Zong & Lim
[2022] FedCFamC2F 196
Federal Circuit and Family Court of Australia
(DIVISION 2)
Zong & Lim [2022] FedCFamC2F 196
File number(s): BRC 8160 of 2014 Judgment of: JUDGE COATES Date of judgment: 25 February 2022 Catchwords: FAMILY LAW – Parenting – father lives in City K – mother lives in Brisbane – mother seeks no time order – unacceptable risk. Legislation: Family Law Act1975, ss. 60B, 60CA, 60CC, 61DA, 65DAA, 102NA. Cases cited: Keane & Keane [2021] FamCAFC 1
M v M (1988) 166 CLR 69; FLC 91-979
Peterson & Cochrane [2008] FamCA 597
Division: Division 2 Family Law Number of paragraphs: 152 Date of last submission/s: 11 November 2021 Date of hearing: 28, 29 and 30 September 2021 Place: Brisbane Counsel for the Applicant: Ms M. Murphy Solicitor for the Applicant: Lander Solicitors QLD Respondent: Self-represented Counsel for the Independent Children’s Lawyer: Ms D. Pendergast Solicitor for the Independent Children’s Lawyer: Julie Harrington Solicitor ORDERS
BRC 8160 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ZONG
Applicant
AND: MR LIM
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE COATES
DATE OF ORDER:
25 february 2022
THE COURT ORDERS:
1.That the mother have sole parental responsibility in respect of all major long term issues of the child, X born in 2012 (“the child”).
2.That the child shall live with the mother.
3.That the child shall spend no time with the father.
4.That the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Zong & Lim has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COATES:
The mother of a nine-year-old girl, X, seeks orders to exercise sole parental responsibility and that the child spend no time with the father.
That is a position supported by the Independent Children’s Lawyer.
Their position is based on unacceptable risk.
The father seeks that the child spend school holiday time with him.
He seeks an order for equal shared parental responsibility.
His case has changed over time because initially he wanted the child returned from Brisbane to City K where both parties lived and that the child either live with him or spend very significant and substantial time with him.
THE LAW
I will identify for the parents what needs to be taken into account in making a decision for a child’s living arrangements when parents cannot agree after a separation, or when disputes continue.
The Family Law Act 1975 (“the Act”) sets out the legislation to be followed.
The Act dictates a best interest decision be made for the child.
It is reached by applying the stated law to the facts of each particular case.
Section 60CA of the Act states that parenting orders are made with the best interest of the child being the paramount consideration.
It is not the only consideration, but it is the paramount consideration, so there is room for consideration of the legitimate wishes and position of the parents, but if the best interest of the child is not served by adopting a particular position of a parent, then that position would usually not be adopted.
Section 60CC(2) of the Act states the primary considerations – the benefit to the child of a meaningful relationship with both parents and the need to protect the child from being subject to or exposed to abuse, neglect or family violence. Making those considerations the primary ones is in keeping with the objects and principles of the Act stated at s.60B, so the objects and principles provide the legal environment for decision-making.
The Act then sets out the additional considerations at s.60CC(3), which include the age and maturity of the child, views of the child, the level of cooperation between the parents, child support issues if relevant, distance apart, capacity to parent, attitudes to the responsibilities of being a parent, family violence or any relevant matter.
These are just plain common sense issues.
The presumption of equal shared parental responsibility is to be decided pursuant to s.61DA of the Act and if such an order is made, then the living arrangements under s.65DAA of the Act must be considered.
The presumption does not exist if the court is satisfied that family violence exists or has existed or was likely, and it can be rebutted on appropriate evidence.
But also raised for consideration in this case are issues of risk.
The High Court has directed the trial courts as to how to asses risk. In M v M (1988) 166 CLR 69; FLC 91-979 the court stated:
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of … abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of … abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.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. The degree of risk has been described as a “risk of serious harm” (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), “an element of risk” or “an appreciable risk” (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), “a real possibility” (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavored, 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 … abuse.
