Cheng & Mong (No 2)
[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 any major long-term decision in relation to X he proposes to make;
(b)Provide the mother with all relevant information which is in his possession relating to the major long-term decision;
(c)Provide any necessary authorities to enable the mother to obtain any additional information from any relevant institution in relation to the major long-term decision to be made;
(d)Give consideration to any response from the mother before making a decision; and
(e)Inform the mother of any decision made, as soon as reasonably practicable, but no later than seven days after making a decision.
Live with
5.X shall live with the father.
Time with the Mother
6.For the first period of time the mother visits Australia, being a period of two weeks in school holidays, X is to spend time with the mother as agreed, and failing agreement:
(a)From the day after her arrival for the next five days, from 9.00am to 5.00pm; and thereafter
(b)From 9.00am the following day until 5.00pm on the day prior to the mother’s departure from Australia.
7.On all subsequent visits to Australia that do not exceed two weeks, the mother’s time with X shall be as agreed, and failing agreement, from 9.00am to 5.00pm the day after her arrival for three days, and thereafter, from 9.00am the following day to 5.00pm the day prior to her departure from Australia.
8.Should the mother visit Australia for a period in excess of two weeks, X shall live with the parents in a week-about arrangement commencing at 9.00am on the day after the mother’s arrival in Australia and ceasing at 5.00pm the 7th day and continuing each alternate week thereafter.
9.The mother’s time with X is to cease in any event the day prior to her departure from Australia.
10.In addition to time provided for in Orders 6–9 inclusive, and if the mother is in Australia, the mother is to spend time with X for five hours on each of the following occasions:
(a)X’s birthday;
(b)Mother’s Day;
(c)Christmas Day; and
(d)Lunar New Year;
with such time to commence at a time as agreed between the parties, but failing agreement, from 9.00am to 2.00pm.
11.The mother’s time, as specified in Orders 6–10 inclusive, with X, is conditional upon her compliance with the following:
(a)Provide the father with at least 28 days’ written notice of her intention to travel to Australia;
(b)The details of her flights to and from Australia;
(c)The address of her accommodation and any other address where she and X will spend time together; and
(d)Provide a written undertaking to the father that she will take X to and from school as required and to all of X’s extracurricular activities whilst he is in her care.
Changeover
12.For the purposes of changeover, the mother shall collect X:
(a)From school at the end of the school day, should that day be a school day; or
(b)From the father’s residence, should that day not be a school day.
13.The father is to collect X from the mother at an address provided by her at the conclusion of her time.
Video Communication
14.Whilst the mother is in Country B, X shall have video communication with the mother at such times as agreed, but failing agreement, between 6.00pm and 8.00pm on no less than three occasions each week.
15.The mother shall text the father 10 minutes prior to the call and the father will initiate the call.
16.The father is to ensure X is available to participate in the call with the mother and the father is to use his best endeavours to encourage X to speak to the mother.
17.The length of the call shall be as long as X wishes.
18.Should X wish to initiate a video call to the mother, or contact her by any other electronic means, the father shall assist him to do so on any occasion he so requests.
19.Whilst the mother is in Australia, the mother shall permit the father to have liberal video communication with X for so long as X may wish.
Gifts
20.The father shall provide X with birthday and Christmas gifts, cards, and letters from the mother and the maternal grandparents promptly upon receipt.
Notification
21.Each parent shall keep the other parent informed of their current residential address, including such addresses during travels with X, mobile and landline telephone numbers and any available email address(es), and advise the other parent of any change within 24 hours of such change.
22.The father shall keep the mother informed as soon as is reasonable practicable of:
(a)Any medical problem, injury or illness suffered by X whilst in his care and the names of any treating doctors consulted;
(b)Any medication that has been prescribed to X; and
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding X.
23.Each parent will notify the other parent immediately, upon the happening of any of the following in his or her care:
(a)If X is hospitalised;
(b)If X is involved in an accident serious enough to involve medical intervention; or
(c)If X becomes seriously ill.
24.Each parent will notify the other parent as soon as practical, upon the happening of any of the following:
(a)If X is referred to a medical specialist; or
(b)If X is prescribed medication or any new medication.
Injunctions
25.Pursuant to section 68B of the Family Law Act 1975 (Cth), the mother and the father are hereby restrained by injunction from:
(a)Denigrating the other parent, of any member of the other parent’s family to X or in the presence of hearing of X; and
(b)Discussing these proceedings in the presence of X; and
both the mother and the father shall ensure that no third party engages in acts mentioned in (a) and/or (b), and should any third party engage in these acts, the parent is to remove X immediately and engage in their best endeavours to request the third party to cease that act.
Therapeutic Intervention
26.The father shall enrol in and actively participate in a parenting course such as Tuning into Kids or an equivalent course as recommended by Dr N, and upon completion of the course, the father shall provide the mother with a copy of the certificate of completion of the course.
27.The mother shall use her best endeavours to engage in a course such as Tuning into Kids or an equivalent course as recommended by Dr N.
28.Each parent shall participate in counselling with Dr N or such other practitioner as Dr N may recommend and for such period as the other practitioner deems appropriate to address each parents’ capacity to support and facilitate a relationship between X and the other parent.
29.The father will ensure that X participates in counselling as recommended by Dr N to assist him to build a more positive relationship with the mother.
30.The costs of all counselling is to be equally shared by the parents.
