AU-YONG & WUL

[2014] FamCA 486

FAMILY COURT OF AUSTRALIA

AU-YONG & WUL [2014] FamCA 486

FAMILY LAW – CHILDREN – International travel – Wife wanted to go to Taiwan for confinement period during pregnancy and birth – Husband argued wife is flight risk – Application of wife granted with conditions – Wife’s pregnancy details sought and refused.

FAMILY LAW – SPOUSAL MAINTENANCE – Spousal maintenance order – Change of circumstances – Order discharged.

Family Law Act 1975 (Cth)

Gin & Hing [2010] FamCA 617
Goode and Goode [2006] FamCA 1346
Line & Line (1997) FLC 92-729

APPLICANT: Mr Au-Yong

RESPONDENT: Ms Wul

FILE NUMBER: MLC 4588 of 2012

DATE DELIVERED: 8 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nikou SC

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Pearsons Lawyers Pty Ltd

Orders

1. That the wife MS WUL is permitted to remove the child J (“the child”) a male child born … 2011 from the Commonwealth of Australia for the purposes of travelling to Taiwan forthwith after the date of these orders and is required to return to Australia with the child by no later than 15 November 2014 on the terms and conditions set out in paragraph 2 hereof.

2. The wife’s departure from Australia with the child is subject to the following:

   (a)Forthwith, the wife providing to the husband through his lawyers, copies of her travel itinerary including the addresses where she will be staying in Taiwan;

   (b)The wife paying a bank cheque for $20,000 in the name of the husband as payee into the trust account of the solicitors for the husband to be held on trust by the solicitors as security for the wife’s return under paragraph 1 of these orders;

   (c)The wife signing a document acknowledging that:

   (i)the premises in Taiwan where the wife will reside has the necessary computer connections and electronic capacity to provide Skype Communication to Australia; and

   (ii)she will provide (either personally or whilst she is invalided, the person caring for the child) Skype communication between the child J and the husband from Taiwan during each second day after her arrival in Taiwan at set times;

   (d)The wife confirming in writing that she will sign any necessary document to enable the registration of this and any other order of this Court in the appropriate court in Taiwan.

3. That subject to the compliance by the wife with paragraph 2, the passport of the child be released to her and for that purpose, the Registrar shall be satisfied of compliance upon receipt of a letter signed by the solicitors of the wife that all matters have been attended to.

4. That whilst the wife is in Taiwan, the extant orders relating to the husband’s time with the child J are suspended and in lieu thereof, the husband’s time with the child be as follows:

   (a)If the husband travels to Taiwan, for such time as may be agreed to be as consistent as possible with the current arrangements in Australia; and

   (b)If the husband is in Australia, by Skype Communication during each alternate day at times to be agreed.

5. Should it be necessary to do so, the solicitors for the wife shall be at liberty to provide a copy of these orders to the Australian Federal Police to confirm the right of the wife to travel internationally for the purpose and period of time permitted.

6. That the husband have liberty to apply on short notice to make an urgent application for the release of the trust funds if the wife has not returned the child to Australia within 24 hours of the scheduled date referred to in these orders.

7. That upon the wife returning to Australia with the child, she shall immediately advise the husband of her return.

8. That the husband and the wife may provide a copy of these orders to the Australian Passports Office, the Australian Federal Police, the Taiwanese  Ambassadorial staff and any Taiwanese Judicial Authority for the purposes of its enforcement.

9. The interim order for spousal maintenance made on 10 January 2013 is discharged.

10. The application by the husband for details as to the wife’s pregnancy is refused.

11. That both parties have liberty to apply on an urgent basis in relation to the execution of these orders.

12. Pursuant to s 65DA(2)and s 62B, 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.

13. The application in a case filed 16 May 2014 and the response thereto filed 26 May 2014 are both otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4588 of 2012

Mr Au-Yong

Applicant

And

Ms Wul

Respondent

REASONS FOR JUDGMENT

1. These are predominantly parenting proceedings between Mr Au-Yong (“the husband”) and Ms Wul (“the wife”) concerning their child who was born in 2011 and is 2½ years of age. 

2. Such is the dispute between the parties that they do not even agree on what their child will be called.  The evidence suggests that child’s registration of birth name is J.  The wife calls the child “[J]” and the husband calls the child “[the child’s second given name]”.  The proceedings have been on foot between the parties since 2012 which clearly indicates that unless things change, this child’s future is going to be embroiled in controversy.

3. The substantive proceedings are in a list of cases awaiting a trial.  As a result of the normal administrative processes, the case was docketed to me and I listed it for final hearing in April 2014.  Prior to that hearing, senior counsel for the husband appeared and submitted that on the basis of the way in which she considered the proceedings would be conducted, it was not professionally responsible to suggest that it could be dealt with within the time allocated for reasons which will become apparent.  The trial was refixed for August 2014.  It now transpires that it is common ground between the parties that it will not be able to proceed between them in August and I have been again asked to vacate that hearing.  I propose to do that.

