Zong & Lim (No 6)
[2020] FCCA 3671
•29 October 2020
Federal Circuit Court of Australia
Zong & Lim (No 6) [2020] FCCA 3671
File number(s): BRC 8160 of 2014 Judgment of: JUDGE COATES Date of judgment: 29 October 2020 Catchwords: FAMILY LAW – Parenting – Time suspended – risk – trial dates set. Legislation: Family Law Act1975 (Cth) ss 60CC. Cases cited: Bant & Clayton [2015] FamCAFC 222
Harridge and Anor & Harridge and Anor [2010] FamCA 445
M v M (1988) 166 CLR 69; FLC 91-979
Number of paragraphs: 168 Date of last submission/s: 29 October 2020 Date of hearing: 29 October 2020 Place: Brisbane Counsel for the Applicant: Ms K. Oakley Solicitor for the Applicant: Lander Solicitors QLD Counsel for the Respondent: Mr D. Carlton Solicitor for the Respondent: HCM Legal 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 BETWEEN: MS ZONG
Applicant
AND: MR LIM
Respondent
order made by:
JUDGE COATES
DATE OF ORDER:
29 October 2020
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That all Orders for the child X born in 2012 (“the child”) to spend time and communicate with the father be suspended.
2.That pursuant to s.62G of the Family Law Act 1975 the parties and the child X born in 2012 attend upon a Family Consultant, as appointed by the Senior Family Consultant of the Federal Circuit Court of Australia, on a date and time to be advised, for the purposes of the preparation of an updated family report to be made available to the Court.
3.That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child and the factors contained in s.60CC of the Family Law Act 1975 the following opinions should be included:
(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)Any other matters that the Family Consultant considers important to the welfare or best interests of the child.
4.That a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the child if the Court did not reach a conclusion which accorded with the child’s views.
5.That the parties shall attend appointments with the Family Consultant on a date and time to be advised by the Family Consultant and they shall facilitate the attendance of the child for those appointments (unless otherwise advised) and shall co-operate with all reasonable requirements of the Family Consultant.
6.That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the updated Family Report.
7.That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.
8.That upon the updated Report being provided to the Court, the Court will release a copy to each party (or if represented, to the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
9.That unless a party objects, in writing, within 14 days of the date of releasing the updated Report, copies of the updated Report may further be provided to the following, if the Court is requested to do so, for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory legal aid authority; and
(d)A convener of any legal dispute resolution conference.
10.That unless otherwise ordered, no person shall release the updated Report, or provide access to the updated Report to any other person.
11.That the father file and serve one affidavit setting out all evidence to be relied upon at trial including evidence in previous affidavit material and any further evidence-in-chief by no later than 4.00pm on 27 November 2020.
12.That the matter be set down for a final hearing for not more than four (4) days commencing at 9.30am on each of 25, 27, 28 and 29 January 2021 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED:
A.That at the date on which a copy of the updated Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted, would only form one part of the evidence in the proceedings.
B.That s.121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
C.That in the event a party to these proceedings objects to the release of the updated Family Report pursuant to Order 9 herein, they shall write to the Chambers of Judge Coates seeking that the matter be listed on short notice for their objection to be heard.
D.That it is requested that the Senior Family Consultant of the Federal Circuit Court of Australia at Brisbane give consideration to appointing Ms A as the Family Consultant, given Ms A’s previous involvement with the matter.
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 under the pseudonym Zong & Lim (No 6) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COATES:
This judgment was delivered orally.
This is a parenting matter involving a contest over the living arrangements for an eight-year-old child.
It has had years before this court in one form or another and I had attempted to conduct a trial over the last two days, running into a third day tomorrow.
But circumstances, which is no fault of the parties or the lawyers present or the court, have simply prevented that.
I have now set a new trial date in late January 2021.
On a final basis, the father wants the child to live with him in City K and spend school holidays with the mother, assuming that the mother would remain in Brisbane where she lives.
If those orders are not made the father seeks for the child to spend holiday time with him in City K.
While at one stage the father seemed to have sought that the mother live in City K, I understand that is not now being pressed.
Part of the problem has been that the father has prepared his own material and Mandarin being his first language and English not being a language he seems to be proficient in, has caused some difficulties in the court understanding his position.
The mother seeks an order for no time based upon what she says is a long history of coercion and violence against her.
I am called on immediately by the mother to cease time until further order.
It is put in terms of “until the trial” but really it would be until further order and I am asked by the father to ensure that the current orders which would see the child spend half of the Christmas holidays with him remain in place and that the child go to him for the second half of the Christmas holidays, as well as to make telephone time orders so that the parties know when the child can telephone him.