Authorities
31.Each party is allowed to obtain from the schools attended by X from time-to-time, copies of school reports, photographs and notifications relevant to X’s education and development, and from any treating doctor, specialist or counsellor, information relevant to the health, welfare and development of X.
32.In accordance with the policies of the school attended by X from time-to-time, the father and the mother are each permitted to attend all school functions that a parent would normally be permitted to attend, to access all electronic information provided by the school, and contact X’s school at any time to obtain information as to his progress.
33.The father will provide promptly such written authorities as is necessary to give effect to Orders 31 and 32.
34.The parties shall promptly do all acts and things and give all consents and execute all documents in writing necessary to give effect to these Orders.
35.Pursuant to section 106A of the Family Law Act 1975 (Cth), in the event either party refuses or neglects to comply with a direction to execute a deed or instrument as required under these orders, then the other party can approach the Court to have a Registrar sign the deed or instrument in the name of the party who refuses or neglects to comply with the direction.
Airport Watchlist
36.The child, X, born 2015, is to be removed from the Airport Watchlist forthwith.
Passports
37.Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child, X, is permitted to have an Australian travel document and the father is permitted to apply for it, and the mother’s consent to the child having an Australian travel document is not required.
Costs
38.The costs of both parties and the Independent Children’s Lawyer are reserved.
AND THE COURT NOTES THAT:
A.The matter is listed for final hearing in relation to property to commence on 13 June 2023 at 10.00am for two further days.
B.Both parties require an interpreter. The husband has advised the Court he will obtain his own interpreter and the Court has confirmed an interpreter to assist the wife.
C.The wife will be attending the hearing via Microsoft Teams.
D.The Court encourages the father to take X to Country B, when practicable, to enable X to spend time with the mother and his maternal family.
E.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in ‘Annexure A’ and those particulars are included in these orders.
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 the pseudonym Cheng & Mong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J:
In the matter of Cheng & Mong, these Reasons for Judgment deal with an application concerning the parenting arrangements for the parties’ child X, born 2015.
The father’s position is that X continue to live with him in Australia, that he have sole parental responsibility, for X to have video communication with the mother, and if the mother comes to Australia, that she spends daytime with X.
The mother’s position is that X live with her in Country B, the parties have equal shared parental responsibility for him, for X to spend time with the father in Country B, and X have video communication with the father whilst he is living with her in Country B.
At the hearing, the mother conceded parental responsibility should lie with the parent with whom X lives with.
THE HEARING
The hearing occurred over three days from 3 to 5 April 2023. The matter was listed with respect to parenting and property proceedings, however, for reasons detailed later, the property proceedings were adjourned to await judgment from the Country B Supreme Court.
The father was represented by Mr Jackson of counsel, the mother by Mr Duc of counsel pursuant to the provisions in section 102NA of the Family Law Act 1975 (Cth) (“the Act”), and the Independent Children’s Lawyer (“ICL”) by Mr Braine of counsel.
The mother attended the hearing via Microsoft Teams from Country B where she has lived since early 2020.
The witnesses that gave evidence during the hearing were as follows:
(1)For the father:
(a)The father, Mr Cheng;
(b)The paternal grandfather, Mr P; and
(c)The father’s sister, Ms Q;
(2)Only the mother gave evidence in her case; and
(3)The Family Report writer, Dr N.
All witnesses, except for Dr N, required an interpreter.
The seminal evidence at the hearing was the Family Report prepared by Dr N and her oral evidence. For reasons that will follow, the mother’s application for X to live with her in Country B must fail, as to accede to her application would perpetrate even further psychological and emotional harm upon X than that which has already been perpetrated on him by each of his parents.
DOCUMENTS AND EXHIBITS
The material read was as follows:
(1)For the father (as stated in his Case Outline):
(a)Case Outline filed on 29 March 2023;
(b)Further Amended Initiating Application filed on 3 March 2023;
(c)Financial Statement filed on 3 March 2023;
(d)Affidavit of the father, Mr Cheng, filed on 3 March 2023;
(e)Affidavit of the paternal grandfather, Mr P, filed on 3 March 2023; and
(f)Affidavit of the father’s sister, Ms Q, filed on 3 March 2023.
(2)For the mother (as stated in her Case Outline):
(a)Case Outline filed on 30 March 2023;
(b)Further Amended Response to Initiating Application filed on 10 March 2023;
(c)Financial Statement filed on 9 March 2023;
(d)Affidavit of the mother, Ms Mong, filed on 3 March 2023;
(e)Affidavit of the mother, Ms Mong, filed on 14 March 2023;
(f)Affidavit of the maternal grandmother, Ms R, filed on 7 March 2023; and
(g)Affidavit of a friend of the mother, Ms S, filed on 9 March 2023.
(3)For the ICL (as stated in his Case Outline):
(a)Case Outline filed on 28 March 2023;
(b)Child Inclusive Conference Memorandum prepared by Family Consultant Ms T dated 7 September 2020; and
(c)Family Report of Dr N dated 22 February 2023 (“the Family Report”).
Documents tendered and marked as exhibits was as follows, noting no exhibits were tendered in the mother’s case:
(4)For the father:
(a)Single Expert translation of foreign Country B court documents dated 31 March 2023 (Exhibit H1); and
(b)Minute of Order of 5 April 2023 (Exhibit H2).
(5)For the ICL:
(a)Amended Minute of Order of 5 April 2023 (Exhibit ICL1).