4. These reasons concern three discrete issues.  They arise out of an application in a case filed by the wife on 16 May 2014 and the response thereto filed by the husband on 25 June 2014. 

5. The three issues are as follows:

   (a)The wife who is currently pregnant, desires to return to Taiwan almost immediately for the purposes of her confinement.  She says that that is critical for cultural reasons.  She asserts that J (“the child”) should attend with her.  That trip is opposed by the husband;

   (b)The husband says that he knows nothing about the pregnancy of the wife apart from what he has been told and he seeks details of the father of the unborn child.  That is opposed by the wife;

   (c)The husband seeks a discharge of spousal maintenance orders made by consent of the parties on 10 January 2013.  That is opposed by the wife.

6. This matter came on for hearing before me on 26 May 2014.  The principle issue on that day was the wife’s proposal to travel to Taiwan for her confinement period.  The difficulty with the wife’s case (then opposed by the husband) was that I had no expert evidence as to the impact upon the child of the absence of the husband as a parent during that absence.  It is apparent to me that the relationship between the husband and the child is developing and I was concerned that I had no expert evidence to guide me.  The proceedings were adjourned to 1 July 2014.  The parties then attended upon psychologist Ms S and, immediately prior to the current return date, provided Ms S’s report. 

7. The wife’s evidence was contained in an affidavit filed on 14 March 2014.  She set out in some detail about the existing parenting arrangements.  For the reasons set out by the Full Court in Goode and Goode [2006] FamCA 1346, in an interim hearing, it is not appropriate for a court to embark upon grappling with contentious facts unless specific findings can readily be made. This is clearly not one of those cases. As the Full Court observed, it is important to define the issues that are in dispute, make such findings as can be made and apply the statutory provisions.

8. The critical issue concerns the impact upon the child of being away for so long from his father but in turn, that gave rise to the husband’s argument that the wife is a flight risk and will not return from Taiwan with the child.  Much of the wife’s evidence was devoted to that as well and I have the expert’s report.  The detail of that report was not seriously challenged by either party. 

9. There has been a previous determination by this Court over a disputed trip by the wife to Taiwan.  At that time, the wife was breastfeeding the child and I permitted her to travel internationally for her father’s funeral despite the husband’s assertion that she was then a flight risk and, indeed as history now records, the wife returned to Australia.  It is the husband’s argument that the evidence now is different and the flight risk is again a problem.

10. In her evidence, the wife observed that she has no family in Australia and limited ties to the Taiwanese community.  She said that the child was missing out on his current cultural identity.  In a self-serving statement, the wife said that she felt that it was extremely important for the child to be permitted to travel with her overseas and she “confirmed” that she was not a flight risk because of her earlier trip.  To attempt to convince the Court of that assertion, the wife said that:

    ·She had offered the husband time in lieu with the child once she returned from Taiwan;

    ·She wanted the child to have a meaningful relationship with his father;

    ·She was willing to have the child’s passports held by the Family Court in Melbourne;

    ·She was willing to provide the husband with adequate notice and all information relating to her travel with the child in advance; and

    ·She was prepared to put up a bond of $20,000 by way of security.

11. None of those matters assists in determining the flight risk.  Much of her affidavit addressed the issue of the cultural significance for the child but that was not really disputed by the husband.  The evidentiary focus of the husband was in relation to the wife’s pregnancy and the fact that as she was secretive about it along with other money matters, she could not be trusted.  Thus, he said, she was a flight risk.

12. In her affidavit, the wife said she wanted to travel to Taiwan from the middle of July 2014 until the middle of November 2014 so that she could give birth to her second child.  She said that she had “undergone insemination through a donor” as she wished to have another child as a sibling for the child.  She confirmed that she was 12 weeks pregnant.  It seems that Ms S interpreted the affidavit or was told something by either of the parties, that the wife had become pregnant as a result of an IVF program and that the pregnancy was as a result of an anonymous donor.  In very blunt and clear terms, the wife’s counsel said no more than the wife became pregnant and that the donor was known.  It was these details that the husband sought for reasons to which I shall return. 

13. It must be said that the wife is not seeking to live in Taiwan.  In her affidavit, she said that she felt isolated and “extremely worried” what would happen if she was forced to give birth in Australia.  That birth is expected in late September 2014 and thus the latest she could travel to Taiwan was towards the end of July 2014. 

14. The wife deposed to her cultural requirements relating to her confinement period.  She said that traditionally, there was an obligation on the paternal grandmother to provide daily care for her and the new born child including undertaking various domestic tasks.  She said that could not happen presumably because of the nature of the relationship between she and the paternal grandmother.  Initially, the husband had said that his parents would provide such assistance in a culturally sensitive way but at the hearing on 1 July 2014, senior counsel for the husband did not press that.  Even if that was still the offer, obviously, much depended upon the willingness of the wife to accept it and that does not seem to be the case here.