A further aspect of risk, a matter raised in this case, was also considered in Peterson & Cochrane [2008] FamCA 597, where Moore J stated:
9.It might be added that a finding of no unacceptable risk does not mean necessarily the end of the matter because consideration may have to be given to the other parent’s belief about underlying risk and whether that belief is genuinely held. The issue was discussed by the Full Court in R and C, SA 45 of 1992, published 26 June 1993 and taken up again in the later Full Court decision of A and A (1998) FLC 92-800 [Fogarty, Kay and Brown JJ]. As discussed there, if the parent’s belief is genuinely held then consideration may have to be given to whether the arrangements contemplated, despite the finding of no unacceptable risk, would so impact on the parent’s capacity as primary carer as to impinge upon the interests of the child. If the answer is in the affirmative, other arrangements proportionate to the circumstances may need to be considered to ally the apprehensions of the primary carer [see also B and B (1993) FLC 92-357 and N v S (1996) FLC 92-655].
It is these statements of the law which are applied to the relevant facts-in-issue.
Because I am asked to make a no time order between the child and the father, there are other cases which have set out considerations in such cases, and I will refer to these later in the judgment.
BACKGROUND
The mother was born in 1980 and is aged 41. She was born in China. She is a finance professional working part-time, in Brisbane. She is an Australian citizen and now does not hold Chinese citizenship. The child is an Australian citizen.
The father was born in 1975 and is aged 47. He was born in China. He lives in City K and is a IT professional. He has permanent residency in Australia. He is a Chinese citizen. Citizenship has nothing to do with the decision to be made – I am merely explaining the parties’ background.
The parties married in 2006 in China.
They relocated to City K in 2007.
The child was born in City K in 2012.
The parents separated on 21 September 2012.
The child was only about three months old at the date of separation.
Separation occurred when the parties were in China on a visit.
The mother, on returning to Australia, in early 2013, relocated the child to Brisbane, where she now lives with the child.
The father has remained in City K.
A divorce order was made on 25 November 2014 with the order coming in to effect on 26 December 2014.
PROGRESS BEFORE THE COURT
An understanding is required of the very slow passage of the matter through the court, because the length of time the matter has been before the court and the reasons for such are a consideration in this matter.
The length of time is partly due to the COVID-19 crises but also due to the father’s case management decisions.
The matter was actually finalised by orders made 27 October 2014 by consent, on the father’s application. Under those orders the parents exercised equal shared parental responsibility, the child lived with the mother and spent time with the father by agreement.
With the child living in Brisbane and the father living in City K, arrangements were made for the child to spend time with him in both cities.
Despite final orders regulating living arrangements, relations between the parents remained strained and on 11 July 2017 the child was held over in City K and the mother sought a recovery order and the father agreed to return the child.
On 18 September 2017 she sought a further recovery order which was granted four days later.
Orders were then put into place for the child to spend time with the father in Brisbane.
The matter remained before the court because the father’s response to the recovery order application sought new parenting orders.
A hearing resulted in an order made on 20 September 2019 ceasing the child’s time with the father, based on unacceptable risk.
The father appealed, and his appeal was upheld.
The father has been conducting his own proceedings, but an order was eventually made (under s.102NA of the Act) which gave both parties government aided legal assistance because of past or alleged family violence.
In managing the matter which has seen the parties in both this court and the Queensland Magistrates Court (for domestic violence matters) constantly between 2013 and 2020, the court attempted to get the matter to trial on numerous occasions.
Besides this trial beginning on 28 September 2021, five other trial dates were set – for two days from 2 September 2019, for three days from 19 October 2020, for three days from 28 October 2020, for four days from 25 January 2021, and another date given in April 2021, without successfully getting the matter to trial.
For the 19 October 2020 trial date, the father’s barrister became ill and so the trial could not go ahead.
While that was outside the father’s control, on the 28 October 2020 trial date, the father challenged the affidavit prepared for him by his appointed lawyers and the matter needed to be adjourned.
The father was ordered to file his new evidence, however from there the father proceeded, on three subsequent occasions, to dismiss his appointed lawyers.
The father then appeared, as he has for the majority of the major decisions self-represented and that has slowed the management of the matter as his case needed to be understood. I sought from the father his understanding that he could then not cross-examine the mother and he confirmed he knew that would be the case. I should say that English is not his first language, and his accent is difficult but not impossible to follow when taken slowly. He was also capable of conducting an appeal successfully.