CHRONOLOGY
In 1979, the father, Mr Cheng, is born, and at the hearing was 43 years of age. The father is a dual citizen of Australia and Country B.
In 1983, the mother, Ms Mong, is born, and at the hearing was 39 years of age. The mother is a citizen of Country B only.
In early 2013, the parties meet through a mutual connection between their parents.
In mid-2013, the parties marry in Australia.
Between mid-2013 and early 2015, the parties lived in Country U.
In early 2015, the mother returns to Country B and lives with her parents. The father remains living in Country U until mid-2017, but alleges he periodically visits Country B to assist in the care of X.
In early 2015, the parties register their marriage in Country B.
In 2015, the child, X, is born in Country B, and at the hearing was 7 years of age. The mother asserts between this date and mid-2017, the father only spent time with X five times.
In late 2015, the father arrives in Country B.
The following month, the mother asserts that the father spends time with X for the first time since being born.
In 2016, the mother finds out she is pregnant again, however, she has a miscarriage. The mother deposes that the father blamed her for the miscarriage.
In mid-2017, the parties relocate from Country B to Australia and move into the property at 2 J Street Suburb H (“the number 2 J Street property”).
In early 2018, X obtains Australian citizenship.
In late 2019, the mother contacts a domestic violence support hotline, which was abruptly ended when the paternal grandfather returned home. The mother made another call two days later, and was advised to call police if she felt she was in any danger.
In early 2020, the mother sends a text message to the father saying she is returning to Country B and she left Australia on that date. The mother’s message indicated this was a temporary break for her. This date marks the parties’ separation on a final basis.
The following day, with the assistance of her friend Ms S, the mother makes a report to Suburb V Police Station with allegations of family violence perpetrated by the father and the paternal grandparents. The mother also makes two requests to the father to speak to X, with both requests refused by the father.
The next day, the mother makes a request to the father to speak to X, which is refused by the father.
Two days later, the mother attempts to access her immigration account for her partner visa, but is unable to do so.
About one week later, the mother receives an email that the father had withdrawn his sponsorship for her Australian partner visa. The mother enters Australia on a tourist visa.
A few days later, the mother spends approximately 15 minutes with X at his preschool.
On the same day, the mother returns to Country B, where she has lived since.
About two weeks later, the mother has a video call with X, which is the last time she had video communication with X for some months.
About one week later, the mother sends a text message to the father regarding video communication with X. This text message is an asserted basis for the father’s concern that the mother was going to “abduct” X and take him to Country B.
On 30 March 2020, the father’s legal representatives send a letter to the mother’s legal representatives expressing concern over her “abduction” text message. A further letter was sent on 28 April 2020 seeking the mother’s agreement to place X on the Airport Watchlist.
On 5 May 2020 and 12 June 2020, the mother’s legal representatives inform the father’s legal representatives that the mother never intended to “abduct” X.
On 7 May 2020, the father commenced proceedings in the Federal Circuit Court of Australia (as it was then known). These initiating documents were served on the Australian Federal Police (“AFP”) on 8 May 2020.
On 13 May 2020, the AFP email the father confirming that X’s name had been added on the Airport Watchlist.
From mid-2020 to late 2020, the mother is able to enter Australia under a one-time exemption from the existing COVID-19 travel restrictions under a holding tourist visa.
On 27 July 2020, orders are made by consent for X’s name to remain on the Airport Watchlist, and for the mother to spend time with X whilst she is in Australia.
On 29 July 2020, the mother recommences having video communication with X.
Between mid-2020 and late 2020, the mother has multiple instances of spending time with X.
On 8 September 2020, orders are made restraining the parties from approaching the other parent’s place of residence.
On 9 September 2020, orders are made discharging previous orders regarding X’s time with the mother, and for X to spend time with the mother each Saturday from 10.00am to 2.00pm.
In late 2020, the mother returns to Country B.
On 10 November 2020, a Judge of the Federal Circuit Court of Australia delivers judgment with respect to the interim parenting arrangements for X, which further amends X’s time with the mother, and mechanical orders if the mother is to depart from and return to Australia.
On 15 December 2020, the proceedings were transferred to the Family Court of Australia (as it was then known).
On 4 March 2021, the mother files an Application in a Case seeking orders that the father provide information regarding X’s schooling and medical needs, and to change video communication from once per week to twice per week for 30 minutes.
On 1 April 2021, the father files an Application for Divorce (under a different file number).
On 11 April 2021, the mother files a Response to Application for Divorce, seeking the application be dismissed.
On 8 August 2021, the mother files an Application in a Case seeking orders for X to live with her in Country B and for the father to provide X’s travel documents to her.
On 9 August 2021, the father’s Application for Divorce is granted.
On 5 October 2021, orders are made in accordance with the mother’s Application in a Case filed on 4 March 2021 and dismissing the mother’s Application in a Case filed on 8 August 2021.
On 18 February 2022, orders are made pursuant to section 102NA of the Act and that the parties are to do as necessary to facilitate the mother’s video communication with X to occur during school hours.
On 30 March 2022, orders are made by consent for a Family Report to be prepared.
On 2 May 2022, Smith J delivers judgment finding Australia is not a clearly inappropriate forum to hear the property proceedings.[1]
[1] Cheng & Mong [2022] FedCFamC1F 260 (Smith J).
