Choi and Kwon
[2012] FMCAfam 1105
•31 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHOI & KWON | [2012] FMCAfam 1105 |
| FAMILY LAW – Parenting dispute – both parents of Korean extraction – father living in Korea and spending short periods of time in Australia – father without accommodation suitable for children – whether children should travel to Korea with either parent – risk of non-return by father. |
| Family Law Act 1975 |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR CHOI |
| Respondent: | MS KWON |
| File Number: | MLC 102 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 20 September 2012 |
| Date of Last Submission: | 20 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Nida |
| Solicitors for the Respondent: | Vernon Da Gama and Associates |
ORDERS
That the parties have equal shared parental responsibility for the children of the marriage [X] born [in] 2000, [Y] born [in] 2002 and [Z] born [in] 2004.
That each of the parties immediately inform the other should the children require any emergency or serious medical attention whilst in their care and the mother shall keep the husband informed of any serious illnesses suffered by the children.
That the mother authorise the children’s schools to provide to the husband at his expense copies of all school reports issued for the children, school photograph order forms, newsletters and other documentation ordinarily provided to the parents.
That both parents be at liberty to attend the children’s school activities, sporting and other extra-curricular activities to which the parents are ordinarily involved.
That each party keep the other informed at all times of their residential address and telephone number, and notify the other party within 24 hours of any changes thereto.
That until further order the father MR CHOI be and is hereby restrained by injunction by himself, his servants and agents from removing the children or any of them from the Commonwealth of Australia without the prior written consent of the mother or order of the Court.
That until further order the children live with the mother.
That until further order the children spend time with and communicate with the father as follows:
(a)From 8.00 am to 5.00 pm on each alternate Sunday;
(b)From 3.30 pm to 8.00 pm on Wednesdays (including an evening meal);
(c)By telephone between 7.30 pm and 8.00 pm on Monday, Thursday and Saturday and the mother shall facilitate the call;
(d)By email at any time or by SMS message to a mobile phone if provided by the father to the children;
(e)Any form of contact initiated by the children.
That until further order the father shall ensure that the children attend sporting activities which fall during their periods of time with the father and the mother shall ensure that the children are not enrolled in additional sporting activities on Wednesdays or Sundays when the children have time with the father.
That in the event that the father is unable to exercise time with the children he will provide 72 hours notice to the mother by text message.
Contact pickup and drop off shall occur at school or outside the mother’s home whichever is applicable.
The mother be permitted to take the children on holiday to Korea provided that not less than four weeks prior to departure from Australia, she provides the father:
(a)Notification of the dates of travel and details of all flights;
(b)Contact details while in Korea.
The father spend time with the children in Korea as, and if, agreed with the mother.
Neither parent administer corporal punishment to the children.
Neither parent denigrate the other in the presence of the children or permit any other person to do so.
Neither parent discuss these proceedings or any further proceedings that may eventuate with the children.
IT IS NOTED that publication of this judgment under the pseudonym Choi & Kwon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 102 of 2012
| MR CHOI |
Applicant
And
| MS KWON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about what parenting orders should be made in respect of the three children of the parties namely, [X] born [in] 2000, [Y] born [in] 2002 and [Z] born [in] 2004. The children live with their mother. The matters in issue in the proceedings are to an extent somewhat unusual.
The matters most vividly the subject of dispute are whether the children should be allowed to travel to South Korea with either of their parents, together with interrelated passport issues. Next, whether the father should be prevented by injunction from using corporal punishment on the children and third, how much time the children should spend with the father and when.
For the reasons that follow, I propose to make orders in the main as sought by the mother.
The facts
The applicant father was born [in] 1964 and describes himself as unemployed following an injury in 2008 (see applicant’s affidavit, paragraph 1). In fact, he is not unemployed but I will return to this matter.
The respondent mother was born [in] 1977 and is an [occupation omitted] employed in a permanent part-time position by Mr S, an employer who plainly holds her in very high regard.
The parties married in South Korea (which I will refer to as Korea in these Reasons for Judgment, as that is the way both the parties did so in their evidence and materials). Both the parties were born in Korea but they migrated to Australia in 2003 (this date is not revealed in affidavits, but this was the date given by the father under cross-examination).
