Zuen and Lhao

FAMILY COURT OF AUSTRALIA

ZUEN & LHAO

[2019] FamCA 314

FAMILY LAW – CHILDREN – Best interests of the child – Where the mother seeks sole parental responsibility – Where the father seeks equal shared parental responsibility – Where there are serious allegations of family violence made against the father by the mother – Where it is not practicable for the Court to make an order for equal shared parental responsibility – Where the mother had been the primary caregiver for much of the child’s life – Where the child believes the mother has abandoned him – Where there are serious risks and concerns for the child in the care of either parent – Where the child is 12 years of age – Where the Court is concerned that an order for the child to live with the mother may not be practicable and will be difficult to implement – Where the Court found it in the best interests of the child to remain with the father – Father to have sole parental responsibility – Orders made for the child to live with the father and spend time with the mother as agreed or at the child’s initiative.

Family Law Act 1975 (Cth) ss 60CC, 61B, 61C 61DA, 65D, 65DAA, 65DAC

McCall & Clark (2009) FLC 93-405

Champness & Hanson (2009) FLC 93-407

APPLICANT MOTHER:

Ms Zuen

RESPONDENT FATHER:

Mr Lhao

INDEPENDENT CHILDREN’S LAWYER:

Mr Wilkins

FILE NUMBER:

SYC

6260

2017

DATE DELIVERED:

5 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

15 – 18 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Sharah & Associates

RESPONDENT FATHER:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

Orders

That the father have sole parental responsibility for the child X born … 2006 (“the child”).
That the child live with the father.
That the child spend time with the mother and communicate with her as may be agreed between the parents or at the initiative of the child.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC6260 of 2017

Ms Zuen

Applicant

And

Mr Lhao

Respondent

REASONS FOR JUDGMENT

These are final parenting proceedings concerning X who was born in 2006 (“the child”). The applicant is Ms Zuen born in 1972 (“the mother”) and the respondent is Mr Lhao born in 1956 (“the father”). The parents disagree about parental responsibility for X and each parent seeks that he live with that parent. The mother sought that the child spend no time with the father and a number of injunctions aimed at preventing the father having any contact with child and the mother. The father sought that the mother spend time with the child out of school hours but only in accordance with X’s wishes and only if supervised. The child has lived with the father and has had no significant contact with the mother for nearly three years.
The orders set out above provide for X to continue to live with his father and to spend such time with the mother as is agreed between the parents, provided that time is in accordance with X’s wishes. I will order that the father have sole parental responsibility for X. What follows are the reasons for those decisions.
The proceedings commenced by the mother filing an Initiating Application on 22 September 2017.
There are also property settlement proceedings on foot between the parties. Priority has been given to the parenting proceedings because X was not seeing his mother and because if there was to be a change in his living arrangements, given his age his views would be increasingly influential in such a decision. The parents are at liberty to restore the property settlement proceedings to the list on giving at least seven days’ prior written notice to the Court and each other.

Applications

The orders sought by each of the parents changed during the course of the proceedings and during the final hearing. Ultimately, the mother sought orders in accordance with a minute of orders[1] handed up at the end of the third day of the hearing as follows:
[1] Exhibit 9
Previous Orders
1.That all previous orders be discharged.
Parental Responsibility
2.That the Mother have sole parental responsibility for the child X born in 2006.
Live With Orders
3.That the child live with the Mother.
No Contact Orders
4.That the child not spend time with the Father.
Injunctions
5.That the Father be restrained from approaching or coming within 100 metres of
5.1The Mother
5.2The Mother’s place of residence
5.3The Child
5.4.The Child’s School
6.That the Father be restrained from communicating with
6.1The Mother
6.2The Child
7.That the Father be restrained from posting or delegating anyone to post any Social Media information that refers to either the Mother or the Child.
On the second last day of the hearing I asked the father what orders he sought. He told me what he wanted and based on that I prepared a document for his consideration. On the final day of the hearing he settled the following document:
1.That the Father have sole parental responsibility for decisions about overseas travel for the child [X] born in 2006.
2.That the parents otherwise have joint parental responsibility for all other decisions about the child.
3.That the child live with the Father.
4.That the child spend time with the Mother outside school hours, at times and dates elected by the Mother, subject to the child’s wishes and provided that any time is supervised.
The Independent Children’s Lawyer’s (“ICL”) proposals were set out in a minute of orders[2] submitted on the final day of the hearing as follows:
[2] Exhibit 10
The Court orders that:
1.All previous parenting orders discharged.
Parental responsibility
2.The Mother have sole parental responsibility for [X] born in 2006. (X)
Live with, spend time with and communicate orders
3.[X] live with the Mother.
4.[X] spend no time with the Father or communicate with him by any means.
Injunctions
5.Pursuant to section 68B of the Family Law Act 1975 (Cth), the Father be and is hereby restrained from:
a.Attempting to contact or contact [X], the Mother or any members of the Mother's family by any means whatsoever, including through a third party;
b.Harassing, stalking or intimidating [X], the Mother or any members of the Mother's family (including via the internet or social media);
c.Posting or delegating anyone to post anything on social media or the internet information (including images) that refer to either the Mother or [X];
d.Approaching, entering or coming within 100 metres of any place where [X] might reside from time to time;
e.Approaching, entering or coming within 100 metres of any place of employment where the Mother may work from time to time;
f.Approaching, entering or coming within 100 metres of any school which [X] might attend or at which [X] is enrolled.
6.Pursuant to section 68C of the Family Law Act 1975 (Cth), if a Police Officer believes on reasonable grounds that the Father, against whom the injunction is directed in Order 5, has breached the injunction by causing or threatening to cause bodily harm to the children, or harassing, molesting or stalking the children, may arrest the Father without a warrant.
7.Both parents are to refrain from making any critical or derogatory remarks about each other or members of each other's family in the presence or within the hearing of [X] or being placed on any social media site that [X] may become aware; and that both parents are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of [X].
Transition of [X] to the Mother
8.By 4pm on the date these Orders are made, the Father shall do all things to deliver or cause to be delivered [X] to Child Dispute Services on Level 2 of the Lionel Bowen Building, 97-99 Goulburn Street, Sydney NSW 2000. (the Court)
9.The Father or the person delivering [X] to Child Dispute Service in accordance with Order 8 above must leave the Court immediately unless participating in handover as requested by the Independent Children’s Lawyer or Child Dispute Services.
10.A recovery order be prepared in respect of [X] born in 2006 and lie in chambers until 4pm on the date of these Orders, unless [X] is delivered to Child Dispute Services in accordance with Order 8 above.
Therapeutic Intervention
11.Within one month of the date of these Orders the Mother shall attend upon and engage with professional supports to assist her and give her strategies for becoming appropriately protective of [X] and to respond to any behavioural and emotional problems he may present with as recommended by Dr [B] in the Expert Report dated 25 October 2018.
12.Leave is granted to the Mother to provide a copy of the following documents to the professional supports referred to at Order 8 above:
a.these Orders;
b.the written reasons for judgment in respect of these Orders; and
c.Dr [B’s] report dated 25 October 2018.
Provision of Orders to Third Parties
13.Leave is granted to the Mother to provide a copy of these Orders to any school and any allied health or medical practitioner attended upon by [X].