On 20 March 2023, orders are made releasing the Family Report of Dr N to the parties.
THE PARENTING ARRANGEMENTS AT THE HEARING
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
There is no doubt that the mother and father had an unhappy relationship and each were unfulfilled. I accept from the mother’s point of view she felt coerced and controlled by the father and the paternal grandparents, given she was living in Australia, had little English, did not drive, had no employment or separate friendships and was housebound as the primary carer of a young child living with her in-laws. The parties lived with the paternal grandparents at 1 J Street, Suburb H, (“the number 1 J Street property”) and the father’s sister, who also gave evidence, lives at the number 2 J Street property.
The mother alleged that the father was coercive, controlling and violent to her. The evidence did not support such findings, however, the mother’s emotional wellbeing was neglected by the father and his parents, and the mother felt unloved and not valued by her husband. The neglect of emotional wellbeing by the father and in the paternal home is a feature of this matter, and this neglect has also been suffered by X.
In early 2020, the mother departed for Country B after dropping X at preschool. She did not prepare X for the reality that she would not be collecting him or be there for him at the end of the day as she always had been or that she was intending to stay in Country B for a short period of time. The mother did not tell the father before that day that this was the course of action she proposed to take. The mother did not tell anyone in the paternal family of her plans.
The paternal grandfather and the father’s sister said they were shocked and surprised when the father told them that the mother had sent him a message telling him she could no longer live with him:
[Mr Cheng],
I can no longer withstand you and your family’s high-pressure control and psychological abuse. This type of lifestyle is beyond the limit of any normal person.
After putting in a lot of effort and many attempts to communicate, I just can’t take it anymore! And I will not take it anymore.
So, I have decided to return to [Country B] to take a break.
During this period of time, please take care of our beloved son, [X]. Should [X] need anything, call or text me anytime.
(As per the certified translation)
There is no doubt that this conduct of the mother would have come as a shock to the father, but for X, it would have been devastating. As Dr N attested, he would have felt abandoned by his closest emotional attachment. This conduct was destructive for the father, his family and in particular, for X.
However, it is clear from the mother’s email, attested to in her oral evidence, that she intended to take a break and had no intention of remaining in Country B permanently. Country B is where her parents live and given her fragile emotional state, it is at this level understandable she went to her family for the emotional support that was so lacking in Australia.
Yet, within 10 days of her departure from Australia, her partner visa had been revoked by the father. Effectively, by that cruel and unnecessarily brutal conduct, the father ensured that the mother then had to permanently live in Country B. The father’s conduct resulted in the mother having no other option but to remain living in Country B and X being permanently separated from her. This conduct was akin to the mother’s actions in leaving Australia, as she did, and was entirely non-child focused, as well as emotionally and psychologically damaging for X.
The father’s conduct was compounded by the harsh COVID-19 restrictions on travel in 2020. The father bears significant responsibility for the mother now living permanently in Country B and X being permanently separated from her as this was never her intention. This was a particularly cruel step he took given the mother had asked him on several occasions during the marriage to return to Country B and visit her family, which he always refused.
What has now transpired is a sad set of circumstances. The mother returned to Australia in early 2020 and left again for Country B four days later. She spoke to X at his preschool, and her oral evidence was to the effect she told him she loved him, she was just away for a short time and would be back. This did not eventuate. The mother was only able to return to Australia in mid-2020, where she spent two weeks in quarantine, spent extremely limited time with X at a restaurant with the father and the paternal grandfather hovering over her as if she presented some risk of “abducting” X.
This risk appears to have arisen from the text message the mother sent the father in early 2020. In their affidavit material, the parties took issue with the translation of the text message. The mother’s translation of the text message reads as follows:
[Mr Cheng], I want to see [X]. Please arrange for [X] to video chat with me every night before bed, and let me know when is a good time. I texted you to make arrangements but I have yet to receive your reply. Please make arrangements. This is my right and [X’s] right as well. If you are unwilling to make arrangements, I will consider taking [X] back to [Country B] and raising him here.
(As per the translation with emphasis in bold)
Meanwhile, the father’s translation of the text message reads as follows:
[Mr Cheng], I want to see the child, please arrange daily video communication between [X] and me and inform me the time. I sent messages to you for negotiation but I did not see your response. Please make the requested arrangement because it is my right and the child’s right. If you do not agree, I will take the child back to [Country B] to care for the child.
(As per the translation with emphasis in bold)
I take little notice of this discrepancy. This risk, as the father saw, was a creation of his actions in cancelling the mother’s partner visa as he did and then being entirely uncooperative in ensuring X spoke regularly with her and saw her in a comfortable setting when she was able to return to Australia. It is extraordinary that the mother is blamed for a situation the father created.
Given the father’s lack of capacity to promote a relationship for X with the mother over distance, it is not without foundation why the mother said she would take him to live with her in Country B, given she had been his primary carer.
What has prevailed is X remaining in Australia living with the father, and after the mother returned to Country B in late 2020, he has not spent any time with her due to the COVID-19 travel restrictions and what she says were her financial difficulties in travelling to Australia. To this day, it is the mother’s position that she is unable to return to Australia until later this year for the Christmas school holidays. Her evidence was she is only entitled to two weeks’ leave per year from her current employment in Country B, and this is the only holiday time she has and would be able to use to travel to Australia.
Compounded with this very sad set of circumstances, the father has been parsimonious in supporting X’s video communication with the mother.