Certain days have been put to me for that. There are quite a number of days. I am told telephone time is occurring periodically.
This is a best interests decision.
The Family Law Act1975 (“the Act”) sets out how a court makes a best interest decision.
The best interests decision for the child is the paramount consideration for the court.
That means I can make an order which will benefit a parent but if that conflicts with the best interests of the child, it is the best interests of the child which is paramount.
The primary considerations are that the child has the benefit of a meaningful relationship with each parent and particularly with the parent that the child does not live with and that the child is not subjected to abuse, neglect or family violence.
The courts have previously tended to treat those considerations equally but since amendments of 2006 the protective factors take precedence.
There are additional considerations.
They are merely common sense considerations – the nature of the relationship a child has with each parent and any other people, the views of the child, the age of the child, that is whether a child can appreciate what is occurring in relation to his or her future between the parents, how parents have cooperated or failed to cooperate with each other, practical issues like the distance apart and how orders would affect the child. I have to take into account the capacity of parents to provide for children in every aspect of their lives, including emotionally, intellectually and materially of course. The court has to take into account the responsibilities parents show in discharging their duties. The court has to take into account cultural issues if they are apparent. Family violence has to be taken into account. Any other factor which is apparent has to be taken into account.
The court is to assess all of those issues if they are relevant and come to that order which would least likely see a return of the matter to the court.
The court applies a presumption of equal shared parental responsibility.
Such does not exist if the court forms the view that family violence has occurred and the presumption can be displaced on suitable evidence.
If I make an order for the presumption of equal shared parental responsibility to apply in a case then I have to consider the living arrangements from equal shared care, through to significant and substantial time, or through to any other time which is in a child’s best interests.
These decisions are not easy, especially on an interim basis where allegations cannot be tested.
Despite that impediment, the court still has to come to a decision.
The decision I am asked to make today is:
(a)To leave in place the orders which would allow the child to go to the father for the second half of the Christmas holidays, plus some set telephone time, or
(b)Cease time.
They are orders which are starkly opposed to each other.
An order that time be ceased has to be based on an assessment of risk.
On an interim basis, the assessment of risk becomes one of the most extremely difficult orders that this court can make when a decision is going to affect the time a child has with a parent.
It is hardly an empirical decision because you cannot make determinations of fact on an interim hearing.
I will address the issues of risk a little later.
I will just give some background history.
Both parents were born in China.
As I have said, English is not their first language and, from what I have heard, the parties do not understand the English language readily.
They both need interpreters for the trial.
The father was born in 1975 and the mother was born in 1980.
They married in China in 2006.
They moved to City K in 2007 and the child was born in 2012 in City K.
It appears the parties separated around September 2012 but, as I understood the evidence, the father was not present although that is not really relevant.
The fact is the parties separated nearly eight years ago.
The mother appears to have gone to China at some stage but she returned and she now lives in Brisbane.
Final orders have been made previously but the case has never settled in terms of what the parents seek.
This matter has been before the court, as I said, for years.
I have made the best efforts I can to get it to a final hearing and it looks like that can be achieved from 25 January 2021 when I can hear the matter.
I should state there had been a decision last year by this court which was overturned on appeal, that decision ceasing the child’s time with the father.
I mention that because ever since a family report was delivered to the parties in 2019, it was the second family report, the mother has sought that time with the father cease.
There are conflicting submissions to the court as to whether there have been agreements for the child to spend time with the father and if there have been agreements then, in the father’s case, the mother cannot maintain a case for no time.
It appears there may have been some agreements for time.
As the evidence only alleges what are said to be facts, I am not going to try and work out, at this stage, whether there have been agreements as such in light of what is said to be the major issue of risk, and that is a coercive control with some violence.
It seems to me that even if there had been some agreement there needs to be a context of that put to the court.
It is suggested by the family consultant that there may be an explanation of the mother appeasing the father because of some fear she has.
That may be so or may not be so, with the father stating that, on a proper examination of the evidence, the court will not find that to be the case.
I do not know what the answer is.
What is put though is that there is a long history of this coercion, this control, this dispute.
What is put is that this is not in the best interests of the child if the child is to continue witnessing dispute between the parents over her future.
Looked at in those terms, that assists the court in coming to a best interests order because I need to go back to what the Act says.
The court has to make the best interests order as the paramount consideration for the child.
The mother, in her material, sets out what she says is the very long history.
She says as far back as 2013 the father entered her premises without permission and she gives various incidents in her material both before and after that date.