Written Evidence

The mother relied on:
·Initiating Application filed 22 September 2017; and
·Affidavit of the mother filed 22 September 2017[3]; and
·Paragraphs 150 & 151 of the affidavit of the mother filed 11 April 2019.
[3] The mother filed an affidavit on 11 April 2019, more than a month after the deadline for affidavits and the father did not have sufficient notice of its contents. The mother was asked to make an election about the affidavit and chose to rely on an earlier affidavit.
The father relied on:
·Response filed 27 October 2017;
·Affidavit of the father filed 19 October 2018;

Expert Evidence

The evidence of the single expert, Dr B was contained in her report dated 25 October 2018.

The Hearing

The trial was fixed for four days commencing on 15 April 2019. The mother and the ICL were represented by counsel but the father appeared without legal representation. Neither of the parents speaks much English and they were each assisted by a Language Q interpreter.
Arrangements were made for the mother to be in a different room during her cross-examination by the self-represented father. It is worth noting that had the trial been conducted after the September 2019 commencement of the relevant provisions of the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2019 not only would there have been no direct cross-examination between the parents but to the likely benefit of the Court and perhaps, the father, he would probably have been legally represented.
After the completion of oral submissions on 18 April 2019, judgment was reserved. I indicated to the parties that whatever the result I would likely require that the child be brought to the Registry on the date of delivery of judgment in order that an explanation could be provided to him by the Manager of Child Dispute Services or her delegate, about the final orders.

Short History

The mother was born in 1972. As at the date of the hearing she was 46 years of age. The father was born in 1956. As at the date of the hearing he was 62 years of age. The parents met in Country Z in 2004, were married in 2006 and commenced living together in 2007. They separated on a final basis on 20 May 2016. I understand that both of the parents are Australian citizens.
The father has an older child from another relationship. X is the only child of the parties’ marriage.

Credibility

There are issues that fall to be determined largely on the basis of the oral evidence of witnesses, without the benefit of clarifying independent or objective evidence. Therefore it is necessary to say something about the credit of the witnesses. However, the mother and father gave evidence through interpreters and the unrepresented father also conducted his cross-examination of the mother through the interpreters. Ms E gave evidence in the father’s case. She too gave evidence through a Language Q interpreter. Ms E did not purport to be an independent witness.
No conclusions about the credit of the parties were available as a result of cross-examination.
In making those comments, I make no criticism of the interpreters who were retained to assist the lay witnesses. There is a substantial imprecision in the translation from one language to another. This particularly applies to technical and colloquial expressions. One example of the problems arose in relation to the question of whether the father had referred to the mother as a prostitute. The interpreter explained that the word “chicken” can be used to refer to a prostitute. The father agreed that he used the word “chicken” but did not agree that he intended thereby to mean “prostitute”.
Dr D was the single expert clinical psychologist. The father made criticisms of her professionalism and the conclusions she reached. In my view the father’s criticisms were unfair and unwarranted. In any event Dr D’s credit was not challenged.

Background Facts

The father was living in Australia and the mother in Country Z when the parents met in Country Z in 2004.
In July/August 2004 the mother visited the father in Australia.
X was born in Country Z in 2006.
The mother and X immigrated to Australia in May 2007 and the parents commenced living together.
In November 2007 the mother commenced a business from the family home.
In March/April 2008 the mother fell pregnant and returned to Country Z to have an abortion.
X lived with the maternal grandparents in Country Z from May to November 2008.
In June 2013 the mother ceased her business.
The parties separated on 20 May 2016.
The mother and child returned to the family home on 26 May 2016. I understand that the police were called.
The mother returned to the family home on 1 June 2016 to collect a Medicare card. On that date the father assaulted the mother, including hitting her with a vacuum bottle. It was the father’s evidence that the child was not at home during that assault. The father was subsequently convicted after pleading guilty to a charge of assault occasioning actual bodily harm.
On 15 June 2016 a final ADVO was granted against the father and for the protection of the mother.
The mother became homeless on 29 September 2016.
In respect of the assault conviction, on 16 November 2016 the father was sentenced to an intensive corrections order[4] for 12 months.
[4] I do not think that it is controversial to say that in NSW such an order requires a person to perform 32 hours of community service for each month of the sentence, to comply with certain conditions and to be strictly supervised by Community Corrections
On 23 November 2016 the mother attended at F School and was told that X did not want to see her.
X moved to G School after winning a place in an Opportunity Class at that school. The mother saw the child at G School on 5 June 2017. That was the first time she had seen him in nearly 12 months.
The mother attended a birthday party for X on 14 July 2017. I gather that she attended uninvited. The mother says that during the dinner the father swore at her and called her a prostitute. The father alleges that the mother pinched X’s thigh. The mother denies that allegation. The police were called.
X wrote to the police on 17 July 2017 and to his school principal on 18 July 2017.
The mother commenced these proceedings in the Federal Circuit Court by filing an Initiating Application on 22 September 2017.
On 1 November 2017 orders were made providing for X to live with the father until further order and to spend time with the mother each Wednesday afternoon and on alternate weekends from after school Friday until 1.00 pm on Sunday. An ICL was appointed and a counselling conference was ordered.
On 7 March 2018 an order was made for non-reportable family therapy with Ms C at W Organisation. The family therapy did not occur. When asked about that in cross-examination the father said that he could not recall such an order being made.
On 17 August 2018 the proceedings were transferred by the Federal Circuit Court to this Court.
Through the selective schools test, X won a place at a selective high school. In late 2018 and without consulting the mother the father enrolled X at DD School for 2019.
On 26 November 2018 the following orders were made:
1.The proceedings be fixed for hearing over four days commencing 15 April 2019.
2.The parties file and serve the affidavits of lay witnesses by the close of business on 15 February 2019, or such later date as the parties agree on in writing, that is to be one affidavit only from each deponent.
3.The Court notes that the father has attached witness statements to an affidavit in these proceedings and that he has been advised that the only evidence admissible on behalf of any witness as evidence in chief is to be on affidavit.
4.The parties provide to the chambers of Justice Loughnan and to each other by the close of business on 5 April 2019 a case outline document setting out the terms of the parenting orders sought by each of them if they are different to those sought in the most recently filed Application or Response, setting out a list of the affidavits relied on by each party and setting out a summary of the arguments to be made under Part VII of the Family Law Act 1975 (Cth) and in particular under s 60CC of that Act.
5.In the event that any party becomes aware of any matter that would prevent the hearing commencing on 15 April 2019 or continuing to conclusion on 18 April 2019 that party is to forthwith restore the proceedings to the list on giving 48 hours’ notice to the associate to Justice Loughnan and to each other party.
6.Within 14 days the solicitor for the mother serve on the father at his email address … a further copy of all of the documents filed in these proceedings on behalf of the mother.
7.The Court notes that reference was made to concern about an ethical conflict that might apply in relation to the mother’s legal representation but was given no indication of the father having any such concern.
8.All subpoenas in the parenting case are issued by the Independent Children’s Lawyer.
X commenced at DD School at the start of the 2019 school year. He is the captain of his Year 7 class.

