Cham & Fai
[2021] FedCFamC2F 554
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cham & Fai [2021] FedCFamC2F 554
File number(s): SYC 2913 of 2017 Judgment of: JUDGE BECKHOUSE Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – PARENTING – Family violence – Gambling addiction – Inappropriate long term accommodation – Unacceptable risk – Meaningful relationship with both parents –Benefits of international travel Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60CC, 61DA, 68L(2), 102NA, 117(2), 117(3), 117(4)(b
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw (1938) 60 CLR 336
Deiter & Deiter [2011] FamCAFC 82
Finton & Kimble [2017] FCWA 106
Hardie v Capris [2010] FamCA 1046
Jurchenko & Foster (2014) 51 Fam LR 588
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
MRR & GR (2010) 240 CLR 461
Newman & Tate [2020] FamCA 1114
R v R (2000) FLC 93-000
Division: Division 2 Family Law Number of paragraphs: 170 Date of hearing: 2-4 November 2021 Place: Sydney Counsel for the Applicant: Ms Reid Solicitor for the Applicant: A & J Montgomery Legal Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Jack Rigg Solicitors Counsel for the Independent Children's Lawyer: Mr Cook Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC2913 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHAM
Applicant
AND: MR FAI
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
22 DECEMBER 2021
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental Responsibility
2.The mother have sole parental responsibility for the child X (also known as X and described in these orders as “the child”) born in 2010.
3.Prior to making any decision pursuant to Order 2 hereof, the mother shall notify the father of what decision she proposes to make and the father may within seven (7) days thereof provide the mother with his views in respect of such decision, and the mother shall take his views into account in making her decision.
Live with
4.The child shall live with the mother.
Time with the Father during Term Time
5.The child spend time with the father as follows:
(a)During each school term, each alternate weekend commencing on Saturday at 12.00pm and concluding at the commencement of school on the following Tuesday.
School Holiday Time
6.During school holidays the child spend time with the father as follows:
(a)For scheduled Term 1, 2 and 3 NSW school holidays, for one half of each school holiday, with the father to have the first half of the school holidays commencing in odd numbered years and the father to have the second half of the school holidays in even numbered years.
7.For the purpose of Order 6(a):
(a)In odd numbered years, the father is to collect the child from after school on the last day of the school term, and the mother’s time is to commence from 12 noon on the second Sunday of the school holidays.
(b)In even numbered years, the father’s time is to commence from 12 noon on the second Sunday of the school holidays, and conclude at the commencement of school on the first day of school term (that is not a pupil free day).
8.For Term 4 Summer school holidays:
(a)In odd numbered years, commencing in 2021, the father’s time with the child is to commence:
(i)at the conclusion of school on the last day of the school term, and conclude at 12 noon on the second Sunday of the school holidays; and
(ii)commence at 12 noon on the third Sunday of the school holidays and conclude at 12 noon on the fifth Sunday of the school holidays.
(b)In even numbered years, commencing 2022, the father’s time is to commence:
(i)at 12 noon on the second Sunday of the school holidays and conclude at 12 noon on the third Sunday of the school holidays; and
(ii)commence at 12 noon on the fifth Sunday of the school holidays and conclude at the commencement of school on the first day of school term (that is not a pupil free day).
Special Occasion Time
9.Notwithstanding any other order, on the following occasions of special significance the child shall spend time:
(a)With the mother on Mother’s Day each year. If the child is scheduled to spend time with the father on the Mother’s Day weekend the child’s time with the father shall be exchanged with the subsequent weekend scheduled with the mother.
(b)With the father on Father’s Day each year. If the child is scheduled to spend time with the mother on the Father’s Day weekend, then the weekend time with Mother shall be exchanged with the subsequent weekend scheduled with the father.
(c)On the mother’s birthday each year. If the child is with the father, then the child shall spend time with the mother from 9am until 9am.
(d)On the father’s birthday each year. If the father’s birthday falls on a school day, the child shall spend time with the father from after school until the commencement of school (or if not a school day then 9am). If the father’s birthday falls on a non-school day and the child is with the mother, the child shall spend time with the father from 9am until the commencement of school (or if is also a non-school day then 9am) in addition to any other time.
(e)On the child’s birthday as agreed but failing agreement:
(i)the father is to spend the entire day with the child if he is not already spending time with the child from after school to before school in odd numbered years; and
(ii)the mother is to spend the day with the child if she is not already spending time with the child from after school to before in even numbered years.
10.For Chinese New Year, Lantern Festival, and Moon Festival, the child spends time with each parent as agreed and failing agreement as follows:
(a)If the day is a school day:
(i)The child will spend the day with the father from after school to the commencement of school the following morning or 9am if the following day is a weekend in odd numbered years; and
(ii)The child will spend the day with the mother from after school to the commencement of school the following morning or 9am if the following day is a weekend in even numbered years; and
(b)If the day is not a school day:
(i)The child will spend time with the father from 9am until 9am the following day if it is not a school day or until the commencement of school if the following day is a school day in odd numbered years; and
(ii)The child will spend time with the mother from 9am until 9am the following day if it is not a school day or until the commencement of school if the following day is a school day in even numbered years.
Changeover
11.For the purposes of changeover, unless otherwise provided in these Orders, the father shall collect the child from school on school days only, and on all other occasions exchange shall be at the N Train Station.
Communication
12.When the child is with one parent, the other parent can communicate with the child as follows:
(a)Speaking on the telephone in the morning between 7.00am and 7.30am;
(b)Speaking on the telephone in the evening between 7.30pm and 8.30pm;
(c)Sending SMS messages provided only for the purpose of facilitating transportation or other day to day arrangements; and
(d)In the event of an emergency.
13.The parties are to communicate using WeChat about day to day matters relating to the child and in the case of an emergency, by phone or SMS.
14.Each party shall advise the other of changes to their residential address and/or mobile telephone numbers within 24 hours of any such change.
15.The mother do all acts and things, sign all documents and give all authorisations necessary to permit the father:
(a)To contact the child’s school and obtain copies of school reports, school photographs and other like material;
(b)To contact the child’s medical practitioners and allied health professionals and obtain copies of medical reports and other like material.
