ZONG & LIM
[2019] FCCA 2662
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZONG & LIM | [2019] FCCA 2662 |
| Catchwords: FAMILY LAW – Children – Application for interim parenting orders – child 7 years old – mother seeking order for sole parental responsibility – mother seeking order for the child to spend supervised time with the father – concerns raised by the family consultant regarding the father engaging in significant and sustained coercive and controlling behaviour towards the mother in the presence of the child – finding that the father has engaged in coercive and controlling behaviour and harassing and intimidating conduct towards the mother over a sustained period of time – Cautious approach warranted – finding that the presumption for equal shared parental responsibility does not apply – order for the mother to have sole parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60B (1), 60B (2), 60CA, 60CC, 60CC(2) (b), 60CC(2A), 61DA, 61DA (2), 61DA(3), 65D Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 |
| Cases cited: Salah & Salah [2016] FamCAFC 100 Treloar & Nepean [2009] FamCAFC 206 Goode & Goode [2006] FamCAFC 1346 Eaby & Speelman(2015) FLC 93-654 Marvel v Marvel[2010] FamCAFC 101 SS v AH[2010] FamCAFC 13 Mazorski & Albright [2007] FamCA 520 Sahrawi & Hadrami [2018] FamCAFC 170 |
| Applicant: | MS ZONG |
| Respondent: | MR LIM |
| File Number: | BRC 8160 of 2014 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 2 September 2019 |
| Date of Last Submission: | 2 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Solicitors for the Independent Children’s Lawyer: | Ms Harrington of Julie Harrington Solicitor |
ORDERS
All previous orders be and are hereby discharged.
Until further order:
The child X born … 2012 live with the mother.
The mother have sole parental responsibility for the child save that the mother shall advise the father of the following:
(a)Any proposed change to the child’s schooling; and
(b)Any health issue that arises for the child.
The father shall spend no time and not communicate with the child.
The father and members of the father’s family be permitted to send the child cards, gifts and letters to an address provided by the mother and she shall facilitate the child receiving same.
Within 35 days of these orders, the Independent Children’s Lawyer is requested to recommend a clinical psychologist (who practices proximate to the father’s residence) for the father to consult with and prepare a report regarding whether there is a risk to the mother and to the child being exposed to further family violence by the father.
The Independent Children’s Lawyer is requested to provide the recommended clinical psychologist with the copy of my judgment and the family report dated 27 May 2018 and the family report dated 26 August 2019.
The father shall attend upon a clinical psychologist recommended by the Independent Children’s Lawyer at his expense and he shall consult with that psychologist and request that psychologist to prepare a report addressing whether there is a risk to the mother and to the child being exposed to further family violence by the father.
The father shall file and serve a copy of the report prepared by the recommended clinical psychologist on each of the parties within 10 days of receipt of that report.
The Independent Children’s Lawyer is requested to further investigate the issue surrounding the child exploitation material.
The Independent Children’s Lawyer has liberty to re-list the matter at short notice otherwise the matter is adjourned for mention to 10 January 2020.
Pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975:
(a)the applicant mother not be permitted to personally cross-examine the respondent father; and
(b)the respondent father not be permitted to personally cross-examine the applicant mother.
Order 12 applies whenever a person remains unrepresented in defended proceedings where cross examination is required.
In the case of medical emergency the mother shall provide any medical practitioner treating the child the father’s details for the purpose of the medical practitioner contacting the father.
NOTATION:
(A)The unrepresented parties intend to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme) for representation.
IT IS NOTED that publication of this judgment under the pseudonym Zong & Lim is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8160 of 2014
| MS ZONG |
Applicant
And
| MR LIM |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings originally commenced in September 2014 in relation to the parties’ only child X born … 2012 (now 7). Litigation has continued throughout that time. A significant number of Family Violence Orders have been taken out by the mother against the father. She alleges that the father engages in harassing, coercive and controlling conduct. On 31 August 2019 the mother indicated that she had obtained a five year Family Violence Order against the father. A Family Report was released to the parties on 31 August 2019. The report writer recommended that the father spend no time and not communicate with the child.
This matter had been listed for final hearing on 2 September 2019. Both parties represented themselves and each party had the assistance of a Mandarin interpreter. The Court determined that as there was a current Family Violence Order in existence it was appropriate that the parties be given an opportunity to make application through the Commonwealth Family Violence and Cross Examination of Parties Scheme for the purposes of conducting cross examination. The amending Act[1] commenced on 10 September 2019. Upon commencement unrepresented parties will not be permitted to personally cross examine the other party in circumstances where a final Family Violence Order applies to both parties (see proposed section 102NA(1) (c) (ii) of the FLA).
[1]Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018
The Court heard an interim parenting application on 2 September 2019 by the Independent Children’s Lawyer and the mother to vary orders made by Judge Lapthorn and Judge Jarrett for the father’s time to be supervised pending the final hearing. The father sought that the previous interim parenting for the father to spend time with the child remain in place. I reserved judgment.
Background
A number of facts were not in dispute. The parties married in China on … 2006. In … 2007 they moved from China to Perth. The child was born in Perth on … 2012. The parties visited China together with the child following her birth and the father then returned to Perth after a month in about … 2012. The mother remained in China.
The mother said that she separated from the father in China on 21 September 2012. The father said he was unaware that the parties had separated. In January 2013 the mother and child left China and arrived in Brisbane. They have remained in Brisbane since that time. The father said he was unaware of the mother and child’s whereabouts for a long time.
The father commenced proceedings on 9 September 2014. Orders were made by consent on an interim basis and final orders were made by Judge Lapthorn on 27 October 2014 for equal shared parental responsibility, for the child to live with the mother and spend time with the father as agreed. The child was removed from the Airport Watch List.
On 5 May 2015 the father commenced proceedings complaining that the mother would only permit the father to spend supervised time with the child and he had not spent any time with the child since 9 March 2015. Those proceedings were subsequently discontinued by the parties and orders discontinuing the matter were made on 9 February 2016 by Judge Lapthorn.