The Expert Evidence

The single expert clinical psychologist was Dr B. Her qualifications include the following degrees:
Bachelor of Arts, J University
Bachelor of Psychology (Hons), J University
Masters Degree in Clinical Psychology, H University
PhD in Psychology, H University

Dr D is a member of the Colleges of Clinical and Forensic Psychologists of the Australian Psychological Society. She is an Authorised Clinician for the NSW Childrens Court Clinic and a member of the Australian and New Zealand Association for Psychology, Psychiatry and the Law.
Dr D has been employed within the public criminal justice system since 1996, in both treatment and research positions with adult and juvenile offenders both in custody and in the community. She has also worked in private psychological practice.
Dr D prepared a report in these proceedings dated 25 October 2018, reflecting the reading identified in the report and observations and opinions based on interviews with the mother and with X on 24 September 2018.
Dr D did not conduct an interview with the father, nor did she conduct an observation of X with either of his parents. As to an observation of X with the mother, Dr D reported:
It is noted that [X] refused to spend time with his mother as part of the assessment process. He maintained this view despite being asked on several occasions and therefore, I did not press the issue further. I also told [X] that Ms [Zuen] had brought some gifts for him and that she would like him to have these things. [X] refused to accept anything from his mother and asked me to tell Ms [Zuen] to throw her presents in the garbage bin.
…
The interviews were initially planned for 24 September 2018. The father attended at Dr D’s rooms with X at the appointed time but did not bring an interpreter. Dr D interviewed X but did not interview the father. Dr D reported[5]:
I declined to proceed with the interview on this occasion or to conduct an observation (of [X] with the father) without a professional interpreter. When Mr [Lhao] left my office on this occasion, we provided him with the names and contact details of several interpreter services and we encouraged him to contact these people, as he claimed that he did not know how to organise an interpreter.
[5] Paragraph 60 of Dr D’s report
On 25 September 2018 Dr D sent an email to the father in the following terms[6]:
Family Court assessment – [Lhao] and [Zuen]
Dear Mr [Lhao]
Are you able to attend at my office on Oct 11 to continue the assessment with me? I would ask you to attend the office at 10am to do some testing and then I will do the interview with you about 1pm. You will need to book the interpreter from 10am until 5pm for this.
Can you confirm this please?
[6] Exhibit 3
The father replied on 27 September 2018 as follows:
Thanks [Dr B],
Thank you for quickly deciding on the appointment date. I will arrive on time on the day of the booking. This is very important to me and my son.
Thanks for your attention!
Dr D responded later on 27 September 2018 as follows:
Family Court assessment – [Lhao] and [Zuen]
Thank you and can you confirm that you have booked the interpreter pls?
Thank you
On or before 10 October 2018 Dr D sent an email to the father in the following terms:
Good morning Mr [Lhao]. You have not gotten back to me yet, can you confirm you have an interpreter booked for Thursday please and that you will be here at 9.30. Also some weeks ago, we sent out a questionnaire to be completed prior to the assessment, can I have this too please?
Regards
The father replied on 10 October 2018 as follows:
Thanks [Dr B],
Listen to your arrangements unconditionally. Thank you for your fairness and justice.
Regards
The father arrived at Dr D’s rooms on 11 October 2018 and Dr D reports[7]:
Mr [Lhao] again attended on time on 11 October 2018 but when I questioned the alleged interpreter as to her employer and status as a professional interpreter, she told me that she was a friend of Mr [Lhao’s] and was not a professional interpreter. I asked Mr [Lhao] about this and he told me that he had called the agencies we had given him details of and these services had quoted him fees that he considered exorbitant and Mr [Lhao] claimed that he could not afford. For this reason he did not think that it would be problematic to ask a friend for a recommendation of someone who could translate for him. I again declined to proceed with the assessment without a professional interpreter. I also note that Mr [Lhao] did not attend on this occasion with the pre-interview questionnaire.”
[7] Paragraph 61 of Dr D’s report
Dr D reports that she was not able to talk to the mother’s psychologist Ms K nor to her legal aid social worker, Ms L. Dr D was not able to report on the father in any detail nor on her observations of any interaction between X and either of his parents. Without any criticism of Dr D, those things reduced the utility of her report and left the Court without important social science assessments. Indeed, Dr D acknowledged the concern arising from her inability to interview the father at paragraph 126 of her report.

