- AGLC
- Yi & Sedgwick [2021] FedCFamC1F 65
- Case
- [2021] FedCFamC1F 65
- Decision Date
-
CaseChat Overview and Summary
In the Family Court of Australia, the matter of Yi & Sedgwick [2021] FCCA 1461 concerned parenting arrangements for the child Z, born in 2009. The primary issue was whether the father posed an unacceptable risk of harm to Z if he were to have unsupervised contact with her. The court also considered other aspects such as decision-making responsibilities, time spent with the child, and communication obligations. The Independent Children's Lawyer (ICL) agreed to certain proposed orders by the mother, which included limited and supervised contact with the father.
The legal issues revolved around the determination of whether an unacceptable risk existed under s 60CC(2)(b) of the Family Law Act 1975 (Cth), which pertains to the risk of harm to a child from abuse or neglect. The court needed to balance the potential benefits of parental access against the risk of harm. The court also had to consider the child's best interests in determining appropriate parenting orders, including the frequency and nature of contact between Z and her father.
The court found that the father had committed serious acts of child abuse against Z during the first six months of her life, which included physical assault. The court was satisfied that there was an unacceptable risk of harm to Z if unsupervised contact were to occur. The court found that the risk could be managed by limiting the father's contact to supervised visits, as proposed by the ICL. The court also noted that the mother had been the primary carer for Z since her birth, and it was in the child's best interests for her to maintain a meaningful relationship with the father, albeit under strict supervision. The court ruled against imposing a fixed schedule for electronic communication between Z and her father, given the potential for disputes and Z's increasing distractions as she entered her teenage years.
The court's final orders included provisions for supervised contact between Z and her father, as recommended by the ICL, and allowed for the mother to travel overseas with Z to connect with her maternal family. The court also permitted ongoing electronic communication between Z and her father, without imposing a fixed schedule. These orders aimed to protect Z from the unacceptable risk posed by her father while still allowing for a meaningful relationship between the child and her father.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
That arrangement in respect to X is pursuant to final parenting orders I made on 20 August 2021 ([2021] FamCA 605), in separate proceedings that came before me during the period that the hearing of this matter was adjourned. It should be noted that there is significant overlap between the issues raised in this matter and those raised in the proceedings in respect to X. There are also a number of similarities, including the identities of the father and the Independent Children’s Lawyer, in both proceedings. A significant difference in those other proceedings, however, is that, other than to the extent of seeing the father during an interview for the purpose of preparing a family report, X had no communication with her father since December 2014, and I accepted, in those proceedings, that X did not wish to be compelled to see or communicate with the father.Background I will now set out the agreed facts relevant to this matter and, where controversial, the parties’ respective factual contentions. I will subsequently set out my findings in respect to contentious factual issues, where it has been necessary for a factual finding to be made in arriving at my conclusion as to the orders that I make in these proceedings. In 1973, the father was born in Australia. He is currently aged 48 years. In 1978, the mother was born in East Asia. She is currently aged 43 years. In 2007, the mother moved to Australia from East Asia. In 2007, X was born. She is currently aged 13 years. In 2008, the parties commenced their relationship. The father contends that, one (1) week after commencing their relationship, the mother became pregnant with Y, and the father was pressured into marrying the mother prior to Y’s birth to satisfy the extended maternal family. The father further attests that he has “never done a DNA test to verify if Y is [his] actual biological daughter”. That statement and factual contention by the father is relevant only to the extent that it provides some background circumstances to my finding that he committed serious acts of assault on Y, during the first six months of her life. In 2008, the parties commenced cohabitation. The father acknowledges that, during the course of the parties’ relationship, he consumed illicit drugs, being marijuana on occasions and ecstasy, which he attests he consumed only once or twice. For reasons which I set out below, I am satisfied, however, that the father has understated the extent to which he had an issue with substance abuse in the past. On 11 August 2008, the father initiated parenting proceedings in respect to X. The mother contends that, in late 2008, an incident occurred whilst she was pregnant with Y, wherein the father kicked her in the stomach. The father denies that such an incident occurred. I will subsequently discuss, in greater detail, the mother’s allegations that the father engaged in acts of family violence towards her. To be clear, it has not been necessary for me to find that the mother was physically assaulted by the father, and it has been sufficient, for the purposes of my decision, to determine that the mother has been subject to a pattern of shouting and verbally abusive conduct on the part of the father. As will be explained in greater detail below, I have found, however, that the father committed serious acts of child abuse in respect to Y.
Evidence
Evidence Before The Court
By way of the written submissions filed 19 May 2021, counsel for the Independent Children’s Lawyer advised the Court that the Independent Children’s Lawyer consents to proposed orders 4 to 12 sought by the mother, in her case outline document filed 15 April 2021.Evidence The mother relied upon the following documents:(a)Amended Initiating Application filed 2 April 2021;(b)Affidavit of the mother filed 6 April 2021 (“Affidavit of the mother”);(c)Family Report of Ms D dated 26 February 2020;(d)Child Responsive Program Memorandum of Ms D dated 18 August 2016;(e)Notice of Risk filed 24 June 2015 in the Federal Circuit Court of Australia; (f)Tender bundle of subpoena documents provided to the Court on 20 April 2021; and(g)Written submissions filed 28 May 2021 (“the mother’s written submissions”). The father relied upon the following documents:(a)Response to an Initiating Application filed 29 January 2016 in the Federal Circuit Court of Australia;(b)Minute of Orders provided to the Court on 15 April 2021;(c)Notice of Risk filed 29 January 2016 in the Federal Circuit Court of Australia;(d)Affidavit of the father filed 13 April 2021, together with annexures (“Affidavit of the father”); (e)Affidavit of Ms C filed 16 April 2021; and(f)Written submissions filed 10 June 2021 (“the father’s written submissions”). The Independent Children’s Lawyer relied upon the following documents:(a)Family Report of Ms D dated 26 February 2020;(b)Annexures ‘A’ and ‘B’ to the Affidavit of Ms T filed 30 November 2010 in the parenting proceedings between the father and Ms Lind in the Federal Circuit Court of Australia;(c)Tender bundle of subpoena documents provided to the Court on 18 April 2021; (d)Supplementary tender bundle of subpoena documents provided to the Court on 21 April 2021; and(e)Written submissions filed 21 May 2021 (“the Independent Children’s Lawyer’s submissions”). After the conclusion of the hearing of evidence, and prior to final oral submissions, the Independent Children’s Lawyer sought leave to reopen their case in order to tender three (3) video recorded interviews conducted by the Suburb L JIRT officers of the NSW Police Force, in relation to its investigation into the injuries sustained by the child Y. By consent, that leave was granted and, accordingly, the Court also received into evidence, marked as ‘Exhibit 10’, police interviews with:(1)The mother, which took place on 14 October 2009 at Suburb CC Police Station;(2)The father, which also took place on 14 October 2009 at Suburb CC Police Station; and(3)The paternal grandmother, which took place on 1 December 2009 at Suburb R Police Station. The following exhibits were relied upon:(a)The mother’s tender bundle of documents provided to the Court on 20 April 2021 (‘Exhibit 1’);(b)Annexures “B” and “C” attached to the Affidavit of Ms T filed 30 November 2010 in the parenting proceedings between the father and Ms Lind in the Federal Circuit Court of Australia (‘Exhibit 2’);(c)Report of Dr K dated 27 October 2009 (‘Exhibit 3’);(d)New South Wales Police Force Criminal History and Bail Report, being pages 1–3 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 4’);(e)Safety assessment of the Department of Children, Youth Justice and Multicultural Affairs of Queensland, being pages 4–18 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 5’);(f)New South Wales Department of Family and Community Services notes of interview with father on 14 June 2013, being pages 30–42 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 6’);(g)Letter dated 29 July 2014 sent by the New South Wales Department of Family and Community Service to the mother, being page 43 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 7’);(h)New South Wales Department of Family and Community Service Weekly Allocation Meeting Event Review Form dated 4 September 2014 being pages 46–49 of the Independent Children’s Lawyer’s Tender Bundle (‘Exhibit 8’);(i)Family Report of Ms D dated 26 February 2020 (‘Exhibit 9’); (j)Interviews by Suburb L JIRT officers of the New South Wales Police Force, conducted with the mother, the father and the paternal grandmother (‘Exhibit 10’);(k)Assessment Report of Dr U of the Child Protection Unit of the V Hospital dated 27 April 2010 (‘Exhibit 11’);(l)Written submissions of the Independent Children’s Lawyer filed 21 May 2021 (‘Exhibit 12’);(m)Written submissions of the mother filed 28 May 2021 (‘Exhibit 13’); and(n)Written submissions of the father filed 10 June 2021 (‘Exhibit 14’).Credit
Decision
Reasons for decision
Another relevant factor in this matter is Z’s East Asian heritage on her maternal side. Appropriately, in my view, the father withdrew his objection to the mother travelling overseas with Z, which will enable the child to spend some time with her maternal family and to experience her East Asian culture.Issues relating to the parents – decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i) The mother was not challenged on her assertion, set out in paragraph 9 of her Affidavit, that after Y was born, in 2009, she was that child’s primary carer and responsible for all aspects of Y’s care and welfare, such as feeding, bathing and dressing Y, putting Y to bed and supervising Y. The mother further attests that the father assisted her “whenever he could”, and I accept that this was the case. There is some inconsistency in the mother’s evidence in respect to the circumstances and the manner in which she decided to separate from the father. At paragraphs 19 and 20 of her Affidavit, the mother attests that, during her visit to East Asia in early 2013, the Department became aware of Z’s existence and enquired of the mother about her “plan” in respect to the child. The mother states that she advised the Department of her intention to separate from the father and, in response, as she further attests, the Department advised her that they would support the mother if she returned to Australia with Z. I accept that the mother’s decision to separate from the father was motivated by advice she received, from the Department, that they would not seek to have Z removed from her care, if she did not continue to live with the father. I am satisfied that, consistent with managing the potential risk faced by the child, it is possible for the child to have a meaningful relationship with the father, if orders are made for her to spend time with the father, in accordance with the orders proposed by the Independent Children’s Lawyer, being on six (6) occasions per year. For reasons which I will subsequently set out, I have accepted the merits of the submissions by counsel for the Independent Children’s Lawyer in that respect. In doing so, I have had regard to the risk to the child that, if she were to spend a greater amount of time than that with the father, it would, in my view, increase the probability of the father losing his temper and engaging in inappropriate conduct. At the same time, it is greater than the four (4) occasions per year as proposed by the mother (Transcript 20 April 2021, p.21 lines 8–16). Also relevant to this issue is the father’s Application for orders that the child have regular FaceTime and/or telephone time with him. In circumstances where I accept that the child has had such regular communication with the father and also, significantly, with W, on an average basis of approximately once or twice per month, I am satisfied that it is in the child’s best interests for communication of that nature to continue. At the same time, however, I will not make orders imposing an obligation on the mother to require the child to communicate with the father at a specified time. As the child enters her teenage years, it is inevitable that she will be distracted by other activities on occasions, and may not be in a position to communicate with the father at the prescribed time. That potentiality, in my view, presents a risk of further disputation between the parties and, accordingly, on that basis, I will not make a prescriptive order in respect to the time that the child is to communicate with the father, by way of electronic means.Protection from harmIssue of risk
Ratio Decidendi
Legal Principle Established
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:·In devising tests to determine whether unacceptable risk exists, 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 abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence: see Deiter & Deiter [2011] FamCAFC 82 at [61]. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N and S and the Separate Representative (1996) FLC 92-655 at 82,713 (per Fogarty J) cited with approval in Napier and Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96]. ·The components which lead to a conclusion that an unacceptable risk exists 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: see Johnson and Page (2007) FLC 93-344 at 81,890–81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.·While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm, ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Conference Paper, Children’s Court Conference, Parramatta, 1 September 2010).·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83], referring to Russell & Close [1993] FamCA 62.Additional considerations