Cheng & Mong (No 2)

Case [2023] FedCFamC1F 460

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cheng & Mong (No 2) [2023] FedCFamC1F 460

File number: SYC 2806 of 2020
Judgment of: HENDERSON J
Date of judgment: 8 June 2023
Catchwords:

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother seeks the child live with her in Country B – Where the father seeks the child live with him in Australia – Consideration of principles in relocation applications – Finding it is not in the best interests of the child to live permanently in Country B – Application refused – Parental responsibility assigned to the live-with parent – Orders made for the mother to spend time with the child when she visits and/or resides in Australia – With whom a child communicates – Orders made for the mother to have video and other electronic communication with the child while she resides in Country B – Passports – Orders made that the father may apply for a passport for the child without the mother’s consent.

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where there are concurrent property proceedings in Australia and Country B – Where a previous judgment held that Australia is not a clearly inappropriate forum – Where the property proceedings in Country B may be finalised in mid-April 2023 – Orders made listing the property proceedings for possible final hearing after judgment is delivered in the Country B Supreme Court.

Legislation:

Australian Passports Act 2005 (Cth) s 11(1)(b)(i).

Family Law Act 1975 (Cth) ss 60B(1)(a), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b)(i), 60CC(3)(b)(ii), 60CC(3)(c)(iii), 60CC(3)(d), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 61DA(4), 68B, 102NA.

Cases cited:

Cheng & Mong [2022] FedCFamC1F 260.

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.

Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230.

U v U (2002) 211 CLR 238; [2002] HCA 36.

Division: Division 1 First Instance
Number of paragraphs: 141
Date of hearing: 3–5 April 2023
Place: Sydney
Counsel for the Applicant: Mr Jackson
Solicitor for the Applicant: Aeon Law Firm
Counsel for the Respondent: Mr Duc
Solicitor for the Respondent: Ark Law Lawyers
Counsel for the Independent Children’s Lawyer: Mr Braine
Solicitor for the Independent Children’s Lawyer: S P Nasti and Co Solicitors

ORDERS

SYC 2806 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CHENG

Applicant
AND:

MS MONG

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

HENDERSON J

DATE OF ORDER:

8 June 2023

THE COURT ORDERS THAT:

1.The application of the mother, Ms Mong (“the mother”), for the child, X, born 2015, to live with her in Country B is refused.

2.All previous parenting orders are discharged.

Parental Responsibility

3.The father, Mr Cheng (“the father”), is to have sole parental responsibility for X.

4.For the purpose of Order 3 and except in the event of an emergency, before making any major long-term decision, the father will:

(a)Advise the mother in writing, no less than 28 days prior, of…

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AGLC
Cheng & Mong (No 2) [2023] FedCFamC1F 460
Case
[2023] FedCFamC1F 460
Decision Date

CaseChat Overview and Summary

In the matter of Cheng & Mong (No 2), the Family Court of Australia addressed the parenting arrangements for X, the child of the parties. The parents, who have a history of conflict and inability to communicate, are unable to agree on the best living arrangements for X. The case involves determining whether X should live with his father in Australia or his mother in Country B, considering the implications of each option on X's best interests. The court had to decide the allocation of parental responsibility, the living arrangements for X, and the communication and contact between X and his parents.

The primary legal issue was to determine the parenting orders that best serve X's interests, focusing on where he should reside and the level of contact with each parent. The court considered the implications of each parent's proposal, the communication between the parents, and the benefits and risks associated with each arrangement. The paramount consideration was X's best interests, as mandated by section 60CA of the Family Law Act 1975. The court needed to weigh the benefits of X maintaining a relationship with both parents against the risks posed by the parents' inability to communicate and cooperate.

The court found that X should live with his father in Australia, given the father's stable residence and family support system there. It was noted that X has a meaningful relationship with his father and his paternal family, which would be disrupted if he were to move to Country B. The court also considered that X's relationship with his mother, although strained, still holds significance, and facilitating a positive relationship with her could be beneficial for X. The court allocated sole parental responsibility to the father, acknowledging the parents' inability to communicate and cooperate. Orders were made to support communication and contact between X and his mother, aiming to maintain a meaningful relationship while ensuring X's stability in Australia.