The mother has taken out Australian citizenship, as have the three children, but the father confirmed in his oral evidence that he has no intention of moving from permanent resident to citizen as he does not want to lose his Korean citizenship. He also asserted that Korea does not permit dual citizenship.
The parties separated under one roof in 2006 and separated finally when the mother obtained an intervention order on 30 August 2010.
There are mutual allegations of violence during the relationship but given that neither party was cross-examined about this aspect of their history, it is not possible to make findings about it.
In February 2011, the father breached the intervention order for reasons he elaborated on in Court. Put shortly, in late 2010 (see paragraphs 14 and 15 of father’s affidavit) the father learnt that his own father was very ill and probably dying in Korea. The father said he was desperate to take the children to see his father for one last time and, being unable to contact the mother’s lawyers, he made direct contact with the mother even though he knew this was in breach of the Court’s orders.
On a date not revealed in the materials but probably shortly after the breach of the intervention order, the father returned to Korea, where his father most unfortunately had already died, and remained for some months. When the father returned to Australia ultimately, round table dispute management took place in June 2011 but failed to resolve the matter. The father has scarcely seen the children since.
The father concedes that he would need to re-establish his relationship with the children, however, any attempt to do this has been rendered more difficult by the fact that he presently lives in shared accommodation with four other adults.
In his affidavit and indeed in his oral evidence, the father dealt in some detail with alleged differences of culture between Australia and Korea, most particularly as to corporal punishment. Each parent seems to me, in all probability, to have exercised some measure of corporal punishment but having heard the evidence, it is a matter of some dismay that the father should have exercised the corporal punishment that he admits he did.
It is not clear from the parties’ affidavit material how much time the father spent with the children in the periods leading up to February 2011. It is not clear from either party’s affidavit precisely what times might be proposed to be spent with the children by the father.
At paragraphs 29 and 30 of her affidavit, the mother deposes to the fact that the children live with her in a three bedroom house and are all enrolled unexceptionally in school. All the children have extramural activities and the mother deposed at paragraph 31:
“I believe that it would be in the children’s best interest if the husband involves himself with the children’s extracurricular activities and whilst spending time with the children, facilitates the children attending the extra-curricular activities as set out above.”
The father was required to file a set of the orders that he was seeking and I note that in those orders he seeks that the children spend time with him:
“a) At least One day a weekday which doesn’t have any scheduled activities, subject to the children’s wish.
b) Each alternate Saturday overnight stay if the father provides a proper accommodation. Otherwise daytime only, subject to the children’s wish.
c) A week of holiday at least 2 times a year (No restrictions of overseas trip) length of holiday can be varied, subject to the children’s wish.
(a) In regards to January, 2012 holiday in Korea, both parents have equal opportunities to spend time with children while in Korea, subject to their wish.
(b) Both parties must inform the other party whenever they take the children overseas.
d) By telephone, SMS, email, letter etc any form of contact methods between 9 am to 9 pm at any reasonable time.
e) The mother should inform the father time schedule of extra curriculum activity.”
As I have already said, much of the parties’ material was taken up with mutual accusations of violence together with cultural matters and matters to do with travel to Korea.
The evidence given in Court – the Father
The father adopted his affidavit as true and correct and had nothing to add. Under cross-examination, the father confirmed coming to Australia in 2003 and that he had not sought citizenship for the reasons I have described. Since his father became ill in 2008 to 2009, the father’s brother has been largely running the family [omitted] business in [omitted] in Korea. Since his brother has another business which he also runs, this has become burdensome to his brother and accordingly since his father’s death, the applicant father has himself essentially been taking over the management of the [business omitted]. From what the father said, it is clear that the management of this [business] will occupy him for some considerable time. It is a business that has clearly been in his family’s ownership for some time and the most that the father could say is that the business will settle down over time. It is fair to say that the father has spent, and will continue to spend, the majority of his time in Korea for the foreseeable future. There is, it would seem to me, no prospect of him obtaining child-appropriate accommodation in Australia until that comes to an end.