On 29 October 2020 I made an interim decision ceasing the child’s time with the father, giving reasons after the assessment and determination that an unacceptable risk existed.
Because I suspended time, I determined that there was urgency in determining the matter despite the father’s delays and I informed him of those views, and listed the matter as soon as I could.
He subsequently filed an application to have the Independent Children’s Lawyer dismissed. After hearing the matter, I dismissed his application.
The father appealed that decision, as was his right, and that effectively prevented the trial going ahead, because the position of the Independent Children’s Lawyer was of prime importance to the evidence to be determined.
The appeal decision delivered 27 August 2021 upheld this court’s decision not to dismiss the Independent Children’s Lawyer.
The father also filed an appeal relating to an order I made dismissing his application for time with the child to recommence.
That appeal was subsequently dismissed because the father had not filed his appeal material.
The whole of the court process, as I have stated, has been slow, but not because of case management delays. There has been a lot of material filed, with the father making eight applications, filing about 30 affidavits, with numerous case management orders having been made, as well as the three appeals the father instituted.
Proceedings involving these family matters have also been running in the Queensland Magistrates Court with the mother filing applications for protection orders or varying existing orders on 8 April 2013, 5 January 2015, 21 February 2017 and 29 August 2019.
The father has filed applications as well in the Queensland Magistrates Court on 6 March 2015, 18 March 2015, 25 July 2017, 30 August 2017, 9 October 2017 and 25 June 2020.
I should state that no orders were made which varied protective orders protecting the mother.
In written submissions the Independent Children’s Lawyer said the records indicate that the father applied on numerous occasions in the Magistrates Court to adjourn matters, and I must say, that was my experience of him in this court, which means of course that the child has been caught between the disputes and litigation now for years.
ISSUES OF RISK
The risks alleged by the mother, and denied by the father, are:
(a)Alleged family violence;
(b)Using the child to continually pursue the adult relationship over a long period;
(c)That there is a tenuous relationship between the child and the father, and
(d)The father’s behaviours have a detrimental impact on the mother’s parenting ability.
ALLEGED FAMILY VIOLENCE AND FINDINGS
The mother gave particularised claims of family violence allegedly perpetrated by the father upon her during the period they remained together.
Some of the allegations included:
(a)The father throwing a shoe rack in 2009 causing bruising to the mother’s lower leg after she refused to drive him to a friend’s house;
(b)In late 2009 an assault (by chasing, grabbing and dragging her into the house and forcefully pushing her in the chest causing her to fall onto the lounge) after she attempted to leave but returned home from a friend’s place after threats were made to the friend;
(c)Not allowing the mother to open doors or windows more than a defined amount;
(d)Threatening a friend she had a meal with, stating something would happen to her if she went out with the mother again;
(e)Mistreating pets including pressing cats on the floor and tying them into strange shapes in the backyard, or tying them to a metal frame with a short piece of wire;
(f)An attack on a cat with a power drill;
(g)Killing two kittens by holding them under a running tap;
(h)Tying a pet dog to a tree and leaving it in the hot sun, and then tying its mouth shut with a wire because it barked too much;
(i)Specifying a small amount of food for the pets;
(j)Refusing medical care for the injured pets;
(k)Insisting on purchasing groceries only on sale;
(l)Throwing small pieces of furniture and electronics when angry;
(m)Punching and damaging walls in a rental house;
(n)Threats to break the mother’s legs;
(o)Withholding the child on two occasions;
(p)Leaving the child unattended at changeovers while pursuing the mother to talk, and
(q)Sending abusive emails to the mother.
The father denied in general such incidents or acting in a manner to cause fear.
I will now address some relevant specific allegations which were the subject of inquiry before the court.
There was no dispute that in April 2013 the father unlawfully entered the mother’s home in Brisbane despite her not giving him the address. He entered through a window. She was not at home but her flatmate, on returning home got a fright at finding the father in the house. Police were called. The father was dealt with in the Magistrates Court at Suburb M for trespassing and entering the dwelling, and was put on a good behaviour bond. The father said he was trying to see his daughter, but that does not explain how he knew the address, and why he remained on and in the premises when nobody was at home. That allows for a finding that the father stalked the mother on that occasion, by locating her address, by entering her premises and by remaining on the premises.