Restraints
16.Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
17.Both parents are restrained from:
(a)Showing the child any material in association with these proceedings or discussing with the child anything associated with the evidence in these proceedings;
(b)Expressing disapproval to the child about attending or undertaking activities while in the care of the other parent; and
(c)Preventing the child from attending or undertaking activities while in the care of the other parent.
18.In relation to Orders 17(b) and (c), each parent shall have responsibility for making day-to-day decisions concerning the care, welfare and development of the child whilst he is in their respective care.
19.Each party shall not leave the child unattended for extended periods of time and in the event that one parent is unavailable to care for the child for an unforeseen reason, the parent is to give the other parent at least 24 hours' notice and discuss the arrangements that are best for the child at that time.
Removal from the Family Law Watchlist
20.The Australian Federal Police be directed to remove the name of the child X (also known as X) born in 2010 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
Overseas travel
21.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the parents shall be and are hereby authorised and permitted to remove X (also known as X) born 2010 from the Commonwealth of Australia, provided:
(a)The traveling parent notifies the other parent by email of the travel time not less than one (1) month prior to the proposed travel, including details of the proposed itinerary and details of make-up time both immediately prior to and following on from the period of travel for the parent who forgoes time as a result of the travel;
(b)The traveling parent obtains prior to the proposed travel the express written consent (including by way of email) of the other parent for the child to travel, such consent not to be unreasonably withheld and the other parent to notify the travelling parent of the decision within two (2) days of receiving the notice in Order 21(a) above failing which the travelling parent is at liberty to travel;
(c)The traveling parent provides the other parent with a copy of the travel itinerary and the return air tickets no later than 21 days prior to the proposed travel;
(d)The non-travelling parent’s time with the child is suspended during the period of travel;
(e)The traveling parent shall ensure that the child is available for make-up time with the non-travelling parent within one (1) month before or after the trip.
22.The mother be at liberty to apply for an Australian Passport for X (also known as X) born in 2010 without the consent or signature of the father and pursuant to section 11 of the Australian Passports Act2005 (Cth) the Minister forthwith issue an Australian passport in the name of the child without the necessity of obtaining the consent or signature of both of the child’s parents for that purpose.
23.The child’s Australian passport be held by the mother.
24.For the purpose of any travel pursuant to Order 21 above, the mother is to provide the father with the child’s Australian passport details within 7 days of any request for the purpose of arranging any travel bookings, and shall provide the father with the child’s Australian passport no later than three (3) days prior to him travelling overseas, and the child’s passport is to be returned by the father to the mother on the first day the father returns the child to the mother following on from his arrival back into Australia with the child.
25.The parties pay the costs of the Independent Children’s Lawyer (ICL) in the sum of $11,000 in equal shares (deducting any contribution already made) and they may apply to Legal Aid NSW directly seeking any waiver or payment arrangement.
26.Upon the ICL meeting with X to explain these Orders to him, the ICL is discharged.
THE COURT NOTES THAT:
A.The father is not prevented from attending the child’s sporting matches on Saturday mornings, nor other extra-curricular activities during the times when the child is not in his care, but it is expected that the child will be returned to the mother at the conclusion of the activity.
B.Orders 1, 4, 6, 7, 8, 9, 10, 11, 12, 16, 17, and 18 are made by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cham & Fai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
These proceedings relate to the final parenting arrangements for X born in 2010, who is also known as X.
AGREED ORDERS
On the final day of the hearing the parties reached consent on the following issues:
(a)That X live with the mother;
(b)The time that X will spend with the father during school holidays and on special occasions;
(c)Changeover; and
(d)Restraints on the parties’ conduct.
ISSUES IN DISPUTE
The issues that require judicial determination are:
(a)Parental responsibility for X;
(b)How much time X should spend with his father each fortnight;
(c)The frequency of telephone contact between the father and X when X is in the mother’s care;
(d)Whether X’s name should remain on the Airport Watchlist; and
(e)Whether the mother should be permitted to apply for an Australian Passport for X.
BACKGROUND
Mr Fai (“the father”) was born in 1965 and is now 56 years old.
Ms Cham (“the mother”) was born in 1967 and is now 54 years old.
The parties married in 1992 and moved to Australia in 1995.
The bank took possession of the parties’ matrimonial home on 4 October 2007 due to the parties defaulting on their mortgage repayments.
The child of the relationship X was born in 2010.
In 2010 the parties sold their home and moved back to China.
Between 22 July 2010 and 1 October 2011 the parties lived together with X.
On 2 October 2011 the mother returned to Australia to work full time. The father remained in China with X.
On 30 May 2012 the father returned to Australia with X. Upon return to Australia X lived with both parents.
In October 2012 the father returned to China with X to run his business. X remained in China until early 2014.
The mother visited the father and X in China on two occasions during December 2012 and January 2013, and requested that the father return X to Australia.
The parties separated on 5 May 2013.
In around January to March 2014 the mother travelled to China and returned to Australia with X.
In August 2014 X was admitted to hospital for complex febrile convulsion. The father returned to Australia at this time and the parties lived separately under one roof.
In 2016 the father began occasionally staying at hotels, and took X to stay with him at the B Hotel at least once per month.
On 23 March 2016 an Apprehended Domestic Violence Order (“ADVO”) was made to protect the mother from the father for a period of six months.
On 14 July 2017 the father moved out of the matrimonial home.
The parties divorced on 12 March 2019.
DOCUMENTS RELIED UPON
Each of the parties provided Case Outline documents setting out the material relied upon.
The father relied upon:
(a)Affidavit of Mr Fai filed 9 August 2021;
(b)Affidavit of Mr Fai filed 11 December 2020; and
(c)Financial Statement filed 25 August 2021.
The mother relied upon:
(a)(Amended) Initiating Application filed 11 September 2017;
(b)Notice of Risk filed 16 May 2017;
(c)Affidavit of Ms Cham filed 16 July 2021;
(d)Financial Statement of Ms Cham filed 29 October 2021; and
(e)The Mother’s Tender Bundle.
The Independent Children’s Lawyer (ICL) relied upon:
(a)The Family Report of Ms C dated 5 July 2019.