The Legislation

The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the current arrangements
b.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
c.where possible and relevant, consider and make findings about matters set out in s 60CC;
d.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
e.apply s 65DAA if relevant and assess the proposals in light of that provision;
f.if s 65DAA is not relevant, assess the proposals against the best interests criterion;
g.consider and make findings about living arrangements; and
h.make orders.

The Current Arrangements

X lives with the father and does not spend time or communicate with his mother.

The Parties’ Proposals

Each of the parents seeks that X live with that parent. The mother seeks that the child spend no time with the father. The father seeks that the mother spend time with X, provided X agrees and the time is supervised. The mother seeks sole parental responsibility and the father that he alone made decisions about overseas travel for X and that other decisions be made jointly.
Given what we know of X’s attitudes, the practical effect of the parents’ proposals is that X should live with one parent and that at least for the medium term, that he have nothing to do with the other parent.

Section 60CC Considerations

Section 60CC specifies the following considerations:

Primary considerations:

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[8] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[8]McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[9]
[9]Champness & Hanson (2009) FLC 93-407.
In my view the relationships between X and each of his parents are valuable and important. That said, his relationship with his father has exposed him to family violence and his relationship with his mother has been fractured and fallen into abeyance.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

‘Abuse’ and ‘family violence’ are defined terms.
"abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Section 60CC (2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The father assaulted the mother on 1 June 2016, causing her actual bodily harm. X lived with the mother in a refuge after the assault. It is highly likely that X was exposed to that assault, if only in the senses referred to in s 4AB (4)(c) and (e).
Otherwise, each of the parents says that the child has been exposed to family violence at the hands of the other parent. The three lay witnesses gave evidence of observing violence and abuse inflicted by one of the parents on X or another child and yet there was little or no evidence of any steps they took to intervene at or immediately after they observed that violence. I am left with the impression that at least some of those allegations have been exaggerated.
Dr D records that the father and X have both alleged that the mother was physically abusive to them and on a regular basis by head-butting the father and hitting X. X’s accounts to all professionals including the police appear to be consistent but in Dr D’s view they lacked depth and detail which she says is common in cases of alienation where children have been manipulated. Dr D reports that there is no evidence for those claims and she notes the reports of investigating police officers that have suggested that the claims of X and his father are fabricated and that X is being manipulated by the father to make allegations against the mother. Further, the written documents prepared by X and the father that outline the mother’s allegedly abusive behaviour contain extreme and dramatic descriptions of allegedly extreme violence and volatile behaviour on the mother’s part. Dr D reports that those allegations are not supported by any other documentation nor are they consistent with the mother’s reported history nor with her presentation at interview with Dr D.
There is no independent evidence that either of the parents assaulted X. The father and Ms E gave evidence of the mother’s cruelty to children who were in her care during the marriage. The mother gave evidence that the father assaulted X.
Given the conceded assault on 1 June 2016, Dr D opined:
Based on my extensive forensic experience, it would seem odd to me for someone to act in this manner on only one occasion. In an earlier entry in April 2014, police described the obvious scratch marks about Ms [Zuen], which she claimed were the result of domestic abuse perpetrated by Mr [Lhao].
There is no evidence that X has been abused, assaulted or neglected since June 2016. Dr D reached that same conclusion but noted that there are allegations that the father has been psychologically abusive to X. She concluded “Certainly, if he has manipulated X to reject his mother, he has perpetrated psychological abuse”.
X has come into contact with compellable notifiers at the schools he attended since June 2016 and there is no evidence that concerns have been raised. He apparently continues to achieve at a high level at school and appears physically well. The main area of concern is his estrangement from his mother. The contention is that the father has been preventing X from keeping his connection with his mother.
X wrote to the police in relation to what he said were his fears about his mother. The police asked X if there were any other adults apart from his father that he trusted. Apart from a reference to the police themselves X responded “no”. Dr D thought that to be a strange response for a child, reflecting an overly enmeshed relationship between father and son. Dr D notes that the police gained the impression that X was being coached into telling police certain things. They noted that the letter was typed on a computer, was written in a very formal tone and did not appear to be the words of an 11-year-old child. The last line of the letter reads “I wrote this all by myself ”. The police found it very unusual that an 11 year old would think to write that. During the police interviews X would go back to his father and stand close to him as if to wait for further instructions. The father would whisper things to X in Language Q while the police were having discussions. The police strongly believed that X was being manipulated by his father to get back at the mother.
Dr D noted that FACS recorded that in five years of the mother seeking assistance (presumably from the Department) the only violence known to be perpetrated was by the father towards the mother. X was never sighted with any injuries and was believed to have been living contentedly with his mother prior to his father taking him and withholding all contact from the mother. For that reason it was suspected within the Department that X may either feel threatened by his father in relation to contact with his mother or may have been influenced by his father to not want to see his mother.
The father denies setting out to alienate X from his mother. The mother contends that the father assaulted her throughout X’s life and that since June 2016 he continued to demean and denigrate her.
Dr D concludes:
133.By all accounts, Ms [Zuen] was a consistent and involved parent in [X’s] life until he was about 10 years of age and it also appears unquestioned that she was his primary care giver and attachment figure during the early years of his life, acknowledging that [X] did apparently spend some time with his maternal grandparents in [Country Z] as a young child. The relationship between mother and son was ostensibly severed about two years ago when according to Ms [Zuen], Mr [Lhao] withheld [X], although [X] is led to believe that Ms [Zuen] ostensibly abandoned him.
134.It is surprising that a child, who must have had some attachment to his mother, even if his mother was allegedly abusive at times, claims to have no positive memories of his mother, no positive feelings towards his mother, no sadness at her absence and no desire at all to have his mother, or his maternal family, to be part of his life on an ongoing basis. This does not conform to the way in which attachments between parents and children work, even insecure attachments formed with abusive parents. Further to this, [X’s] account of his mother and her behaviour is extreme, rigid and fixed and conforms to the reported allegations of his father. On the basis of the information available to me, I hold grave concerns for [X], as similarly to the police’s view, it would seem that [X] is being psychological manipulated by Mr [Lhao] and has been aligned with (sic) and alienated from the mother. Through this process, Ms [Zuen] has been actively excluded from [X’s] life and maligned, in addition to [X] being inappropriately involved in adult issues, including the family court process, such that he has now come to believe that his mother is responsible for the abusive behaviour in the home.
135.On the basis of the aforementioned, I make the assumption that [X] enjoyed a close and nurturing relationship with his mother during childhood but that this relationship is now been soured by the influence of his father, such that there is no tangible bond at present and has not been for some years. It is likely that [X] has felt a need to align with his father to this end in order to avoid the negative consequences of angering his father, which were probably demonstrated by [X] witnessing his father’s violent abuse of his mother throughout childhood. With respect to the bond between father and child, [X] describes being comfortable with his father and wanting to live with him but he also told me the pair barely engages with or interacts with one another in the home and have nothing to say to each other.
136.In sum, it is my opinion that Ms [Zuen] has been a committed and dedicated mother, who has prioritised her son’s needs but that she was rendered vulnerable by being exposed to reported domestic violence, being in a country without any external supports and without sufficient language skills and without a full understanding of her rights or the legal and child protection systems in this country. Mr [Lhao] has seemingly taken advantage of this and he continues to do so in all likelihood, including by possibly attempting to manipulate my assessment process in this case. It is for these reasons that I initiated contact with the Independent Children’s Lawyer in this case as I was concerned about the possible impact on [X] if the court process is delayed any further by Mr [Lhao’s] actions.