On 11 July 2017 the mother commenced proceedings. Judge Lapthorn made interim orders on 8 February 2018 for the parties to have equal shared parental responsibility, for the child to live with the mother and spend time with the father for the whole of the school holidays at the end of Terms 1 and 2 in Perth. In addition he made orders that if the father travelled to Brisbane for a weekend he could spend time with the child provided he gave the mother one month’s notice.
On 19 September 2018 Judge Jarrett varied the interim orders and ordered that the child live with the mother for the whole of the Term 3 school holidays and the first half of the Term 4 school holidays and the child live with the father for the second half of the Term 4 school holidays with the mother to send the child to Perth for this time.
Competing interim proposals
The Independent Children’s Lawyer sought the following interim orders:
a)The child live with the mother.
b)The mother have sole parental responsibility for long term issues for the child including education, religious upbringing, health, residence, name, playing sport, cultural, artistic or extra curricula activities.
c)The father spend supervised time in Queensland of no more than one weekend per school term with the father to provide the mother with one month’s notice of his intention to travel to Queensland to spend time with the child.
d)Supervised time to occur at a supervised contact centre closest to the mother’s place of residence with both parties to co-operate and participate with the intake procedure.
e)In the event that a supervised contact service is not available or the father does not abide by the terms of the supervised contact centre his time with the child be suspended.
During the interim proceedings the mother sought an order that changeover be supervised and that the father’s time with the child be supervised. She argued that she was afraid of the father and she required orders to keep her and the child safe.
In her case outline filed on 26 August 2019 she sought that the child spend time with the father on no more than two weekends per month in Queensland with the father to provide the mother with one month’s notice of his intention to travel to Queensland to spend time with the child. In addition she sought an order that the child spend time with the father in Perth for one half of the school holiday period in Term 1 and in Term 4 being the first half of the school holiday period in odd numbered years and the second half in even numbered years and the child spend time in Perth for the whole of the school holiday period in Term 2. In addition she sought orders for communication via Face Time and changeover to occur at Brisbane or Perth Domestic airport. Orders were sought in relation to the cost of travel.
During the interim proceedings the father proposed that the orders made by Judges Lapthorn and Jarrett continue until further order.
In his case outline filed on 26 August 2019 the father sought an order for equal shared parental responsibility. The father sought an order that the child return to live in Perth from 8 October 2019 and live with the father. The child spend time with the mother for the entire school holiday period in Terms 1 and 2 and the first half of Term 4 in Brisbane. He sought an order that the mother be responsible for the cost of travel to Perth. In the event that the child lived in Brisbane then he sought an order that the child live with the mother and spend time with the father for the entire school holiday period in Terms 1 and 2 and the first half of Term 4 in Perth. He sought a number of other orders with respect to the costs of travel inter alia.
Documents relied on
The Independent Children’s Lawyer relied on a Tender Bundle (Exhibit ICL 1), the Family Report dated 23 May 2018 (Exhibit ICL 4) and Family Report dated 26 August 2019 (Exhibit ICL 5) and Annexure B1 to the affidavit of the father filed 1 August 2019 (Exhibit ICL 6). The mother relied on her affidavits filed on 18 September 2017 and 26 August 2019. The father relied on his affidavit filed on 1 August 2019 and a number of exhibits including a Mental Health Assessment (Exhibit R1), a photo of the father holding the child (Exhibit R2), an email from the mother dated 30 May 2014 (Exhibit R3), a series of emails (Exhibit R4), a photo of a mark on the child’s hand (Exhibit R 5), a letter from the father to Ms D (Exhibit R6), a character reference letter (Exhibit R7) and a number of receipts (Exhibit R8).
Legal Principles
Part VII of the Family Law Act
Part VII of the Family Law Act 1975 (Cth) (“the FLA”) deals with orders relating to children. Section 65D of the FLA gives the Court the power to make such parenting orders as it thinks proper. Section 60CA of the FLA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.” Matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the FLA. Those matters include primary considerations and additional considerations.
Section 61DA of the FLA provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Subsection 61DA (2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in “(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person’s family); or (b) family violence.” Subsection 61DA (4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Subsection 61DA (3) of the FLA provides that when the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
In Salah & Salah [2016] FamCAFC 100; (17 June 2016) the appellant argued that the trial judge failed to have regard to section 61DA (3) of the FLA and the manner in which he dealt with family violence “neutralised” the effect of the Act. The Court in Salah (supra) referred to the Full Court decision in Treloar & Nepean [2009] FamCAFC 206; (2009) FLC 93 – 417 where the Court discussed the importance of issues of family violence and emphasized what was said in Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93 – 286 (at 83,750) as follows:
“78. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. ...”
In Salah (supra) the Full Court said at [36] – [42]:
“[36] Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA (3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.”
[37] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
“[68] .. the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”
[38] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
...that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
[39] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 that findings (in disputed interim proceedings) should be couched with great circumspection.
[40] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
...Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[41] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH).
[42] The difficulty in this case, and one clearly identified by counsel on the appeal, is that his Honour, after correctly observing at [58] that he could not, at that point, make findings on the disputed allegations, continued and said; “...In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.” Simply put, his Honour having determined that he could not make any findings, ignored the allegations and found the presumption of equal shared parental responsibility applied.
[43] His Honour’s comment “given no other evidence” suggests that his Honour required corroboration or objective support for the mother’s allegations in proof of them. To so suggest is an error. Family violence often takes place in private in circumstances where no corroboration is available.
[44] Further, his Honour’s erroneous treatment of the issue is further demonstrated at [69] where he repeats, again incorrectly, that findings cannot be made as to whether either party perpetrated family violence at an interim stage given conflicted evidence and said; “The civil standard of proof is met by neither”.
[45] His Honour’s reference to the civil standard of proof is not only incorrect but entirely inapt in the context of, as he had said, disputed allegations of significant family violence raised in interim proceedings.
[46] His Honour was in error in, in effect, failing to pay any heed to allegations which he had earlier regarded as “significant” and in failing to consider those allegations in the context of an interim hearing.
[47] In view of the allegations made by the mother and as this was an interim hearing, the trial judge should have applied s 61DA(3) and given reasons for not applying the presumption (such as he was unable to make any findings and could therefore neither apply nor rebut the presumption) but his Honour said that the presumption applied. In part, it was the application of the presumption which triggered well known obligations within the Act, and that led to his discretion being exercised in error.