The court's final orders included that X would live with his father, with specific arrangements for contact and communication with his mother, ensuring that X's best interests are prioritized. The court also addressed the parents' capacity to communicate and cooperate, emphasizing the need for support to facilitate a positive relationship between X and his mother. The orders aimed to balance the need for stability in X's life with the importance of maintaining a connection with both parents.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There have been no less than five separate sets of orders made in respect of X’s parenting, highlighting the parents’ incapacity to communicate and focus on X’s best interests. The present orders in relation to X are as follows:(1)X live with the father;(2)X spend time with the mother as agreed in writing and failing agreement as follows:(a)on Saturdays from 12 noon to 2.00pm for two occasions; and thereafter(b)on Saturdays from 10.00am to 2.00pm for two occasions; and thereafter(c)on Saturdays from 10.00am to 4.00pm for two occasions; and thereafter(d)on Saturdays from 10.00am to Sunday at 4.00pm for two occasions; and thereafter(e)on each alternate weekend from Friday at 5.00pm to Sunday at 4.00pm;(3)In the event that the mother departs Australia, (2) herein is suspended until such time as she returns to reside in Australia, and in that event, X’s time with the mother resumes in accordance with (2) herein as follows:(a)if the mother returns to Australia within six weeks of her departure, then in accordance with (2)(c) thereon;(b)if the mother returns to Australia within three months of her departure, then in accordance with (2)(b) thereon;(c)if the mother returns to Australia more than three months after her departure, then in accordance with (2)(a) thereon;(4)In the event that the mother remains outside Australia for a period exceeding six months, the Independent Children’s Lawyer have liberty to apply;(5)Changeover occur as agreed in writing and failing agreement as follows:(a)the father deliver and collect X to and from the entrance to W Park, at the corner of Y Street and Z Street, Suburb AA unless the weather is inclement in which case the father deliver and collect X from outside the Apple Store within BB Shopping Centre; and(b)in the event of uncertainty with respect to the weather, the parties clarify their arrangements via SMS messaging;(6)X have video communication with the mother as agreed in writing, and the parties are to do as necessary to facilitate communication to occur during X’s school time, and failing agreement and facilitation, each Saturday and Sunday between the hours of 6.00pm and 6.30pm Sydney time via electronic means;(7)The parties are restrained by injunction:(a)From approaching the place of residence of the other party unless expressly invited to do so by that party in writing, and each party undertake that they will not encourage or otherwise cause a third party to similarly approach the other party’s residence without an express written invitation by that party to do so;(b)The parties be restrained from bringing X to, or spending time with X in, any COVID-19 hotspots as identified by the NSW government; and(c)From removing or attempting to remove and/or causing or permitting the removal of X from the Commonwealth of Australia;(8)Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately retain X’s name on the Airport Watchlist, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia;(9)The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of and give effect to these orders; and(10)The parties comply with their requirements to provide full and frank disclosure in these proceedings, including providing medical reports and school reports regarding X.THE PARTIES’ EVIDENCE

Decision

Reasons for decision

Orders were made relisting the property proceedings in June 2023 and trial directions were made for that hearing.CONCLUSION For the above reasons, I make the orders as set out in the forefront of these Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

Section 60CA of the Act sets out the following:60CAChild’s best interests paramount consideration in making a parenting order 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. I must now evaluate the competing proposals of each parent and apply the considerations under section 60CC of the Act to their proposals, weigh up the risks and benefits to X of each parents’ proposal, to determine the orders that are in his best interests. I have two stark positions here: X lives in Australia with the father or he lives in Country B with the mother. The mother was required to return to Country B due to the operation of Australia’s harsh migrations laws, which the father peremptorily engaged for no good reason. I accept the father will remain living in Australia and does not want to live in Country B, given all of his family are in Australia and he has a stable job. The father does not want to relocate and he and X are settled living in Australia. I accept the mother cannot live in Australia permanently and can, at best, visit to spend time with X. There is no capacity to generate any other options on these facts. Both proposals also require consideration of the consequent time he spends with the other parent and the communication orders to be made. As Hayne J said in U v U, it is the interests of the child and not the parents’ interests that are paramount. The parents agreed that sole parental responsibility will be allocated to the parent that X will live with. I agree with this proposal for the following reasons. These parents do not communicate and have no capacity to do so. This lack of communication is a significant deficit and both parents must take responsibility for this unacceptable outcome for X. In light of this incapacity, it would not be in X’s best interests for his parents to have equal shared parental responsibility and the presumption is rebutted.[11][11] Family Law Act 1975 (Cth) s 61DA(4). X clearly benefits from a meaningful relationship with the father and the paternal family.[12] X’s relationship with the mother is now extremely attenuated and almost non-existent. However, X has used the word “hate”, and the word “hate” and the word “love” are often connected. X still has strong feelings about the mother, and those feelings have not diminished to an extent where he does not care or is not interested in the mother.[13] As Dr N said, X is likely still interested in having a relationship with the mother and wanting an explanation of how it is he no longer lives with her. This may be a positive for a therapist to work with.[12] Family Law Act 1975 (Cth) s 60CC(2)(a).[13] Family Law Act 1975 (Cth) s 60CC(3)(b)(i). If X is able to express a positive attitude about the mother, which can only occur if the father and paternal family support that positive attitude, X will benefit from a meaningful relationship with her, given she was his primary carer for the first four years of his life.[14][14] Family Law Act 1975 (Cth) s 60CC(2)(a).