15. The wife went on to say that she would like her mother to travel to Australia for support purposes but that could not happen because her mother was caring for her own mother who is over 90 years of age.  She went on to say that there were also practical problems for the mother travelling to Australia because she did not speak English, was unable to drive and unable to use public transport which would be required for such things as grocery shopping to help the wife with daily chores.  The wife’s only solution therefore was that she had to undertake the trip to Taiwan.  She provided medical evidence to support the fact that confinement facilities were available in Taiwan and the doctor referred to the cultural significance of them. 

16. By way of ensuring that the child did not miss out on the continuing development of the relationship with his father, the wife said that the husband could have Skype contact with the child on a regular basis bearing in mind that she proposed to be away for 3.5 months. 

17. In opposing the wife’s application, and leaving aside the immediate issue of submissions associated with her being a flight risk, the husband said that there were confinement centres available in Australia at a cost to the parties.  When challenged, his senior counsel indicated that he would pay one half of the cost.  That was a somewhat curious position to adopt bearing in mind the wife’s limited income but more importantly, the husband was claiming that he wanted the spousal maintenance order discharged because he could not afford to pay.  Just exactly where the confinement money would come from remains something of a mystery.  More importantly, the wife’s position was that even though she was aware of those Australian confinement centres, the reality was that they were conducted according to Chinese culture and that was not consistent, in her view, with her Taiwanese culture.  The husband’s position was that these centres were culturally sensitive to the Taiwanese way of doing things but it makes sense to me that if the wife was not supportive of the idea, the experience would hardly be culturally appropriate.  It must also be said that when the wife was pregnant with the child, she had given birth in Taiwan apparently with the husband’s approval.

18. Thus I am left with a situation where culture is important to the wife but that is only one consideration bearing in mind the focus of the Court must be on the best interests of the child.  The cultural issue relied upon by the wife was more focussed on herself rather than on the child.  That issue must be taken into account though because, whilst the best interests of the child are the paramount consideration, they are not the only consideration.

19. Before turning to the submissions of the parties, it is instructive to understand what the single expert said about the relationship between the child and the parents. 

20. Ms S is a clinical psychologist and described herself as a family consultant.  She prepared a comprehensive report as a result of the orders that I made on 15 April 2014 and she set out the extensive material that she had read filed by the parties.  No party challenged the accuracy of the recording by Ms S of what she had read nor her expertise.

21. Ms S said that the parties had been attending counselling with Ms K in an attempt to address the parenting issues and whilst considerable progress had been made in negotiating a parenting agreement, they had stalled because of the desire of the wife to travel overseas.  It seemed common ground that any agreement between the parties would not be legally binding in Taiwan and that Taiwan was not a signatory to the Hague Convention

22. In an ironic twist, it appears that the solicitors for the husband in anticipation of the wife’s application, had sent a document that they thought would have enabled the registration of any orders of this Court for enforcement purposes in Taiwan.

23. In her submissions, senior counsel for the husband complained that the wife had not responded to that request and had told Ms S that she was willing to sign the document but her solicitors had told her not to do so.  As the hearing unfolded however, it appeared that the solicitors for the husband had learned that the proposed registration of orders would not be acceptable to the Taiwanese legal authorities.  An additional problem was that the signature of the wife or her lawyers to the orders had been delayed.  It was portrayed by senior counsel for the husband that notwithstanding the assertion by counsel for the wife that the document had been sent, it had not been received.  All of this was a complete distraction from the real issue because in the end, senior counsel for the husband indicated that it was doubtful, if not impossible, for the orders of this Court to be registered.  I am not entirely convinced about that but in this case, I do not think it matters.  The international advice given to the solicitors for the husband was that an interim order would not fit within the Taiwanese legal regime and that that court was only interested in registering a “custody” order.  It seems to me that that issue had not been fleshed out properly and it is possible that an order of this Court in relation to “custody” could quite easily be made with attendant conditional orders associated with the husband’s time.

24. It is important to observe that this lack of response by the wife was asserted as a ground by senior counsel for the husband for the Court to be concerned about the bona fides of the wife.  I could not draw such an inference.  What seems to have happened and it was not denied by senior counsel for the husband, the solicitor for the husband had sent the document directly to a solicitor who was in a different office of the wife’s firm of solicitors where the lawyer was no longer responsible or indeed not responsible at all for the file of the wife.  Counsel for the wife explained that that had caused delay and subject to some very modest grammatical changes, the document had only recently been sent back.  I found this whole issue distracting and perplexing because the request for the signed document was only sent to the solicitors for the wife in the middle of May and it was hardly appropriate for a complaint to be made by the solicitors for the husband if indeed they sent it to the wrong place.