The father denied but later admitted to sending emails to the mother in 2014 threatening suicide and wanting to rekindle the relationship. Examples were given in the mother’s affidavit filed 28 September 2020. One of them dated 21 November 2014 stated:
If you want to leave me, I can only use my death to answer you. It is impossible for us to take divorce as an end once we married.
You should be absolutely clearly aware of that. It is no use to say anything from now on; our relationship has been destined; only death can separate us.
He explained that the purpose of the text was to see his child, although there was no mention of the child. A proposition was put to him that it was a manipulation of the mother in a coercive fashion by delivering a threat such as suicide, for his own ends. Although the father said he was begging that is not how I interpret the email or his answer and in fact the reference to death in the email is odd. It was not a pleasant message to be sending to the mother and uncalled for. It was not the first time he had mentioned death either, stating in another email he would end his life without hesitation if she divorced him. I find such messages, and this one in particular, were calculated to cause the mother anxiety and fear.
In late December 2014, when the mother had taken the child to a shopping centre in Brisbane, a dispute occurred when the father grabbed the child and refused to return her. He took the child to the car park where he let her go. Police had been called. Police escorted the mother to her car. The father approached and began banging his head against the car. He then lay in front of the car and kept yelling in Mandarin “you just wait for my dead body one day. If it is not today, it will be another day” (the mother gave the interpretation of Mandarin but this was not effectively challenged by the father). Police called an ambulance and the father was transported to hospital. There he told hospital staff he was frustrated and the child would grow up in a broken home and that he was hopeful of getting back together, for the child. He said in court he did not mean that. The proposition was put that he did this to coerce the mother so that she would grant him more time with the child. He said he meant the parents should live close by to each other. I do not accept the father’s explanation. I find the father was applying a control which was coercive in nature. The proposition was also put that he was banging his head in front of the child, but he denied that, saying only she had a friend with her. That made no sense. I find he did bang his head on the car in front of the child.
The proposition was also put that the mother would have concerns about the father’s care of the child at that time, to which he said she should not have any concern. He said he now knew that was wrong, but he could not remember when he came to that conclusion, although he said in court he wanted to thank the mother’s lawyer.
That alleged thanks extended to the mother’s lawyer was strange and a statement calculated to persuade the court that the father was actually capable of changing his views and changing his position.
However, I need here to refer to a witness the father sought to introduce, as it is relevant to the determination of the father’s bona fides in claiming he wanted to just be able to get on with the mother and not cause her stress and anxiety.
The witness, Mr N, came to court to claim that the mother was a liar and had withheld the child which she regards as her child only. I held that such evidence was embarrassing and irrelevant, and was a further attack on the mother’s reputation organised by the father and the finding now is that such was not indicative that the father could change his derogatory views of the mother.
Given this part of the father’s case, and the tone of abusive emails I have referred to above, as well as others referring to the mother as a “bitch” and a “scumbag” and other abusive names, the statement of thanks to the mother’s lawyer I find to be a self-serving statement to benefit the father’s case, calculated to engender the view that he was changing his position and being cooperative with the mother and parenting arrangements generally. I did not find evidence that he was changing his views to come to agreement with the mother.
Although there were allegations of events in each year since separation, I will not refer to all of them here, mindful that the case being examined is an alleged risk, part of which can be determined by the fact that the disputes have continued over the years.
To be very precise, after hearing the evidence I have to conclude that the father has an inability to understand the child’s needs. A singular incident adequately demonstrates this inability, but it is only one of the acts and omissions referred to in this decision which I have considered. On 10 September 2016, the child was spending time with the father and was due to be returned to the mother. The meeting point was a shopping centre in Brisbane. The child, then aged four years and two months, had spent six hours in the shopping centre with the father. The mother said she would take the child home to feed her and upon attempting to leave, the father jumped into her car and allegedly refused to leave the car for two hours. The mother said she was concerned about the child and after a period suggested they go to the father’s share house with the mother to stay until the child fell asleep, when she would take her home. The child finally fell asleep at about 9.00pm and when the mother attempted to leave, she said the father jumped up and prevented that and she and the child had to stay for the night, the child on the father’s bed and the mother on a mattress on the floor.
