Barr & Wang
[2021] FCCA 1921
•20 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Barr & Wang [2021] FCCA 1921
File number: MLC 10934 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 August 2021 Catchwords: FAMILY LAW – watch list order – how long child should remain on watch list – where parties seek for child to remain on watch list indefinitely – where father is concerned child may be taken overseas – orders made Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC Cases cited: Michaels & Carey [2009] FMCAfam 577
Teng & Shue [2020] FCCA 1841
Number of paragraphs: 26 Date of last submission: 15 December 2020 Date of hearing: 8 December 2020 Place: Melbourne Solicitor for the Applicant: Starkie Law Group The Respondent: Appeared In Person ORDERS
MLC 10934 of 2020 BETWEEN: MR BARR
Applicant
AND: MS WANG
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 AUGUST 2021
THE COURT ORDERS THAT:
1.Until the court orders such removal or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (Cth), each party MR BARR born in 1972 and MS WANG born in 1985 (also known as Ms Wang), their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the said child X born in 2013 (also known as X) from the Commonwealth of Australia until 15 March 2028 being the day the child obtains the age of 15.
AND IT IS REQUESTED THAT:
2.The Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 15 March 2028 or until the Court orders its removal, or with the authenticated consent of all parties.
AND THE COURT ORDERS THAT:
3.The final orders made 8 December 2020 otherwise remain in full force and effect.
AND THE COURT NOTES THAT:
A.At the hearing on 8 December 2020 the Respondent Mother agreed to the Watch List order being made but requested it be noted that she considered it to be very cruel to stop the child from seeing the maternal grandparents.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Barr & Wang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
BACKGROUND
These proceedings concern the child X (‘the child’) who is now aged 8. The Applicant Father is Mr Barr, (‘the Father’), who is aged 48 and works as a factory worker. The Respondent Mother is Ms Wang (‘the Mother’) who is aged 35 and is employed as a factory worker.
The Father was born in Australia and the Mother was born in China. The parents married in China in 2010 and the child was born in China in 2013. The Mother is an Australian permanent resident and the child received Australian Citizenship in 2018. The parents separated under one roof in August 2019 until February 2020.
ISSUE FOR DETERMINATION
When the matter came before me in the duty list on 8 December 2020 it had resolved by consent. The issue I was left to determine is how long the child is to remain on the Australian Federal Police Family Law Watch List (‘the Watch List’). The minute of consent orders that the parties had asked me to make, sought that the child remain on the Watch List for 11 years (in other words, until the child reached 18 years of age).
I made the parenting orders by consent and placed the child on the Watch List for the standard period of 2 years. I reserved the issue of the period of time that the child should remain on Watch List upon giving the parties the opportunity to file and serve written submissions.
PROCEDURAL HISTORY
The Father initiated proceedings on 8 October 2020 and the matter was given a first return date of 8 December 2020 in my duty list.
On 30 November 2020 the solicitor for the Father emailed my associates and advised that the matter had settled by consent and attached a signed minute of final consent orders. That email advised that the parties were jointly seeking that:
(1)The signed minute of consent orders be considered and made in chambers;
(2)The hearing on 8 December 2020 be vacated; and
(3)That all extant applications be dismissed.
Upon reviewing the minute of consent orders in chambers I noted the Watch List order at paragraph 16 which stated:
16.IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watch List until the Court orders its removal.
(emphasis added)
I was not prepared to make that particular order in its current form, as it effectively placed the child on the Watch List indefinitely. On 4 December 2020 my associate advised the parties by email:
…In accordance with the Australian Federal Police administrative processes, Watch List orders are made for a period of 2 years from the date of Order.
Please each advise, by return email, if both the Father and the Mother consent to paragraph 16 of the Proposed Minutes being amended to provide for the Watch List order to cease to have effect two years after the date on which it is made.
…
On 5 December 2020 the solicitor for the Father emailed an amended signed minute of consent orders and stated:
…
We note the issue in the signed consent orders that you have drawn to our attention and have amended and jointly resigned the consent orders correspondingly.
The child is currently 7 years and if the airport watchlist was only made for 2 years, this would require the father to return to court every 2 years which would not be a good use of the resources of the court, would place a burden upon the parties and upon the child. As such the amended orders that we seek are for the period of 11 years.
We note that the AFP prefers that orders include a defined period of 2 to 3 years for any restrictions on a child's travel.
We have amended the orders as follows
1.Order 13 now uses the exact wording that the AFP prefers in an application for for a court order as described
2.The Order 16 has been deleted as it is no longer needed as those orders are incorporated into order 13.
