Chiao and Wen (No 2)

[2014] FamCA 268

FAMILY COURT OF AUSTRALIA

CHIAO & WEN (NO 2) [2014] FamCA 268

FAMILY LAW – CHILDREN - Final Orders – where the matter has proceeded without the mother being involved – father sought orders the child live with him – best interests -  mother has a history of non-attendance – where child previously returned to father pursuant to recovery order – child lived with father during period of adjournment – child to live with father who shall have sole parental responsibility – child to spend time with mother as agreed between the parties – father to facilitate telephone contact

Family Law Act 1975 (Cth) s 60CC, 68

Allesch v Maunz (2000) 203 CLR 172
Haydon & Bennett and Anor [2012] FamCAFC 89
Sexton & Sexton [2012] FamCAFC 218
Sinnott & Firth (No 2) [2013] FamCAFC 159

APPLICANT: Mr Chiao

RESPONDENT: Ms Wen

INDEPENDENT CHILDREN’S LAWYER: Franklin Legal

FILE NUMBER: ADC 3665 of 2011

DATE DELIVERED: 28 April 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Paul G Doube

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Valentine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Franklin Legal

Orders

1. All previous parenting orders be discharged.

2. The father shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development of the child C (also known as “the child”) born … 2002.

3. That the child live with the father.

4. The mother shall spend time with the child upon such terms and upon such conditions as agreed between the parties.

5. The father shall facilitate telephone contact between the child and the mother upon such conditions as agreed between the parties.

6. The parties are restrained from making disparaging, belittling or denigrating remarks about the other party, or discussing these proceedings, in the presence of the child.

7. The Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

8. The Marshal of the Family Court of Australia and all officers of the Australian Federal Police are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the child from the Commonwealth of Australia.

9. That the order for the appointment of the Independent Children’s Lawyer be discharged.

10. Pursuant to s 62B and s 62DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3665 of 2011

Mr Chiao

Applicant

And

Ms Wen

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to parenting issues in respect of the child C born in 2002.

2. By way of an Initiating Application filed on 29 September 2011 the father sought equal shared parental responsibility and that the child spend equal time with the father. The father also sought orders restraining the mother from removing the child from the State of South Australia, or the Commonwealth of Australia, without prior written consent.

3. By way of a Response filed on 15 November 2011 the mother sought final orders that the child do live with her and the parties have equal shared parental responsibility. In relation to time spent with the father, the mother sought orders that would see the father spend supervised time with the child at a Children’s Contact Centre with a report to be prepared after six visits.

4. In his recent affidavit filed 9 April 2014 the father now proposes he have sole parental responsibility of the child who will live with him. The child will spend time with the mother at such times and on such conditions, including supervision, as arranged by the father. Finally, the father seeks an order that he be at liberty to monitor, supervise and terminate any calls between the mother and the child if he deems this necessary.

5. Ultimately the matter proceeded without the mother being involved in the final hearing. There is nothing to suggest why the mother did not wish to continue her involvement but as will become apparent, I am satisfied that she was both aware of the proceedings and had every opportunity to be involved.

6. The matter did not proceed on an undefended basis in the sense that I consider the Response of the mother to be before me.  The difficulty is that there is no relevant affidavit material prepared and filed by the mother for the purpose of the final hearing. I do however rely upon the contents of a discussion between the mother and the ICL and her involvement with the Family Report writer.

Relationship Background

1. The father was born in China and is currently 47 years of age. The mother was also born in China and is currently 36 years of age.

2. The father had previously lived and worked in Australia in the catering industry and obtained his permanent residency in 1995.

3. The relationship initially began over the telephone before the father returned to China in 2000 to meet the mother in person. The parties were married in China, in 2000. The father returned to Australia shortly after and the mother followed in 2001 once she had obtained a spouse visa.

4. On their return from China the parties resided in Suburb I where the father had secured housing and employment.

5. There is one child of the marriage, C, born in 2002 in South Australia. The child is more commonly known as “C” and is now 12 years of age.

6. The parties separated in September 2002 and eventually divorced in October 2004. Following separation the mother moved out of the matrimonial home with the child.

7. Initially, an informal arrangement existed between the parties which provided the father would spend time with the child for approximately three days each week. The child would live with the mother but spend time with the father from Wednesday morning until Friday morning. In 2008, this was then reduced to only one overnight visit.

8. During late 2008, or early 2009, the arrangements were again altered by the mother so in effect the father would now only spend time with the child every Tuesday and Wednesday.

9. This arrangement continued until mid-September 2011 at which point the mother voiced a desire to relocate to Sydney to pursue an employment opportunity. She intended to take the child with her. The mother says the father agreed to this proposal and that he would see the child whenever possible. The father denies this and says that there was no such agreement.