She states that in 2013 he broke into her home.
The police were called in.
A protection order was made.
As I understood, no further charge was made against the father.
I have been taken to, for the purposes of today’s decision, not only a reliance on incidents in the past, which have included threats to harm her, but have included threats to harm property and cruelty to animals, but I have been taken to more recent incidents which are said to form the basis to cease time.
In her affidavit the mother refers to what appears to have been a course of conduct at airport changeovers where the father confronts her. It seems, on her evidence, that he confronts her over the relationship.
In her trial affidavit, from paragraph 104, she said on 30 March 2018 she handed the child over to the father at City K airport and he tried to drag her (the mother) out of the airport by her clothes and handbag and was insisting that she follow him to his place.
She said this was in front of the child.
She said at paragraph 106, on 15 April 2018 the father telephoned her, swore at her and insisted on picking her up from the airport to take her to his place for changeover.
She gives her recollection of the events after that.
It appears that she was in his vehicle.
It appears, from her evidence, she was being taken to the father’s house where, she says, he kept talking about reconciliation. I am just looking at paragraphs 109 to 111 there.
She said on 21 April 2018 there was an incident at the changeover at Suburb E train station in Brisbane where the father chased her, leaving the child who must have been aged about six then, for a short period as he chased the mother and eventually he followed her to her house.
At that stage he was carrying the child and exhibit 1 before the court today is a bundle of security photographs from that date at Suburb E train station which could confirm the mother’s case.
That is what is put to me now and there are certainly pictures which would fit with the mother’s description of the father leaving the six-year-old child unattended.
At paragraph 128, she says on 9 April 2019 she dropped the child to the father at City K airport when the changeover lasted for one and a-half hours with the father trying to convince her to go to his place.
The mother had taken the child to the toilet and the father was outside.
Words were spoken, and this was all in front of the child, and the mother says the words being used indicated that the parties were not cooperating in front of each other, and adult issues were being raised and it was the father raising the adult issues in front of the child.
She gives, in paragraphs 129 through to 138, a fairly lengthy description of what occurred and the words being used.
The words being used were, as I interpret what is said here, directed by the father to the mother about reconciliation, what he would do for them if they reconcile and what may occur, by way of vague statements, if they do not reconcile and words about the child if the mother keeps fighting she will not have a good child and the child will be ruined and will not be healthy.
This cannot be good for the child.
I am told to take this into account by way of risk.
I am told that this is the basis of forming a view that an emotional risk could occur for the child.
I put it in those terms because I am very conscious of the fact that I cannot make a finding at this stage of the proceeding.
I was taken to an incident at the school last week where the father turned up at the school.
It appears that he was not invited to do so by the mother and such an act cannot be the basis of confidence building for the mother as to the father and his ability to parent and discharge his responsibilities as a parent.
Turning up at the school caused friction between the parents.
As to whether it has had an effect on the child, there is no evidence before the court, but the mother says it will have an effect on the child.
It is just more evidence that the father may have little regard to the circumstances in which this court will make a decision on parenting orders which he seeks.
There is material in the family report coming from Ms A, which no doubt will be put before the court to make determinations on, that the father simply will do as he pleases.
In her first report of 2018 Ms A refers to an incident between the father and the mother, and the Mandarin interpreter said that words spoken were to the effect that the mother may be having an affair with another man.
Ms A said this at paragraph 61 of that report, dated 23 May 2018:
61.Upon initial arrival, the mother approached the child who was sitting with her father, to give the child her backpack and brush her hair at which point the father began addressing the mother in Mandarin. When the interpreter was asked to translate what the father had said to the mother the interpreter advised he was talking to her ‘about doing things with another man’. During indirect observations during the day, the father was observed to seek out the mother and [Mr L] to initiate conflict, making derogatory and abusive comments to them both and the mother and partner were relocated to a private room.
It is my interpretation, what that says is that the father approached the mother about an affair with another man.
Even if that is incorrect, the fact is that this was in front of the child because the child was with him.
I am asked to consider that there will be evidence put to the court that the father just does not take note of any authority and will not take note of any authority.
If he does not do that then of course the child cannot be protected from what the mother says is his capacity to continue the conflict in front of the child.
The father says a different interpretation ought be put on the particular times of contact which I have referred to.
He states that it is the only opportunity he has of talking to the mother, of communicating with her.
One would assume that his case will be that it is communication about the child.
However the mother is clearly stating something else.
I obviously cannot make a finding on what is occurring other than to say it appears that the conflict is continuing, right up until last week.