The mother asserted that the father’s initial offer was for her and X to have video communication twice a month. If this be correct, such a position is disgraceful. The mother should be speaking with X every day and whenever X wants to. Yet, it is the mother’s evidence that the father has interfered with video calls, as ordered by the Court, from happening by refusing to accept the call or influencing X to end the call early. The father’s evidence was that he gives X his phone, X goes into his bedroom, and the father leaves him alone to have the call with the mother.
The evidence of the mother and X was consistent: the video calls are short. X does not want to speak to the mother; they have nothing in common. The mother knows absolutely nothing of X’s life, including his friends and his activities. The father and the mother do not communicate at all over anything. The father has not sent her photographs or videos of X, or told her whether he is playing sport, who his friends are, shared his achievements at school, or birthdays, to name but a few examples of the failures of the father.
The father has done absolutely nothing to assist the mother to understand what X’s life is like in Australia to enable her and X to have something to talk about on these calls and this is an abject failure by him to place X’s needs at the fore.
The father’s view that he can simply give his phone to X and leave it up to X to speak to the mother in these circumstances is simply unacceptable and ignorant of the needs of a young child in X’s very difficult position. I have formed the view that from the father’s point of view, and shared by the paternal family, the mother has disappeared, simply vanished as that is how they have treated her, and that is the subliminal message they have sent to X.
It is clear X has overheard improper conversations that he should not have been privy to or been able to hear in the father’s home. This is apparent from the Family Report, where Dr N says:
66.[X] stated that he has some memories of when his family lived together. [X] said that his mother used to be “good” but now she is bad. [H]e said that he remembers his mother hit him very hard on the leg once.
I take no notice of the mother hitting X on the legs:
67.[X] listed a litany of complaints about his mother since the separation. This included that she took him to a restaurant that did not have clean food for lunch and he had a tummy ache. He also said that she promised to give him a packet of toys but didn’t. He added that he does not want the toys now. He also stated that his mother said “no” when he wanted to call his father or grandparents but “she can’t stop me from calling”.
68.… He stated that his mother has told lies to his father that she needed more money and took money away from [Mr Cheng]. He stated that his father earns all the money and his grandmother does all the cooking. [X] said that his family is trying to get his “old Mum” not to lie to the whole family.
69.[X] stated that he has a “replacement” mum who also doesn’t like his “old mum”. He said that his “replacement mum” who he named as a name that sounded like “[Ms CC]” is very busy but also doesn’t like this old mum because she has lied. …
It was apparent that the reference to “Ms CC” is his aunty with whom I accept he has a close relationship; she has two children of a similar age, they are a close-knit family and see each other almost daily, and the cousins and X attend the same school:
69.… He said that his “old mum” does not know about his “replacement mum” who doesn’t want his old mum to see or meet each other. [X] stated that he has telephone calls with his mother but he cuts off the calls because he hates her. He said that he used to talk to her at school but he did not like her interfering with his lessons. [X] stated that he hates his mother because she has hit him, lied to his family and done the wrong thing.
Of real concern is this comment:
70.[X] said that the government says that his “old mum” has to stay in Country B because the government had a lot of proof from his father. When asked to elaborate, [X] said he had forgotten.
It is apparent X is not encouraged at all to have a positive view of the mother, and the evidence of the whole paternal family – the father, the grandfather and the aunt – was that they do not talk to X about the mother as they do not want to interfere. This is emotional neglect of X at the highest level.
X’s mother should be spoken about continually; there should be photographs of her in the home and she should be mentioned so X can talk to them about how he feels. There is no doubt that X feels abandoned, and Dr N referred to this in the Family Report:
80.In circumstances such as have occurred in this family where one parent makes a choice to leave and consequently contact with that parent is greatly reduced, the risk for a child’s emotional wellbeing escalates. The abandonment that a child feels when a parent is absent from their lives is exacerbated if that parent is inconsistent in making contact or the child is told the parent does not care for them, for example, that they cannot be raised when they ask for the parent. That only serves to reinforce for the child that their parent is an unreliable and inconsistent presence in their lives. This needs to stop immediately if it is occurring.
Dr N also says:
83.What is more concerning is the level of psychological harm to which [X] may have been exposed in the past three years. Whatever the circumstances surrounded [Ms Mong’s] decision to travel to [Country B] in [early] 2020 and what her intentions were about her future, her decision would have had an enormous impact on [X]. [X] was at the time only five years old and until that point she had been his primary caregiver. It is likely that her sudden departure from his life would have left him feeling confused, bewildered and abandoned even if he did continue to live in the care of his paternal family where he had lived with his parents for the previous three years. Children of [X’s] age at the time are likely to view life events egocentrically and that they are to blame for what happens in their lives.
84.Since that separation, [X] seems to have been exposed to a raft of undermining messages which have now become part of his family narrative. [X’s] capacity to enjoy an unfettered and open relationship with both parents has been exacerbated by the tyranny of distance, Covid restrictions and [Ms Mong’s] visa status. Even though [X] may currently be presenting as robust and in sound emotional health, on the longer term, he runs the risk of suffering symptoms such as a poor sense of their identity, low self–esteem and self-hatred though being denied a relationship with his mother. …
I have formed the view, after testing the evidence, that the mother’s decision to leave Australia was to have a break from the paternal family and be surrounded by the love and affection of her family and she had no intention to be permanently separated from X.