The father denied the incident.
After hearing from the parties, I formed the view and find that the mother gave the truthful version of the events. I stress, this is after hearing and observing the parents giving their evidence and answering specific allegations.
Apart from the inappropriate detaining of the mother against her will, a denial of her liberty and her ability to care for the child appropriately, even spending six hours with the young child in the shopping centre, plus a further two in the mother’s car, a fact not denied, was not child focused act by the father. It is apparent that the mother was under coercive control at this time by the father.
The father also denied doing similar acts with regard to jumping into the mother’s car at other times.
The parties agreed that over a Christmas period the child could stay with the father, although the mother said the child had to be persuaded. The agreement was on the basis that the mother visited daily to reassure the child over the eight day period but she said on one occasion the father stopped her going home, so he could discuss the marriage.
In January 2017 the child spent time with the father at Store C in Brisbane and the mother alleges the child was resistant and there is some support for the resistance of the child generally from the family report writer.
According to the mother, the relationship continued in this manner. After hearing the evidence that is more probably than not. It is also supported by an entry in police records of the mother attending upon police on 14 January 2017 to seek advice on the father’s behaviours. That in itself indicates that the relationship was so disrupted a continuing state of affairs had developed in which the mother formed the view she needed, at times, police assistance.
Issues of capacity and the responsibility of being a parent arose as a question of real safety for the child when in the father’s care and control. On 21 April 2018 there is security photographic evidence of the father approaching the mother while letting go of the child at the Suburb E railway station in suburban Brisbane. The child can be seen on the steps leading to the platform, near to the platform. While the father denies the mother’s claim of approaching her to harangue her about the relationship, the photographic evidence is incontrovertible in that it shows that the father has let go of the child’s hand or has not taken her hand when she is reasonably near to the railway lines on the unfenced platform, in circumstances where prudence would have dictated that a child be restrained. There was no reasonable explanation offered by the father for such an act, and consequently I find that such was not an act focusing on the child’s potential safety.
A disturbing issue was the mother’s claim of cruelty to pet animals.
She alleged the father killed two kittens by holding them under a tap of running water, that he tied a pet dog up in hot weather without shade or water, tied a cat to a metal frame with wire and used an electric drill to inflict injury to a cat.
She attached photographs of the dog, the cat in a metal frame and a cat with open slash wounds down its left flank towards the hind quarters.
The father denied cruelty generally.
He denied holding kittens under water.
He denied cruelty to the dog.
But some photographs cause grave concern.
There is a photograph of a cat tied to a metal frame with a thin flexible type of wire. The wire can be clearly seen. The father said the family was moving and he did not want the cat to escape.
I take that as an admission that he tied the cat to the frame with the wire.
Wrapping wire around the cat and tying it to the metal frame is a deliberate and cruel act and there is no other way of describing it. Any struggle would have caused the animal pain. The cat could have been placed in a cat carry box or even in a closed cardboard box with suitable air holes where it could remain calm, and the father would be assured it could not run away. Why the cat would run away because the family was moving was never explained by the father.
As to the injured cat slashed down one side by a drill, the open wound can be seen in a photograph. The father said he had a door off its hinges and on its side, up against a wall. He was sitting on the floor doing drilling work on the door. He said when he started the drill, the cat, in fright, jumped across the spinning drill bit and was injured.
I could not understand how the cat would be jumping in that scenario so that it would get caught by the drill bit if the drill was being used on the door. It would be logical for an animal scared of a power tool to run the other way or keep as far away as possible.
I do not accept the explanation, which means the animal was purposely injured by the father.
Although the relevance of this to the relationship with the child was not explored in cross-examination, that a person would resort to the type of animal cruelty described, to family pets, does not indicate that the person is focused on providing a wholesome, moral and safe environment. I use the term moral in the sense that society frowns upon animal cruelty evidenced by criminal laws to punish cruelty.