The father is in Brisbane for the purposes of court proceedings and while it can be readily accepted that he wants to see the child, he has to conduct himself, when there are allegations of very serious coercion and control and violence, in a manner which does not bring further allegations into court such as attending at the school.
In reading the report of Ms A, an initial conclusion is that the child has a reasonable relationship with the father but she records that the child has objected to the long flight to City K and there are reports that the child has said, particularly to the mother, that she does not want to spend time with the father.
However, Ms A’s observation, at least a year ago (in the report), was that the child was not particularly disturbed by seeing the father.
Ms A also expands on that later in her report to say that the child’s stomach ache in travelling to City K on the aeroplane may be an indication that the child is not enjoying the manner in which she has to spend time with the father, or perhaps not enjoying even having to go with the father.
Again, I cannot make a finding on those issues but I am asked, at this stage, to cease the time until further order and especially on the basis that the trial is going to start on 25 January 2021 which is a little over two months away.
What Ms A says about the child’s relationship is at paragraph 49 of her report of 26 August 2019 and she says:
49.It seems to me that [X] generally enjoys spending time with her father. There are no indications that she is resisting doing so. There are however, in my opinion, strong indications that certain aspects of the father’s co-parenting behaviour is still placing [X] at risk of potential harm, namely emotional and psychological harm. The risk of such harm is associated with the father’s negative feelings and perception of the mother and his attitude towards co-parenting with her. The actual risk to [X] arises from the father’s conduct towards the mother in [X]’s presence stemming from these feelings and attitude. The risk to [X] also arises because it appears the father is unable to contain the strong negative feelings he has about the mother, to the point he is exposing his daughter to them when she is in his care.
She talks about the risk when the parents come into face-to-face contact.
She also says that the information she has considered – and it must be said – assuming that it is found to be correct, indicates that the father was unable to place the needs of the child above his unresolved feelings for the mother to the extent that his actions (leaving the child to pursue the mother through a train station) were placing the child at risk of physical harm at changeovers.
I have already said the father left the child, even for a short period, at a train station. You do not leave a six-year-old in a train station! You do not leave a six-year-old near railway lines on a platform. That does place a child at risk.
There are issues to be determined obviously as to whether the father has breached protection orders.
Ms A used the term “blatantly” but it does not matter, if he has breached protection orders, he has breached the orders.
I do not know if he is breaching orders and if so, whether there is an explanation which I need to take into account.
Ms A came to the view – and again, I am not making a finding – that there seems to be an ongoing pattern of denial and minimisation by the father of his behaviours where he accepts no role or responsibility for conflict.
She would only come to that conclusion upon the interviews that she has conducted and upon reading the material but that is her conclusion.
She went on then to determine that time ought to be ceased to protect the child.
As to the child herself, I said Ms A made some comments about the child’s presentation.
Even though she did not resist going to the father, Ms A said:
54.… The concern with a child such as [X], who is extremely compliant, composed and introverted, is that she may be relatively asymptomatic, while internally feeling overwhelmed. Notably [X] described symptoms when travelling to [City K] (sore tummy and wanting to vomit) which may indicate a level of anxiety about contact with the father. The mother also reports that [X] also experienced some nightmares after contact with the father and (by the father) when attending the family report. It is my view that [X] may benefit from engagement with a play therapist
Engagement with a play therapist has been done and that raises more questions as to the child’s relationship with her father.
As to this dispute, which I mentioned earlier as to whether there has been consent by the mother to orders or not, if there has been, the family consultant raised the issue of whether there is a fear of the father. She said the mother had said the father had threatened revenge on the mother and that he will take the child and she will never see her again. Ms A raised a question as to whether there is a cultural influence at work or a sense of helplessness that authorities just will not be able to assist the mother and what appears to be consent is merely an appeasement of the father’s demands.
She says an “apparent passivity and acquiescence towards the father at changeovers” should not be mistaken as the acceptance of the alleged violence which she describes.
She says it is concerning that she does not seek assistance from security staff or police because of concern of exposing the child to harm.
The police have been involved from time to time in this family.
Ms A concluded that the parents are unable to co-parent effectively.
That is a short account of what I am to take into account.
I can only cease the time on a risk basis.
I cannot really cease time for any other reason that I could see in this particular case.
I am asked to cease time now because it is the case that the mother is going to run and it is only a short time between now and the trial but primarily I am being asked to cease time because of the risk.
The High Court in M v M (1988) 166 CLR 69; FLC 91-979 directed the trial courts as to how to assess risk. The High Court said:
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.
That case then goes on to say supervision could be one answer and that has been put by the mother as an alternative.