[48] The challenge to his Honour’s approach to the resolution of the issues of family violence is made out.”
Section 61DA (3) of the FLA requires me to consider whether the presumption applies.
As indicated section 60CA of the FLA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.” The Court is required to consider those matters when determining a child’s best interests are set out in section 60CC of the FLA.
Primary Considerations
Pursuant to section 60CC (2) of the FLA there are primary considerations namely:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The Court is required to consider both the objects under section 60B (1) and the principles underpinning the objects under section 60B (2) of the FLA in determining what (if any) parenting order is in the children’s best interests. Justice Brown observed in Mazorski & Albright [2007] FamCA 520 at [26] that the words “meaningful relationship” connote a relationship that is “significant” ….“important” or “of consequence.”
Under section 60CC (2) (a) of the FLA the Court is required to balance “the benefit to the child of having a meaningful relationship with both of the child’s parents” against any risks to the child.
Subsection 60CC (2) (b) of the FLA provides that the Court is required to consider “the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence (see subsection 60CC (2) (b) of the FLA). Subsection 60CC (2A) of the FLA directs the Court in applying the primary considerations, to give greater weight to subsection 60CC (2) (b) which relates to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Section 60CG of the FLA imposes on the Court an obligation to ensure that as much as possible and taking into account the child’s best interests, any orders made will not expose a person to an “unacceptable risk” of family violence.
In Amador v Amador[2009] FamCAFC 196; (2009) 43 Fam LR 268 the Full Court indicated:
“[94] A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the court is required to consider under s 60CC of the Act. The provisions of ss 60CC (2) (b), 60CC (3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
[95] The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. …..
[96] It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.” See also the comments of the Full Court in Sahrawi & Hadrami [2018] FamCAFC 170 at [54]
These are interim proceedings and to that extent there is an abundance of untested evidence. The Court is limited in making findings of fact where matters are seriously in dispute. Notwithstanding that, the Court is required to assess the risk (if any) to the child in spending time with a parent about whom it is asserted poses a serious risk to the child.
Family violence
In her affidavit filed 18 September 2017 the mother alleged that the father attempted to control her for example he would refuse to release parcels and mail presumably addressed to her. He disliked the mother being close to her friends and would phone her friends behind her back and threaten them not to socialise with her. He would squeeze himself between the mother and maternal grandmother as they sat together on the lounge. He would throw away the washed clothes and dishes that her mother had cooked. He uninstalled from the computer all Chinese reading and typing applications so that the maternal grandmother could not use these to assist her to learn English.
In her affidavit filed on 26 August 2019 the mother alleged further incidents of family violence. She alleged that the father would throw small items of furniture at her and push her. On one occasion he threw a wooden shoe rack at her hitting her lower leg. The mother said she left the father in late 2009 and moved in with friends. He was extremely angry and called her to say he would involve the police alleging that her friends had kidnapped her. She said she was fearful of what he would do so she returned home however an argument ensued and she again left the house. She said the father then chased her, grabbed her and dragged her back into the house and continued to remonstrate her regarding the situation. She said she was crying and the father then pushed her in the chest. She fell backward onto the lounge where the father stood over her and continued to yell and swear at her.
She alleged that the father threatened to burn down the house if she left the relationship. He would become upset and irrational and not allow the mother to do everyday things such as opening a door or a window greater than a defined amount. She was not allowed to turn the water on greater than a defined amount and he would yell at her if the salt container was not close to a certain position. She said she was “scared to do anything.” He would not allow her to leave the house for lengthy periods and would become upset if she left without his permission. She said she had dinner with a friend and when she came home he phoned her friend and said “just wait and see what is going to happen if you dare go out with Ms Zong again.” He would punch and damage walls of the houses they were renting. He threatened to break the mother’s legs so she could not leave him and so she would require care for the rest of her life. She said he would threaten her and say “If you do….I don’t know what I’ll do to you.” During the interim proceedings the father denied perpetrating family violence against the mother.
The mother raised some concerning allegations regarding the father’s cruelty to animals in her affidavit including tying cats into strange shapes with ropes and tying them to a tree for a whole day while they were at work. She said he held a kitten under running water until it was distressed and the kitten died the next morning. She said he was reported to the animal welfare authority by a neighbour. He attacked a cat with a power drill. He tied their dog to a tree with a piece of wire, and tied the dog’s mouth shut with wire. She said he did not adequately feed the pets and would not allow the mother to do so. The father during the proceedings denied the allegations of cruelty to animals.
The mother alleged that the father did not allow her to purchase groceries unless they were on sale. He withheld from her a package she had purchased through the mail.
She alleged that since separation the father has sent her abusive emails and text messages and threatened to kill himself when his request for reconciliation is rejected. On 7 April 2013 he broke into her home in Brisbane when she was away and refused to leave when her housemate directed him to. Police were called and he was arrested. She obtained a Protection Order on 12 June 2013. The mother alleged the Protection Order had no impact on the father.
From February 2014 an order was made for the father to spend time with the child. During his time the mother alleged he would pester her to reconcile with him. In June 2014 the mother complained he would hide outside the property she was renting and would approach her vehicle and try and grab her through the window. On occasion he intercepted her vehicle when driving into the complex by standing in front of her car. He would wait outside her front door for hours and refuse to leave. He would knock on her door at odd hours and yell at her asking her to go back to the marriage.
The mother said in … 2014 her parents bought a property in Brisbane and she moved into that property without notifying the father. She said she struggled to facilitate the child spending time with the father due to her fear of him. She alleged that the father sent her threatening emails in October 2014 threatening suicide. She subsequently agreed on 27 October 2014 to final orders for the child to live with the mother and spend time with the father as agreed. No specific arrangements were made for time.
On 5 November 2014 the mother obtained a Protection order against the father. She said she was required to facilitate the child spending time with the father due to her young age. During that time she alleged the father would try and hug and kiss her. She refused his advances. She said the father also threatened to kill himself. She said at the conclusion of the father’s time with the child he would not allow the child to be returned to her care. He would open her car door and grab her, request to come to her home and not allow her to shut the car door. On two occasions she screamed to get attention from the public, and the father then let go and allowed her to leave.