I have also had regard to the following documents tendered and marked as exhibits:
(a)Minute of Orders Sought by the father (Exhibit One);
(b)Family Report of Ms C dated 5 July 2019 (Exhibit Two);
(c)Minute of Orders Sought by the mother (Exhibit Three);
(d)Minute of Consent (Exhibit Four);
(e)Affidavit of Mr Fai filed 17 May 2018 (Exhibit Five); and
(f)Mother’s Tender Bundle Pages 1, 5-13, 14-15, and 30-35 (Exhibit Six).
The only witnesses called were the parties and Ms C.
PROPOSALS
I will now consider the parties’ proposals.
The mother proposes that:
(a)She have sole parental responsibility for X;
(b)Prior to making any decision pursuant to (a) above, she shall notify the father of what decision she proposes to make and the father may within seven (7) days thereof provide her with his views in respect of such decision, and she shall take such views into account in making her decision;
(c)X spend time with the father during the school term on each alternate weekend commencing on Saturday at 12:00pm and concluding at the commencement of school on the following Tuesday;
(d)When X is with one parent the other parent can contact X only twice per day in the morning between 7.00 am – 7.30 am, and in the evening between 7.30 pm and 8.30 pm;
(e)X be removed from the Family Law Watchlist;
(f)The parties be permitted to remove X from the Commonwealth of Australia subject to certain conditions; and
(g)She be permitted to apply for an Australian passport for X, with the passport to be held by the her; and
(h)She do all things necessary for authorising the father’s access to X’s school reports, school photographs, and other such material, and to contact medical practitioners, and allied health professionals to obtain copies of medical reports and other like material.
The father proposes that:
(a)The parties have equal shared parental responsibility;
(b)That X spend five nights per fortnight with him during the school term from after school Wednesday until before school Friday in week one, and after school Friday to before school Monday in week two;
(c)When X is spending time with one parent the other parent can contact X as they wish during that day for up to one hour a day; and
(d)That X remain on the Family Law Watchlist until he is 18.
The ICL, having considered all of the material filed and the evidence given during the hearing, supported the orders set out in the mother’s Minute of Orders.
X
Before applying the law, discussion as to X and his needs is warranted.
X is currently 11 years of age and will turn 12 in 2022.
X currently attends D School where he is in year 5. He is in the Opportunity Class for academically gifted children.
The mother described X to the Family Consultant as “sweet, gentle and smart”.[1] The Family Consultant recorded that:
She said that X is thoughtful and caring and often ‘checks how I am and if I am sick, he likes to take care of me’. Ms Cham believes that X is very mature and emotionally stable for a child of his age, as he is able to share his feelings. She said that X is good at problem solving and that they frequently encourage each other to achieve their goals.[2]
[1] Family Report dated 5 July 2019, paragraph 51 (“Family Report”).
[2]Family Report, paragraph 51.
The father described X to the Family Consultant as “honest, intelligent and very humble”. The father said that X is a very “respectful” child.[3]
[3]Family Report, paragraph 52.
Both parents indicated that X has a strong academic record, and is reaching his developmental milestones. However, in 2019 both parents reported concerns to the Family Consultant about X’s mental health and weight gain. It was not clear at the final hearing if these issues had been addressed or resolved. The father also reported that from a young age X has experienced febrile convulsions, suffering his first febrile convulsion when he lived in China. At the hearing this was no longer a concern.
The father said that X likes to play sport, travel, use his iPad and play with his friends. X is playing many sports and excels at soccer.
The father told the Family Consultant that X is enrolled “in too many extracurricular activities, which X does not want to do”. The father told the Family Consultant that “X is extremely tired from going to before school and after school care and all the extracurricular activities that he (X) participates in throughout the week”.[4]
[4]Family Report, paragraph 50.
However, at that time the mother reported that X participates in about two extracurricular activities a week, for example, swimming and soccer.[5]
[5]Family Report, paragraph 53.
The Family Consultant recorded that:
When asked if there has ever been a time when he has felt frightened, scared or worried by either parent, X responded that he has with Ms Cham. He explained that ‘Mum doesn’t let me do stuff’. X indicated that he has a strict routine and feels that he does not get ‘free time’ for himself to play.”[6]
[6]Family Report, paragraph 61.
The Family Consultant observed that:
X appears to be an intelligent, nice, funny and friendly child who seems surprisingly well adjusted considering the allegations of family violence in this matter. X appears to have a close, affectionate and loving relationship with Mr Fai and a close relationship with Ms Cham.[7]
[7]Family Report dated 5 July 2019, paragraph 79.
PROCEDURAL HISTORY
On 16 May 2017 the mother commenced parenting proceedings.
On 12 July 2017 X was placed on the Family Law Watchlist.
The Child Dispute Memorandum was released on 18 September 2017, and an order was made for the appointment of an Independent Children’s Lawyer on 19 September 2017.
On 18 May 2018 the matter proceeded to Interim Hearing, and interim parenting orders were made, in addition to an order for the preparation of a Family Report.
The mother filed an Application in Case on 1 July 2019 seeking orders to remove X from the Family Law Watchlist, and permit her to travel with X outside of the Commonwealth of Australia.
In August 2019 the parties attended mediation but no agreement was reached.
On 12 December 2019 the matter was allocated final hearing dates for 14, 15 and 16 December 2020. On 25 June 2020 orders were made that the requirements of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) applied for the purposes of cross-examination at the final hearing.
On 25 September 2020 the parties were ordered to attend a Court Based Family Dispute Resolution Conference on 26 October 2020.
The matter finally proceeded to a final hearing on 2, 3 and 4 November 2021 via Microsoft Teams due to COVID-19 restrictions.
As at the date of the final hearing:
(a)The mother had not re-partnered, and was living in a two bedroom unit in Suburb D with X;
(b)The mother was working fulltime as a professional at Employer E located in the Sydney CDB, having worked within the company for approximately 15 years;
(c)The father had not re-partnered. Since permanently moving out of the family home on 14 July 2017 the father has lived in the F Hotel in Suburb G, and the Location H in Suburb J because “he knows the people who work there and is able to get a cheap daily rate of $200 per night”. The Family Consultant recorded that “Mr Fai indicated that hotel living is the best option for him and X as they have access to the pool, the gym, secure accommodation, and central locations”.[8]
(d)The father had retired but earns an income of $1,500 per week from Chinese business interests.