Procedural History

1. The mother’s proposed relocation to Sydney was the catalyst for these proceedings with the father filing an Initiating Application and supporting affidavit on 29 September 2011.

2. The matter first came before Federal Magistrate Simpson, as his Honour then was, on 11 October 2011 and orders were made providing the child would continue to live with the mother and spend time with the father during the adjournment as agreed between the parties. The mother was restrained from changing the child’s usual place of residence from Adelaide or its environs.

3. On 3 November 2011 the Independent Children’s Lawyer (“the ICL”) was appointed pursuant to s 68 of the Family Law Act 1975 (Cth) (“the Act”), and the parties registered with a Children’s Contact Service.

4. On 15 November the mother filed a Response and supporting affidavit. In her supporting affidavit the mother alleges the father was physically, sexually and emotionally abusive. The father denies these allegations.

5. On 6 December 2011 Federal Magistrate Simpson made orders providing the father would continue to spend time with the child as agreed but he would now spend time with the child under the supervision of a Children’s Contact Service. Both parties were restrained from removing the child from the country and the child was placed on the Airport Watch List.

6. On 2 May 2012 the mother filed an affidavit in response to an affidavit of the father. This was the last document filed by the mother in this matter.

7. On 23 May 2012, Federal Magistrate Simpson set the matter down for trial in April 2013. The child would continue to live with the mother and spend time with the father as agreed by the parties but without the requirement of supervision. Orders were again made preventing the mother from altering the child’s principal place of residence from Adelaide.

8. On 22 March 2013 the mother’s solicitors sought leave to withdraw from the file. There was no appearance by the mother and attempts to contact the mother by telephone were unsuccessful.

9. When the mother failed to appear on 26 March 2013 a warrant was issued for her arrest.

10. There being no appearance by or on behalf of the mother Federal Magistrate Simpson made Location Orders for the mother and child on 5 April 2013 following an ex parte application of the father.

11. When the mother failed to attend on 15 April 2013 the trial date was vacated.

12. The mother eventually appeared before Federal Magistrate Simpson on 7 May 2013 and the warrant was discharged. The mother and child were ordered to attend upon a psychologist while the father was ordered not to attend the child’s school or attempt to contact the child while she is at school. The matter was re-listed for trial in November 2013.

13. The mother obtained representation for the directions hearing before Federal Magistrate Simpson on 20 June 2013 where she was ordered to utilise a previously prepared mental health plan. The mother’s solicitors sought leave to withdraw from the file soon after.

14. When the mother failed to appear on 29 October 2013 the proceedings were transferred to the Family Court of Australia and the November trial date vacated.

15. The mother failed to appear before Registrar Paxton on 3 December 2013.

16. On 12 December 2013 the father filed an Application in a Case seeking orders for the location and recovery of the child. The father also sought interim parenting orders that would see the child live with the father or in the alternative, live with the mother and spend time with the father during the period of adjournment.

17. I heard the father’s application on 23 December 2013. I delivered my judgment on 7 January 2014 (Chiao & Wen [2014] FamCA 1) and made orders for the location and recovery of the child.

18. On 6 February 2014 the child was delivered up to the father at J School in Sydney, the father having travelled to Sydney the previous day on the instructions of the Australian Federal Police.

19. On 13 February 2014 the mother appeared before me in person and with the assistance of an interpreter. I made orders for the parties to attend upon Dr G for the purpose of preparing a Family Report that addressed the wishes, perceptions and presentations of the child in relation to her continued residence with the father and the mother. The child would continue to live with her father during the period of adjournment and no orders were made for time spent with the mother.

20. There being again no appearance by the mother on 7 March 2014 I made orders for the child to live with the father during the period of adjournment. I also ordered the ICL to contact the mother and forward a letter advising her of the orders made by me and advising her that if she did not attend on the next occasion, either in person, by telephone link or represented by a legal practitioner, orders may be made referring proceedings for a listing as an undefended hearing. A copy of Dr G’s report was to accompany the letter.

21. The mother appeared unrepresented by telephone link on 1 April 2014. The mother was evasive when I questioned her in relation to whether she was still living in South Australia. She informed the Court that she was “travelling”.

22. Given the mother’s history of intermittent court appearances I took some time to explain the Court process to the mother and the options available as the matter moves forward. Specifically, I outlined what would occur if the mother chose not to participate in the final hearing and the consequences that would flow from such a decision.

23. When asked about her preparedness to participate in the final hearing the mother expressed frustration by the perceived length of proceedings and requested I make final orders at that time. I was not satisfied the mother understood the implications of such an important step and I declined to accede to the mother’s request. I adjourned the matter for final hearing on 11 April 2014 to enable the mother to more carefully consider her position.