She requested a female friend accompany her to handover on 21 December 2014. Prior to this contact the father had requested that the mother take him back to her home. She said while at lunch he attempted to remove the child from her. There was an incident and bystanders told the father to return the child to the mother. He fled the scene however police arrived sometime later and escorted the mother and child back to her car. She said the father was hiding near her car and ran towards her and began hitting his head on her car. Police asked him to stop but he continued. He was detained by police and taken to a mental health unit for assessment. As he was removed he shouted to the mother in Chinese “you just wait for my dead body one day. If it is not today it will be another day.” After that incident the child spent time with the father supervised.
The above incidents have been recorded by police and most incidents were included in the Tender Bundle relied on by the ICL (Exhibit ICL1). The Tender Bundle includes the following information:
On 23 December 2014 police records indicate that the mother reported whilst she was driving she noticed the father walking on a street in the vicinity of her home. She had not advised the father of her home address. She contacted police as she feared for her safety.
On 15 February 2015 the father did not wait for the supervisor to effect changeover but directly approached the mother and child causing the mother fear. On 25 February 2015 the mother obtained a Protection order against the father. This was subsequently varied on 26 June 2015 to remain in force until 24 February 2017.
It is noted in the police records that on 7 March 2015 the father attended the Suburb B police station to seek assistance in relation to spending time with the child. Police advised him not to approach the mother’s residence as he would be in breach of the Protection order. On 8 March 2015 the father refused to leave the changeover area when asked to leave by the supervisor. The supervisor raised concerns regarding the father’s conduct.
On 5 May 2015 the father commenced proceedings in the Federal Circuit seeking defined orders to spend time with the child. Supervision was terminated due to the cost and the mother’s father assisted with changeover. The parties discontinued those proceedings in December 2015.
On 27 and 28 August 2016 the mother was required to handover the child herself. At the conclusion of time on 27 August 2016 the father requested overnight time with the child. The mother said he would not let the mother leave with the child and said “I will be wherever my daughter stays and you will be facing a lot more separation with our daughter if you don’t reconcile with me.” She said she screamed at the car park so that she could leave with the child.
On 10 September 2016[2] the mother collected the child after the father spent 6 hours with her at the shopping centre. He insisted on accompanying the mother and child back to her car. When she opened the car door he immediately jumped into the car and refused to leave her car for a period of 2 hours. She then suggested that the child sleep at the father’s share accommodation as she was concerned the child was very tired. She then drove to her home at 9 p.m., collected the child’s belongings and then drove to the father’s share accommodation and put the child to sleep while the father sat on the floor watching the mother and child. When the mother went to leave the father locked the door and stood in the exit preventing her from leaving and said “you are not allowed to leave tonight.” She said to him “I will scream until everyone in this house gets up if you dare stop me going home.” He moved aside and the mother ran out of the house and drove home immediately.
[2] Paragraph 44 of the mother’s affidavit filed on 26 August 2019.
The mother alleged that the father warned the mother that her separation from the child would become longer and longer and that she should reconcile with him to ensure she was always with the child. She said she continued to refuse to reconcile and during handovers the father would continue to grab her, get into her car and refuse to leave until she agreed that she would go to his home. She said all these incidents occurred in front of the child who would start crying. She said the father would tell the mother that the child would cry even more if she continued to refuse to reconcile. He would write the mother emails blaming her saying she was a bad mother who abandons her child at every handover.
Between September 2016 and January 2017 the father continued to send the mother harassing and abusive emails.
From 26 December to 2 January 2017 the parties agreed for the child to spend eight days with the father. It was agreed that the mother could visit the child each day. Each time the mother visited she said the father attempted to stop her from returning home.
On 28 December 2016[3] the father left the child alone at his share accommodation and visited the mother’s home. The mother said he admitted to doing this. He attempted to enter her premises and continued to talk about reconciling their relationship. The mother said this was in breach of the Protection Order.
[3] Paragraph 47 of the mother’s affidavit filed on 26 August 2019.
On 1 January 2017[4] the mother got into her car to leave after a visit and the father followed her with the child in his arms and stood behind her car preventing her exit. He attempted to put the child’s head towards the window of the driver’s seat. The mother told him to move away and she then reversed the car and drove away. She alleged that the father followed her car for 50 metres with the child in his arms.
[4] Ibid, paragraph 46.
On 14 January 2017[5] the mother handed the child to the father at the food court near Store C in the Brisbane CBD. The child began to scream “mummy I want mummy” and the mother continued to walk away. The father chased the mother with the child and passed the child into the mother’s arms without saying anything. The mother comforted the child. She settled the child and told her to play with her father and she would collect her later that afternoon. When she left, the child started screaming again. Again the father chased her with the child and handed the child to the mother without saying anything. The mother then sat with the child to discuss why she was upset. The child told her mother “he kept telling me he will take me to Perth forever.” The mother said the child became extremely scared to be alone with the father and would not let go of her mother. During this time the father sat about 5 metres away from the mother and child. The mother said she texted the father however he would not take the child without the mother being present. She then walked with the child to the police station. There was then a series of text messages and emails where the mother requested that the father collect the child from the police station and he refused. After some hours the mother observed that the father was watching her from outside the police station. A police officer approached him and told him to collect the child however he ran away.
[5] Ibid, paragraph 48.
The mother said she waited until the afternoon and then requested that her partner collect her and the child. Her partner arrived and as she closed the door to her car the father suddenly walked past. She said he phoned her very soon afterwards and started swearing at her. The mother said she offered to hand over the child at 5 pm at Suburb B Police Station. The child was crying. She said the father then got into the mother’s car and pointed his finger at the mother’s partner aggressively and yelled at him to stay away from his family. The mother said she then walked towards the police reception to report the father’s conduct.
She said following these incidents the child would cry about spending time with her father throughout 2017. The mother said handover would take place without the parents exchanging a word and the child would be holding back tears. She said she left handover very quickly however after handover the father would email her about her refusal to repair their relationship.