The father’s evidence is that he is living in what, in effect, is temporary accommodation. To my surprise, he was unable to say how many bedrooms there were in this place even though he has been living there for some time, but it is clear that it is fully occupied by him and by other people. The father dwelt at some length upon the desirability of the children relocating to Korea for a period of time to immerse themselves in Korean culture. He would like them to spend a semester or even a year there, and preferably during their primary school years. He did, however, say more than once, and with apparent sincerity, that he would never hold them in Korea without the permission of the other parent. He asserted that he wanted shared-care of his children.
It is noteworthy that following the consent orders made on 13 March 2012 whereby the father was able to spend time and communicate with the children as set out in order 8 of the orders then made, the father went back to Korea two weeks later and remained there until 26 June 2012 when he returned to Australia. He then went on 9 July to Korea, returning on 20 August. He proposes to go back to Korea shortly to continue his business.
The father confirmed that he has no assets or employment in Australia and that he intends, however, to return to Australia in December for a few weeks before returning to Korea. The father confirmed that it was normal to use physical punishment on children in Korea and that he had in fact hit one of the children with a wooden, kanto-style sword. The father confirmed that the main issue for him is whether he is able to take the children overseas or not, and whether there was any guarantee that he would return to Australia if he did so.
The evidence given in Court – the Mother
Counsel for the mother, in opening, confirmed that the mother wished the extant interim orders to continue and that she only be permitted to travel. The mother gave evidence. She adopted her affidavits and tendered as exhibit R1 a letter from her employer, Mr S, who unconditionally offers to provide personally a required security of $10,000 to guarantee the mother’s return to Australia. The mother confirmed that she wants to see her own mother in Korea and that she has four siblings also living there.
The father cross-examined the mother only briefly. The mother confirmed her fears that if the father takes the children to Korea, he will not return them. She pointed to the fact that Korea is not a Hague Convention country. In response to evidence by the father that she has policemen in her family, she asserted that the rule of law applies in Korea and her relatives would not be able to do anything they want. She asserted that no-one would listen to her in Korea because she is not a citizen.
The evidence given in Court – Ms M
A family report was prepared by Ms M. The report noted that (paragraph 107):
“The three children were observed to become relaxed and to interact more spontaneously with their father when they were involved in an activity and when not being questioned by their father. Mr Choi needs to desist from asking the children questions and from making overly critical comments. These observations give some weight to Ms Kwon’s complaint that she felt emotionally abused by Mr Choi’s reported continual critical comments.
It is difficult to assess the extent of the children’s apprehension in respect to spending time with their father. They each expressed a view that they want to see him, preferably during the day. When Mr Choi interacted in a warm and affectionate way, the children responded well to him.
This writer has no concerns in respect to Ms Kwon’s parenting capacity. She is well informed about the children’s wellbeing, their education and extracurricular activities. The three children were observed to engage comfortably and affectionately with their mother.
Mr Choi at this time, advises that he is not seeking overnight time with the children as he does not have adequate accommodation for this currently. He hopes to move with a friend into a private rented property. As stated, Mr Choi anticipates travelling to and from Korea until the end of 2012. When in Australia, he seeks to have time with the children.”
In the ultimate, Ms M recommended that the children live with their mother and spend time and communicate with their father pursuant to the current orders. In the event that Mr Choi obtains more suitable accommodation, it was recommended that the children spend one overnight stay on alternate weekends. It was further recommended that the mother facilitate the children continuing to speak with their father by mobile phone or telephone when he is in Korea, and that the parents be restrained from denigrating each other or undermining the other parent.
The issue of Ms Kwon’s request to take the children to Korea for a holiday was left to the Court.
Given that the father had, by the time the trial started, changed his position in relation to overnight time and indicated a desire to cross-examine Ms M, the Court made arrangements for her to attend and give evidence. In the light of the father’s amended position, Ms M said that if the father had suitable accommodation, one overnight stay would be in the children’s best interests and that order 6(a) sought by the father for time during the week should be limited to a couple of hours after school one day per week.
The father did not cross-examine Ms M. Brief cross-examination by counsel for the mother elicited a firm view on the part of Ms M that the children would need their mother for their first visit to Korea. Ms M described them as anxious children who would not be able to sustain, in any event, more than one week with their father. Neither parent had raised the issue of the children having a visit to Korea with the father at the counselling interviews. Ms M described the children’s relationship with their father as adequate, but was clear that the children should only spend time with their father in Korea if the mother was present.
