CHIAO & WEN

[2015] FamCA 500

FAMILY COURT OF AUSTRALIA

CHIAO & WEN [2015] FamCA 500

FAMILY LAW – CHILDREN – Best interests – Overseas travel – Where the father has sole parental responsibility of the child – Where the mother has not provided written consent to the proposed travel nor did she appear at the hearing – Where China is not a party to the Hague Convention – Where the father has insufficient ties to Australia to assure the Court of the return of the child – Where the father does not have the means to provide a security for the travel – Application dismissed.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C(3)

Gin & Hing [2010] FamCA 617
Line & Line(1997) FLC 92-729.

APPLICANT: Mr Chiao

RESPONDENT: Ms Wen

FILE NUMBER: ADC 3665 of 2011

DATE DELIVERED: 30 June 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: McClelland J

HEARING DATE: 29 June 2015

REPRESENTATION

FOR THE APPLICANT: Mr Chiao with the assistance of an interpreter

FOR THE RESPONDENT: No appearance for or on behalf of the respondent

Orders

1. The application in a case filed by the father on 22 June 2015 is dismissed.

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

1. The applicant, Mr Chiao (“the father”), has made an application for the Court’s permission to travel to China with his 13 year old daughter during the period from 26 September 2015 until 10 October 2015.

Background

1. By orders made on 28 April 2014, the father was awarded sole parental responsibility in respect of decisions concerning the major long term care, welfare and development of his child C (aka “C”) (“the child”) who was born in 2002.

2. Orders were also made for the child to live with the father and for the mother, Ms Wen (“the mother”), to spend time with the child upon such terms and upon such conditions as agreed between the parties.

Applications for Approval to Travel to China

1. This is the father’s second attempt to obtain permission to take the child on a holiday to China after an application in a case which he filed on November 2014 was dismissed.  The Court was then concerned that the child did not have a passport and there was inadequate information before the Court about the father’s connections to Australia.  

2. Other than in respect to authorising the father to apply for a passport without requiring the mother’s consent, the application was dismissed.

3. This current application in a case was filed on 22 June 2015. The relevant order sought by the father is that he “be permitted to remove the child from the Commonwealth of Australia for the purposes of overseas travel”.

4. The father has filed a supporting affidavit sworn 22 June 2015 to support his current application.

5. The grounds upon which the father seeks the orders include the following:

   ·       that the father’s parents (the child’s grandparents) and in particular his mother is suffering ill health;

   ·       that he purchased flight tickets on 20 April 2015 for the child and himself to visit his parents who reside in China;

   ·       it is proposed the trip will take place in the school holidays in September/October from 26 September to 10 October 2015;

   ·       the father has attached to his affidavit an itinerary for the proposed trip;

   ·       the father is currently working in Suburb K and that he has been working there for about two months; and

   ·       the father states that the holiday has been preapproved by his employer and taking the holiday will not prejudice his employment.

6. The father has attached to his affidavit his bank account statements.  The bank account statement summary is in respect to the two month period ending 13 May 2015 and indicates that, during the period, there were total deposits of $7 104.55 and withdrawals of $4 460 leaving a closing balance of $7 055.36.

7. As noted, the father has also attached a letter from his employer.  It is a very short letter indicating that the father has been granted leave for the period from 26 September 2015 to 12 October 2015 and that he will be resuming work on 13 October 2015

8. The father has indicated he is willing to pay a security bond. This issue will be addressed below.

9. The father stated, in his affidavit, that on 15 May 2015 he sent a text message to the mother seeking her agreement for him to take the trip with their daughter but the father did not receive a reply.

10. The father further stated that enquiries made by his daughter indicated that the mother wished to think about whether she would agree to the travel.

11. When this application was listed for hearing on 29 June 2015, the father reported that service of this application on the mother on 26 June 2015 could not be effected.  The father reported, however, that in a conversation with his daughter over the weekend of 27-28 June 2015 (by Skype) the mother indicated that she now consented to the father and daughter taking the trip to China.