On 11 July 2017 the mother commenced proceedings in the Federal Circuit Court as the father refused to return the child at the conclusion of the school holiday period. On 26 July 2017 Judge Lapthorn made interim parenting orders by consent following the mother filing a recovery application for the father to return the child to the mother. Judge Lapthorn’s orders provided for the child to spend time with the father from 2 September to 17 September 2017 at the father’s expense.
Police records note that between 11 May and 8 August 2017 the father contacted the mother eight times via text message using his mobile phone. The messages were in Chinese. Police records note that the father had moved to Perth and the Protection order had not been served on him.
On 30 August 2017 the mother obtained a Protection order against the father to remain in force until 29 August 2019.
On 18 September 2017 the mother filed a recovery order application due to the father’s failure to return the child. On 22 September 2017 Judge Lapthorn made interim parenting orders for the father to return the child to the mother by 25 September 2017 otherwise a recovery order would issue.
Between October 2017 and November 2017 the father made an application to vary the Protection Order and a report was made to the Department of Child Safety, Youth and Women. The report indicated that the child said “she did not dare tell mummy that she is missing daddy” and that the mother “beat her on the bottom when she was three years old.” She said she was feeling “start to dead (sic).” It was alleged that the child was neglected by her mother and the child had “a huge permanent scar” on her right hand. Child Safety notes indicate there was no previous history of concerns in the matter and they were satisfied that the mother was meeting the child’s needs.
Interim orders were made by Judge Lapthorn on 8 February 2018 for the child to live with the mother and spend time with the father for the whole of each school holiday period at the end of Terms 1 and 2 with the mother to pay the cost of flights to and from Perth and in the event the father travelled to Brisbane for a weekend in Brisbane at the father’s expense.
The mother said from February 2018 the handovers had been difficult as the father would not leave easily without attempting to convince her to reconcile with him and “re – build” the family. She remained silent during these times to ensure the father did not become aggressive.
The mother complained that following handover by the maternal grandfather on 24 March 2018 the father sent her a number of emails accusing her of being “an evil mother” and alleging she was ruining her child’s life.
On 21 April 2018[6] the mother alleged at handover the father started a conversation in front of the child but she tried quickly to walk away. He followed her leaving the child behind on the Suburb E railway station unsupervised. The mother said she told the father “the handover is finished please leave me alone.” He said to her “you should stop then if you care for the child.” She began to walk quickly and the father then picked up the child and chased the mother and kept asking “what about the matter between us? How do you think we can solve our issues.” She said she told him that their relationship had ended and to leave her alone. He said to her “how about I take away the child from you and never return.” [7] The mother said “no of course not.” He continued to follow her to her home. She ran into the house and closed the door when the father said to her “you know I will swear on you.”
[6] Paragraph 50 of the mother’s affidavit filed on 26 August 2019.
[7] Exhibit Z-13 of the mother’s affidavit filed on 26 August 2019.
When she came out a short time later the father was still there near her car. She said in the middle of the day the father sent her emails accusing her of being a liar and a murderer and for wasting his and the child’s life.[8] He blamed the mother and asked her if she understood humanity and his poor daughter, accusing her of betraying their child and told the mother she was ugly inside. He told her that her heart was completely rotten and she and her family were the worst people he knew.
[8] Annexure Z-13 of the mother’s affidavit filed on 26 August 2019.
On 23 April 2018 both parties attended the Court for family report interviews. According to the mother while waiting to be interviewed the father approached her and her partner and started calling her partner an animal and ugly in a manner audible to the public. Court staff intervened and the mother and her partner were placed in a private room.
That evening the father emailed the mother requesting that she collect the child. The mother said she found the father and child in the Virgin Lounge. All three then travelled in the lift together where the father berated the mother in the presence of the child blaming her for bringing her partner to the family court. According to the mother, the father swore at her saying “son of a bitch” and “brute” (in Chinese). When they moved out of the lift the father said to the mother “how can you treat X like this. How fucking dare you bully X so badly.” He continued to refer to the mother as a “liar, son of a bitch, you lie to me and to the kid, such good kid is treated by you like this.” He called the mother’s partner a “bastard” and said how dare she bring her partner to the family court. The mother said she told him to stop the behaviour otherwise she would call security. Around that time, airport staff approached the mother and asked her if she needed assistance. She agreed she needed help and a short time later two police officers appeared and warned the father to say goodbye and let the mother and child leave. She then left the airport while police were there. On 24 April 2018 she made a complaint about the incident. On 5 May 2018 the father was charged with a breach of a Protection Order. He was released claiming he did not have an understanding of the Protection Order.
On 19 September 2018 Judge Jarrett made interim orders for the child to live with the mother and spend time with the father for the second half of the school holiday period at the end of Term 4 with the mother to send the child to Perth for this time.
The mother deposed that on 6 April 2019 she dropped the child to Perth for the school holidays.[9] The handover lasted an hour and a half with the mother attempting many times to get the father to take the child and leave. She said she advised the father on her arrival that she had taken the child to the toilet. She said he entered the toilet and refused to leave. The father kept asking her to consider reconciling with him for the sake of the child. She kept telling the father not to discuss those things in front of the child. He told her that he loved her and the child and that no one would love her as he does. He asked her to give him an opportunity to love her and said he would buy her a new car, take the child overseas and buy her a new house. He said he was sorry for his past bad behaviour. He told her he loved the child through the mother and said “he would keep fighting I won’t have a good kid, the child will be ruined and won’t be healthy... The child will have to try very hard to get a good life…I will be the real enemy of the child and him if I keep fighting….I am forcing him to ruin me while I am ruining him and the child…..don’t push him to do things without humanity…we won’t be able to reconcile if we keep fighting…your behaviour already showed your choice. If you keep fighting don’t blame me for a scene of turmoil in the future they are not by choice…”
[9] Paragraph 52 of the mother’s affidavit filed on 26 August 2019.
On 5 July 2019 Western Australia police executed a search warrant at the father’s address in Perth based on information that had been received that child exploitation material had been downloaded at that address.[10] When asked about this incident, the father agreed that police had attended his premises. At first he advised the Court that one policeman had attended his premises and then later said 10 police had attended. He agreed they had a search warrant. He said he was present, as was his mother and “another man who looks after his dog.” When asked who this man was he was vague and said he didn’t know the man’s name or who he was “he was just someone who looks after his dog.” He said he was not Chinese but Nationality F.