25. I am not satisfied that the wife was not prepared to agree to cooperate in the registration of any orders that might give security for her return. 

26. Ms S clearly understood the dilemma about the travel.  She added to the evidence of the wife by indicating her understanding that the wife had had complications with the birth of the child J and had consequently remained in Taiwan longer than had been planned.  To the extent that it was being suggested by senior counsel for the husband that the wife could not be relied upon, it was not denied that the wife had been so delayed because of complications associated with the birth of the child J.  It concerned me that the husband seemed to be grasping at straws in putting a whole series of factors together to portray a picture of the wife being unreliable.

1. Ms S set out what discussions she had with the husband and in relation to the proposed trip to Taiwan, noted that the husband said that his anxiety was heightened but that he had considered giving consent to the wife but providing it was no more than for some three weeks or so.  He added however that he wanted sufficient assets or financial guarantees to increase the likelihood of the wife’s return.  He then asserted that the wife had refused to register the orders in Taiwan but as I have indicated, I do not accept that.  More importantly however, he asserted to Ms S that the wife had divested herself of all of the assets that she had in Australia and therefore had no ties here. 

2. It was the husband’s position to Ms S that the wife remained distant and unengaged at changeover and had done little to create a positive and pleasant environment for the changeover of the child. 

3. I pause here to observe that it was submitted on behalf of the husband that the wife was a flight risk.  Senior counsel for the husband did not mention that her client had contemplated allowing the wife to go for a short time.  I am uncertain what the difference is between a short time and three months.  No mention had been made of the security offered by the wife.  I do not know what the husband considered as appropriate security bearing in mind its purpose.

4. When Ms S interviewed the wife, she understood her position was that the husband had been obstructive and she had little choice but to go to court to get a resolution.  The wife observed the evidence about the husband’s concern of her being a flight risk had been run before when she had to go to court on the previous occasion associated with the attendance at her father’s funeral.  There was no doubt that the wife’s father had died apparently in tragic circumstances whilst fishing because the husband had a certificate of his death and used it for another purpose to which I shall return.

5. The wife told Ms S that she was prepared to register the parenting agreement in Taiwan and was still so prepared but was advised not to do so by her lawyers.  It was a glaring omission by the wife not to explain the circumstances under which that advice was given bearing in mind that she had clearly waived any privilege associated with it.

6. The wife explained to Ms S that she had become pregnant because she wanted to provide the child with a sibling and the cultural traditions were extremely important to her emotionally.

7. It is important to point out that one no longer extant substantive issue related to the wife’s desire to relocate with the child permanently to Taiwan.  The wife had recently abandoned that application.  She told Ms S that she had come to accept and understand the importance of her remaining in Australia so that the child could have a relationship with the husband.  According to Ms S, the wife acknowledged the child’s relationship was good. 

8. The wife indicated that she had no difficulty in the husband travelling to Taiwan to spend time with the child and senior counsel in her submission, indicated that if that was to happen, at best, the husband could go there for one week.  That becomes obvious when one examines his financial position which is relevant to the spousal maintenance case.

9. Ms S said that the wife was distressed and tearful when contemplating the possibility of giving birth to a child in Australia because she felt isolated and in her view, she could not leave the child in Australia because of her attachment to him.  It would seem on the evidence, the husband does not have the capacity to care for the child on a full-time basis bearing in mind his current financial and employment situation. 

10. When Ms S observed the child, she saw the handover between the husband and the wife and it was positive.  Having said that however, as the wife walked away, the child became reluctant and clung to her.  On any view, the contemplation of the wife travelling to Taiwan but with the child remaining in the care of the husband, would now seem problematic.

11. Ms S noticed the transition between the parents to be easy and the child played happily with the husband.

12. Ms S’s opinion was that she could not assist the Court in relation to the flight risk.  She did not doubt the husband’s fears even if she entered into the realm of the Court’s responsibility by saying that those fears were not unreasonable.  Ms S observed that it was puzzling why the wife would have a child at this time in the context of current family law proceedings knowing full well the problems associated with travelling to Taiwan.  I am not as convinced about that issue because it seems plausible that the wife might want to have a child for the purposes of enabling the child to have a sibling.  That is not a matter about which I would criticise the wife bearing in mind Ms S did not indicate why she thought it was “puzzling” for that pregnancy to occur now.

13. I have earlier referred to the fact that the husband indicated that there were confinement support services in Australia but as I have indicated, I have some doubts about that, bearing in mind the wife’s lack of a positive response.  Ms S too made the observation that such a support in Australia lacked the emotional support from the culturally identified social group not to mention the wife’s family.  As there may be other more appropriate services than those set out in the supporting affidavits provided by the husband, I cannot say more but in any event, it was common ground that those services would be costly and it seems that neither party has significant financial resources to be able to fund them. 