[8]Family Report, paragraph 35.
CREDIT
From the outset it is important to note that the parties love and care for X very much. They have both played a significant role in his care and development since his birth. It was clear that they both intend to remain actively engaged with and support X in the future. The father expressed a great fear of “losing” X from his life saying; “he is my life, my everything”. I accept the strength of the father’s emotions and his ongoing commitment to X.
Generally the Court is reluctant to make adverse findings in respect of a party’s credit in parenting proceedings.[9] However, it has been necessary to do so in this matter. This is because I cannot discharge my statutory obligation to make orders that are in the best interests of X unless I assess the parties competing allegations and accounts of their behaviour during the relationship.
[9] see Adamson & Adamson (2014) FLC 93-622
The mother gave evidence in a composed and considered manner. While she did not offer much detail in her answers, I found her to be an honest and credible witness.
The father was not a good witness. He was evasive and did not answer simple questions asked of him, even when directed to do so. He used the cross-examination process as an opportunity to argue his case, despite being warned not to on several occasions. He gave the impression of being a difficult man to deal with and had an overbearing presence. During parts of his cross-examination, he became angry and irritated. He raised his voice and spoke over the interpreter and/or counsel, sometimes alternating between Mandarin and English. He was not a witness of truth, and where there are inconsistencies or controversies in matters between the parties, I prefer the evidence of the mother.
On 5 July 2019 the Family Consultant prepared the Family Report. The Family Consultant gave useful evidence and there were no challenges made to her expertise. She recommended that:
(a)The Court determine who holds parental responsibility for X;
(b)X live with the mother and spend time with the father on alternate weekends from after school on Friday to before school on Monday;
(c)X spend half of the school holidays with each parent;
(d)Parenting arrangements for X be specific to help minimise future parental conflict and X’s exposure to potential family violence; and
(e)The Court determine whether X’s name is to remain on the Family Law Watchlist.
Findings of fact are made on the balance of probabilities. When statements of fact are made, they constitute findings of fact.
THE LAW
The principles governing the determination of competing parenting applications are set out in Pt VII of the Act.
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
As for the primary considerations, in the leading authority of Mazorski & Albright (2008) 37 Fam LR, Brown J refers to such considerations as the “twin pillars” where:
(a)The first pillar was the importance of a child to have a meaningful relationship with both parents; and
(b)The second pillar is the need to protect children from physical and emotional harm.
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). If the child is subject to an equal shared parental responsibility order, then the amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
The distinct pathway which applies to parenting matters where an equal shared parental responsibility order has been made is the subject of much discussion by the High Court in MRR & GR (2010) 240 CLR 461.
Parental responsibility
The first question requiring determination is whether the presumption in s 61DA(1) of the Act is rebutted. Pursuant to s 61DA(1) of the Act, it is presumed that it is in the child’s best interests that the parents have equal shared parental responsibility. This presumption is rebutted when:
(a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence (s 61DA(2)) of the Act); or
(b)the proceedings are interim and the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)) of the Act); or
(c)there is evidence that equal shared parental responsibility is not in the best interests of the child (s 61DA(4) of the Act).
There are reasonable grounds to believe that the father has engaged in family violence. On the issue of family violence the Family Consultant observed:
Ms Cham’s narrative of the alleged family violence is that Mr Fai is coercive and controlling in his nature as he allegedly threatened to have her fired, undermined her parenting of X, misused shared finances and intimidated her. If Ms Cham’s allegations of family violence are true, it seems that Mr Fai has used X as a tool to assert power and control over Ms Cham.[10]
[10]Family Report dated 5 July 2019, paragraph 82.
I accept the mother’s evidence that:
(a)On 23 March 2016 a final ADVO was made protecting the mother from the father for a period of six months. The father argues that this was made by consent, without admission, and that no charges were laid. The mother alleges that in the months preceding the interim order the father had yelled at her excessively and threatened to damage property in the home in the presence of X. I accept that the father’s conduct caused the mother to be scared for her safety.
(b)In July 2017 there was an incident in her home in the presence of X during which time the father threatened to damage property and took her telephone. The mother reported the incident to the police.
(c)The father has engaged in coercive and controlling behaviour throughout the relationship and that this pattern of behaviour continues. Examples include that:
(i)He threatened to have her employment terminated;
(ii)He constantly undermines her parenting of X;
(iii)He contacts her excessively on a daily basis by telephone and by sending her WeChat messages; and
(iv)He behaves in an aggressive and persistent manner when he wants to achieve something. Examples of this included seeking extra time with X (such as after the interviews with the Family Consultant).
Due to the family violence perpetrated by the father, I find that the presumption in s 61DA does not apply in this matter. On this basis, the Court is to make such orders in its discretion that are in the best interests of X by considering one or more of the matters in s 60CC of the Act.
PRIMARY CONSIDERATIONS PURSUANT TO SECTION 60CC
Section 60CC(2)(a) of the Act requires me to consider the importance of X having a meaningful relationship with each of his parents. I must also consider the issue of the risk associated with him being exposed to harm or abuse in the care of either of his parents.
In McCall & Clark (2009) FLC 93-405 at [122] the Full Court said:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
In Finton & Kimble [2017] FCWA 106 at [37] Justice Walters said:
…the Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) 51 Fam LR 588 at [123] where the Court noted that:
… having a ‘meaningful relationship’ with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Both parties accepted that X should have a meaningful relationship with the father. The challenge in this case is how this can be achieved in a manner that is in X’s best interests and without risk.
The Law on cases involving risk
The Full Court in Deiter & Deiter [2011] FamCAFC 82 at [61] indicated that:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
In making a prediction of whether risk is likely to occur I need to be reasonably satisfied of it. As observed by Justice Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362:
…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
More correctly, the approach is now contained in s 140(2) of the Evidence Act 1995 (Cth) which is generally to the same effect and states:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject‑matter of the proceeding; and
(c)the gravity of the matters alleged.