[10] Page 109 of the tender bundle (Exhibit ICL 1).
Police records for 29 July 2019 indicated that a man named “…” attended the police station following the execution of the search warrant at the father’s home and wanted to know when he would receive his mobile phone back. Police advised that it would not be returned until the conclusion of their investigation. The father was not forthcoming in providing information to the Court regarding this matter. I found his lack of honesty and his refusal to identify the person involved with such a serious offence extremely concerning.
According to the mother after the child visits the father she tells her mother that the mother’s parents “are bad people” that she must “never go to her mother’s boyfriend’s house” and “mum is a very bad person.”
Family Violence Orders
The mother made an application for a Family Violence Order on 8 April 2013. She said she had tried to separate from the father in October 2012 and relocated to Brisbane in January 2013 however the father accessed her phone bills to call people on her phone list and called her friends in Perth to find out where she was living. On 6 April 2013 the father flew from Perth to Brisbane and broke into her home in Brisbane. She was unaware how he found her out where she was living. According to the father a Protection Order was made with the father as respondent from 12 June 2013 and 27 October 2014. The order was made by consent without admissions.
Further Protection Orders have continued with the father as respondent (referred to above). The mother advised the Court that she had obtained a further 5 year Protection order against the father on 26 August 2019.
Text messages and emails
The mother annexed to her affidavit a series of emails[11] from the father which were disturbing as follows:
[11] The emails were in Mandarin but translated by a NAATI accredited professional translator
9 July 2016: Now you refuse to repair the relationship so that you can blame me when there is more conflict? The child is the one who is pitiful. Do not blame me if she cries. I will hate you for her.
9 November 2016: …Any random person in the street would love X more than you do. How unlucky for X to have you as a mother! You stop pretending to be deaf and dumb. You full of evil and malice!
13 December 2016: X is lively and clever. We have such a wonderful daughter because of our genes. I am dead set on spending my life with you. You are in big trouble.
3 January 2017: …Ms Zong let’s reconcile first so that things will be easier on our parents side. If we drag on and on and don’t proactively make an effort to reconcile we are going to kill it. What are you up to? You know I will be looking for you, so respond to me ASAP.
13 January 2017: I miss you a lot and am ecstatic about you whenever I see you. I cannot care for X while I am separated from you. From the moment we were together my affection for you has only increased. You may have parted ways with me in these 4 years but I never have. My affection for you is still growing day by day. You are the only one in my world. From the beginning until now and into the future I like you and I am attracted to you. I just cannot separate myself from you. I have long known this risk but because it is you I am dead set on being with you. From the beginning I already knew I had made up my mind to love you till death till my world comes to an end. Do you really no know any of these? I don’t believe so. In my mind all I have is loving you; not one trace of an idea of separating from you.
14 January 2017: Can you not live without harming me? You son of a bitch.
14 January 2017: You don’t deserve to be a mother. Calling you a scumbag is too nice for you.
8 April 2017: I demand that you and I love our daughter together and stop this strife so that she can live in our love.
11 May 2017: How could you care for X when you behave like this yourself? Just like your parents misguiding their children. Wicked!
13 May 2017: You are morally corrupt and shameless. Naturally it is useless talking to you. Sooner or later bad Karma will get back at you! Why would we have assholes like you in this world.
14 May 2017: You betrayed me and X, naturally it could only be like this. Of course, your troubles are yet to come.
20 May 2017: You guys. Enjoy X’s tears! You slut!
26 May 2017: I wish your despicable character and shamelessness would go completely out of my pure world forever.
3 June 2017: I don’t want to think bad of you but your actions and behaviours have shown you are totally and utterly son of a bitch. Your heart is completely rotten.
8 August 2017: You are unfaithful with a paramour. You and the asshole have deprived our daughter of her father love. You are really disgusting. It is a waste of time talking to someone like you with rotten characters. Give back my daughter straight away and disappear.
Father’s response
The father deposed that the child tells him her time with him in Perth is too short and says “I will miss you all, grandma (grandpa, aunt) daddy” when she has to leave. In … 2019 the father and child travelled to China. He deposed that the child had a happy time and wants to travel again.
He said when in Brisbane the child chats with him daily (by video). He raised a concern about the distance between his home and the child’s and the fact that he does not have accommodation when he comes to Brisbane to spend time and has to stay in a hotel. He also raised a concern about the child’s educational progress. He said his relationship with child will be destroyed if she stays in Brisbane.
He said he cannot afford the flights to Brisbane which cost $1000 each time he flies. He sought orders for the child to live in Perth. He complained it was the mother who refused to hand over the child to him on the weekend of 15 to 16 September 2018 as he did not give the mother one month’s notice. He said on 16 June 2018 the mother made hand over very difficult for him. He said the mother requested that he pick up the child from Suburb E railway station and not the airport. He had no car and requested the mother send the child to the airport. He said the mother then suggested he collect the child from the Suburb F Police Station. He said he was not happy to do hand over at the police station and agreed to go to the railway station. He made no mention of the difficulties deposed to by the mother regarding this hand over.
The father said at the end of the first school holidays the mother requested that he collect the child from the airport in Perth at 5 a.m. He replied and told her that this was too early and next time hand over should be at 9 a.m. He said “the mother forced him to collect the child at 6.50 a.m. from the airport for the second school holiday period.”
The father complained that the mother testified that she had previously been granted recovery orders. He said “she should know that recovery orders actually not be (sic) issued.” It would appear however that on two occasions at the end of school holidays in July and September 2017 the mother made applications for recovery orders on the basis that the father had failed to return the child in accordance with court orders. Subsequently the father agreed to return the child so the recovery orders did not issue however the father had failed to return the child on two occasions necessitating the filing of recovery order applications.
The father complained that the mother did not support his relationship with the child however he failed to address in his affidavit any of the serious allegations of family violence raised against him by the mother.