14. Similarly, I have earlier observed that the wife had rejected the husband’s family’s support and Ms S too thought that that option was not appropriate in the light of the litigation and the alliance between the husband and his family.

15. In terms of the psychological issues, Ms S described the wife as an emotionally vulnerable woman.  That gives me serious cause for concern in the context of Ms S’s observation about the importance of the cultural support and the family support for the wife at the time of her pregnancy.  However, as Ms S observed, the wife had displayed sufficient resilience because she had indeed abandoned her relocation issue and there was not sufficient evidence to indicate that the child was suffering as a result of the decision of the wife to remain in Australia.  Just in case that might be said to be sufficient to overcome the problem, Ms S then added:

    Nevertheless, her emotional fragility is likely to be challenged after the birth of her child in either country.  She is an emotionally driven woman who feels a responsibility to her family and if in Taiwan, she is likely to be challenged by her family ties pulling her to her country of origin.

16. Ms S made the observation that with two children, the wife was going to be challenged.

17. Ms S noted that the child was primarily attached to his mother and that is unsurprising.  She described him as a confident and sociable little boy but that if he was separated from her, it would be such that he would be likely to experience significant stress and anxiety.  On the other hand, whilst he might have a good relationship with his father and would miss him if he was away, that would not be as significant or traumatic as if he were separated from his mother.  The strength of the relationship between the child and the wife was the important one from the perspective of Ms S.

18. In relation to the impact upon the child of separation from the husband, Ms S had little doubt that three to four months absence would disrupt the relationship and that that was not ideal but in that period if it were to occur, Skype communication would reduce the sense of separation and feelings of loss.  Ms S offered a number of suggestions in relation to interaction which should be significant and regular.

19. Ms S’s final observation was that a three to four month separation would disrupt their relationship but on the basis that the wife’s willingness to support the continuation of the relationship from afar was accepted by the Court, the relationship could be resumed providing the necessary support systems were put in place.  I have no reason on the evidence, including what follows, to reject the wife’s evidence that she supports the relationship.

20. The significance of all this evidence therefore is the importance of the relationship between the child and the wife.  The impact upon the relationship between the husband and the child can be ameliorated.  The absence is therefore not likely to cause long-term damage.  Thus, the focus of the Court really needs to be upon whether or not the wife is a flight risk because one could assume that not only would she not fulfil the daily or alternate daily urgings of Ms S but more importantly, not return to Australia as she was saying.

21. The evidence of Ms S is in my view very important.  The child must remain in the care of the wife and thus, how much store can be placed by the Court on the question of the husband’s assertions that the wife is a flight risk.

22. Senior counsel for the husband took me through the various aspects of the husband’s evidence.  She asserted that the wife could not be trusted and that notwithstanding the wife’s protestations, the Court had to look behind the statements which senior counsel said were far more complex and suspicious than they appeared peripherally to be.

23. The first submission was that the wife had indicated that she had to go to Taiwan because her mother could not travel and did not speak English.  Senior counsel said that that was a “blatant lie”.  The husband’s evidence was that the mother’s English was not as portrayed at all.  To corroborate the husband’s position, senior counsel produced a number of bank documents none of which had been endorsed with any interpreter clause including a guarantee in relation to money provided to the wife.  She produced a document dated 2008 which was a statutory declaration signed before a justice of the peace without any interpreter clause.

24. Senior counsel asked the Court to accept that it was standard practice for banks to have clauses or interpret if someone did not speak English and that the same should be said in relation to justices of the peace.  I do not accept that submission but even if I could, it is not to say that the bank manager or the wife or another staff member or friend had not interpreted the document.  I would not draw any adverse inference based upon that particular asserted corroboration.  The basis of this submission was that if the Court accepted that the wife’s mother did have the English language skills, the wife had no credit because the statement in her affidavit was untrue.  This is a very controversial fact and one upon which, absent testing of the evidence, I could make no finding.