24. There being no appearance by the mother or her legal representative on 11 April the final hearing proceeded on an undefended basis.

Documents Relied Upon

1. The father relies upon the following documents:

   ·Affidavit of the father filed 22 October 2013

   ·Affidavit of the father filed 18 February 2014

   ·Affidavit of the father filed 4 March 2014

   ·Affidavit of the father filed 9 April 2014

2. The Independent Children’s Lawyer (“the ICL”) relies upon the following document:

   ·Family Report of Dr G dated 6 March 2014

Evidence of Mother

1. The mother did not comply with the trial directions and accordingly there is no affidavit material that the Court was able to consider on her behalf. Obviously I have regard to the mother’s Response but there is no other evidence, in respect of the mother’s case, upon which I am able to rely.

2. The mother did however attend upon Dr G for the purposes of the preparation of a Family Report. I will return to the contents of the report and Dr G’s observations of the mother later in these reasons.

3. While the mother was unwilling to participate in the final hearing, some understanding of the mother’s position was gleaned from the ICL’s recitation of a telephone conversation occurring on the morning of the hearing between the ICL and the mother.

4. The following is a transcript of the exchange that occurred between the ICL and myself at the commencement of the hearing:

   BERMAN J: How did you…Did you forward correspondence?

   ICL: Your Honour, I did. I wrote to the mother by letter dated the 4^th of April to the address that she provided to the Court here in Adelaide and also to the address that’s on the Court file in Sydney.

   BERMAN J: Yes

   ICL: Um, I received no response from her until about 9 o’clock this morning, ah, when she rang me and told me that she would not be attending court today. I don’t know if your Honour would like to hear what else she indicated to me?

   BERMAN J: I’m happy for you…I think it would be useful if you could indicate to the Court the conversation that you had with the mother.

   ICL: She told me that she would not be attending today and that she didn’t seek to be participate (sic) in the hearing by telephone. She told me that she is not in Adelaide indeed she is living at a friend’s house in Sydney.

   BERMAN J: Mmm

   ICL: She said that if she, if she, if she, if the father, if the child was happy with the father then she is happy with an arrangement that the child live with the father. I discussed with her the most recent affidavit of the father that had been filed with the Court setting out the orders that he would be seeking. In relation to supervision of any time between the mother and the child and she said that she would not be happy about there being an order for supervision. She said that she would continue to maintain some sort of contact with the child such that she is able to ascertain whether she is happy and if she discovered that she was not then she would make an application to the Court.

   BERMAN J: Alright.

5. Notwithstanding the mother plays no part in proceedings either by way of her physical appearance or in terms of any affidavit material that the Court is able to consider, I do not consider that this matter is dealt with appropriately by in effect dismissing the mother’s application summarily and making orders in default. It is not simply resolved by finding that the apparent failure to prosecute the action by the mother entitles me to make parenting orders in the terms proposed by the father. I am obliged to provide adequate and proper reasons so that a legislative pathway can be followed and that it is apparent how I have exercised and discharged the need to give proper consideration to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).

6. I have given consideration to a range of cases that have regard to the fundamental principle of natural justice and the provision of an opportunity to a litigant to attend: see Allesch v Maunz (2000) 203 CLR 172, Sexton & Sexton [2012] FamCAFC 218, Haydon & Bennett and Anor [2012] FamCAFC 89 and Sinnott & Firth (No 2) [2013] FamCAFC 159.

Evidence of the Father

1. The father attended proceedings and in support of orders sought he filed a trial affidavit on 22 October 2013. The ICL declined the opportunity to cross examine the father having noted that the “multiplicity of affidavit material” filed on his behalf had already addressed any concerns the ICL may have had.

Report of Dr G

1. Four Family Reports have been prepared over the course of these proceedings but the most recent report is that of Dr G dated 6 March 2014.

2. Neither the ICL nor counsel for the father required Dr G to give evidence at the hearing.

3. The writer had the benefit of speaking to and assessing the presentation of the mother and her interaction with the child following the child’s return to Adelaide. Dr G’s observations and concerns in relation to the mother are outlined below:-

   She has been most unhappy in her relationship with the father, and has clung to a fierce distrust of him, which has led her into errors of behaviour and a need to adopt beliefs that are wishful, but not always realistic. She has a great love for her daughter, but expresses confusion about the child’s potential to self manage, which places the child in a false situation of belief in her power.

   …

   Mother is torn between attempting to give the child freedom to grow at least in the relative safety of her extended family, and her urge for herself to be free and able to enjoy a life without the stress of rearing a child against the wishes of the alternative parent. Mother appears to have a confused, and perhaps deluded belief that the father is attempting to draw her back to his life by using the child as a decoy. This is not clear by observation of the father’s lifestyle, and certainly not an obvious pattern of father’s behaviour. Mother apparently continues to make the error of attempting to turn the child’s relationship with the father into the negative, and this should cease.