Final submissions
Both parties tended to concentrate on the issue of the father’s desire to take the children to Korea. Counsel for the mother pointed to the fact that the children were reserved with their father and the fact that the father had breached the intervention order made by the State Court. It was confirmed that the mother wants to go to Korea for two weeks.
The father pointed out, accurately enough in my view, that the children’s hesitations were perhaps natural after 18 months of not spending time with him. He dwelt upon the allegedly false accusations made against him by the mother and made a number of criticisms of the mother’s past conduct.
It will be readily apparent from this somewhat jumbled recitation of the materials and evidence given that this case has been presented in a fashion that presents the Court with some difficulties. The jumbled version of the events follows the jumbled way in which both parties presented their materials in their case. In circumstances where there are a number of matters in issue, the complete lack of cross-examination by either party on relevant issues (most particularly, the nature of the children’s relationships with each parent) is unhelpful. Nonetheless, I turn to the statutory pathway.
The law
In Goode & Goode [2006] FamCA 1346 at [65], the Full Court of the Family Court summarised the amendments to Part VII of the Family Law Act as follows:
“(1) Unless the court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the court or the provisions of a parenting plan made between the parties.
(2) The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
(3) If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the court considers it would not be appropriate in the circumstances to apply it
(s 61DA(1) and s 61DA(3)).
(4) The presumption may be rebutted where the court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
(5) When the presumption is applied, the first thing the court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
(6) The Act provides guidance as to the meaning of substantial and significant time (ss 65DAA(3) and (4)) and as to the meaning of reasonable practicability (s 65DAA(5)).
(7) The concept of substantial and significant time is defined in
s 65DAA to mean:
(a) the time the child spends with the parent includes both:
i. days that fall on weekends and holidays; and
ii. days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
i. the child’s daily routine; and
ii. occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(8) Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
(9) The child’s best interests are ascertained by consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC.
(10) When the presumption of equal shared parental responsibility is not applied, the court is at large to consider what arrangements will best promote the child’s best interests, including, if the court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would be particularly so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the interests of the child are the paramount consideration, the court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
(11) The child’s best interests remain the overriding consideration.”
Shared parental responsibility
The orders made by consent on 13 March 2012 provide for equal shared parental responsibility and it is the mother’s submission that the extant orders should continue. The father said nothing at all about shared parental responsibility. Ms M’s report did not deal with the issue of shared parental responsibility, nor was she asked any questions about it.
In this case, it is clear that there has been family violence. The father admits to beating one of the children. There are mutual allegations of family violence by the parents but for the reasons I have given, it is not possible to evaluate them in any very meaningful way.
In my view, the Court should apply the presumption in this instance, notwithstanding the somewhat concerning allegations that the parties make about one another. The first thing to be noted is that both parties either expressly (the mother) or implicitly (the father) seek an order for shared parental responsibility. Next, it is clear that both parties love the children and have their best interests at heart, albeit that they do not entirely agree about how those interests should be met. Further, to the extent that there are issues of family violence involving the children, these appear to arise in the main from what might be described as Korean cultural perspectives. In all the circumstances, I think the presumption should be applied.
Equal time
It is clear that the children should not spend equal time with the father. They have spent only very limited time with him for some years and are described by Ms M, whose evidence I accept, as anxious. Neither parent seeks an order for equal time and given that the father lives predominantly, for the moment and for the foreseeable future, in Korea, it is plainly also impracticable for them to spend equal time with him.
Substantial and significant time
Here, the extant orders provide for time on each alternate Sunday and from 3 until 8 pm on Wednesdays. While Ms M recommended from after school for a couple of hours, the mother seeks that the order continue until 8 pm on Wednesdays including an evening meal.
The father’s position, which is somewhat confusing bearing in mind that each of his proposed orders is subject to the children’s wishes, is essentially for a whole day during the week, something which is inherently impracticable.
Ms M’s recommendation is essentially that an overnight stay would be permissible if appropriate accommodation was achieved, together with some hours once a week.