I further find that the father’s pre-emptive, cruel and unnecessary actions in cancelling her partner visa have resulted in X being separated from her and that he now believes his mother has abandoned him, when that was simply not her intention.
I further find that the father’s parsimonious and gatekeeping attitude towards X having open communication with the mother on video calls, or on any occasion, has further engendered in X feelings of abandonment, that his mother does not care for him and has lied to him. If this sad state of affairs continues and the father does not change his exceedingly poor attitude to the emotional wellbeing of X and promote his son having positive thoughts about and a relationship with his mother, X will suffer irreparable emotional and psychological harm, as Dr N attested to.
The father appeared to acknowledge these failures in the witness box and I accept there may be cultural issues at play, which were not explored. X’s aunt was the one adult who after cross-examination clearly understood the importance of X being able to speak about his mother and for his mother to be spoken of in his presence in a positive way. I have some faith that X’s aunt, whom X is attached to, will be able to assist the paternal family to change their prior poor behaviours in this regard, for in all other respects, X is a well-cared for and much loved child surrounded by his extended paternal family.
THE LAW
The starting point is the decision of Goode & Goode,[2] as it is referred to in the seminal decision in relation to relocation matters of Boland J in Morgan & Miles.[3] Her Honour says:
68… In a case involving relocation, which raises issues of whether a child spending equal, or substantial or significant time, is “reasonable practicable” s [65DAA(5)] is likely be of significance.[4]
(With correction)
[2] Goode v Goode (2006) FLC 93-296 (Bryant CJ, Finn and Boland JJ).
[3] Morgan & Miles (2007) FLC 93-343 (Boland J) (“Morgan & Miles”).
[4] Morgan & Miles (2007) FLC 93-343 at [68].
Her Honour then begins an exploration of the principles in relocation matters as follows:
72There can be no dispute that in determining a case where one party, which research indicates is invariably the mother, wishes to relocate, a court is making a parenting order generally about who the child will live with or with whom the child shall spend time. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law.
73It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.
74The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.[5]
(In-text citations omitted)
[5] Morgan & Miles (2007) FLC 93-343 at [72]–[74].
Her Honour then stated that when considering whether a child should live with the parent who proposes to relocate, a Court:
•Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
•Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
•Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
•If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
•In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
•When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
•Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
•that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
•that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
•that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
•the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
•Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.[6]
(As per the original)
[6] Morgan & Miles (2007) FLC 93-343 at [79].
Her Honour then distilled the effect of the Act into four principles:
•[T]hat the child’s best interests remain the paramount but not sole consideration;
•[T]hat a parent wishing to move does not need to demonstrate “compelling” reasons;
•[T]hat a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
•[T]he child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement[.][7]
(As per the original)
[7] Morgan & Miles (2007) FLC 93-343 at [80].
Her Honour went on to say that the Act requires the Court to consider the parties’ competing proposals against the considerations set out in subsections 60CC(2) and (3), as informed by section 60B of the Act.[8] Generally speaking, findings in relation to the considerations in subsections 60CC(2) and (3) are to be considered to ensure children have the benefit of a meaningful relationships with both parents “to the maximum extent consistent with the best interests of the child”,[9] which include equal time or substantial and significant time.
[8] Morgan & Miles (2007) FLC 93-343 at [81].
[9] Family Law Act 1975 (Cth) s 60B(1)(a).
The primary considerations in section 60CC(2) of the Act are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The additional considerations in section 60CC(3) of the Act are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)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;
(m) any other fact or circumstance that the court thinks is relevant.
In U v U, Hayne J made it abundantly clear how the Court is to look at these matters and said the following:
176It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act (s 60B(2)(a) and (b)). If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.[10]
(As per the original)
[10] U v U (2002) 211 CLR 238 at [176] (Hayne J; with Gleeson CJ and McHugh J agreeing) (“U v U”).
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).
Minimal evidence and submissions were made about the need to protect X from harm and I find he is not at harm physically in either parent’s home. It is supporting his emotional needs that both parents demonstrated an impaired capacity to meet that have caused him harm.
The father’s incapacity to understand X’s need to have a positive view of the mother and the importance for X to have a relationship with his mother.[15]
[15] Family Law Act 1975 (Cth) s 60CC(2)(b).
For the mother, her actions in departing to Country B without even preparing X for that event are demonstrative of her incapacity to understand X’s emotional needs, as was her lack of evidence of the impact on X of living with her in Country B in an environment and people he has no familiarity.[16]
[16] Family Law Act 1975 (Cth) s 60CC(2)(b).
X was not asked about his wishes, yet he clearly said he was happy living with the father and paternal grandparents, enjoyed school and spending time with his extended paternal family, was critical of the mother and repeated what he had obviously heard about her in the father’s household. At his age and given the negativity he is exposed to about the mother in the father’s home, X’s wishes are not determinative.[17]
[17] Family Law Act 1975 (Cth) s 60CC(3)(a).
Both parents have an extremely negative attitude toward each other as parents of X and would struggle to support X speaking positively about the other parent in their households at this time. This must change for X’s psychological and emotional well-being into the future. Each have agreed to attend therapeutic intervention to address this deficiency.
Neither parent demonstrated a capacity to put X’s emotional needs before their own.[18] The mother’s decision to depart for Country B without even telling X was self-focused and not a decision in X’s best interests.[19] I accept at that time she was depressed, felt coerced, abused and under pressure. However, X’s needs should have been at the fore and they were not.