The father tendered a number of emails (Exhibit R4) as follows: In 2013 an email from the mother where she wrote “I would cut off all contact if you dare to show up without permission.” In March 2014 the mother wrote “…you are such irresponsible person and pretend you are the good father now, make me feel so sick, you won’t get my pity anymore.” In May 2014 the mother wrote “we cannot even communicate with the little things…if you keep not signing anything even you know I have done with our marriage I will be unhappy about it and it would definitely influence the arrangement of meeting of you both because your selfish….if we cannot sort it peacefully I wouldn’t like the bad relationship existing on X’s life. It is negative for her, as a mum, I don’t want her to experience this.” In August 2014 the mother wrote “I don’t want to tell you where I am now. It is impossible for you to visit my child recently. You always act relentlessly, reach to the brutal end and leave no room for discussion.” In December 2014 the mother wrote “It is impossible to allow our daughter be with you alone….Are you hostile to me again…stop torturing each other…” In February 2015 the mother wrote “I heard that she was upset but you were able to calm her down too which is really good on your behalf.”
The father tendered mental health records dated 21 December 2014 following his arrest by police and his emergency examination order (Exhibit R1). In that report the father denied any suicidal ideation but admitting banging his head to demonstrate “how much it is hurting me” to be separated from his partner and child. He was reminded he was subject to a Protection order and was not to attend the mother’s residence. The notes record “Ex-wife reports that the father has a history of harassment and is having difficulty accepting that they are divorced. She denied any threats toward her or her young child however she does have a DVO in place due to a history of harassment.”
Notwithstanding these are interim proceedings and the parties have not been cross examined I am satisfied that on the balance of probabilities that the above incidents (noting the mother’s contemporaneous complaints to police) were likely to have occurred as she alleged. I intend to take a cautious approach in the interests of protecting the child from being further exposed to conflict. I accept that the mother is fearful for her safety and has a proper basis for fearing the child will not be returned to the mother’s care if the father forms a view that she should not be returned.
ICL
The Independent Children’s Lawyer sought orders that the father’s time be restricted to supervised time. She tendered a bundle of subpoenaed documents including police records which largely corroborated the mother’s complaints regarding the father engaging in harassing and intimidating conduct towards her. It would appear that notwithstanding the existence of Protection Orders taken out against him from 2013 and continuing these have had no impact on the father and have failed to protect the mother from the father’s persistently controlling and abusive conduct.
The ICL relied on a contact supervision report dated 2015 at Annexure B1 to the father’s affidavit wherein the supervisor raised concerns about the father’s attitude. The report notes the father stated “there is no proper basis for the mother to insist that she will only allow me to spend time with my daughter at a contact centre. It is a breach of the orders…I want to make it very clear that I am not attending the centre because I agree or consent to what the mother is doing but it is the only way I can see my daughter at the moment.”
Further concerns were raised by the supervisor. The father was observed whispering in Chinese to the child. While waiting for the mother and child to arrive he did not wait at the place designated but instead approached the mother. Following handover the mother was upset over the father’s conduct and asked to be walked to her car. The supervisor noted that at the conclusion of the session the father was asked to leave the area several times however he remained in the vicinity. The father’s conduct during this supervised contact visit was concerning. I am satisfied that the father’s conduct even when supervised remains concerning and distressing for the mother and the child.
Family Report
The Family Consultant completed two family reports. In her first report dated 27 May 2018 she observed that the mother’s account of events indicates she is subject to a pattern of coercive controlling violence including emotionally abusive intimidation, minimizing, denying, blaming, threats, control and physical violence. She noted that the father said there had been no violence perpetrated by himself and that he is merely a victim of the mother’s lies and the Protection orders are a consequence of his inability to access financial resources to defend himself. She said “based on my assessment of the information provided a pattern of coercive controlling violence is being perpetrated by the father towards the mother.” She said the risk increases whenever the parents have face to face contact, primarily at handovers. She indicated if the mother’s account was to be accepted the pattern of coercive controlling violence has continued since separation and has escalated over the past year when the father attained unsupervised time with the child.
The Family Consultant noted that during interviews which took place in April 2018 the father expressed his opinion that the child should live with the mother and father “in the same city.” He indicated he would relocate to Queensland but on condition that the mother provided him with financial support until he found a job. Two recovery orders had been applied for in July and September 2017. The Family Consultant recommended that handovers be facilitated through a supervised contact service only to ensure that the parents have no contact and to minimise the child’s exposure to conflict. She said “unfortunately this did not occur and the mother and child continued to be exposed to the father’s harassing conduct at hand over.”
In her most recent report dated 26 August 2019 the family consultant opined “there are strong indications that certain aspects of the father’s co-parenting behaviour is still placing the child at risk of potential harm, namely emotional and psychological abuse. The risk of harm is associated with the father’s negative feelings and perception of the mother and his attitude towards co-parenting. The actual risk to the child arises from the father’s conduct towards the mother in the child’s presence stemming from those feelings and perceptions and in inability to contain strong negative feelings he has about the mother to the point he is exposing the child to them when she is in his care.”
She observed that family violence perpetrated by the father has been sustained over a period of 6 years. The geographical distance had appeared to be a moderating factor though she noted that the level of risk increased significantly whenever the parents were face to face primarily at handovers. In her view the father has been unable to place his needs above those of the child’s and persists in his unresolved feelings for the mother to the extent that his action in leaving the child on the railway station to pursue the mother placed the child at risk of physical harm. Further police were called at the airport to intervene due to the father’s persistent harassment of the mother notably in the presence of the child. I agree with the family consultant that the father’s conduct at the railway station placed the child at risk of physical harm and that the incidents that occurred in public venues likely caused the child emotional and psychological harm, particularly observing the distress caused to her mother in these circumstances.
The family consultant indicated that she maintained her concerns that the mother and child are at risk of further exposure to both psychological and potentially physical harm by the father.[12] She noted that despite her recommendations regarding supervised handover “one year on” and despite a Protection order, a parenting order and the involvement of police and the Department of Child Safety the father continues to express an obsessional like need to resume the relationship and the family unit with the mother. In her view he has continued to perpetrate a high level of family violence at every opportunity of contact with the mother. She said “the father’s dogmatic and persistent views of the mother and his lack of insight into the impact of his behaviour on the child shows no signs of abating.”