In Newman & Tate [2020] FamCA 1114 DCJ McClelland at [92] provides a useful summary of the full range of principles to be applied when determining whether an unacceptable risk exists in terms of s 60CC(2)(b) of the Act. He observes:
Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child
He also goes on to observe that:
The Court may reach a conclusion of ‘unacceptable risk’ from the accumulation of factors…
Finally, having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”.[11]
[11]Blinko & Blinko [2015] FamCAFC 146 at [83].
There are risks alleged by each parent in this matter.
There are mutual allegations of family violence in this matter.
The mother alleged that the father has a gambling addiction which X needs to be protected from.
There are mutual concerns for X’s emotional health arising from his exposure to abuse, neglect or family violence.
Both parents alleged that the other has undiagnosed mental health problems.
Family Violence
I have made a finding in relation to the family violence experienced by the mother.
The Family Consultant recorded the following allegations made by the father regarding the mother:
…Ms Cham threatened him and spoke to him in a derogatory manner, as she reportedly told him ‘go to hell’, ‘I want your Mum [paternal grandmother] to die’ and ‘I want a divorce’. Mr Fai claims that Ms Cham was critical of him and frequently complained to him about things that, in her opinion, he had done wrong. He asserts she pushed him twice, broke plates and threw other items and slammed the door out of frustration. Mr Fai alleged that Ms Cham followed his movements because she ‘knows where I stay’ and proceeded to question ‘but how does she know which one I [Mr Fai] am at’.[12]
[12]Family Report dated 5 July 2019, paragraph 46.
The mother accepted that at times she had shown concern for the accommodation that the father was providing for X. She was also, understandably, frustrated on occasion by the behaviour of the father.
Section 4AB of the Act defines family violence as follows:
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.
The complaints raised by the father about the mother’s conduct do not meet this definition.
Gambling addiction
The mother alleges that the father has had a gambling problem for over 15 years. She evidenced this by:
(a)The family debts accumulated between 2007 – 2010 which led to the ANZ bank taking possession of the former matrimonial home;
(b)Tendering a player history audit trail produced by the Star Casino. The document recorded that the father lost $449,686 gambling on “slots” between 1 January 2013 and 9 November 2020; and
(c)Annexing to her affidavit the father’s Platinum Member status at “The Star Club”.
The Family Consultant recorded the father disclosing the following as to his gambling habits:
Mr Fai said that he ‘used to gamble more than I do now’ which is approximately twice a week and spending between $200 and $300 each time. Mr Fai said that he stays in the B Hotel as he receives a cheap rate, not so that he can gamble. Mr Fai said that he used to use gambling as a form of stress relief. Mr Fai said that he did not want to continue to answer questions about gambling, as he does not see why it is relevant for the Family Report.[13]
[13]Family Report dated 5 July 2019, paragraph 37.
The father denies that he has a gambling addiction but also asserts it “does not impact on my financial capacity” and “does not impact on my ability as a parent”.[14]
[14]Father’s affidavit filed 9 August 2021, paragraphs 41-43.
The father said that his comments to the Family Consultant were not accurate. He denied that the Star Casino record was correct. He said he had stopped gambling recently.
I found his evidence on the issue evasive, inconsistent and unreliable. I find it most likely that the father has a gambling problem that remains untreated and that this has the potential to expose X to psychological harm and from being subjected to neglect.
Mental health
The Family Consultant recorded the father’s allegations that:
Ms Cham might have had postnatal depression after X’s birth. He proceeded to say, “I think she is crazy. I don’t know why she can do these things to the family, I have been devoted to this family my whole life”. Mr Fai initially stated that he does not have any mental health problems but later said that he has experienced depression and has felt helpless, because he has not been treated fairly or received any justice in terms of matters that are before the Court. He said that he is preparing to put a civil claim against the Independent Children’s Lawyer (ICL).[15]
[15]Family Report dated 5 July 2019, paragraph 38.
These allegations were not contained in his affidavit, nor referred to in cross-examination.
I do not find the mental health of the parties to be a risk to X.
Risks to X’s emotional wellbeing arising from his exposure to abuse, neglect or family violence.
The mother is concerned that the father’s conduct impacts upon X’s safety and wellbeing. She alleges that the father:
(a)Continues to expose X to parental conflict;
(b)Telephones X multiple times during the day and evening to check his whereabouts and activities;
(c)Does not have a permanent address, rather staying in different hotels with X. This raises for her the following concerns for X:
(i)He may be left alone in a hotel room while the father gambles;
(ii)He has no personal belongings with him and relies on his phone, video games and television for entertainment;
(iii)His food intake is unhealthy;
(iv)He stays up late into the night and does not get enough sleep;
(v)He misses sporting and social commitments;
(vi)He shares a single bed with his father; and
(vii)The casino is not a favourable environment to expose X to.
The mother’s concerns are legitimate. It is necessary to predict the likelihood of a harmful event occurring and the potential impact.
What are the likely impacts of these risks?
The Family Consultant opined that the impact of X being exposed to family violence is :
…likely to be stressful and frightening for X and teaching him that it is acceptable behaviour in an intimate partner relationship to behave in this manner. It is possible that X will learn maladaptive interpersonal skills which impacts on his ability to form and maintain healthy relationships in the future. If X were to continue to be exposed to the alleged family violence, it is likely that his relationships with one or both parents could be severely damaged.[16]
[16]Family Report dated 5 July 2019, paragraph 85.
The Family Consultant was less sure about the impact of the father’s gambling habits on X. She opined that the father may have an underlying psychological condition as gambling is an addictive behaviour. The father has not been diagnosed with a psychological condition, and therefore the Court can make no findings about the impact of this on X.
X is 11 and has been staying in hotel rooms with his father for four years. The father responded to questions about his living arrangements stating “every family has a different situation. I shouldn’t be punished or penalised for this”.
The father argued that the living arrangements did not place X at any risk. For the most part there were no real risks identified. However, the Family Consultant agreed that it was a contra indicator to increasing time with the father, and that it reflected a lack of capacity of the father to meet X’s developmental needs.
Whilst it is an unconventional way to live, and it may have some longer term impacts on X, there was no evidence that X was at risk from harm from being subjected to abuse or neglect arising from the father’s living arrangements.