USING THE CHILD TO PURSUE THE RELATIONSHIP
There is a striking feature of changeovers between the parents – that the changeovers cannot occur without allegations that the father refuses simply to take the child and go, but engages the mother in long conversations.
It was apparent on the Suburb E railway station and it has been apparent at City K airport. On 5 January 2019 at City K airport, where a changeover was to occur, the mother said the father kept her for 40 minutes talking about the marriage and referring to the child, in front of the child.
A similar incident occurred over one and a half hours on 6 April 2019 at City K airport, although on that occasion the father is alleged to have entered the women’s toilets when following the mother where she had taken the child to wash her hands. The time taken to changeover was not denied by the father although the nature of the exchange was not admitted by him.
The incident cannot be considered in isolation of other exchanges between the father and the mother when the child is involved in a changeover, and is an aspect of the relationship generally.
I have previously referred to the father forcing the mother and child to stay at his shared accommodation for a night. Taking into account this enforced regime by the father on the mother and incidents such as sending emails talking about his death and the marriage, the functioning of the father takes on a new significance whereby the acts generally demonstrate the mother’s claim, which I accept, that the father used the child to pursue the relationship with the mother.
That is not a child focused position, because the evidence is that the father cannot separate the needs of the child and his needs.
NATURE OF RELATIONSHIP BETWEEN CHILD AND FATHER
As to a relationship between the child and her father, Ms A, the family report writer, said in her third and last report that her two earlier observations had shown a relationship, but that could have diminished over time.
When I ceased time between the child and the father in late 2020, based on allegations arising, and among other things including issues I have referred to above, I perceived an unacceptable risk, but I was aware that the trial needed to be heard urgently so as to avoid hindering the relationship if there was going to be a decision for time for the child with the father.
As I have stated above, the father took decisions to ensure the proceeding was drawn out because there was never any indication, other than at trial, that he was relenting in his approach as to the orders he sought.
The evidence now suggests that the relationship is tenuous.
In her report of 22 February 2021, Ms A stated at paragraphs 67 and 68:
67.[X] may enjoy seeing the father but she struggles with the considerable distance travelling to [City K] and the prolonged time frames away from the mother, her primary caregiver and closest relationship. The father retaining [X] on at least two occasions and a fear that she will not be returned to the mother, might also influence her resistance. Alternatively, it may be that [X] does not enjoy her time with the father and she feels unsafe to express her resistance about visits with him, so she manages his expectations by complying as the mother has modelled and advised her to do in the past. Children such as [X] who are exposed to a very dominant or abusive parent will often disclose their discomfort or resistance to a person, with the parent whom they feel safe and secure to do so; this becomes particularly evident for children in separated families where family violence or high conflict exists.
68.It is the mother’s account that [X] does not miss or ask to see the father and she claimed the child’s emotional wellbeing is more stable and her schoolwork has improved since contact with the father ceased. If the court determines no contact between [X] and the father is in her best interest, it is likely that in the immediacy there will be minimal distress for her. ...
Ms A went on to say that not having a meaningful relationship with the father may negatively affect the child in the long-term as she matures with regard to her identity and if the court decides that there be no time, then the court consider that the father be allowed to send written correspondence and gifts to minimise any risks associated with her identity.
I accept those aspects of the evidence of Ms A (and I may accept some evidence and reject other evidence) indicating that the relationship is tenuous and that the child feels safe with the mother. I am also aware, as Ms A’s evidence addressed, of the ramifications of a no time order for the child with the father including a sense of loss.
IMPACT OF THE FATHER’S BEHAVIOURS ON THE MOTHER
Ms A did not assess the mother’s mental health, but said if there was evidence of a deterioration then such could lead to post traumatic stress disorder.
On the mother’s case she is experiencing marked psychological and physiological reaction and expresses fear for her safety and the child’s safety.
Ms O is a clinical psychologist.
He gave evidence that he assessed that the mother met the criteria stated in the Diagnostic and Statistical Manual of Mental Health Disorders Fifth Edition (commonly known as the DSM) for post-traumatic stress disorder, that she is receiving cognitive behavioural therapy and she has been seen on 16 occasions.