Ms M’s recommendations are made within her area of expertise and given the children’s lack of time with their father in the past and likely lack of time with him in the future, bearing in mind the father’s plan to remain predominantly in Korea, it is quite clearly not in the children’s best interests to order substantial and significant time at this stage.
The time the children spend with their father more generally
This question is clouded by the fact that the father simply will not be in Australia much for the foreseeable future. He clearly wants to see his children when he is in Australia, but appears to face very significant difficulties in obtaining accommodation that would be appropriate for him to spend any significant amount of time with them. I bear in mind steadily the objects of the Act in section 60B and the primary and additional considerations in section 60CC.
It is not in the circumstances of this case necessary or appropriate to trawl through each subsection of section 60CC. It is plain that the children would benefit from having a meaningful relationship with both parents and I am satisfied that the risk of abuse, neglect or family violence is sufficiently small not to prohibit time being spent with either parent.
The reality is that the children have lived with their mother as their primary carer all their lives and spent only fragmented and brief time with the father, not least because that is what he himself has chosen to do.
In my view, the extant orders should continue as the mother seeks, including the orders requiring the father to ensure that the children attend sporting activities that fall during their time with him. The father’s desire that the children not attend extra-curricular activities while they are with him shows a lack of insight into their needs and puts his needs ahead of those of the children.
Both parents should be restrained from using physical discipline upon the children and should be prohibited from denigrating the other party. Given the fact that both parents complain of the way the other talks about them, such an order is plainly required. Likewise, the parties should be prohibited from discussing these proceedings or any other proceedings that may eventuate.
The application to travel to Korea
From what the father said, it is clear that he has no in-principle objection to the mother taking the children to Korea, provided only that he can have the children for a block of time there as well.
I have already set out what Ms M had to say about overseas travel for the children.
It is overwhelmingly obvious that the mother should be permitted to take the children to Korea as she wishes. I entirely accept her evidence that she is an Australian citizen and has no intention of removing the children permanently to Korea. She has gained employment in this country in which she is clearly very well-regarded. It is not necessary to draw upon the undertaking of her employer to go surety for her. I wholly accept her evidence, given with complete conviction, that she will return.
Additionally, it is very much in the children’s best interests to go to Korea. It is where they are, so to speak, ethnically from. They have close family there that they can helpfully see. All matters point conclusively towards their being permitted to go. It will satisfy the mother’s natural desire to see her own intimate family, which will no doubt make her happier and this can only be in the children’s best interests.
The father’s application is more difficult. He has no permanent assets in Australia, is not a citizen and does not propose to be one. He proposes to continue, in effect, living predominantly in Korea for the foreseeable future. He has made it clear that he would like the children during their primary years to spend an extended period of time in Korea.
Although the father said with apparent conviction that he had no intention of overholding the children in Korea without the permission of the mother, I approach this proposition with some caution. That is because although I did generally form a favourable view of the father as a witness, I do not think that he entirely knows his own mind. A number of his proposals changed significantly from time to time (most particularly, for example, his desire for overnight time).
Furthermore, these children are anxious and could not, on any view, sustain any extended period of time with the father in Korea (or indeed in Australia at the moment). It is plainly wholly inappropriate for the children to be taken by the father alone to Korea at this stage. I will, however, provide for the children to spend time with the father in Korea if the mother consents in writing for this to be the case. As I understand it, both the parties are from the [omitted] region and it may well be practicable for them to spend time with their father (with their mother also in attendance) by agreement when the mother goes to Korea. The mother is to provide a schedule of dates and times that the children will be in Korea to the father in a timely way before departure, and to permit the father to continue to speak to the children by telephone or otherwise communicate with them while they are there.
In the event that the father’s lifestyle changes and he decides to live permanently in Australia, then clearly things would change dramatically and an increased amount of time with the father could be contemplated if he obtained suitable accommodation.
Nonetheless, the prospects of this occurring seem to me to be so remote that it is not appropriate to endeavour to put orders in place to accommodate such an outcome when all the evidence suggests that it will simply not occur. If things change in this regard, then the father could of course bring an appropriate application.
I have drafted orders to give effect to my conclusions but will give the parties an opportunity to study them before they are made final.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Associate:
Date: 31 October 2012
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