25. The second issue concerned the fact that there had been property dealings in Australia involving the wife under which all of the proceeds were sent back to Taiwan.  This produced two points.  The first was that the wife’s explanation for sending the money back was that it was to enable her parents to repay loans that had given rise to the purchase of property in Australia in the first place.  Senior counsel for the husband observed that when one looked at the bank documents, no such loans were recorded.  Secondly, it was asserted by the husband based upon what he said the wife told him during her relationship, the parents had been separated for a long time.  The proof of that separation lay in the fact that on the death certificate of the wife’s father, he was shown as divorced.  In a bizarre piece of theatre, counsel for the wife obtained instructions and indicated that the explanation for the divorce status on the death certificate was that it had been done for some form of taxation purposes.  Bizarre as that situation may be, it is not beyond the bounds of possibility and indeed probably goes more to the credit of the wife’s mother than to the credit of the wife.  The second observation however in relation to the financial issues was that the wife had said that the money was being returned to her parents to repay loans that had been organised in Taiwan to enable the purchase of the properties in Australia.  Those purchases apparently occurred during a period of time prior to the relationship between the husband and wife.  I am not in a position to make any finding about that at all.  Senior counsel for the husband rhetorically asked why the wife was transferring funds in the midst of litigation.  These funds totalled $750,000 and therefore there was little or no money left in Australia that could fund security.  Rather than that being a negative, there did not seem to be any basis upon which the husband had objected to the transfer of the funds.  He did not seem to understand the details of the transactions other than what he said the wife had told him, yet, as I understand it, he did not seek a return of the money or indeed injunctions, it is hard for me to criticise those arrangements.  Senior counsel for the husband said that all of this was highly suspicious and “quite staggering”.  It is important that I look beyond the emotive language and see whether what the husband was asserting by way of inference was equally innocent and open to the wife.  There was certainly no indication that I read in any material indicating that there was anything wrong with the wife returning the money in the circumstances.

26. The next observation and submission put by senior counsel for the husband was that the wife was asserting in her affidavit that she was supportive of the relationship yet, it was submitted, the opposite was true.  As a corroboration of that fact, senior counsel referred to what was described constantly as “false allegations” by the wife to obtain an intervention order.  In my view this emotive language was equally unsupported by the evidence absent it being tested.  The wife gave the explanation that police took out an application for an intervention order and she had not sought it.  She said she had endeavoured to stop it.  Contrary to that was the husband’s evidence that there had been a conversation between counsel for the husband at the Magistrates’ Court and the police prosecutor which was said to prove that the wife did not want the police applicant to withdraw.  I cannot make any finding on that issue.

27. The basis of the allegation in the application for the intervention order was said to be false.  How that conclusion could be drawn without the evidence being tested either in this Court or indeed on the contested intervention order, I am not sure.  Senior counsel for the husband also pointed to the fact that the wife had made “false allegations” to the Department of Human Services but that too remains a matter to be tested.  The parties have very different views as to what happened on the occasion that gave rise to the intervention order application and I would not be prepared at this stage to make a finding that the allegations were false.

28. The next allegation concerned a statement by the husband that in February 2014, he sent an email to the wife to engage her in discussion “regarding [the child’s] schooling”.  In his affidavit, he said that as the child was “able” to start attending three year old kindergarten in 2015, he had suggested a number of kindergartens in the Suburb A area that the wife and he could “visit together”.  He said he had not received a response from the wife.  It was suggested that as the wife had not responded, it was another piece of the puzzle to prove that she was a flight risk.  I observe that this child is not yet three years of age.  To talk about schooling in circumstances where the parties’ relationship, as observed by Ms S was poor, seems unusual and it is hardly surprising that they would not “visit together” anything.  I note that whilst the email was written in February 2014, no application was made by the husband in respect of this issue.  That said, it was noticeable that the parties had been attending counselling with Ms K and it did not seem that it had been raised at any stage. 

29. In my view, even if it is part of the overall picture, I do not find that I could draw an inference that the lack of response by the wife was somehow designed as part of a plan by her not to be supportive of the husband’s relationship.

30. I have already referred to the letters associated with the registration of the orders in Taiwan.  It is important that I pause here to note the correspondence.  The solicitor for the husband had written on 15 May 2005 a letter which arose out of the orders that I made on 31 March 2014 relating to expert evidence about what the law was in Taiwan.  The solicitor wrote to the Taiwanese lawyer:

    You will note that there is some discrepancy as to what steps are required and/or ought to be take (sic) in considering potential overseas travel with the child in Taiwan.  The parties jointly seek that a conference of experts take place to discuss the issues in dispute and provide a joint written and signed statement as to the points which are agreed upon and the points that remain in dispute.

31. The letter went on to then ask the questions for the experts as to whether or not orders of an Australian court could be registered and what information was required in an order of this Court to ensure and assist in the registration and enforcement of the orders not to mention the question of how much it would cost for such an enforcement arrangement.  It would seem clear therefore that in the middle of May, notwithstanding the order had been made at the end of March, nothing had been done to obtain any clear picture as to what the position was in Taiwan.  Having read what was written by the Taiwanese lawyers in broken English, I am not at all convinced that I understand whether they were referring to interim orders or final orders or indeed custody orders.  The parties were to pursue an answer and it has not been received.  I am not prepared to draw an inference against the wife that an order of this Court is not enforceable in Taiwan based upon an assertion that a custody order only can be enforced.