Dr D does not conclude that X was subjected to or exposed to abuse or violence initiated by the mother. Dr D does not conclude that X will be subjected to abuse or violence initiated by the father save that she considers that the father will cause psychological harm to him by continuing to denigrate the mother and to estrange X from her. The evidence tends to support those observations.

Additional considerations

(3) (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

X told Dr D that he wants to live with his father and have no contact with his mother. X told Dr D that his mother hit him and that she head butted his father. He said that his father never hit him or the mother – he just shouted.
X reported that his father tells him that the applicant is his mother and that he (X) should talk to her. X denied that the father ever said anything negative to him about the mother.
X recalled that the mother was the aggressor at the restaurant incident and that she pinched his leg. His school assisted in passing a present to him from his mother and he threw it in the bin. The mother pursued him on a train and stood next to him talking to him. X ignored her and ran away from her when the train reached his station. If the Court ordered that he spend time with his mother he would refuse to do so.
X was 12 years of age when interviewed by Dr D. She reported that he is clearly intelligent and despite his limited emotional maturity, is mature for his years. Dr D recommended that the weight that would normally be given to his views should be attenuated by what she concluded was the psychological abuse and alienation of the mother by the father.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

X’s relationship with his mother is fractured. He is estranged from her, has only poor memories of his time with her and strongly opposes coming into contact with her. Dr D opines that there is convincing evidence that mother and son were well bonded and close to each other, suggestive of a strong pre-existing attachment.
As well as the likely alienation of the mother in the father’s household, Dr D suggests that, there is something lacking in the relationship between X and his father. At paragraph 92 of her report Dr D says:
[X] seemed surprised that I would want to see him with his father and he asked me what I would be doing in the observational session. When I explained this to [X], he told me that he did not think he and Mr [Lhao] would talk during this session because they have nothing to say to one another.
She also reported that X claimed to her that “the pair talks to one another at times but it is only ever about something specific, like dinner”. Dr D also reported that X spends most of his time at home playing computer games or sleeping (para 93), while his father is usually watching television or sleeping (para 94). Therefore it indeed seems like they have few shared activities.
At paragraph 94 of the report it is recorded that X told Dr D that “he and his father can go for extended periods without talking to one another because they have little to discuss”. X added that he feels comfortable living with his father and sharing a bedroom with him.
Unfortunately, Dr D did not have a meaningful opportunity to observe the father and son.
During cross-examination the father was asked about helping the boy with his homework. He responded to the effect that he had been able to help X with mathematics in the past but that the nature of the current school work is beyond his (the father’s) capacity.
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and

(iii) to communicate with the child;

X has lived with the father and communicated with him since June 2016. The father has made all decisions about his welfare.
The mother has not had any significant time or communication with X from 23 June 2016 to date. On her own case, the mother was not able to take the opportunities to spend time with or communicate with X during that period through a combination of psychological and practical difficulties.

(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

The father has provided X’s sole support since June 2016. The father works as a bus driver and tour guide. I take it that the father’s work demands fluctuate. He made reference during the cross-examination to doing paper work when there are no tour groups. The father lives with X in an apartment that he owns in the city of Sydney. It is likely to be encumbered. The father resisted retaining an interpreter for the Dr D appointment, apparently on the basis of cost. The father seeks sole parental responsibility for decisions about overseas travel for X. That suggests that the father will be able to fund that travel. Otherwise there is no evidence before me about his financial circumstances.
There is no indication that the mother has contributed to X’s support since 2016. There is no evidence that a child support assessment has been made. The circumstances of the assault conviction may impact the child support situation, even if an assessment was sought. The mother is a student. She receives the Austudy allowance and rental assistance.
(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