The new Watch List order in the amended minute of consent orders now stated:
13.That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, Mr Barr born in 1972 and Ms Wang born in 1985 also known as Ms Wang their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X, born in 2013 also known as X from the Commonwealth of Australia for a period of 11 years;
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's names on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties
(emphasis added)
On 7 December 2020 my associate advised the parties that I was not prepared to make the orders in chambers without hearing submissions from the parties given the Mother was self-represented and had not filed any material. The matter then came before me in the duty list on 8 December 2020.
THE HEARING
The matter was called on in the duty list as one of 14 matters I had that day. The solicitor for the Father told me that the reason for seeking the Watch List order for that length of time was to reduce the likelihood of having to issue further proceedings.
At the hearing I asked the Mother what she had to say about the proposed Watch List order. The Mother told me that she agreed to have the order made but she also stated:
“I do want to take X back to China to live with my parents in three years.”
I told the Mother that the proposed orders provide that she would not be able to do that. The Mother agreed to the order being made but said that it’s very cruel to stop the child from seeing the maternal grandparents in China.
I made the orders by consent of both parties but placed the child on the Watch List for a period of two years and reserved further consideration of how long the child should remain on the Watch List. I made a further order that within 21 days the parties file and serve written submissions they seek to rely upon on the issue of the period of time that the child should remain on the Watch List for.
THE WRITTEN SUBMISSIONS
The Father filed written submissions on 15 December 2020. The Mother did not file any written submissions. The interim watch list order I made will expire on 8 December 2022 when the child will be nearly aged 10.
The Father’s submissions included:
…
15.We submit that the court should extend the airport watchlist order to be in place for 10 years until the child reaches 17 years of age.
16.The child was born 2015 and is currently 7 years. If the airport watchlist was only made for 2 years, this would require the father to return to court every 2 years to ensure that the child could not be taken out of the country without his consent.
17.Section 60CC(3)(l) of the Act states that the court must consider 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;
18.As such it would be in the child’s best interest in making the orders for 10 years.
19. If the matter was to be returned to court every 2 years
a. It not be a good use of the resources of the court and
b.Would place an unreasonable burden upon the parties and upon the child.
20.Alternatively, if the orders are not updated every two years, then there is the risk that the child could be taken overseas with would be damaging to both the wellbeing of the child and her relationship with her father.
21.The father submits that in the absence of airport watch list orders lasting until the child reaches the age of 17, there is a risk of the child being taken overseas and not returned on the basis of the following facts
a.The mother has threatened to take the child out of Australia and keep her from the father 8, and the mother has in the past exhibited erratic behaviour
b. The mother has family ties in China
c.The child has previously held a Chinese passport and the mother may be able to obtain a replacement passport9. This is because the child is in the majority care of the mother and there is no equivalent to shared parental custody in China10
d. China is not a Hague Convention country.11
e.The rule of law in China is not the same as it is in Australia. The Australian government has issued a current travel warning to China because of risk of arbitrary detention. 12 Absence of the rule of law often goes hand in hand with issues of corruption.
…
The Father’s submissions assume it is not in the child’s interest to travel overseas until an adult. What is appropriate for a child of 8 may not be for a child of 14, 15 or 16. Orders of that kind sought would extend into the life of the child to times when she may have something mature to say about that.
The form of the order sought by the Father is adapted from the Australian Federal Police “Family Law Kit” conditional prohibition on travel draft order. I take that into account.
The Mother’s statement to me of wanting to live in China with the child at this early stage of the parties post separation parenting would concern the Father and provide a proper basis for the Watch List order. Decisions about travel and living overseas should not be made by one parent alone.
I accept the parties concerns that give rise to the Watch List order application may remain for some time and further litigation should be avoided.
The Father’s submissions helpfully referred to the cases of Teng & Shue [2020] FCCA 1841 and Michaels & Carey [2009] FMCAfam 577 as examples of cases with Watch List orders for longer periods. There is a paucity of authorities as to the length of a Watch List order.
However the Father referred to the authoritative paper of Judge Scarlett, “Watch List Orders – A Paper for a CLE Seminar for Family Law Practitioners, 28 November 2013.” This paper confirms the need for a sunset clause in the order.
The concern addressed by Judge Scarlett was that a Watch List order may outlive its usefulness and re-emerge to cause inconvenience and distress to the very children they were intended to protect. That paper opines, “Our suggestion is that a period of about two or three years will usually suffice, although there may be exceptions.” The problem is parents forget about Watch List orders. Most orders in this court are made for two years.
This is a parenting order and I take into account section 60CA, 60CC(1), (2), (2A) and (3) of the Family Law Act 1975 (Cth).
Balancing all these considerations I will order that the Watch List order be in place until the child’s 15th birthday being 2028. Any overseas travel prior to that time will require an application in a case if the parties cannot agree.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 20 August 2021
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