Mr O, as with many patients, relied on the self-reporting by the mother of the marital and parenting situation.
The father challenged the qualifications of Mr O, by firstly asking whether he held a doctorate in psychology and then whether he had domestic violence qualifications.
Mr O confirmed he did not hold a doctorate in psychology. He confirmed that he is allowed to practice with the status of registrar.
The father was challenging his evidence generally.
As I understood the evidence, a registrar in psychology has to complete an approved course of employment under the guidelines of the Australian Health Practitioner Regulation Agency.
The challenge was misplaced.
The father was concentrating on his own views of findings of fact by Mr O as to domestic violence occurring, when it was very clear that while Mr O relied on the self-reporting by the mother, he did not come to a factual finding that domestic violence had occurred.
He applied the assessment parameters stated in the DSM to the information given, and that is the general practice for such assistance.
The father’s challenge was to the qualifications and even went to the number of people Mr O had treated who claimed domestic violence had occurred.
Such challenge did not inform the court that Mr O had misunderstood the nature of his diagnosis, the considerations under the DSM to be applied or his professional view of the mother’s psychological state.
I will make the observation that the number of people claiming family violence whom a psychologist may treat is irrelevant to the professional nature of the allied health skill being exercised.
Mr O said post-traumatic stress disorder consisted of complex issues which may take some years to help, and that in his view the mother would suffer further psychological distress if contact with the father over the child, even if by email, was ordered. He stated such would cause significant distress and affect her parenting capacity.
Mr O’s evidence was to the effect that the mother’s capacity would be so affected that such would affect the child. He considered events such as the forcing of the mother to sleep on the floor of his shared accommodation in Brisbane while the child slept in his bed, and sending correspondence about his impending death, matters which directly involved the child as well.
Described in plain language, these acts are not normal parenting acts. I accept then that the mother will be affected by contact with the father and her parenting will deteriorate because of the fear that he will subject her to more harassment over the relationship between the parents, and such will affect her parenting by causing a constant stress for her. That is something a parent, despite the nature of disputes, should not have to experience.
DELIBERATION
So, should there be a no time order?
This is a matter which has been before the court for far too long, with the father’s decisions to challenge at almost every step decisions or witnesses who, in his view, did not support his case.
The question is not whether the child will live with the father because the weight of the evidence is against such a proposition and the father’s position at trial is that he just now sought orders for time.
The question is whether there should be an order for no time, based on the father’s behaviours being an unacceptable risk to the child and the mother’s ability to parent.
I was referred to the recent case of Keane & Keane [2021] FamCAFC 1, which referred to the authorities dealing with belief and capacity to parent.
In that case the following statements were made:
75.As noted by senior counsel for the father, authorities applying “the Re Andrews principle”, relating to the impact of a genuinely held belief on the primary caregiver’s ability to parent, has been expressed in a variety of ways including:
a.“may so impinge upon her capacity as the primary caregiver of the children” [A & A (1998) FLC 92-800];
b.“her co-parenting capacity would deteriorate and impinge the children’s best interests” [Dunst & Dunst [2016] FamCAFC 15 at 81];
c.“as her likely being unable to continue to function effectively so as to adequately care for the children” [Hollister & Gosselin [2016] FamCA 759 at 193];
d.“genuine fears of the residential parent about such a risk may so impinge upon the parent’s capacity” [Bayer & Imhoff [2010] FamCA 532 at 177];
e.“where such anxiety is likely to impact adversely on that parent’s caregiving ability…” [Russell & Russell v Close SA 45 of 1992 an unreported decision of the Full Court];
f.“have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child” [Grant & Grant (1994) FLC 92-506 at 81-259];
…
78.In Russell v Close, the full Court referred to the decision of the Full Court in B and B (1993) FLC 92-357 (“B and B”) and stated, at [32]:
In upholding children’s right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
79. In the cited decision of B and B, the Full Court, at 79,780 stated:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
…
82.… What the Full Court did in Blinko was draw upon the line of authority commencing with Russell v Close and, at [83], usefully summarise the relevant principles adumbrated in those authorities as follows:
[83]It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close … that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
Before considering time applying those relevant types of propositions, I will address the issue of parental responsibility, because there is a connection between exercise of parental responsibility and time. In considering equal shared parental responsibility, the court must apply a presumption that such is in the child’s best interest unless there are reasonable grounds to believe family violence or abuse has existed. The presumption does not exist if such a belief is formed by the court and the presumption can be displaced under appropriate circumstances.