However the Court will need to ensure that the Orders made best mitigate against the risk of exposing X to the parental conflict and family violence.
ADDITIONAL CONSIDERATIONS PURSUANT TO SECTION 60CC
Section 60CC(3) of the Act sets out additional considerations for determining what is in the best interest of X, and reference is now made to those relevant to these proceedings.
The mother conceded during cross-examination that X would like to spend more time with his father. This is consistent with the view he expressed to the Family Consultant.
The Family Consultant spoke to X in 2019. She observed then that:
X’s expressed view is that he would like to spend more time with Mr Fai, but that he wants the arrangement to be fair for his parents. Fairness seems to be the main reason behind X’s perspective of wanting to live in an equal time parenting arrangement, and this kind of thinking is common in children of X’s age. Despite X being aware of Mr Fai’s proposal for X to live primarily with Mr Fai, he did not express that he would like this option. However, he clearly stated that he would like to spend more time than he currently does with Mr Fai but not more than seven days of 14 days. Although it is age appropriate for X to believe that it is right/good for things to be equal for his parenting arrangement, this is not necessarily the case, as X is a child and has limited insight or understanding into the parental problems. Therefore, some weight should be given to X’s expressed view, but caution is also required.[17]
[17]Family Report dated 5 July 2019, paragraph 80.
In his school report his teachers describe him as “mature and thoughtful”. The ICL indicates that X’s views have not changed since 2019.
The weight to be given to any views expressed by a child is as the Court considers appropriate in the circumstances. As held in R v R (2000) FLC 93-000 at [44] and [54]:
54.There are many factors that may go to the weight that should be given to the wishes of children, these will vary from case to case, and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested.
44.What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.
I place weight on X’s views but they are not determinative, particularly in circumstances where the father has embroiled X in these proceedings, often inappropriately.
The Family Consultant noted, while observing X and the mother, that they “seemed to have a playful banter” and that they had a “nice and engaged connection”.[18]
[18]Family Report dated 5 July 2019, paragraphs 70 and 73.
The Family Consultant concluded that X had a:
…close, affection and loving relationship with Mr Fai and a close relationship with Ms Cham. It is possible that X’s seemingly positive relationship with Mr Fai is due to him being aligned with Mr Fai as a result of factors associated with family violence…[19]
[19]Family Report dated 5 July 2019, paragraph 79.
The father gave evidence that he feared his relationship with X was becoming more distant. The Family Consultant observed that X is older than when the Family Report was prepared, and that he will be developing more autonomy and seeking more involvement in decisions about what he does, and that there were many variables at play.
An area of contention was the father’s constant communication with both the mother and X. The mother complained the she receives an excessive number of calls from the father each day about X. At the time of the Family Report interviews the father acknowledged that he called her approximately 20 times a day. He also calls X throughout the day. He said he had some anxiety about X and said “I hope I can know my kid’s whereabouts, it is human nature”. The father displayed no insight into the possible impact of these constant telephone calls on X. The Family Consultant agreed that it would be detrimental to X to have his time with the mother constantly interrupted by the father’s telephone calls.
It would appear that since X returned to the mother’s care in 2018 she has met all of X’s financial needs. I accept that the father has made very few contributions to X’s financial needs. There is no child support assessment and the father does not pay child support.
His spending on gambling at the Star reflects poorly on the father’s attitude towards parenting, particularly in circumstances where he has paid no child support to the mother.
X currently spends time with the father in accordance with the Orders dated 18 May 2018. Since February 2021 the parties have varied the arrangements so that on one weekend the father collects X on Saturday afternoon and ensures he goes to school on Monday morning. On the alternate weekend he also spends a day with X. He is also seeing X each Monday and Wednesday when he takes him to soccer training and returns him to the mother.
The mother seeks that X continue to spend three nights per fortnight with the father and the orders she seeks do not result in a significant change to X’s circumstances.
The mother also seeks to limit the number of times the father calls X. She proposes a call in the morning and one at night. The Family Consultant thought if an order of this kind was made, it would be important for X to know that his father may not be allowed to call so often because it is burdensome to have those calls.
The father’s current proposal is that X spend five nights per fortnight with him. The Family Consultant opined that spending more time or living with the father:
…would lead to a significant concern that Mr Fai’s influence over X could result in X losing his relationship with Ms Cham. The risk of this happening, combined with the other risks and concerns about Mr Fai’s parenting outweigh any possible benefit of this option.[20]
[20]Family Report dated 5 July 2019, paragraph 93.
The mother and X reside at Suburb D.
The father does not have permanent accommodation but lives in hotel rooms across Sydney. When X is in his care he generally stays at the F apartments in Suburb G. He has previously stayed at the Location H at Suburb J. His evidence on the issue was inconsistent. He offered that he had an arrangement to stay in the same room. He later admitted this was not true but that the rooms all had the same layout.
The father’s hotel arrangements cause some practical difficulties addressed earlier in these reasons. Evidence about these difficulties included:
(a)X having to carry a heavy school bag around with him on weekends with his father;
(b)The challenges of washing X’s clothes before he returns to school each Monday;
(c)The ability of X to undertake normal day to day activities in a hotel room without any belongings including sporting equipment, musical instruments and school books. The mother was particularly concerned about how he will complete his homework as he gets older; and
(d)The father’s practice of booking a room with one king bed which he shares with X.
In recent times the parties have addressed this situation by X returning home after school on Friday, the mother retaining his school bag, doing his laundry and then meeting X on Monday morning to give him his school bag.
X is meeting his developmental milestones, he is progressing well at school and achieving in both his intellectual and sporting endeavours.
It does however present some practical difficulties for X as he gets older, particularly in circumstances where the father seeks to spend more overnight time with him on school nights.
There are a range of concerns that the mother has raised about the father’s capacity to provide for the needs of X. Most of these have now been considered. They include:
(a)The practical difficulties associated with his living arrangements;
(b)The father’s financial capacity in light of his gambling and failure to pay child support;
(c)The father’s historical refusal to take X to his weekly extra-curricular activities. This appears to arise because either the father does not wish to wake up early to take him, or he has allowed X to stay up late.