[18] Family Law Act 1975 (Cth) s 60CC(3)(i).
[19] Family Law Act 1975 (Cth) s 60CC(3)(i).
The mother has tried valiantly to maintain a relationship with X by seeking to have video communication with him, and the father has simply ignored these requests or made it so difficult that it has now become almost meaningless. The mother’s affidavit is replete with constant requests for time, which are simply ignored. This is unacceptable behaviour by the father and is a poignant example of him putting his needs before X’s needs.[20]
[20] Family Law Act 1975 (Cth) s 60CC(3)(c)(iii).
The father’s attitude towards X having a relationship with the mother and supporting that relationship, given he is the root cause of why the mother cannot return to Australia, is a significant deficiency in his parenting capacity.[21]
[21] Family Law Act 1975 (Cth) s 60CC(3)(i).
Both parents have the capacity to provide for the educational needs of X and provide for his day-to-day living, but their capacity to provide for his emotional needs are significantly limited, and thus it is imperative they have therapeutic intervention to which they have agreed.[22] It would be of benefit to X if the father could take him to Country B. Both of his parents are of Country B heritage. It is part of his culture and heritage, and it would be beneficial for him to meet his maternal family in Country B and be surrounded by Country B culture.[23]
[22] Family Law Act 1975 (Cth) s 60CC(3)(f).
[23] Family Law Act 1975 (Cth) s 60CC(3)(g).
The most significant factor in this hearing is the impact on X of living in Country B and being removed from all he has known, being his father, his extended paternal family, his school and friendships. The mother’s proposal that X live with her in Country B is an unknown for X and the Court. There is no way to know how X would react emotionally and psychosocially to such a fundamental change to his living circumstances and such a step would be tantamount to an experiment to fulfil the mother’s need to have her son in her care; a need I understand.
Dr N said such a significant change to his living circumstances that the consequences could be catastrophic.[24]
[24] Family Law Act 1975 (Cth) s 60CC(3)(d).
X has no knowledge of what living in Country B would be like. He does not know his maternal grandparents, the extended maternal family,[25] or the Country B school system. X’s whole sentient life has been in Australia and apart from the father’s gross lack of insight into his emotional needs, he is progressing well and is part of a loving extended family.
[25] Family Law Act 1975 (Cth) s 60CC(3)(b)(ii).
The mother’s plans and proposals for X living in Country B were fluid and not definite and centred around her need for X to live with her rather than what such a change would mean for him. The only evidence contained in the mother’s affidavits about why or how X ought to live with her in Country B was as follows:
75.Being a mother to [X], it is my responsibility to support [X’s] mental growth, emotion welfare and best interest of the Child. I apply [X] to live with me and I’m willing to act to promote his interests and look after his welfare.
(As per the original with bold emphasis added)
This is a flawed position to hold in in our modern world and is inconsistent with the statement of Hayne J in U v U above; the issues are not about the mother’s responsibility, but rather, both parents’ responsibility to support X’s mental growth, emotional welfare and both acting to promote the best interests of X.
In Australia, X is progressing well. Dr N says in the Family Report:
64.[X] (aged 7 years […]) presented as a co-operative and self-assured child. He has quite a sophisticated vocabulary for a child of his age. He moved about the room throughout the interview and seemed quite restless. He attends [DD School] where he is in year 2. He said that he likes school especially maths, science and sports. He also stated that he has good friends at school and goes to the homes of some of his friends for play dates. [X] said that outside of school he likes playing [a sport] and is part of [a language club].
(As per the original)
X does well at school, has a good circle of friends, engages in extracurricular activities, and lives with a loving family who care for him to a high standard. He has cousins he plays with, who he would miss, aunts and uncles who love him and grandparents who are a very important part of his life.[26]
[26] Family Law Act 1975 (Cth) s 60CC(3)(b)(ii).
The risk for X remaining in Australia is the current incapacity of the paternal family to promote a positive relationship between X and the mother. However, that deficit may also be in existence with the maternal family as not one of the mother’s family members gave evidence and I am unable to assess their attitude to X’s need for an ongoing relationship with his paternal family if he was to live with the mother. This is contrary to the father’s case, where the father, and the paternal grandfather and aunt gave evidence. I found the paternal aunt has a capacity to understand the need for X to have a relationship with the mother and for that relationship to be fostered by her brother and the paternal family.
Although the mother’s application was that X live with her in Country B, there was no evidence from her on what measures she would take to integrate X into day-to-day life in Country B and assist him to deal with the significant loss of his father, extended paternal family and his own circle of friends at school. The mother gave no description of her day-to-day life, her working hours, whether her parents would or could help her, the accommodation she lives in or any other necessary detail. As the mother’s parents did not give evidence nor did any other member of the extended maternal family, I could not assess their capacity to help her help X.
Further, the mother did not demonstrate an understanding of how significant the loss of the father and the extended paternal family would be for X. These losses would be for X a second loss of significant attachments in his young life. The mother was not across this important aspect of parenting and the consequences of such losses, and she could proffer little on how she would help him other than saying she would bring him back to Australia for some time if he was upset. It is difficult, as Gaudron J identified in U v U, for “each competing proposal [to] be separately evaluated”,[27] as the mother could not identify why it would be in X’s best interests to move to and live in Country B other than he would be living with her.
[27] U v U (2002) 211 CLR 238 at [37].