For the following reasons I am going to make an order for sole parental responsibility, because I have formed such a belief, based on findings that:
(a)The father stalked the mother and unlawfully entered her premises and such amounts to intimidation and family violence (paragraph 68 above);
(b)The father has sent text messages to the mother threatening suicide and death, causing her anxiety and fear (paragraph 69 above);
(c)The father has applied coercive control over the mother (paragraph 71 above);
(d)The father attempted to introduce embarrassing and irrelevant evidence of a witness Mr N (paragraph 75 above);
(e)The father made a self-serving statement thanking the mother’s lawyer to display a cooperative approach to parenting although I found no evidence to support such (paragraph 72 above);
(f)The mother gave truthful evidence about being forced to stay overnight with the child in the father’s share house (paragraph 78 above);
(g)The father did not physically control the child at a train station while haranguing the mother about the relationship (paragraph 86 above), and
(h)The father has inflicted injury on pets (paragraph 88 above).
But there is another issue. The father in my view has actually missed the point of the proceedings, which were to determine arrangements regulating the child’s time between parents who cannot agree on the child’s future, the evidence showing he has concentrated on issues affecting him. The findings stated at paragraph 139 above do not show proper child focus, examples of which being the forcing of the mother to stay overnight at his share accommodation with the child, and his lack of ability to give clear and concise evidence of what he does for and with the child when she is with him. After years before this court and the Queensland Magistrates Court with associated domestic violence issues, it was only at the trial that he appeared to say he was being cooperative with the need to determine the child’s best interest.
I do conclude that he has engaged in a campaign of family violence using coercion and threats over a long period of time and that the only time this has ceased has been when time for the child with him has ceased – because he has not had access to the mother. The threats have included threats of suicide and threats to the mother and cruelty to family pets.
He has used the child to pursue the relationship and there is no evidence that anything would change if out of view of the court processes.
I also conclude that the child’s relationship with the father is tenuous and that she has been too young to endure long flights between Brisbane and City K to see the father, who has not been revealed in evidence to have been a primary attachment figure.
As to the mother’s capacity to parent, the long years of litigation have taken a toll. I accept the evidence of Mr O on that issue as well as that he diagnosed the mother suffering with PTSD because of the relationship.
Although the father finally modified his demands, that is only because the matter was finally bought to court for the trial. He has had representation which he dismissed, and although he complained about that representation, perhaps if he had considered legal advice instead of determining his own case management, he may have been able to reflect on his behaviours.
I cannot see that the parties could ever cooperate despite the father seeking an order for equal shared parental responsibility. He gave no submissions of how to determine the evidence concerning his behaviours to support such an order.
I have considered the comments by Ms A that the child’s identity may suffer in the future if there is no contact with the father and that a way around that would be to allow the father to send correspondence and gifts.
The actual problem with that though is that I am satisfied that the father has stalked the mother previously in such a way so as to learn her address and has broken into her home, an act designed to cause fear. I am satisfied that the mother will suffer anxiety and fear if she has to have contact with the father, and that such will prejudice her parenting ability.
I am also satisfied that the father has not pursued these proceedings solely for the child’s benefit, and that the whole of the evidence I have referred to above is properly described as amounting to an unacceptable risk to the child. On that basis I will not make an order for any communication.
Consequently I will make orders for the child to live with the mother, for the mother to exercise sole parental responsibility and for the child to spend no time with the father, which precludes the father contacting the child through the mother with gifts or other correspondence.
As difficult as it is to make this decision, the child will be left to seek a relationship when she is old enough to understand the very difficult relationship between the mother and the father.
I will discharge the Independent Children’s Lawyer.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coates. Associate:
Dated: 25 February 2022
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