However despite the mother’s criticism, the father has generally provided for X’s needs in an appropriate manner. For example on 31 August 2018 X fell ill at school, the father attended at the school and X was conveyed by ambulance to the L Hospital. He remained in hospital for seven days and the father stayed with him.
While the mother is critical of the father’s punctuality and willingness to ensure that X attends all scheduled activities, the father plays an active role. For example, on Monday and Wednesday he collects X and takes him to soccer training before returning him to the mother’s home.
The Court must also consider the impact of the father’s controlling and coercive behaviour on the mother’s parenting capacity. The Family Consultant observed:
The impact of this type of alleged violence on Ms Cham may be debilitating as it can destroy ones self-esteem, contribute to mental health problems, impact her ability to make good decisions, and impact on her parenting capacity which would make it difficult for Ms Cham to consistently meet X’s emotional needs and possibly his physical needs.[21]
[21]Family Report dated 5 July 2019, paragraph 82.
The parties are Chinese and all their family members live in China. The Family Report records that the father reported having a “limited support network and said that because of issues of shame, he does not talk to his family and friends about personal problems that he might be going through”.[22]
[22]Family Report dated 5 July 2019, paragraph 4.
The father denied failing to take X to Saturday sporting commitments whilst X was in his care. A concerning aspect of the Father’s evidence was that whilst he was keen to take X to training, he didn’t think it mattered to X who turned up to watch him play sport. The Family Consultant agreed that this attitude reflected poorly on the father. The Family Consultant explained that it is really important for a child’s relationship with their parent to feel supported by their parent, to have that opportunity to show their skills to their parent, and to help their parent to feel proud of them. She said:
It is important for the child to know that their interests are important to the parent, and is important for the parent to know about the child’s world, so if soccer is important to X it is not just about the sport, it is about the friendships, and introducing his friends to his father, or his mother or his friends’ parents as well.
The father’s attitude towards X’s soccer commitments shows a lack of insight as to X’s needs and his interests, particularly in relation to his skill both academically and on the sporting field.
It is preferable to make an order least likely to lead to the institution of further proceedings. The mother seeks an order for sole parental responsibility to avoid further conflict over decision making. This is particularly important considering X told the Family Consultant that he “feels a lot of pressure in response to his parents’ arguments and stated he is ‘tired’ of it.”[23]
[23]Family Report dated 5 July 2019, paragraph 59.
CONCLUSION
The challenge for the Court in deciding what outcome is in X’s best interests was acutely identified by the Family Consultant who observed;
This is a complex matter involving allegations of family violence, possible gambling addiction, Mr Fai’s inconsistent place of residence and X’s surprisingly good relationship with both of his parents. The parenting relationship between Ms Cham and Mr Fai seems to be characterised by Mr Fai undermining Ms Cham and seemingly competitive behaviour between the parents to secure X’s approval/affection. The dilemma in this matter is how to support X to have healthy and positive relationships with both his parents whilst ensuring that he is physically and psychologically safe.[24]
[24]Family Report dated 5 July 2019, paragraph 78.
Parental responsibility
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together, and jointly, decisions about major long-term issues affecting the children. The father seeks an order to this effect.
The mother seeks an order for sole parental responsibility. She submits that both during the relationship and since separation, the parties have been unable to make joint decisions as to major long-term issues, specifically in relation to where X will live.
As I have found that there are reasonable grounds to believe that the father has engaged in family violence, the presumption in s 61DA(1) is rebutted.
The Family Consultant was unable to provide a recommendation about the parental responsibility for X. She said:
This is a complex matter, which requires the Court to determine who should hold parental responsibility for X. The apparent power and control dynamics of Mr Fai and Ms Cham’s interactions makes it seem impracticable for the parents to share parental responsibility for X. It is highly likely that if the parents were to have shared parental responsibility that Mr Fai would make the decisions and pressure Ms Cham into conceding. However, if one parent were to have sole parental responsibility for X, the other parent may be excluded from involvement.[25]
[25]Family Report dated 5 July 2019, paragraph 98.
The father’s case is that he and the mother communicate on a daily basis on a range of issues. He believes they can continue to co-parent effectively.
The mother set out in her affidavit her concerns about the pressure that the father places upon her for additional time with X which she argues undermines her. An example of this took place at the conclusion of the family report interviews. I accept the mother’s evidence of what happened on that day.
I am satisfied that requiring the mother to communicate with the father in order to give effect to an order for the parents to have equal shared parental responsibility would cause her ongoing anxiety, and may adversely impact upon her parenting capacity. This would not be in the best interests of X.
The father was asked to provide the Court with some positive aspects or virtues of the mother. He struggled to do so. His conduct seeks to undermine the mother and her decisions. I am satisfied that the father does not respect the mother or the decisions that she makes. He is a dominant force, and it is not realistic to expect the mother to negotiate with the father on decisions arising in the exercise of parental responsibility.
I have identified that an ongoing risk for X is his constant exposure to the parental conflict. Allocating parental responsibility to the mother will go some way towards minimising this.
The father understandably wishes to have input into X’s future. I will therefore make an order for the mother to have sole parental responsibility but prior to making any decisions about his long term care, welfare and development, the mother shall notify the father and take his views into account before making her decision.
What time should the father spend with X?
I will make orders for the father to spend time with X each alternate weekend from Saturday afternoon until before school each Tuesday. This order will go some way to mitigating the risks identified earlier. In reaching this decision I have been influenced by the following matters:
(a)One block of time provides certainty, it will allow the father to book a hotel room on a regular basis, and it allows his involvement in day to day activities involving X such as soccer training on Monday evening; and
(b)The commencement time allows the mother to ensure that X attends his Saturday extra-curricular commitments.
The father sought an order that X stay overnight with him in the “off week”. I have not made that order because:
(a)The hotel arrangement is not a practical one for school nights as X gets older. He may find it difficult to complete homework whilst in his father’s care.
(b)X may struggle as he gets older if he does not have a place he can go to after school where he has his belongings, his books, instruments, clothes for all activities, personal space and a stocked fridge and pantry.
(c)The father has been unreliable when it comes to managing some of X’s day to day needs such as attending extra-curricular activities, driving him to school and packing his bags.