This is a key criterion in the context of this case. Dr D expressed a potentially pessimistic outlook for X whatever is done in the future. Dr D reported that if the mother’s accounts are to be believed then the father is a seriously violent and abusive man who has engaged in a range of abusive, controlling and manipulative behaviours. In addition the father is responsible for psychological abuse, manipulation and alienation of X which has resulted in X believing that his mother is a perpetrator of abuse. Within that context the relationship between X and the mother has been severed and X expresses no desire to see his mother or to have any ongoing contact with her. Dr D says that if the mother’s account is prioritised X is in the primary care of an abusive man who is unable to parent from a child focused perspective and rather uses his son as a means of continuing to abuse his estranged wife. That leaves X without the tempering influence of his mother nor a safe haven for him to go to if exposed to his father’s abusive behaviour. Further to that X’s recent experiences of being alienated from his mother will no doubt have serious consequences for his future psychological and relationship functioning. During her oral evidence Dr D was asked about the potential long terms effects on X of living with the father and she gave evidence to the effect that: X will lose connection with his mother and her family; it is problematic that he is under the impression that his mother psychologically harmed him; and X has been put in circumstances where he has been asked to talk about his mother and father. Dr D said that she feared that he will grow into an adult that struggles with his emotions and coping with life events. Dr D agreed that those matters could compromise his adult relationships and there is a risk of him being angry with his father as he comes to understand things.
On the other hand Dr D reported that if the father’s account is to be believed the mother is an aggressive and volatile person who is capable of physical violence towards her son as well as her estranged husband. As such the mother is a person who cannot prioritise her son’s needs and is an unsafe parent who is abusive and responsible for causing serious trauma to her son. According to the documents provided to Dr D and X’s interview the mother’s reported abusive behaviour has already resulted in psychological harm for X and will presumably continue to do so if the mother continued to treat X in the same way. Further to that X reported that he had no relationship with his mother at present, does not want one in the future and would refuse to comply with any Court ordered direction to see the mother. Therefore if X were forced to live with or see the mother it would be reasonable to suggest that this, in and of itself, will cause him ongoing psychological harm and distress. This would probably result in a disruption in his schooling and X protesting by running away or engaging in such other destructive and possibly aggressive behaviour.
However, for reasons outlined in the report Dr D does not place much weight in the accounts of either the father or X. She suggests that in all likelihood, the mother is a long term victim of serious domestic violence perpetrated by the father, who, despite the claims of his treating psychologist is yet to take responsibility for this or the impact of this on the various members of his family.
In relation to this criterion Dr D opined that it will likely be very difficult for X to be separated from his father now. He will probably find this highly distressing and destabilising, especially if this places him in the exclusive care of Ms Zuen. On the other hand, X denies being distressed in any way by the ongoing separation from his mother.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

The mother’s proposal requires that she have suitable accommodation and she does not have that accommodation.
The mother lives in assisted accommodation that she apparently believes would not be suitable if X is to live with her. She told Dr D in September 2018 that she intended to seek independent accommodation but at that time she had found it hard to achieve that for both financial and personal reasons, the latter being associated with juggling the stress of both study and these proceedings. O Organisation has notified[10] the mother that she is allowed under the Rent Choice Start Safety agreement to rent a property with a maximum weekly rent of $450 per week. Her Austudy payment is $437 per fortnight plus rental assistance. The mother deposed that she will endeavour to find a two bedroom property for her and X within her means. She would like to rent an apartment in proximity to DD School as she does not drive.
[10] Paragraph 150 and annexure G to the mother’s affidavit filed 11 April 2019
The father proposes that the mother’s time with X be supervised. Despite the issue he had with the expense of engaging a professional interpreter, I assume that the father intends to contribute to the cost of that supervision. That would be necessary as there is no likelihood that the mother could afford to contribute to that cost.
Both parents propose that X will continue at DD School.
(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

Dr D observed the mother to be both oriented and alert and that her affect was appropriate in range and in expression. Her mood was flat and melancholic and she became quite tearful and obviously upset at times during the interview when discussing her separation from X and the abuse she experienced during the marriage. Dr D observed no evidence her having a formal thought disorder.
The mother told Dr D that after completing her secondary education she studied law and early childhood education in Country Z. She continued the latter studies in Australia and when she saw Dr D she said that she was studying towards a Diploma. When cross-examined the mother was not clear about the nature of her current studies. The mother told Dr D that she had operated child care businesses in Country Z and during the marriage, in Australia. Since X started school the mother has been a full time parent, living on Centrelink benefits and some other financial assistance.
The parents were not able to insulate X from the conflict between them.
On her own case, the mother’s parenting capacity has been completely destabilised because of her treatment by the father. The mother does not speak, read or write English well. Her own family live in Country Z and she has no family support in Australia. She told Dr D that she has difficulty sleeping and that has continued since X was young. She feels fatigued much of the time although is usually able to cope. Her sleep is further disturbed by nightmares but Dr D considered that they were not clearly trauma related. She provided what Dr D characterised as a vague account of post trauma flashbacks. In addition to anxiety the mother reported bouts of low mood since the June 2016 assault. The mother reported that she had isolated herself and had a reduced sense of pleasure. She told Dr D that she tries to maintain a positive attitude and she is motivated to display that openly to members of her community in an attempt to stave off the shame she feels about being a victim of domestic abuse. The mother has not attempted to kill herself but she acknowledged to Dr D having passive and fleeting thoughts of suicide both during her marriage and more recently in the context of the father’s continued harassment of her by social media.
The mother told Dr D that the most serious assault on her by the father involved her being hit with a thermos bottle. I take it that was the assault on 1 June 2016. She was tearful when describing that assault to Dr D and said that since that time she had suffered with regular headaches, some forgetfulness and occasional dizziness if she stands up quickly.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

The mother says that she had previously taken the child to volunteer activities at a local religious centre. She and X had attended a festival each year at Location M. Otherwise there is no evidence about cultural or religious observances.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

This does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

This has been dealt with under other headings. I note that Dr D reported that the mother demonstrated a sound understanding of the role and responsibilities of parenthood, “which is not surprising given her training in child care”. However, Dr D also suggested that the mother only had a superficial understanding of child protection, which limited her actions in protecting X from the alleged abuse from the father.

(3)(j) any family violence involving the child or a member of the child’s family;