Dr N was clear in her oral evidence that to lose his life in Australia and paternal family, and live in the untested and unknown world of Country B, could be catastrophic for X.
Given the mother’s compromised capacity to understand X’s emotional needs, and that her proposals involves a total change and separation from all X has known, such a move would require great sensitivity, psychological intervention and care. I am not confident the mother could provide those necessities for him, and given her evidence and lack of insight, the change as proposed would potentially be catastrophic for X.
The loss for X of his life in Australia, his father, and paternal family, would be a catastrophic outcome for him. In light of the above evidence and findings, I find it is not in X’s best interests to be removed to Country B and live with his mother and that the order that is in his best interests, is that he remain living in Australia with his father with whom he has lived all his young life, and the mother’s application is dismissed.
Both parents have agreed psychological intervention for X is an imperative and this will be carried out by Dr N and an appointment was made for this to commence in mid-2023.
Dr N will engage in therapeutic intervention with the parents as and when required. Dr N also recommended the parents engage in further courses, such as Tuning in to Kids, and I will order the father to engage in that course, and the mother to use her best endeavours to engage remotely and with the assistance of a translator.
The mother’s evidence was that she has two weeks’ leave per year from her employment in Country B and she can come to Australia for two weeks this year during the 2023/24 summer school holidays and after that, she may break her leave into a one-week visit twice per year.
Dr N was not supportive of the orders proposed by the father, namely that X not have any overnight time with the mother until the second week of her two-week visit, and that daytime visits be limited. Dr N also did not agree with the position initially put forward by the ICL, namely that X have only limited daytime with the mother for the first week.
Dr N opined that X would be well-able to cope with a full day with the mother immediately and she agreed that overnight time will only assist in repairing the relationship between X and the mother. This is X’s mother and she has never harmed him. It is the paternal family who have given him these negative views of the mother, or at a minimum, not dissuaded him from having them. The paternal family did not assist X to deal with the abandonment he felt when the mother did not return to Australia, as she told him she would shortly after initially leaving, yet this abandonment was due only to the father’s actions with respect to the mother’s partner visa.
Although a submission was made that the father could travel to Country B, he was not questioned on this issue and there is no evidence per se on this issue. However, it is a relevant factor in these proceedings and he is a Country B national and can travel to that country. The best I can do is make a notation that the Court encourages the father to travel to Country B once a year, which would result in X seeing the mother in Australia and in Country B, and this is an issue the parents can discuss at their family therapy with Dr N.
I have formed the view that at eight years old, X will be well-able to cope with overnight time with the mother in a block. I accept that there is no guarantee how therapeutic intervention for X will progress. However, part of his therapy will be around him spending time with the mother in her sole care without the hovering of the paternal family, as has occurred previously. It is an imperative that time between X and the mother ramp up quickly, not slowly, and this opinion was supported by Dr N.
I have endeavoured, by the orders I propose to make, to allow X time to re-establish a bond with his mother with daily visits before overnight time commences given the limited time his mother can be in Australia and the significant gap between her visits. The parties can vary these orders and should do so if so advised by Dr N or any other therapist they attend.
The orders I propose to make are that on the first occasion the mother comes to Australia, which is likely to be two weeks in the Christmas school holidays of 2023/24, she will spend time with X from 9.00am to 5.00pm for the first five days, and from the sixth day, overnight time from 9.00am until 5.00pm on the day prior to the mother’s departure. The father will collect X from the mother. On subsequent visits of no more than two weeks, her overnight time will commence after the 3rd day. On subsequent visits of more than two weeks, time will be week about.
I will make orders for video communication, which both parents agreed would be better accepted by X if the father rang the mother, thus giving X a clear message that his father wants him to have a positive relationship with his mother. The mother will let the father know 10 minutes before the call that she is ready to take the call, and the father will cause X to have that call. This can be the only way that this matter can progress.
This is X’s lifeline to have a relationship with the mother, namely through the video communication, and the father, as a parent, has a duty and an obligation to ensure that X enjoys that time with the mother.
CONCLUSION OF PARENTING MATTERS
I will make the orders, in principle, as sought by the ICL, noting that there were significant errors and mechanical issues in the orders, which I have rectified.
An order was sought pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) that the father can apply for a passport for X without the mother’s consent. Given that the father will have sole parental responsibility for X, it is appropriate that I make that order.
I will also make orders restraining the parents from denigrating the other parent and require the parents to remove X where a third party (such as their respective extended family) denigrates the other parent.[28] These orders are made so that X will only be exposed to positive comments about his parents.
[28] Family Law Act 1975 (Cth) s 68B.
PROPERTY MATTERS
On the first day of the hearing, the Court was informed that the property proceedings in Country B had a judgment delivery in mid-April 2023. It was unclear whether the judgment dealt with the property matters on a final basis.
Even though Smith J had delivered judgment that this Court was not a clearly inappropriate forum to hear the property proceedings,[29] his Honour’s reasons were delivered in May 2022, and recent developments in Country B, potentially on a final basis, may change the landscape of whether or not this Court is a clearly inappropriate forum.
[29] Cheng & Mong [2022] FedCFamC1F 260.
A suggestion was made to the parties to relist the property proceedings on a date after the judgment from the Country B Supreme Court was delivered, thereby effectively bifurcating the proceedings, and no objection was made to this suggestion.
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.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 8 June 2023
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