4. Apparent from the discussions between the writer and C is the child’s reluctance to live with her father and her fear of losing her mother. Perhaps unsurprising given the circumstances of the child’s recent return to Adelaide.

5. The writer identified that while the child finds it “easier to express human affection to the mother, who returns this…it will be important for the development of this child that the mother should come to a proper understanding of her need for emotional safety”.

6. Dr G goes on to note that although the child has been exposed to parental conflict she is currently “in a very fortunate position insofar as her physical and intellectual comfort are concerned, as father has provided a very comfortable home, with accepting family and companionship for the child”. Similarly, despite the fractured relationship between the parents “the father has stated his understanding of the child’s need for this mother’s love”.

Statutory Framework

1. Part VII of the Act sets out the legislative pathway in terms of the manner in which the Court needs to consider when making parenting orders.

2. The best interests of the child are required to be met and s 60B(1) provides the relevant considerations to satisfy the objects of s 60B.

3. Pursuant to s 60CA the Court must have regard to the best interests of the child. That consideration is paramount.

4. I am obliged to consider s 60CC of the Act and in particular the primary consideration (s 60CC(2)) and the additional consideration (s 60CC(3)).

5. Section 65D provides

   (1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper.

   …

6. Section 65D(1) is subject to s 61DA of the Act. This section requires the Court to apply a presumption that it is in the best interests of the child there be equal shared parental responsibility, unless there is abuse or family violence as referred to in s 65D(2) and/or the presumption is rebutted by evidence that suggests equal shared parental responsibility would not in the circumstances be in the interests of the child.

7. The evidence in this case where it is uncontested and by reference to the matters raised by the Family Report writer and supported by the ICL enable me to find that it would not be in the best interests of the child for the parties to have shared parental responsibility. Moreover the mother’s pattern of non attendance and a history of being unable to locate the mother suggest the father’s ability to enter into sensible discussions with the mother in a timely fashion would be significantly impaired. An order for equal shared parental responsibility is unrealistic, unhelpful and likely to lead to further litigation.

8. Accordingly, the presumption is s 61DA is rebutted and it is not intended that any parenting order will provide for the parents to have equal shared parental responsibility.

9. I must still apply the relevant provisions of s 60CC of the Act.

10. The Court is obliged to consider the manner in which each of the parents have either fulfilled or failed to fulfil their responsibilities as a parent pursuant to s 60CC(3)(ca). Despite the mother’s unilateral relocation, the father has taken every opportunity to pursue a meaningful relationship with the child and fulfil his responsibilities as a parent. The father has provided for the child’s physical and intellectual needs and her care is entirely proper (s 60CC(3)(f)).

11. Similarly, the father’s willingness to accommodate time between the child and mother, particularly in the absence of a Court order requiring him to do so, demonstrates an understanding of the benefits to the child in having a relationship with both parents. I am reassured by the fact the father’s approach to facilitating contact between the child and the mother is one in which the father will continue to act in a manner that is consistent with the child’s best interests and not that of the mother’s.

12. The relationship between the mother and child is one that has often positioned the child at the heart of this conflict and, whether intentional or not, has placed an unnecessary burden on this young child (s 60 CC(3)(b)).

13. The mother for her part has failed to take up the opportunities provided to her by this Court. It is not likely the mother will participate in the future and accordingly if orders are made in terms similar to those proposed by the father it is unlikely that there will be any significant or dramatic change in the child’s life. The child has lived with the father since her return from Sydney in early February 2014 and I propose to make orders that would see the child continue to live with the father.

14. It is in the child’s best interest to spend some time with her mother. If however the mother is to remain in Sydney there will of course be practical hurdles the mother will have to overcome if she is to spend time with her daughter. However, I am not prepared to make an order in terms of supervision. I know little of the arrangements between the father and his extended family.

15. Instead, the order I propose to make would obligate the father to engage in discussions with the mother and that any time arising from those discussions could include conditions as agreed between the parties. This would also include communication between the mother and the child noting the allegations of the mother sending inappropriate texts, encouraging the child to run away and denigrating the father. This proposal was supported by the ICL.

16. Counsel for the father sought a further order that the child once again be placed on the Airport Watch List. The mother is still in possession of the child’s passport and has already shown a willingness to relocate the child without the father’s consent or knowledge; I make the order noting the father is aware this will also affect his ability to travel with the child.

17. Accordingly, I make orders as set out at the commencement of these reasons.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 April 2014.

Associate: 

Date:  28 April 2014