Chard and Yong (No 2)

[2020] FamCA 386

FAMILY COURT OF AUSTRALIA

CHARD & YONG (NO. 2) [2020] FamCA 386

FAMILY LAW – CHILDREN – Parenting – where the Mother seeks to take the child on overseas travel – where China is not a Hague Convention country – no order made permitting travel – where the Mother is at liberty to apply for a passport for the child without the consent of the Father - where the Father seeks to email the child on a weekly basis – where no order made for email contact between the child and the Father   

Family Law Act 1975 (Cth)

APPLICANT: Mr Chard

RESPONDENT: Ms Yong

INDEPENDENT CHILDREN’S LAWYER: Ms L Strong

FILE NUMBER: CAC 1638 of 2016

DATE DELIVERED: 19 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 11-14 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Howard

SOLICITOR FOR THE APPLICANT: Stanfords Solicitors

SOLICITOR FOR THE RESPONDENT: Legal Aid, ACT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Strong Law Pty Ltd

Orders

1. X, born … 2015, is permitted to have an Australian travel document pursuant to s 11 of the Australian Passports Act 2005.

2. The Mother has liberty to apply for an Australian Passport for the child, X, born … 2015, without the consent or signature of the Father.

3. On receipt of the passport for X, the Mother is to immediately lodge the passport at the Canberra Registry of the Family Court of Australia for it to remain there pending order of the Court or the written agreement of the parties for its release and use.

4. The Independent Children’s Lawyer will be discharged six weeks after the date of these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1638 of 2016

Mr Chard

Applicant

And

Ms Yong

Respondent

REASONS FOR JUDGMENT

1. This judgment as to contested matters occurs in the larger context of the parties agreeing to substantive orders dealing with the living arrangements for X.  They have agreed that the Mother will exercise sole parental responsibility, that X will live with the Mother, and as to the arrangements that will govern X spending time with the Father.  Those arrangements set out a comprehensive scheme for the Father to obtain support in the context of a lengthy hiatus in the time that he has spent with X, and the further context of his diagnosed mental condition.  The consent terms were entered into, and orders made on day four of the trial of the matter, following extensive negotiations.

2. The circumstances of those consent orders being made and why they were found to be in the best interests of X are set out in the ex tempore judgment given upon the making of those consent orders.  This judgment does not recite those factual matters again, save in so far as it is necessary to deal with the contested matters remaining between the parties.

3. The contested matters relate to two areas.  Firstly, the Mother seeks orders that would allow her to procure a passport for X and enable her to undertake international travel with X without the consent of the Father.  The Father seeks orders that provide for him to be able to email X on a weekly basis and for X to email him as she wishes to.

4. The circumstances in which these matters are to be resolved are as follows.  There is a complete breakdown in the co-parenting relationship between Father and the Mother.  The Mother, who is a Chinese national with Australian citizenship, has been granted sole parental responsibility.  As noted above, X is to live with her and a complex set of arrangements have been agreed to in order to recommence the Father spending time with X after a significant hiatus in the time he has spent with her.  Those arrangements include the Father attending upon appropriate therapists, either psychotherapists or psychologists and, following doing so, commencing with supervised time through a professional supervision agency.  The orders then provide that (as long as the Father has complied with the arrangements) the matter will transition to regular but unsupervised time.  The precursor to this position was that the Mother was seeking orders that excluded the Father from X's life completely.

5. It is in these circumstances that the contest arises about international travel.  The Mother's purported reason for travel is so that X can enjoy and experience a relationship with her relatives in China.  The benefits to X of the proposed travel arrangements include engagement with the maternal family and with the Mother's culture.

6. China is not a Hague Convention country and so if the Mother was to retain X in China, there would be no sufficient mechanism to ensure X’s return to Australia.  The Father alleges that at the date of separation, the Mother was offering to purchase X from him so that she could return to China with X.  This matter was not resolved at the trial given the parties entering into consent terms.  The consent terms were entered into prior to completion of cross-examination of the Mother, and specifically prior to cross-examination in relation to that matter.  I do not have the complete set of evidence in relation to this particular matter.  The risk then that is pointed to in the making of the orders as sought by the Mother is a frustration of the process agreed to by the parties to bring about a meaningful relationship between X and her Father and to grant her benefits from that development of a meaningful relationship. 

7. These matters call for a difficult balance to be struck.  The evidence indirectly points to some risk of retention of X in China, although it has been pointed out that the Mother has employment and a home in Australia as well as her citizenship.  It may be that, on that state of evidence as to risk of retention, good evidence of the benefits of the travel for X would be sufficient as to tip the balance in favour of travel.  However, there is an absence of any specific proposal on the part of the Mother as to the nature and duration of the travel (other than it is not to interfere unduly with the Father's time with X) nor of the particular travel nor the particular benefits to accrue to X.  Under those circumstances, the balance weighs in favour of a conservative approach to ensure that the mechanisms for the development of a meaningful relationship and the benefits to flow from that might be realised.

8. That, however, does not answer the aspect of the Mother’s application as it relates to obtaining a passport for X without the consent of the Father.

9. Even if no order is to be made permitting travel, (noting that consent could be given to the travel in any event pursuant to s 65Y of the Family Law Act 1975 (Cth)) there does not seem to be particular impediment in the way of the Mother being able to apply for the passport without the permission of the Father. As noted, the co-parenting relationship is broken down. It is not in X's best interests to force the parents to cooperate even on a matter such as the preparation of a passport. If a passport is obtained by the Mother, but lodged with the Canberra Registry of the Family Court of Australia pending further Court order, or written consent provided by both of the parties, then it would seem that sufficient protection would be in place, and so orders will be made to such an effect.

10. The second matter involves email contact between the Father and X.  It should be noted that X has only just turned five years old.  The nature of such contact seems better suited to a child of older years with a demonstrated adequate literacy to deal with it as a communication means.  Further, to simply allow the email correspondence to take place at this stage undermines the orders that have been carefully crafted to ensure that the Father's time with X and contact with her is reliable in a sense that will not contradict X's best interests.  Those orders require the Father to undertake certain steps before he is able to have face-to-face time with X and so it would seem that permitting email contact prior to those steps being undertaken conflicts with the regime put in place by agreement by the parties.  It cannot be anticipated that at this stage email contact between herself and her Father is practically in her best interests. Rather, it seems that such an arrangement will be ripe for consideration between the parties should they reach the step predicted at Order 21 of the orders whereby they are to undertake mediation in an attempt to resolve future arrangements for X to spend time with her Father.

11. No order should be made at this stage in relation to email contact between X and her Father.

12. The final issue to be addressed is as to the discharge the Independent Children’s Lawyer.  The Independent Children’s Lawyer indicated that it would be important for her to act as a conduit to provide the appropriate information to the supervision agency before her discharge.  She invited the Court to make a discharge order to come into effect six weeks after the handing down of these Orders.  Orders will be made to that effect.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 May 2020.

Associate: 

Date:  19 May 2020