Supervision is not what the mother seeks and, given the distance between City K and Brisbane, and given the COVID-19 restrictions, and although I have not been addressed upon that, I would imagine there are some real difficulties for supervision.
The M v M case really directed the trial courts to come back to a term as to whether there is an unacceptable risk.
Other cases have expanded on risk.
There was a case of Murphy J, he pointed out what needed to be considered.
He said, what harmful outcome is potentially present in this situation, what is the probability of this outcome coming about, what risks are probable in the situation in the short, medium and long term, what are the factors that could increase or decrease the risk that is probable and what measures are available whose deployment would mitigate the risks. (See Harridge and Anor & Harridge and Anor [2010] FamCA 445)
In Bant & Clayton [2015] FamCAFC 222 it was said risk could not be determined as unacceptable without a factual assessment of the degree or magnitude of the likelihood of the risk.
That brings me back to what I said earlier.
In an interim decision the court really has a difficult assessment to make.
It could not be the case that there would have to be a factual assessment of the risk because in an interim decision there cannot be such assessment, as evidence is not tested.
It could not be the case that when risk is raised, the risks are allowed to continue, if they actually appear to exist, by orders for time because that would place a child at risk.
As I see it, the authorities are stating that I have to make a decision on risk and, at an interim stage, the court simply has to look at the allegations and come to a decision in the child’s best interests.
It is put that there is a long history of allegations.
That is true but that does not necessarily tell me that there is a risk.
As best I can, in the allegations I have referred to, I have tried to see if there are particulars and, to my mind, there are some particulars being asserted to suggest that the allegations, if made out, are grounded in assertions which can be tested.
Sometimes allegations are made and there is just no way that a court can test them but when you look to the particulars you start to get to the bottom of some allegations.
With all of the allegations which I referred to earlier, even briefly, the father’s case is that the mother has consented to time.
Her case is that she had not.
I have already pointed out that perhaps that is open to a decision by the court on a factual basis.
His case is that it is a logical conclusion that, despite the allegations, because of her consent the mother could not hold an actual real belief that the risk is real.
I am told the court ought to act protectively.
No doubt that would be a consideration of any other factor which is relevant to the particular matter stated in s.60CC(3) of the Act apart from what is stated in the protective provision in s.60CC(2) of the Act.
I could only do that if, as I have said, I can determine that there is enough information to consider that there is a triable issue as to risk – to be determined on a final basis.
It is also said by the father that the child has a good relationship with him and, in the mother’s case, it was said if that is the case then this short ceasing of time between now and the trial will not affect the child’s relationship with him and because of the COVID-19 crisis there has not been a consistent and regular arrangement which has been able to be put in place.
What really is relevant, in my view, on this particular decision are the instances I have referred to, particularly at changeover at the airport and train station, which I have given some history about in the mother’s case and in the father’s case, although to a lesser degree in the father’s case because he states that those instances are the only places he could have discussions with the mother.
What appears to me to be the issue is that arguments and disputes of a very adult nature seem to be occurring in front of the child.
I did not understand the father’s evidence to deny that these disputes are occurring.
There is no flat denial I can see in the evidence that what the mother says took place with regard to conversations did not occur in that way.
That of course enlivened the view of Ms A that this child is being put at emotional risk because of the continuing attitude which, at least on the mother’s version of events, seems to be coercive.
In my view then, that such events have occurred, although I am not making a finding on how they occurred but that such events have occurred, and because the father turned up at the school last week when he must have known that would cause distress to the mother, I am of the view that, for the purposes of this decision only, there is an unacceptable risk because there would need to be another changeover. If the child goes to the father for Christmas I am not satisfied that there will not be another exchange in front of the child particularly as we are now very close to the trial.
If the father could not contain himself last week, how is he going to contain himself on another occasion?
It may be that that is part of a coercive control if the court makes such a finding, and I do not say the court will, but it seems to me that that may well be the element of a coercive control finding and that is the case which is going to be run. Of course it must be, if you keep at somebody, if you keep haranguing them, that is all part of coercion.
I want to be clear, I am not finding that to be the case but I am finding it could be the case.
That is the magnitude of the risk occurring, unwelcome behaviour by the father has appeared to have not stopped at changeover.
The act last week, knowing that the trial was set for this week, was one where the father went to the school knowing that such would cause great distress to the mother.
Very possibly it has caused great distress to the child.
On that basis there is an unacceptable risk.
On that basis I intend to cease the time until further order.
I do so because the trial is close by, in terms of time, and I am not going to make any further order for telephone time.
I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coates. Associate:
Dated: 14 September 2021
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