12. The father did not believe that he would be able to obtain the mother’s written confirmation of that consent. The father’s doubt about obtaining that consent was based on his past experience and his assertion that the mother continued to suffer a mental illness.

13. In response to questions on 29 June 2015, the father advised the Court that he owns no property and that he and his daughter live with his brother and sister-in-law who do not charge him any rent.

14. The father indicated that he owns a motor vehicle worth approximately $8 000, that he has furniture of between $8 000 to $10 000 in value.  The father indicated that his bank balance is now approximately $9 000 in credit.

15. The father indicated that he has two long-term friends in Australia.

16. The father advised the Court that, in addition to his mother and father, he has another sister and another brother who reside in China.

17. In deciding this matter I am required to have regard to the best interests of the child: see s 60CA of the Family Law Act 1975 (Cth) (“the Act”).

18. As noted, by orders made on 28 April 2014, the father was awarded sole parental responsibility in respect of decisions concerning the major long term care, welfare and development of his child. This includes decision in respect to proposed international travel.

19. Section 61C(3) of the Act provides that the exercise of parental responsibility is subject to any order of the Court.

20. In determining what is in a child’s best interests, I am required to have regard to the matters set out in s 60CC of the Act. I have had regard to those factors generally but have determined that the factors set out in paragraphs (b)(ii), (c), (ca), (f), (g), and (i) of s 60CC(3) are of most relevance. Without other considerations that I will address, those factors favour the father succeeding in his application as he appears to be a responsible parent providing for and acting in the best interests of his daughter.

21. On the other hand, s 60CC(2) requires me, as a primary consideration, to have regard to the benefit of a child having a meaningful relationship with both of the child’s parents. While the mother has had a limited involvement in her daughter’s life, the involvement of the mother would necessarily be diminished if the daughter did not return from her trip to China.

22. I have also considered the possible consequences for the child if she is not returned from China. This would include removing her from her Aunty and Uncle with whom she has been living and also from her friends and school.

23. I appreciate that the father states that it is his intention to return to Australia on 10 October 2015 and there was nothing before the Court to challenge the father’s sincerity or credibility. Nevertheless, I am required to apply objective criteria in evaluating the risk of non return and the consequences if that occurs; see Gin & Hing [2010] FamCA 617 at [56].

24. In assessing the risk of the father not returning to Australia, I have noted that China is not a party to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 (“the Convention”). This would make any recovery action extremely difficult and costly. While that would not itself increase the risk of non return, it is a factor that significantly increases the consequences if the planned return does not occur.

25. The Full Court in Line & Line(1997) FLC 92-729 helpfully set out the factors to consider in evaluating the risk of non return. They are:

    (a) The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

    (b) The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues);

    (c) The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

    (d) Whether the country of travel is a signatory to the Hague convention.

26. Having regard to the risk factors, I have decided to dismiss this application. In particular, the father’s ties to Australia are not sufficient to provide the necessary degree of assurance that he will return with his daughter to Australia after he travels to China.  In that respect I note that the father does not own any property in Australia and he has only been in his current employment for a brief period of time.

27. I have given consideration to the father’s request that he and his daughter should be permitted to travel overseas on the basis that he pays a security.

28. Guidance in that respect is again provided in Line & Line.  In that case, the Court said that the two fold purpose of such a security is:

    a)to provide a sum which will realistically entice the person removing the children to return; and

    b)to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

29. On the facts before it, the Full Court in Lines decided that a security of $20,000 was appropriate. It is of note that Lines was decided in 1997. It is also of note that the proposed travel in that case was to the United States which was a signatory to the Convention. 

30. In this case, travel is proposed to China which is not a party to the Convention. As discussed, this would make any possible recovery action extremely difficult and expensive for the mother in the event that the father and child do not return to Australia.

31. As I have decided to dismiss this application on the basis of inadequate ties to Australia, it is not necessary for me to consider what an appropriate security would be. It is clear, however, that a realistic security in this case would be considerably beyond the current means of the applicant.

32. While it is with some regret, in the circumstances, the application in the case is dismissed.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 30 June 2015.

Associate:

Date:              30 June 2015