32. The only findings I can therefore make are those that are not particularly controversial.  Much of what is submitted by senior counsel for the husband relates to the credit of the wife if not also her family.  There can be no dispute about the cultural issue of the wife fulfilling various practices according to Taiwanese tradition because indeed the husband was offering that that should occur in Australia.  I can understand why he might baulk at paying for all of that to keep the wife in Australia bearing in mind that the child she is carrying seems to have nothing to do with him at all.  Thus, I am endeavouring to work through the fog and haze to try and work out what facts are uncontroversial.

33. It is common ground that Taiwan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.  Whilst there was clearly debate between the parties about whether an order of this Court could be registered for enforcement purposes and that issue remains unresolved, nothing was resolved about the question of how an order could be made to enforce the return of the wife and what that would cost.  For her part, the wife offered to put up security of $20,000.  The money whilst security, is intended for the purposes of enabling the husband to go to Taiwan for the purposes of taking action within the judicial system there for the return of the wife.  The husband did not seek any alternative figure.  Nothing I observed indicated that the Taiwanese court would simply ignore not so much the Australian court order but the fact that the child has spent most of his life in Australia and that is where his father is.

34. Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. It therefore includes questions such as international travel because s 61C(3) provides that parental responsibility is subject to any order of the Court.

1. Section 64B(2) provides that a parenting order may deal with any aspect of parental responsibility for a child not otherwise covered by the section. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which relevantly provides that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

2. On the evidence of Ms S I find that the absence of the child from the husband is not likely to damage the relationship providing various orders are put in place for constant Skype communication.

3. Fundamental to my decision in this case is s 60CA which says:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

4. In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests.  They have all been considered previously as have issues associated with the presumption of parental responsibility.  Nothing has changed notwithstanding all of the matters raised by the husband.  I will not reiterate all of the factors in s 60CC.

5. The factors to be considered in the assessment of the risk, that is of non‑return of the child, were set out by the Full Court in Line & Line (1997) FLC 92-729.

6. The factors were said to be as follows:

   (a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

   (b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

   (c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

   (d)Whether the country of travel is a signatory to the Hague convention.

7. As I indicated in Gin & Hing [2010] FamCA 617:

   Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.

8. There is little doubt here that I am taking a leap of faith.  Senior counsel for the husband would have the Court accept that the wife has no credibility and is completely untrustworthy.  Individually, each of the factors raised by the husband and to which I have referred would not convince me that the wife is a flight risk.  Each of the allegations has a plausible explanation and the evidence cannot be tested.  Collectively, the situation does not seem to me to be much different.  All of the pieces of the jigsaw puzzle put together still do not convince me that the wife is untrustworthy and that she has set herself up not to return from Taiwan.  I can do no more than balance the evidence of the parties noting particularly the evidence of Ms S to which I have earlier referred about the importance of the birth of this child in Taiwan for the wife. 

9. On the balance of probabilities, I am not satisfied that the evidence supports a conclusion that the risk is that the wife would deliberately not return the child.  Whilst the Court cannot find there is no risk, in my view I cannot find on the evidence that it is a significant risk.  In my view therefore, the wife should be permitted to go.

10. Specific orders need to be put in place prior to the wife leaving and they should be in terms of those matters raised by Ms S about not only what is to occur prior to the trip commencing but also while she is away.

11. I turn then to the question of the request by the husband for details about the donor of the parentage of the child the wife is carrying.  Senior counsel for the husband submitted that the husband was “absolutely entitled to know”.  She submitted that the wife’s reticence to explain the situation heightened his suspicion but I am not at all convinced about that.  Senior counsel noted that the information about the pregnancy was only volunteered in April at which point, the wife was 14 weeks pregnant and therefore when she came to this Court in January 2014, she said nothing about it notwithstanding she knew the circumstances.  It was only after the husband filed his affidavit that he became aware of the situation at which time, they had attended upon Ms K for counselling.  Nothing had been mentioned.  I remain unconvinced as to how the wife’s silence on the pregnancy is so critical.  If she knew a parenting trial was pending, she must have known the pregnancy would come out.  The silence on the pregnancy was raised as a ground for refusing the travel on the basis that it had some sinister connotation.  It is not a factor that adds anything to the intrigue suggested by the husband bearing in mind my observations about the wife’s explanation of wanting to have a child as a sibling for the child J which I accept is plausible.  Senior counsel for the husband pressed the Court to insist upon an answer by the wife as to the circumstances under which the conception occurred and indeed whether the wife’s friend Mr B was the father.  In my view, the child is not yet born.  It is hard to see how any of the circumstances that concern the husband other than the flight risk can affect the situation at this stage.  For example, I can clearly understand how another child with another father who might be living in the wife’s household could have an impact upon any parenting orders made relating to the child.  Having regard to the evidence of Ms S, I am not at all convinced that that situation arises at this point in time. 

12. Having rejected the issue of the donor details relating to the problem of the flight risk and not being able to understand what the problem is associated with the impact upon the child J, I decline at this stage to make any order that the wife disclose the details of the pregnancy any further.