The mother told Dr D that the father’s physical abuse of her began within days of her arrival in Australia with X. The mother said that the father punched, kicked and pushed her as well as pulling her hair and attempting to choke her. She said that the father often threw her possessions around. He hit her with a metal thermos and with other household objects. That type of abuse occurred about weekly and usually in X’s presence, but not in public. He threatened to kill the mother. The mother told Dr D that it was those threats that prevented her from going to the police for help. The mother told Dr D that on one occasion the father held a knife and told X that he would kill the mother and then himself, so that X would be orphaned.
The mother alleges that the father acted in a financially controlling manner towards her. She alleged that he refused to allow her access to bank accounts, demanded cash from her and fraudulently borrowed money in her name.
The mother says that on 20 May 2016 the father saw the mother on the telephone and became angry. He smashed the telephone and then pulled her hair and started to choke her with both hands around her neck. His fingernails dug into her neck, causing her to cry out in pain. The father pulled her arm, twisting it around her back and forcing her to the floor. He knelt on her lower back. The mother says that he said words to the effect of: “Get out of my house. Fuck off and go back to where you came from. Leave X with me.”
The mother says that the father then picked up a hammer and that she was terrified and screamed and yelled to the neighbours to call the police. The father put the hammer down and the mother rang Mr N of the R Organisation. Mr N told her to call the police, to leave the home and to see a doctor about her injuries. The mother went to her GP, who took photographs and made notes of her injuries, ordered an ultrasound and made a follow-up appointment. The GP assisted the mother to call the domestic violence line and made a referral for emergency housing. The progress notes from the mother’s consultation with her GP disclose that she sustained scratches and circumferential bruising to her neck. There were fingernail marks/scratches to her right forearm, and an abrasion to the right corner of her mouth and to her left forearm. She presented with pain in her right arm from having her arm twisted behind her back and back pain from being forced to the ground with the perpetrator’s full body weight. She also had knee and lower leg pain. That night the mother stayed at a hotel with X. The mother contacted a domestic violence help line and arrangements were made for the mother and X to move to a refuge.
The mother says that between 20 May and 1 June 2016 she and the father had many telephone conversations about parenting arrangements for X. She said that the father told her that X could stay with her but that he wanted to see the boy for dinner and help him with his homework.
The mother says that on 26 May 2016 she went back to the family home with X to pick up a letter about an Opportunity Class exam and items for his studies. The father let them into the apartment. The mother propped the front door open and went to find X’s letter. The father grabbed the mother by the hair, causing her to fall over. Watched by X, the father then dragged her by the hair towards the bathroom. The father wrapped a towel around the mother’s face and mouth. She tried to call the police on her telephone. The father held the towel with one hand while grabbing for the phone. It is the mother’s evidence that X witnessed the struggle and appeared to be afraid and had a terrified look on his face. The mother says that the father was screaming at her about where she had been staying and whether she had been with another man. The father released the tension on the towel and there was a conversation in Language Q to the effect:
Father:“Where have you been staying? Have you been with another man?”
Father:(shouting) “Where have you been staying?”
Mother:I have been staying at a refuge. I haven’t been with another man. What do you want?
Father:Show me your phone. I have a check. If there is no problem, it will be my fault. From now on I will not interrupt you no matter whatever you do!”

The mother says that the father checked her telephone records and call logs. She also showed him pictures of X and her at the refuge. After the father found nothing suspicious, the mother says that he broke down in tears. There followed a conversation in Language Q to the following effect:
Father:Please come back. I’m sorry. Please return home with X.
Mother:I will have to think about it. We need to go back to the refuge for now as all of our things are there.
The mother says that on the morning of 1 June 2016 she had a conversation with the father in Language Q and arranged to attend at the apartment to collect a Medicare card, being assured that he would not be at the home. However, the father was at home and he grabbed the mother by the hair and started dragging her towards the apartment. The mother ran towards the lift and the father chased her with a large metal thermos bottle. The father started striking the mother on the head with the bottle. He forced her hands away from her face and head and smashed the thermos repeatedly over her face and head. The bottle became deformed, the lid fell off and water spilled over the mother and the floor. The father again grabbed the mother’s hair and twisted it around his wrists before pulling her out of the lift. The building manager and security staff arrived in another lift and the police were called. Police told the mother that the father had been arrested. The mother gave a statement and an ADVO was sought. On 15 June 2016 a final ADVO issued against the father for the protection of the mother for a period of two years. The mother did not give evidence in assault proceedings and she was not informed about the result of those charges.
The father’s only concession about violence inflicted by him on the mother related to the events of 1 June 2016. The father agrees that he was convicted of assault occasioning actual bodily harm after making a plea of guilty in respect of a charge arising out of the events of 1 June 2016.
It is the mother’s evidence that she was terrified of the father during the incident on 1 June 2016, was extremely traumatised and continues to experience headaches and anxiety as a result of that assault.
X stayed with the mother at the refuge between 1 June and 23 June 2016 and spent little time with the father. Despite the ADVO the father contacted the mother by telephone and when the mother finally complained the police told her that they would do nothing about it because she had also been contacting the father.
The mother permitted the child to spend time with the father on 23 June 2016 and the child was not returned to her. The mother says that the father refused to return the child to R Organisation premises. The father contends that the mother failed to collect the child from him on that night at a library. Sometimes she received messages from the father that X wanted to speak to her. At other times she was told that X hated her and wanted nothing to do with her.
The mother deposed that from June 2017 to date the mother says that she has consulted and obtained assistance from:
Link2Home
Domestic Violence Hotline
A Women’s and Children’s Refuge Organisation
The R Organisation
Women’s Domestic Violence Court Advocacy Service
Legal Aid NSW (family litigation and domestic violence unit)
Y Organisation
Dr P (general medical practitioner)
Ms V, counselling and psychotherapist
An Emergency Centre
Housing NSW
O Organisation
Ms K, Clinical Psychologist
It is the mother’s evidence that she was unable to effectively access those services and was moved from refuge to refuge. It was only when she was referred to a social worker at the Legal Aid Domestic Violence Unit that she was able to obtain emotional, housing and legal assistance.
(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

I have referred to the ADVO made.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

The orders sought by the mother are highly likely to lead to further proceedings in relation to the child.

(3)(m) any other fact or circumstance that the court thinks is relevant.

There is no satisfactory way forward. A just outcome would have X restored to a relationship with the mother. However, I am concerned that such an outcome may not be practicable and therefore, would not be in the best interests of X.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.

Discussion

In the context of this case, the s 61DA presumption about equal shared parental responsibility does not apply as there was family violence.
Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child - determined by reference to s 60CC of the Act.
It is logical that the parent with whom the child lives should have parental responsibility. The parties do not have a functional relationship and their communication is poor.
The father’s proposals for parental responsibility are unworkable. I will order that the parent with whom X lives shall have sole parental responsibility. In the father’s case, if he wishes to share some decisions with the mother, he can seek to do so. However, there is no basis for believing that the relationship between the parents will accommodate joint parental responsibility.

Conclusion

The presumption that the parents having equal shared parental responsibility would be in X’s best interests, does not apply. The proper order is one that places parental responsibility with the father.