[12] Paragraph 51 of the family report of Ms A dated 26 August 2019.
In her view the father has blatantly breached the Protection order and has demonstrated poor impulse control in the mother’s presence. She said his ongoing pattern of denial and minimisation of his behaviour as well as a trend where he accepts no responsibility for the conflict between him and the mother indicates his behaviour is unlikely to change.
The family consultant indicated that the father was likely to continue to perpetrate family violence towards the mother in a coercive controlling manner at handover in the child’s presence. He is likely to continue to make negative and derogatory remarks about the mother and her family to the child. She raised significant concerns about the child indicating that the child demonstrated extremely compliant behaviours, was composed and introverted. In her view “the child may already be internally overwhelmed by her predicament.” She observed that the child described symptoms when travelling to Perth such as a sore tummy and wanting to vomit according to the family consultant this indicated “perhaps a level of anxiety about spending time with her father.” The mother reported that the child experiences nightmares after spending time with the father. The father said the child experienced nightmares when attending for the family report interviews. The family consultant indicated that the child was likely to benefit from engaging with a play therapist to assist her to develop coping strategies.[13]
[13] Paragraph 54 of the family report of Ms A dated 26 August 2019.
The family consultant indicated “consideration should be given to the mother’s fear about what the father will do once he realises she is not going to return to Perth or the relationship as this is a potentially a time of significantly increased risk. The father has previously threatened revenge saying he will take the child so the mother never sees her again. His family live in China a country not a signatory to the Hague Convention. The father demonstrates little regard for the law or authority through his continual breaches of the Protection order and abusive behaviour towards the mother in public environments including the airport and Family Court. The mother has required security and police to intervene on her behalf.”
She observed that the mother had attempted to manage the father’s behaviours by appeasing him and not reporting breaches of the Protection order. Her passivity and acquiescence towards the father at handover should not be mistaken as acceptance for the violence but perhaps an indicator of her fear and protectiveness for the child in attempting to minimize the negative emotional impact on the child.[14] The mother’s statement that she does not seek assistance from security and police due to her concern in exposing the child to harm is in fact putting the child at increased risk of harm.
[14] Paragraph 56 of the family report of Ms A dated 26 August 2019.
In her view the parents cannot co-parent and ongoing communication places the mother at further risk of family violence by the father. She raised a concern that the father’s conduct towards the mother is likely to impact her mental health and in turn may have a negative effect on her ability to parent the child. The risk is significant given that the mother is the child’s primary care giver.
She recommended that the child live with the mother and spend no time with the father and that the father be restrained from approaching the child, her school, her home and any other location where the mother and child are present. She recommended that the father and paternal family be permitted to send cards, gifts and letters to the child and the child be placed on the Airport Watch List.
Conclusion
Notwithstanding these are interim proceedings, I am satisfied that the father has perpetrated significant and sustained family violence against the mother. The mother’s numerous complaints particularised above indicate the length of time the father has engaged in intimidating and harassing conduct towards the mother in the presence of the child. I am satisfied that both the mother and child have been the victims of the father’s coercive and controlling behaviour. It has now been six years at least since the parties separated. The father continues to seek the parties reconcile to parent the child if not for other reasons.
A further major concern is that the father appears to be undeterred from behaving in an harassing and intimidating manner despite Protection orders being in place against him since 2014. Nor is he deterred in engaging in harassing conduct in public whether that be in the precincts of the court, at the airport, at a railway station or shopping centre.
I accept the family consultant’s assessment of the child as compliant and introverted and her account that it is likely the child is experiencing emotional and psychological harm in being exposed to the high conflict existing between the parties and her mother’s exposure to family violence. I find that the child is a vulnerable child.
I accept the family consultant’s opinion that the mother has attempted to manage the father’s controlling behaviour by appeasing him. Of particular concern is the incident whereby he caused the mother to allow the child to sleep over at his share accommodation and insisted the mother be present.
I am satisfied that the father is likely to continue to perpetrate family violence towards the mother in a coercive controlling manner at handover in the child’s presence. I am satisfied that the father presents a potential risk to the child. His obsession that he be reunited with the mother and child appears to have continued unabated. In his affidavit filed in August 2019 he sought that the mother and child return to live in Perth. In 2018 he told the family consultant that the child should live with the mother and father “in the same city.” He has been unrelenting in refusing to accept the end of the relationship. I am satisfied the evidence indicates that he is obsessed and pre-occupied with the mother and the resumption of their relationship.
Further I am concerned at the father’s lack of frankness regarding the execution of a warrant on his residence wherein an “unknown man” was arrested by police who were investigating child exploitation material. I intend to make an order that this recent incident be further investigated by the ICL.
I adopt the family consultant’s assessment that the father’s coercive controlling behaviour, his intimidation and harassment is likely to continue unabated given his lack of insight or his blatant disregard for the mother and authority. I am satisfied that the father presents as an unacceptable risk of emotional and psychological harm towards the child. At this stage the risks of harm to the child outweighs any benefit to the child maintaining a meaningful relationship with the father through spending time and communicating with him.
Given these are interim proceedings, I intend to take a cautious approach and suspend the previous orders for the father to spend time with the child and communicate with the child until the father has addressed the very concerning issues raised by the family consultant. I intend to require the ICL to recommend a clinical psychologist for the father to consult and provide a report at the father’s expense regarding the father’s past conduct and whether there is a continuing risk to the mother and by extension to the child. Of particular concern is the father’s desire that the mother reconcile with him. The order I make will include the ICL providing the relevant clinical psychologist with a copy of my judgment and both family reports.
As recommended by the family consultant the father and his family will be permitted to send the child cards, gifts and letters and the mother is required to facilitate the child receiving those items.
With respect to the competing applications for parental responsibility, I am satisfied that the presumption for equal shared parental responsibility does not apply given my findings regarding family violence.
I am satisfied that it is in the child’s best interests that an order for sole parental responsibility be made in the mother’s favour with the mother to advise the father of any change in the child’s schooling or significant health issues that may arise. Such an order in my view is necessary given the persistent harassment of the mother by the father and the parties complete inability to communicate.
I make orders accordingly.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 20 September 2019
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