(d)The father will still get the benefit of spending one half of each school holiday with X where they can enjoy extended periods together.
(e)The father can still attend X’s extra-curricular activities when X is not spending time with him. For example, attending X’s soccer training or band. However, the Court expects that X will return home to his mother’s residence to sleep at the conclusion of that activity.
Communications and specific issues
The parties did agree to a raft of orders concerning the ongoing communication and notification of matters concerning X. I will make those orders as proposed by the ICL.
I outlined earlier the dispute between the parties concerning telephone communication. The father explained that he speaks to X regularly throughout each day because he is anxious to ensure that X is safe and well. I accept that the phone calls are well intentioned. However, they have the potential to become invasive for X and undermine the mother’s parenting when X is in her care.
Therefore, each party will be restricted to speaking to X twice per day when he is not in their care. The calls shall be made in the morning between 7.00 am and 7.30 am, and in the evening between 7.30 pm and 8.30 pm. At all other times, the father is able to use SMS messages. However, these are not to be used excessively but rather for simple messages that are associated with X’s day to day arrangements.
The mother also complains of excessive telephone calls from the father to her phone. While I understand that raising a child requires a level of communication and co-operation, the mother is entitled to live her life without daily telephone communication with the father. The Orders will provide that the parties use WeChat for their communications, and that the father is only permitted to send SMS messages or telephone the mother if urgent communication is required.
Removal from the Family Law Watchlist
At the time of the Family Report the Family Consultant observed that:
Whilst Ms Cham has previously been worried about overseas abduction as a risk issue in this matter, Ms Cham does not seem to think this is a current risk factor. Ms Cham mentioned that if Final Orders were in place and there were specific Orders for overseas travel she believes it would be fine if X were no longer on the Family Law watch list. Ms Cham did not mention that, if X’s name were removed from the Family Law watch list, she would be worried where X were to travel with Mr Fai.[26]
[26]Family Report dated 5 July 2019, paragraph 25.
At that time the father planned to travel with X and the Family Consultant said:
Mr Fai indicated he thinks it is “not fair” that X is on the Family Law watch list and believes that X should be able to see his extended family members who live in China. Mr Fai indicated that he wants to be able to secure a “scholarship to America” for X or for X to be able to travel overseas for holidays.”[27]
[27]Family Report dated 5 July 2019, paragraph 33.
The parties reversed their positions at the final hearing. The mother proposed that X’s name be removed from the Family Law Watchlist and that both parties be permitted to travel with X for the purposes of a holiday. The father opposed this arguing that the mother is a flight risk.
The mother argues that although the father has previously threatened to remove X from Australia, X is now 11 years old, and has his own mobile phone. He is much less likely to be removed from Australia against his will.
The father argues that China is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction, and therefore restraints should be in place to prevent either parent from travelling to China overseas with X.
The mother has lived in Australia for 26 years which is more than half her life. The parties have travelled to and from China with X on several occasions post separation. The father suggested that the mother, who has worked at Employer E for 15 years, could potentially seek to move to the City M, China office. No evidence was produced to suggest that she contemplated this. The parties have both renounced their Chinese citizenship, and the parties and X are Australian citizens. There was no evidence put before the Court to suggest there is a “flight risk”.
X has spent extensive periods of time in China and as a result has “strong connection[s] with grandparents, aunts, uncles and cousins”. His grandparents are elderly and unable to travel to Australia. The mother’s parents and her sister remain living in China.
It is reasonable to expect that the parties may wish to travel internationally with X and international travel is an opportunity for X to understand more deeply his cultural background, strengthen bonds with his extended family, and experience all of the other opportunities that international travel affords a young person. I will therefore make the orders sought by the mother.
ICL’s Costs
The ICL sought an order for the parties to share the costs of the ICL.
The ICL submitted a cost schedule indicating total costs of $32,884.50. These costs have arisen in circumstances where dates for a final hearing have been allocated on three occasions, with the final hearing being adjourned on two occasions. No doubt there was preparation associated with those earlier hearings but the three attempts at final hearing was not the making of the parties. Accordingly, and while noting this is not strictly accurate, I will divide the costs by three and assess the ICL’s costs for the entire proceedings at $11,000.
The parties made no submissions on the cost application made by the ICL. They had both however filed Financial Statements.
An ICL is appointed because the Court has found it is in the best interests of the child that they be independently represented.[28]
[28]Family Law Act 1975 (Cth) s 68L(2).
Section 117(4)(b) of the Act confers the statutory power not to make a costs order under s 117(2) against a party if the Court considers that such party would suffer financial hardship. In my view it is appropriate to recognise that the costs and disbursements rendered by the ICL should be met in this case in the manner contemplated by s 117(3).
The parties both filed Financial Statements in these proceedings. The father’s legal representation is provided by the Family Violence and Cross Examination of Parties Scheme (“the Scheme”) pursuant to an order made under s 102NA of the Act. His Financial Statement indicates a weekly income of $1,500. He appears to have discretionary income highlighted by his expenditure on gambling. He pays no child support. In addition, he deposes owning property with a gross value of around $1,230,000. It would appear that he would suffer no significant financial hardship if he were asked to make a contribution towards the ICL’s costs.
The mother is also in receipt of legal assistance under the Scheme. She has a weekly income of $2,437. She deposes personal expenditure of $695 each week and fixed expenses of $1,141. This leaves her a surplus of around $601 per week. While it is no doubt difficult for her to raise a child without the father’s support, she has had the benefit of her own legal costs being funded under the Scheme.
I will make an order that the parties contribute equally towards the ICL’s costs assessed at $11,000 for this purpose. That is a payment of $5,500 each with any initial contribution already paid being deducted from their share. The parties may of course approach Legal Aid NSW directly and apply for any waiver or payment arrangement.
I make an order for the discharge of the ICL once they have explained these Orders to X.
The orders I have made are in my view in the best interests of X at this time of his life. Whilst I appreciate that the father may be disappointed that I have not made the orders he is seeking, it in no way reflects the important role he plays, and will continue to play as X’s father.
I wish X the very best for the future and thank the parties and the legal representatives for helping to ensure that the orders made by this Court best support him.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 22 December 2021
0
6
0