13. I turn then finally to the question of spousal maintenance.

14. In January 2014, by consent of the parties, Senior Registrar FitzGibbon made an order that the husband pay to the wife for her maintenance $200 per week on an interim basis.  Senior counsel for the husband stressed that the order was noted to be “without prejudice” to the parties’ rights to argue the obligation at trial but in my view, that takes the matter no further.  The Court should not make an order even by consent unless there is a foundation to do so.  For the Court to make the order, the various factors set out in Part VIII of the Act must have been satisfied.  This was not an application, as I understand it, under s 77 of the Act relating to urgent maintenance and therefore the Court should presume that the order was made with foundation.  The ground for the order must have been that the wife was unable to adequately support herself.  Even on the facts before the Court at the moment, that finding would have been supported by the fact that the wife was caring for the child J.  Similarly, when one examines as counsel both urged the Court to do, the financial statements of the husband, at that time, notwithstanding his financial position, he was still offering to pay $200 per week. 

15. A notation to the order indicated that the husband expected the whole trial to be brought on early and indeed that would have occurred had the husband not requested the adjournment.  The notation does no more than indicate that the husband had an expectation that he would not be paying spousal maintenance for a long period of time.

16. In this case, the significant difference between the current position and that at the time the order was made lies in two factors.  The first is that the time has continued to roll on primarily because of the pregnancy of the wife.  Had she not fallen pregnant, presumably, the trial would have proceeded and the matter would now have been completed.  Having said that however, the wife still would presumably have been caring for the child J and regardless of her pregnancy and/or another child, she would have still had that obligation.

17. For his part, in the intervening period, the husband has left his position as a science professional.  During the period of time when these orders were contemplated in 2012, the husband was studying for entry to a different profession.  He chose to leave his previous profession and took on a position associated with gaining entry to the new profession with a substantial drop in salary.  He was also previously being financially assisted by his parents and his evidence, which at this stage remains untested, was that he did not any longer have the capacity to draw upon their largesse.  There is little doubt on the figures of the husband which remain also untested, he cannot support himself.  It was not suggested by counsel for the wife that the expenses claimed by the husband for his weekly support were unreasonable.  A careful examination of those figures would indicate that there would be no foundation for such an assertion.

18. Notwithstanding there was a veiled attempt by the husband to say that the wife should not have been entitled to maintenance, my view is that there is no foundation for that assertion because of the fact that she still has the responsibilities to care for the child J regardless of her current state of pregnancy. 

19. The issue clearly in this case concerns whether or not the husband has the capacity to pay having regard to the matters that the Court is obliged to consider in Part VIII of the Act.

20. Section 83 of the Act provides that where there is an order in force, the Court has the power inter alia, to discharge the order if there is any just cause for so doing.  However, in contemplating what must be established for that purpose, s 83(2) provides that a court shall not make an order decreasing an amount unless it is satisfied that where the order was made by consent, the amount ordered to be paid is no longer proper or adequate. 

21. The wife is about to embark upon a trip to Taiwan.  No explanation was given as to how that was to be funded.  Very little evidence was given by the wife as to how she supports herself but in any event, it is the husband who does not seem to have the capacity to pay bearing in mind that he had anticipated that he would not be paying for lengthy period of time.  The wife cannot complain about that assertion because she too was a party to the consent order whereupon the notation was placed by both when they were represented by counsel.  The wife must have known at that stage that the husband was studying and that he had chosen to pursue a new profession rather than his previous profession.  Having been represented by counsel at the time, the wife must have known that if the husband went into the new profession at the level that he was then anticipating, his salary would have been easily ascertainable and hardly likely to be high.  All of those factors, in my view, would indicate that as the evidence supports the conclusion that the husband now does not have the capacity to pay the sum sought, it would not be proper for the Court to continue the order any longer.  I take into account in making that conclusion however that the husband also continues to have the obligation to pay child support and even on his own figures, he does not have the capacity to make that payment either.  Whilst as I observed in discussion, it may have been unwise for the husband to have left the profession he previously had notwithstanding that he had qualified in the new profession, nothing in the evidence indicated to me how he could currently make that payment other than by drawing against the largesse of his parents and I have no evidence to indicate that that is continuing.  As I earlier observed, somewhat bizarrely, the husband offered to pay half of the wife’s confinement expenses which would have certainly exceeded $200 per week.  How that would come about remains also a mystery but no doubt will be the subject of cross-examination.  In the circumstances, in my view it is not proper for the Court to allow the order made in 2013 to continue.  It will therefore be forthwith discharged.

22. I shall grant the parties liberty to apply in respect of any urgent orders prior to the wife leaving before the end of July.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 July 2014.

Associate: 

Date:  8 July 2014