Living Arrangements

In that the Court will not make an order that the parties have equal shared parental responsibility, it is not necessary to consider any particular pattern of living arrangement.
Dr D described three possible options in her report:
139.Firstly, the Court may decide that on the basis of the apparent psychological abuse and alienation of [X] by his father, that a change of residence is necessary to separate [X] from his father and force a relationship between mother and son in order to protect [X] from abuse and to inoculate him against future distress and dysfunction. I note that Ms [Zuen] would need to source stable accommodation for this to be possible. This is certainly the course of action that I would recommend if [X] were younger, such that I would support a change of residence for [X] to live with the mother and be cared for by Ms [Zuen] to the exclusion of Mr [Lhao]. However, [X] is 12 years of age and his development is well progressed. His position in relation to his mother is fixed and he told me that he would refuse to abide by any court directions that would see him separated from his father for any length of time and forced to see his mother. For a child of [X’s] age, this is a very real possibility, such that he could run away or become physically aggressive to prevent spending time with his mother. This may expose Ms [Zuen] to risk as well. Further to this, given what I know of this case, I cannot ignore the prospect that Mr [Lhao] may retaliate physically against Ms [Zuen] and possibly [X] if [X] is removed from his care. He has allegedly threatened to harm Ms [Zuen] before. For this reason, I have serious concerns about the safety of Ms [Zuen] and of [X] if a court order was made for [X] to live with his mother to the exclusion of his father. In fact, it may place [X] at more risk if he absconds from Ms [Zuen’s] care.
140.I have considered whether Ms [Zuen] should be allowed to return to [Country Z] with [X], as her family are there. This would make it more difficult for Mr [Lhao] to interfere and [X] to abscond but it does not guarantee Ms [Zuen’s] safety or that of the child.
141.Secondly, the court may consider allowing [X] to remain in the care of his father, as the option with least risk as [X’s] basic care needs are being provided for, he is stable in accommodation, and he is doing well at school. Making this decision will almost certainly result in the severing of the relationship between mother and son irrevocably. This would be traumatising for Ms [Zuen] and she would probably return to [Country Z] in this case, as there is nothing binding her to Australia. [X] would probably not experience any distress at this eventuality, at least in the short term, but it does leave him in a situation with a primary caregiver who has an apparent history of serious violence and abuse, as well as a history of using his son to meet his own needs. The risk of physical threat to [X], and likely also Ms [Zuen], would probably be minimised by this outcome.
142.Thirdly, the court may consider a shared parenting/care arrangement whereby [X] shares his time between his parents, with both of these people sharing responsibility for his care. I cannot see how this situation will work. Mr [Lhao] seems unwilling to work with Ms [Zuen], at least based on the information available to me and further to this, according to Ms [Zuen], Mr [Lhao] continues to abuse her even though they are no longer in a relationship. Moreover, Ms [Zuen] is afraid of Mr [Lhao] and she experiences a decline in functioning associated with anxiety associated with any reminder of Mr [Lhao]. [X], also, refuses to engage with his mother, which would make this situation difficult.
143.Whatever decision the court makes in this case, there are serious risks and concerns, such that there is no ideal situation and possibly even the best outcome for [X] is one that forces him to remain with his abusive father and lose his mother. If the court makes this decision, it is suggested that therapy for [X] at this time will have little effect, as he will remain manipulated by his father and creating insight for this child into what has happened to him is likely to cause more distress and destabilisation than not. If the court makes the decision that [X] should live with his mother, I would advise strongly that issues of physical risks and safety be considered and that X and his mother will both need high levels of psychological support and safety planning. The [W Organisation] is well-placed to work with high conflict situations like this in which there is also abuse and alienation. Further to this, in this case, a plan will need to be developed for the responses that are required should [X] abscond or become physically abusive to his mother.
By that evidence, if anything, Dr D appeared to favour leaving X with his father. However, during her oral evidence Dr D recommended a change of residence to the mother. She was asked, in that event, whether there should be a period of X having no time with the father and she recommended that in the event of a move to the mother’s care, in light of X’s age, that a period of no contact would help him to reconnect with the mother and to recover from the father’s influence. She said that there should be no time or contact between the father and the child for at least 12 months. Dr D said that after that period, the contact would “start small” perhaps with a meeting in a public place every second weekend and progress from there. However, Dr D said that she did not think that a shared care arrangement would work for this family. Dr D later agreed with a suggestion that perhaps X should have no time with his father until he turned 18 years.
The explanation for Dr D favouring a change of residence appeared in an answer to a question from the ICL’s counsel and was to the effect that moving X to live with his mother would cause him short term psychological harm but would assist to avoid him suffering long term psychological harm.
Dr D expressed confidence in the mother’s parenting skills but noted a concern about her financial support. Despite the problems since June 2016, Dr D considers that the mother now better understands the professional supports available to help her to stand up against the influence of the father.
In my view, despite the recommendations of the ICL and Dr D there are serious concerns with the mother’s proposal. Importantly, the mother does not even have a workable proposal in place. She has the promise of rental support that might provide accommodation suitable for her to live with X. I do not know if the mother’s proposal is practical. Even if that condition precedent was addressed, as things stand, X is implacably opposed to communication or contact with the mother, let alone to living with her. Let alone to having no contact or communication with the father into the medium term or indefinitely. X is mature and is apparently achieving well and without coming to recent attention of the authorities through any compellable notifier. He is able to travel under his own steam between home and school, for example. X acted to escape from the mother on the occasion that they shared a railway carriage in 2018. It could be dangerous for X if he took matters into his own hands to act inconsistently with orders of the type proposed by the mother, the ICL or recommended by Dr D.
Although I am not implementing the recommendations of Dr D, I am reinforced by the concerns she identified about the mother’s proposals in her written report.
The outcome I propose is likely to be very unfair on the mother. She finds herself without adequate support in Australia and estranged from her only child, despite the fact that she was probably his primary attachment figure. Some if not all of the circumstances she finds herself are likely to have been influenced if not created by the father’s physical abuse of her. Of course my obligation is to X and to make arrangements for him that are workable and which meet the statutory requirements, including taking account of his strongly expressed views. The outcome I have identified may also be unfair to X but in my view it is ultimately in his best interests.

Conclusion

The orders made will provide for the father to have sole parental responsibility and for X to live with him and will make no provision for time or communication with the mother save as is agreed between the parents or initiated by X.
Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.

I certify that the preceding one hundred and forty nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 5 June 2019.

Associate:

Date: 5 June 2019

[2019] FamCA 314

5 June 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies