Chou and Long and Ors

FAMILY COURT OF AUSTRALIA

CHOU & LONG AND ORS

[2016] FamCA 818

FAMILY LAW – CHILDREN – Best interests – Whether the Court should order the child to spend time with the father and paternal family in Taiwan – Where Taiwan is not a signatory to the Hague Convention – Whether the father would return the child to Australia – Where there is an unacceptable risk the father and paternal family would retain the child – Where the paternal family have the financial capacity to visit the child in Australia.

Family Law Act 1975 (Cth) ss 4, 65DAA and 65DAC

APPLICANT:

Ms Chou

FIRST RESPONDENT:

Mr Long

SECOND RESPONDENT:

Ms Lsang

THIRD RESPONDENT:

Mr Lsang

INDEPENDENT CHILDREN’S LAWYER:

Kyle Terrance

FILE NUMBER:

BRC

6334

2014

DATE DELIVERED:

27 September 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

30 November and 1, 2 & 3 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Oakley

SOLICITOR FOR THE APPLICANT:

ABA Lawyers

COUNSEL FOR THE RESPONDENTS:

Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENTS:

NR Barbi Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr Sayers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Terrance
Legal Aid Queensland

Orders

That Mr Long ("the father") and Ms Chou ("the mother") shall have equal shared parental responsibility for all of the “major long-term issues” (as that term is defined in s 4 of the Family Law Act 1975) in relation to the child, L born … 2011 ("the child").
That the child shall live with the mother.
That the child shall spend time with and communicate with the father within the Commonwealth of Australia at all times agreed between the parents and failing agreement as follows:
(a)For a period of up to seven (7) nights in November 2016;
(b)For a period of two (2) weeks commencing on 27 December 2016; and
(c)Commencing in 2017:
(i)for a period of one (1) week during the Easter school holidays each year and for the whole of the June/July and September/October school holidays each year;
(ii)for a period of up to seven (7) nights once per school term provided that the child shall still attend school on any scheduled school day during such periods;
(iii)for a period of three (3) weeks during the December/January school holidays commencing on 27 December each year;
(d)Commencing in 2018:
(i)In addition to the time provided for in 3(c)(i) and (iii) hereof, for a period of up to fourteen (14) nights once per school term provided that the child shall still attend school on any scheduled school day during such periods;
(e)Commencing in 2019, the time provided for in paragraph 3(d)(i) can be exercised immediately before or after the time spent with the child in the school holidays as provided for in paragraph 3(c)(i).
That in the event that the father is unable to spend time with the child during any of the periods provided for in these parenting orders the paternal grandparents or either of them shall be at liberty, with the father’s consent, to have the child spend that period of time with them or him or her and either grandparent or both of them shall be entitled to spend any of the time the child spends with the father pursuant to these orders with the child with the father’s consent.
That the father shall be at liberty to communicate with the child via internet video conferencing facility such as Skype or LINE between 7:00 pm and 8:00 pm Queensland time on Tuesday and Thursday nights and between 4:00 pm and 6:00 pm Queensland time each Sunday evening with the father to be at liberty to include any member of the paternal extended family in such video conferencing call with the child.
That the father shall, not less than thirty (30) days prior to the commencement of any time that the child is spending with him or either of the paternal grandparents provide the mother with notice in writing of the dates during which the child’s time with the father or paternal grandparent/s will be spent, details of with which adults the child will be spending all of that time and the place/s at which the father and the child or the paternal grandparent/s and the child will be staying during all of that time.
That the father and/or the paternal grandparent/s shall ensure that the child communicates with the mother in an internet video conferencing call on a facility such as Skype or LINE on at least two (2) occasions each seven (7) day period the child is in his or their care pursuant to these parenting orders.
That arrangements for the collection of the child at the commencement of the time he spends with the father or the paternal grandparent/s and for the return of the child to the mother at the conclusion of such time shall, unless otherwise agreed in writing between the father and the mother, include:
(a)If the first day of the period of time the child is in the care of the father or the paternal grandparent/s is a non-school day than he shall be collected at 9:00 am and if it is a school day then he shall be collected at 5:00 pm;
(b)The child shall be returned to the mother’s care at 5:00 pm on the last day of the time he spends with the father or the paternal grandparents; and
(c)The child shall be collected from the mother at the commencement of such time with the father or the paternal grandparent/s and returned to the mother at the conclusion of such time at the McDonalds family restaurant in Suburb A in the State of Queensland.
That the child’s name shall be maintained on the Family Law Watch List at all points of international arrivals and departures in Australia.
That the child’s Taiwanese passport be held by NR Barbi Solicitors Pty Ltd and the child’s Australian passport be held by ABA Lawyers pending a further order of the Court or written agreement of the parents.
That each parent shall keep the other informed of his and her current residential address, mobile telephone number, land line telephone number (if applicable) and email address and each parent shall advise the other parent of any change to these particulars, in writing, within seven days of such change.
That each parent shall inform the other of any injury or illness suffered by the child whilst the child is in his (or the paternal grandparent/s’) or her care that requires medical or hospital attention, as soon as possible after such medical or hospital attention has been given.
That each parent shall keep the other informed, in writing, as to the names and addresses of any treating medical practitioners and/or allied health care practitioners who treat the child and by this Order any such practitioner is authorised to provide to the mother or the father any information requested by the mother or the father that such practitioner may lawfully provide about the child with each parent having liberty pursuant to s 121(9)(g) of the Family Law Act 1975 to show any such practitioner these parenting orders to demonstrate such authorisation.
That the mother, the father and the paternal grandparents, their servants and agents, are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or grandparents to or within the hearing of the child;
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence of the child and from permitting any other person to do so, either in person or by telephone, SMS, internet video conferencing facility, email or social media websites including but not limited to Facebook and Twitter.
That each of the mother and the father is permitted to liaise directly with the child’s school and any extra-curricular organisation the child is a part of to receive school notices, information, newsletters, school reports, school photographs or any other information about the child’s educational, sporting or cultural progress and development with these parenting orders authorising the administration of any school or extra-curricular organisation the child attends to provide each parent with any such information that may lawfully be provided with each parent having liberty pursuant to s 121(9)(g) of the Family Law Act 1975 to show the administration of any such school or extra-curricular organisation these parenting orders to demonstrate such authorisation.
That within seven (7) days of the date of these orders, the mother shall cause to be paid to the paternal grandparents, or at their direction, the sum of $10,000 that was paid into the trust account of her solicitors in December 2014 if it has not already been repaid and, if the said sum has been invested by the mother’s solicitors in an interest bearing deposit in the meantime, any interest that has accrued on it shall also be paid to the paternal grandparents, or at their direction, but not if it has not been so invested.
That the father and the paternal grandparents are released from any previous undertakings given to this Court.
That the Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chou & Long and Ors 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 BRISBANE

FILE NUMBER: BRC 6334 of 2014

Ms Chou

Applicant

And

Mr Long

First Respondent

And

Ms Lsang

Second Respondent

And

Mr Lsang

Third Respondent

REASONS FOR JUDGMENT

L was born in Australia in 2011 and is now five and a half years old. His 42 year old father is Taiwanese and lives in City B, where he has lived all of his life. The child’s 37 year old mother is an Australian citizen, though also of Taiwanese birth and citizenship.
L’s mother (“the mother”) emigrated to Australia from Taiwan with her family when she was only 13 years old and she lived in Brisbane until she met the child’s father (“the father”) and moved back to City B to live with him in late 2007. They married in 2009. When she was due to give birth to the child, the mother returned to Australia to have the support of her parents here in Brisbane for that time. When the child was a few months old, the mother took him back to Taiwan and they lived there with the father until the middle of 2014, interspersed with annual trips back to Brisbane, generally during the Taiwanese Summer holidays.
In June 2014, the relationship between the mother and the father having broken down, the mother returned with the child to Brisbane, this time determined to stay in Australia and not return to Taiwan. She achieved that by deceiving the father into believing that she and the child would return to Taiwan at the end of their visit to Australia, such that the father took no steps to prevent her from taking the child out of Taiwan, which I am quite satisfied he would have done had he known that the mother truly did not intend to return to Taiwan with the child.
Significantly, in the circumstances, Taiwan is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Hague Convention”) to which Australia has been a signatory for many years. That fact looms large over this case.
Soon after arriving in Australia in June 2014, the mother commenced proceedings in the Federal Circuit Court here in Brisbane for parenting orders affirming her care of the child and her retention of him in Australia. The father opposed the mother’s application and sought orders for the child’s return to Taiwan. The proceedings were transferred to this Court and on 12 December 2014 I delivered a judgment after having heard the matter on 10 December 2014. I made orders for the child to continue to live with his mother in Australia and for his presence in this country to be protected by entry of his name on the Family Law Watch List and for him to spend time with his father here in Australia as agreed between the parents.
Whilst acknowledging that unilateral removal of a child from its place of habitual residence, where the other parent continues to live, is not to be encouraged or condoned, I observed in my reasons for judgment that the parenting orders I was obliged to make were to be determined with regard to the child’s best interests being paramount. Had Taiwan been a signatory to the Hague Convention, I may have had no choice but to order an immediate return of the child to that country regardless of what I considered was in his best interests. However, Taiwan was not and is still not a signatory to the Hague Convention. I do not know or even purport to begin to understand why it is not a signatory. Cases like this certainly do nothing at all if they do not highlight the importance to citizens of signatory States of the application of the provisions of the Hague Convention in cases involving movement of children across international borders, not sanctioned by both parents.
Bound to determine the matter on the basis of the paramountcy of the child’s best interests, and satisfied that the mother and the child would probably be separated if I ordered his return and equally satisfied that it would not be in the child’s best interests to separate him from his mother, I determined not to order the child’s return to Taiwan. Not satisfied at that point in time that the child would ever be returned to Australia or his mother if I did order his return to Taiwan, I also did not make any orders permitting him to be taken to Taiwan for short term visits with his father and his paternal grandparents.
L’s father, and his paternal grandparents who formally joined these proceedings as Respondents, travelled to Australia on several occasions before and after my interim determination and spent time here with the child in their care. After my interim determination, they continued to press for a trial, and continued to seek orders that the child be returned to live with them in Taiwan.
The trial came on before me over four consecutive days commencing on 30 November, 2015. The mother, the father and his parents and an Independent Children’s Lawyer all appeared, represented by barristers. A most significant development happened at the start of the trial. The Court was informed by counsel for the father and his parents that their positions had changed and that they now only sought orders for the child to be able to travel to Taiwan on a regular basis during his Queensland school holidays for periods of time to be spent in the care of the father and the paternal grandparents. The Court was told that the father and his parents no longer opposed the Court making final orders that the child continue to live with the mother, accepting that would mean he continued to live in Australia.
Notwithstanding that change of position, the mother maintained her opposition to the Court making any orders that permitted the child to travel to Taiwan to spend time with the father and the paternal grandparents, citing as her principal reason her continued belief that the father and his parents would retain the child and not return him to Australia once the child was in Taiwan.
However, the mother’s barrister did inform the Court during the trial that the mother agreed that an order conferring equal shared parental responsibility on both parents, as sought by the father, could be made with her consent.
The mother’s position on the principal issue that remained in dispute, namely whether the child could travel to Taiwan for holidays with his father and paternal family, was supported by the ICL in a preliminary position taken at the commencement of the trial and maintained by the ICL at the end of the trial.
As one would now clearly understand, most of the trial was taken up with focus on questions surrounding the trustworthiness of the father and his parents on the issue of whether the child would be returned to Australia after visits to Taiwan, the efficacy of Taiwanese law (in the absence of the applicability of the Hague Convention in that country) in securing mandated return of the child from Taiwan to Australia if the child was retained there by his father and grandparents, and to a lesser extent, the degree to which the mother supported the maintenance of the child’s relationships with his father and paternal grandparents and the extent to which, if any, that influenced her stated opposition to his travel to Taiwan.

Matters of relevance to the determination of trustworthiness of the father and his parents

Of course, the father and his parents told the Court that they could be trusted to abide by any orders this Court makes for the child to be returned to his mother in Australia at the end of scheduled holiday visits to Taiwan. Having regard to all of the evidence, particularly the opinions expressed by the expert who provided a family report to the Court of the significance to the child of his attachment to his mother, I am quite satisfied that if he was retained by the father and the paternal grandparents in Taiwan and not returned to his mother that such a move would not be in his best interests. Accordingly, the risk of his being retained in Taiwan by his father and grandparents must be assessed and considered in determining the parenting orders that are in his best interests.
In my judgment, a number of matters of relevance to this determination arose in the evidence and during the trial.
Firstly, there is the fundamental change of position of the father and his parents, made apparently at the last minute before the trial. On Friday 27 November, 2015, the last working day before the commencement of the trial, a Summary of Argument prepared by counsel who appeared for the father and his parents was filed in the Court. In that document, it was said:
It is the father’s case that the best interests of [the child] are for [the child] to return to Taiwan to live.
The father contends for [the child] to return to Taiwan and spend time with the mother, (if she remains in Australia) in Australia during various Taiwanese vacation periods and in Taiwan, during school terms, upon the giving of notice.
The father seeks alternative orders (if the court were to order that [the child] remain living with the mother in Australia), that [the child] spend time with the father in Taiwan or Australia, at the father’s election, during the Australian school holidays, and in Australia during school terms with notice.
The father (and his parents) had maintained the principal position that the child be returned to live with them in Taiwan, as I have already observed, from the moment that they learned that the mother was not planning on returning herself or the child to Taiwan in mid-2014. They clearly maintained that position until the very start of the trial, even after the publication in June 2015 of the family report in which the reporting psychologist, Ms C, pointed out the child’s significant attachment to his mother and recommended that the child remain in her care. They maintained that position to the start of the trial knowing those recommendations and knowing that the mother did not intend returning to Taiwan.
The father had maintained the principal position that the child should be returned to live with him in Taiwan in the courts of Taiwan as well. Soon after the mother served the father with the Application Initiating Proceedings commencing proceedings here in Australia, the father commenced his own proceedings in the District Court of Taiwan, City B, seeking parenting orders that provided for the child to be parented by him, with the mother only having the child in her occasional care in Taiwan. Around the same time, he caused a criminal complaint against the mother and her parents to be lodged in the Taiwanese Courts seeking to have them investigated, charged and punished for criminal child abduction.

On the Monday morning, 30 November, 2015, the start of the trial, the barrister appearing for the father and his parents informed the Court of the significant change in the father’s position. The Court was told that the father no longer sought orders that the child be returned to Taiwan to live with him and that he now conceded that the child should continue to live with the mother in Australia. He and his parents were now just asking the Court to allow the child to travel to Taiwan to spend time with them there during holidays.
On Wednesday 2 December, 2015, the father’s barrister handed the Court an Undertaking signed by the father the day before. It became Exhibit 10 in the proceedings. By that document, the father undertook to this Court that he would act as follows:
In the proceedings that I filed in the Family Court, Taiwan [City B] District Court on 11 August 2014 I will, within twenty-one (21) days of the date of any final order issued by Justice Forrest of the Family Court of Australia (“Australian Order”), amend my petition to seek orders from the Family Court, Taiwan [City B] District Court which are in the same terms of the Australian Order;
I will not make any further criminal complaint or provide any information or documentation to any authority in Taiwan alleging that any person engaged in criminal conduct by removing the child [L] (Date of birth … 2011) from Taiwan on 17 June 2014.
Of course, the father’s apparent last minute change of heart raised immediate questions about when he had made up his mind to change his position and why he had done so. It also raised as a very important issue in the case the legal efficacy of the steps he undertook to take and not to take and the irrevocability or otherwise of such steps.
Under cross-examination, the father told the Court that he had been considering whether to change his position the previous week but that he had only finally decided upon it on the morning of Monday 30 November just before the trial started. Indeed, the father then gave evidence that he had also just given his Taiwanese lawyers instructions, in the last few days, to inform the Taiwanese Court that he was prepared to allow the child to continue to live with his mother in Australia. Then, somewhat inconsistently, I consider, he told the Court that “a long time ago, we were willing to let him live in Australia and just stay in Taiwan during holidays”. He then conceded that he had put no document in evidence in these proceedings that showed that he had instructed his Taiwanese lawyers that his position in the Taiwanese Court was to be changed, but still said that he had given such instructions to them on Monday, 30 November.
When it was put to him that the mother’s lawyer in Taiwan had asked his lawyers in Taiwan at a recent Taiwanese Court appearance for him to discontinue the proceedings there, and that he had refused to do so, he curiously responded by saying that he had told the Taiwanese Court that he wanted the Taiwanese Court to make the same orders as the Court in Australia made. Then he conceded that he was still seeking orders returning the child to Taiwan from this Court until Monday morning and again repeated that it was only on Monday that he told his Taiwanese lawyers of his change in position.
Indeed, in paragraphs 292 and 293 of his trial affidavit sworn on 9 September 2015 the father stated that the child should return to Taiwan and that the Taiwanese Court will then be able to make a decision about his care having regard “to the laws and customs” of Taiwan. Accordingly, without any other evidence that corroborates the father’s assertion, I cannot accept that his oral evidence that “a long time ago” he and his parents were “willing” for the child to stay in Australia and just visit Taiwan was truthful evidence. I do not understand why he said that to this Court. It causes me to form the view that he was trying to give the Court the impression that the dramatic change of heart was not just a recent one, whereas I am quite satisfied that it was a very recent decision to tell this Court that the position had changed.
A certified translation of the father’s application for a civil child custody order in the Taiwanese Court lodged on his behalf by Taiwanese lawyers in 2014 was in evidence before me. It contains quite a lot of extremely negative assertions about the mother and her parenting. Some examples are “The [mother] is not suitable to educate [L]”, “The [mother] does not know how to look after [L]”, “one can see that the [mother] is not suitable to educate and raise [L]”. The father also asserted that the mother is not suitable to look after the child as she had a mental illness either inherited from her family or that she at least had had long-term. The father asserted that the mother was not suitable to look after the child because of her “capricious and unruly” personality that had made it hard for her to integrate into “Taiwanese family ethics”. He went on to say that “it is really unacceptable for such a whimsical, uncompassionate, uncaring and calculating person to raise [L]”. He also said that she had a “biased mindset which is against the social customs” and that “her obstinacy will cause irrevocable consequences to [L] in his future attainment, behaviours and dealings with people” making her unsuitable to have custody of him.
If the father truly believed all those things when they were said it is difficult to accept that he could completely change his opinion within less than eighteen months, even if he says he has.
In the trial before me, counsel for the ICL pointed the father to those assertions that he had made in the Court document to which he had attached his name and seal and asked him if he still believed those things. The father repeatedly answered “no” to the questions, saying clearly that he no longer believed those things. Counsel asked him what had happened since he made those assertions in August 2014 for him to now say he no longer believed those things. His answer was something like:
Since then I have spent a couple of times in Australia to visit [the child]. He is healthy and happy and we had a good time together. He is healthy and happy so living with her is not a problem.
In her June 2015 report, less than a year after the father had said the very negative things about the mother’s parenting, Ms C did report that the father had “no concerns about the child’s safety and wellbeing with [Ms Chou]” and reported that he said “because I know she loves him so much”. In my view, that is consistent with him no longer asserting a belief that the mother was not a person suitable to be caring for the child, as early as June 2015.
Counsel for the ICL did go on to ask the father if he was mistaken in 2014 or whether he now thought the mother had actually improved as a person since he said those things back then. The father answered by saying that when they submitted the contents of that document in Taiwan they were trying to get custody of the child and he conceded that some of the things he said about the mother were not appropriate to say. He attributed this to his frustration and bias. I took that as an implied admission by the father that he did not actually really believe all those things at the time he asserted them to the Taiwanese Court. Counsel then asked the father why this Court should not consider that the father is simply again saying what he considers he needs to say to convince the Court to make the orders he wants regardless of whether he believes it or not, as he effectively conceded he was doing when he filed that document in the Taiwanese Court. The father’s answer was a simple one. He said that he has now made a promise to this Court and that he would keep the promise.
That the father was prepared to say the things that he did to the Taiwanese Court in August 2014 when I consider that he probably did not really believe them is very concerning. It suggests a willingness to say anything, as hurtful as it might be, even to a Court, if he thought it would assist him securing custody of his son.
When I asked the father at another point in the cross-examination why he had changed his position between his September 2015 affidavit and the trial, he said that it was because he had come to realise that a mother is important for a child, particularly at the child’s age and so that it is “ok” for the child to live with his mother.
The timing of this expressed realisation caused me to be particularly concerned about its sincerity, particularly when seen in the light of other things the father had said. An immediate example of such a thing that comes to mind is the father’s repeated assertion to the mother in a conversation that took place in June 2014, just before the mother left Taiwan with the child that “[L] belongs to me” and that leaving the child with the father was “the compensation” the mother needed to make (pages 9 and 10 of Exhibit 2 which is a translated transcript of conversations the parents had). In the witness box the father denied using the word “compensation” but when I showed him the Chinese characters he actually used, he agreed they meant “compensation” when translated into English.
Another matter that, in my judgment, reflected very poorly on the credibility of the father was the way in which he dealt, in the proceedings, with the issue of the injury that was suffered by the mother to her eye on the night of her birthday in 2010.
The mother has, since she commenced the proceedings, maintained that at her 2010 birthday dinner with the father and his parents, the father was playing with her mobile telephone and that in the car on the drive home, she (in the front passenger seat) discovered that a photo of her newborn niece (her sister’s daughter) had been deleted. She apparently believed the father had deleted it. They had been having disagreements about the number of times her sister’s family had been visiting and staying with them in City B prior to that night. She said, when she asked the father had he deleted the picture that he became very angry with her and punched her very hard in the left eye. She was left with a bruised eye. She said that after he punched her, the father stopped the car and that she called his parents and told them what had happened and they immediately drove to where the mother and the father were, helped smooth things over and got the couple home without further incident.
The mother has maintained that she left for Australia for a break shortly after that and, whilst there, discovered she was pregnant with the child. She said that when she told the father that news he wrote her an apology note promising never to be violent towards her again. The mother said that she kept the note in her bedside drawer but later found that the note was gone from the drawer. Nevertheless, the mother adduced into evidence an email that the father had sent her in May 2011, just under a year after the alleged incident, when she was again visiting Australia. A certified translation of that email is also in evidence. In that email the father said this:
I don’t know what to say about the incident that happened last year, which caused so much unhappiness for you. The only thing I can say is that I’m really sorry. It should be me that feels guilty. I feel that I have failed my filial duties by causing so much unhappiness towards my mum. I swear that I was so angry and lost my mind at that moment. I just wanted to warn you by pretending to hit you. However I never thought I would really hit you. In a panic, I said I swung my arm, which happened to hit you. Anyway, hitting you was wrong no matter if it was intentional or not. I hope you can just blame me and not my mum.
There weren’t any other people around to witness what happened but please do believe me that I didn’t do it on purpose. I told my parents then and there that it was an accident. Afterwards, I confessed to them that it was wrong to hit you. After you went back to Australia, mum and dad scolded me many times for doing this. They even asked me to burn an incense stick in front of my grand-father’s altar to confess what I had done. I hadn’t seen my parents this angry for years. Therefore it wasn’t like what you think. They didn’t try to cover up my actions. … … … … It was my fault after all. … I should be responsible for what I have done and I have also apologised to your parents. … … … I’m sorry. I was wrong. I swear on my heart I will never hurt you from now on.
Notwithstanding the existence of that email, the father said in his trial affidavit that the mother’s allegation that he punched her in the eye was “a lie”. He said that when they were driving home on the night of the mother’s 2010 birthday, the mother “suddenly became angry at me and accused me of deleting her niece’s photos on purpose”. He said:
I told her I did not delete the photos and I was trying to calm her down. I could not calm her down and she kept scolding me. Because I could not reason with her I tried to ignore her until we got home so that we could discuss the matter properly. However, she started hitting me on my arm and pinching me on my leg. … … … … I was trying to fend her off because she was nearly causing me to have a collision. When I was trying to fend her off my hand hit her in the face by accident.
In cross-examination, the father maintained that it was an accident and that he did not intend to hit the mother in the eye. He agreed that she sustained “a mark” around her eye. When pressed he answered with words that were translated as “they should have been bruises, … I feel that there should have been bruises”. Later he said “I am sure there was because the following day I saw bruises” and he volunteered that he had put ice on her eye. When it was suggested he had punched his wife in the eye, he said that he did not consider it possible for him to have punched her in the eye and when asked to demonstrate what happened he said that she had changed her position in the passenger seat and that is what had caused the accidental injury to her eye. He said he understands “punch” to mean a forward movement of the clenched fist and said that he did not do that. He then demonstrated what he said he had done. He held his right hand clenched in a fist and held it so that his right elbow was pointing to the ground and his right forearm was perpendicular to the ground. He then demonstrated a backwards movement of the right forearm from the elbow pivotal point and described that as a swing not a punch. He agreed that he had used force. He said he must have, otherwise the mother would not have suffered bruising.
In his oral evidence, the father denied that he had ever talked to his parents about the event. Then a little later, he stated that he had told his parents on the night of the incident that it was an accident.
The father then conceded that he had written the email to the mother in May 2011. He then immediately remarkably asserted that a lot of the content of that email was not true as he had to write the email like that as his purpose was to calm the mother.
He was asked by counsel for the mother whether the words in the email “I swear that I was so angry and lost my mind at that moment” were true. He said those words were not true, but that he said them because he was desperately trying to placate the mother as she had threatened in a letter to stay in Australia and leave the child in Taiwan without a mother. At the time though, the child, who had just been born, was in Australia with the mother. When counsel pointed that out to the father, he said that he had written the email to encourage the mother to return to Taiwan with the child so that the child could have “a whole, intact family”. He repeated that the sole purpose of the email was to calm the mother.
He accepted that he had told his parents it was an accident, but denied that he had told them later that it was anything other than an accident. He denied that he had “confessed” to having hit the mother deliberately. He denied that telling the mother in the email that he had afterwards “confessed to them that it was wrong to hit [her]” was meant to convey to the mother that he had told his parents that he had hit her intentionally. He then asserted that what he had said in the email about his parents scolding him many times was actually false. He then told the Court that the assertion that his parents had asked him to burn incense in front of his grandfather’s altar to confess what he had done was also untrue, and that he had simply fabricated that to calm the mother down.
Yet again, the evidence suggested, on the father’s own admission, that he would say anything, even if it was not true, to achieve his desired end. However, the reality is that I do not accept his evidence that he was actually lying about those things to placate the mother. I am quite satisfied that he was telling the truth in that email and that he was expressing his true remorse for having hurt the mother by hitting her with a clenched fist in the left eye on the night of her 2010 birthday, whilst stopping just short of confessing to intentionally hitting her, a matter with which I consider he was still personally struggling at the time he wrote the email, in any event. His assertions that the things he was saying about his mood that night, the confession to his parents afterwards, and his parents’ reaction were not true, I consider themselves to be false, asserted by him now to support the position advanced by him in these proceedings that it was an accident and that the mother is lying about it to hurt him and his parents, a position he takes with the total support of his parents.
Again, my findings about the father’s evidence add to my concerns about his reliability and credibility.
There was another matter that added to my concerns. The father, under cross-examination, told the Court that although he had lodged criminal complaints against the mother in respect of her actions in taking the child from Taiwan to Australia and retaining him in Australia against his wishes, he was confident at the time that he lodged them that if the mother returned with the child to Taiwan that the prosecution of the mother would be stopped. He said he was confident of this as he had consulted two or three lawyers who had all told him this was the case. However, it was pointed out to him by counsel for the mother that in affidavits filed in September 2014 before the interim hearing, he had said that the prosecution of the mother was completely out of his control and within the sole control of the Taiwanese prosecutorial authorities. It was also pointed out to him that he had been asked by the mother to withdraw the criminal complaint against her and that he had refused to do so, asserting that it was a matter beyond his control. He accepted that he had said in 2014 that it was beyond his control. He also then accepted that in April of 2015 he had actually written to the prosecutorial authorities and asked for the withdrawal of the prosecution and that had happened. When he was asked how it was that he could say in his 2014 affidavits that the prosecution was completely beyond his control and then in 2015 cause the complaint to be withdrawn by writing a letter asking for it to be withdrawn, he then told the Court that the advice he had received from his first lawyer in Taiwan was that he could not withdraw the criminal complaint but that he had received different advice from the lawyer he engaged in 2015. A little later, he again asserted that his first Taiwanese lawyer had told him that the mother would not be prosecuted if she returned the child to Taiwan. When pressed, he agreed that he had not said anything about that in his 2014 affidavit. When asked why not, he said he considered it had just been “lawyer speak”.
It was also pointed out to him that he had said in a 2014 affidavit that the mother’s older sister, Ms D, was also wanted for questioning by Taiwanese prosecutorial authorities for her role in the child’s removal to Australia but he denied ever making complaint about Ms D or having any knowledge of Taiwanese prosecutorial authorities’ intentions in respect to Ms D. He could give no explanation why he had said that in his 2014 affidavit if that was the case.

His answers about these matters further suggested to me that either what he had said to this Court in 2014 about the Taiwanese prosecution of the mother and the involvement of her sister in that investigation was unreliable or the evidence he was giving at the trial about believing that the prosecution of the mother would be dropped if she returned to Taiwan was unreliable. The fact that he was able to cause the criminal prosecution of the mother to be stopped by letter of withdrawal of the complaint early in 2015, suggests that the things he had said in his 2014 affidavit about the prosecution of the mother and the fact that her sister was wanted for questioning in Taiwan were also things he said because he thought they would suit his purpose at the time and not because they were actually true. It is very difficult to accept that if the father’s first Taiwanese lawyer had told him in 2014 that although he could not withdraw the criminal complaint against the mother she would not actually be prosecuted if she returned with the child to Taiwan, that he would not have deposed to that in one of his 2014 affidavits.
There was another matter of concern. The mother complained in late 2014 in letters written by her Brisbane solicitors that she was aware that the father and his parents had “coached” the child to say negative, false things about the mother whilst being video recorded by the father on his mobile telephone. She also complained to the family report writer in 2015 of this. The allegation made by her was denied by the father and he said he simply recorded interaction with the child for posterity’s sake. The evidence is that the mother then complained to the father through solicitor’s correspondence that the father had put a transcript of such conversation with the child recorded by him into evidence in support of his civil custody case in the Taiwanese Court. That complaint was not specifically addressed in response by the father’s Brisbane solicitors, save that there was a denial by the father and paternal grandparents of coaching the boy to say false things about the mother.
In cross-examination at the trial before me, the father conceded, after some time, that he had shown recordings of conversations with the child in Brisbane to his Taiwanese lawyer who had suggested that transcript of the conversation would be useful in the father’s Taiwanese civil custody proceedings and that transcript had then been made and given to the Court. When pressed on the content of the recordings and on what basis they had been considered useful to put into evidence, the father answered that it had happened quite a while ago and as he had not prepared to answer such questions at the trial, he simply could not remember. He then said that it may be that something the child said unintentionally was considered to be relevant. When I asked him why the transcript might be considered relevant in the Taiwanese proceedings but had not been used in these proceedings he could give no explanation. He did make a firm denial when counsel for the mother suggested to him that its content would show the child being inappropriately questioned. Nevertheless, neither the recording nor the transcript was produced to this Court when they could readily have been to disprove the mother’s allegations that had been clearly part of her case. Again, I was left troubled by the reliability of the father’s answers, particularly when his mother confirmed in her oral evidence that she had been asking questions of the child about the mother that were recorded, though she said that was without her knowledge and that she only learned it had been recorded on her return to Taiwan (evidence that I also seriously doubted as being reliable).
On another small but similar point, the father and his mother both asserted in affidavit evidence that the mother had texted a message to the father calling the paternal grandmother a “whore”. The mother denied that and said that was not the correct translation of what she had called the paternal grandmother. During the trial, it was agreed by all parties, after I asked for a common position to be reached with the assistance of the independent accredited interpreters who were involved in the trial, that the correct translation of the Chinese characters used by the mother was “bitch” not “whore”. Again, the father and his mother were apparently prepared to say whatever they could to the Court that they thought might suit their purposes at the time.
Relevantly, under cross-examination by counsel for the ICL, the father agreed that as the child is his first and only son and the first and only son of the first son of the father’s parents, he is very special to the father and to the paternal grandparents. He conceded that the child’s absence from Taiwan now is really very painful to them all.
For these particular reasons and also because of my general impressions of the father and his parents formed during the course of the trial, at the end of the trial, I was left very troubled about the sincerity of the father’s assertions that he would honour any orders of this Court that provided for the child to be sent back to Australia after holiday visits to Taiwan. I was also very troubled about the sincerity of the paternal grandmother’s assertion that she would insist on the child returning to Australia after each visit to Taiwan, when she conceded, she, too, had only changed her position on where the child should live in the last days before the trial. Even when she was giving evidence at the trial, in some oral evidence in chief she was giving with leave, the paternal grandmother could still not resist expressing the view that the mother did not know how to parent the child properly. Her evidence was embarrassing enough for the father’s case that counsel appearing for the father and the grandparents had to actually intervene to cause her to desist from saying those things. I was left with little doubt that the paternal grandmother would support and encourage any decision of the father to retain the child in Taiwan if he had the chance.
Even some of the brief oral evidence given by the paternal grandfather was troubling, considered in the light of the evidence already given by the father. He denied that his son had ever told him that the blow to the mother’s eye in the car on the night of the mother’s 2010 birthday was an accident. He said that his son had just told him that he had hit his wife and had given little detail. I doubt and do not accept the reliability of that evidence, particularly as the paternal grandfather was very keen to express his opinions about the bio-mechanics required for the father to have “punched” the mother in the eye in the care that night.
Ultimately, I could not accept, with respect to them, that the father and his parents had genuinely and sincerely come to a point of actually believing that the child’s best interests would be served by him continuing to live in the care of his mother in Australia. As part of their efforts to persuade the Court that the mother’s fears of not getting the child back in Australia if he goes to Taiwan were not warranted, they each gave undertakings to this Court, the paternal grandparents’ undertakings mirroring the father’s undertaking not to make any fresh criminal complaint against the mother in Taiwan in respect of her taking the child to Australia. They also proffered the deposit of $25,000 into the trust account of the mother’s solicitors before the child travels to Taiwan as security for his return to Australia at the end of any scheduled stay in that country.
Not even the offer of cash security assuaged the mother’s fears. She is clearly of the view, with some apparent good cause in my judgment, that the father’s parents are wealthy people for whom $25,000 would not be a great deal of money relative to their overall family wealth. She clearly does not consider that the possibility of forfeiting that amount of money would realistically deter the father and his parents from taking any steps available to them to retain the child in Taiwan if he goes back there to visit them.
As I have said earlier in this judgment, the Hague Convention will not apply to assist the mother in the event that the child is not returned to her in Australia at the end of a stay in Taiwan as it would be if Taiwan was a signatory. Conscious of that point, the father and his legal representatives were at pains to point to his undertakings and the fact that the orders they submit this Court should make would make the child’s travel to Taiwan also conditional upon the father having acted upon his undertaking to have orders mirroring this Court’s orders made in the Court in Taiwan.
That, of course, is all well and good, but it is a simple fact that the father and the paternal grandparents would always be beyond the reach of this Court’s jurisdiction to deal with them for any breach of the undertakings they have given this Court if they remain outside of Australia, which is easy enough for them to do if the child is with them in Taiwan and they do not have to come to Australia to spend any time with him.
Consideration, therefore, must be given to the nature of the steps the father, and his parents, have undertaken to perform and the efficacy of those steps in ensuring that the child would be returned to Australia from visits to Taiwan if the parenting orders of this Court provided for such visits.
The father gave an undertaking to amend his petition filed in the Taiwan City B District Court to seek orders which are in the same terms of this Courts’ order within 21 days of the order being made by this Court. He and his parents gave undertakings not to make any further criminal complaint or provide any information or any documentation to any authority in Taiwan alleging that any person engaged in criminal conduct by removing the child from Taiwan in June 2014.

The relevance of the Undertakings not to make further criminal complaint

The father’s complaint to Taiwanese authorities that the mother and her parents committed a criminal offence when they took the child to Australia in 2014 caused a criminal investigation process, apparently supervised by the Court in Taiwan, to be commenced. It was the principal reason why the mother said in 2014 she did not want to return to Taiwan. Not unreasonably, it would seem, she feared arrest if she did.
It is common ground, supported by the evidence, that the criminal investigation was formally concluded by the Court in Taiwan early in 2015 after the father lodged a withdrawal of his complaint. It would seem that he considers that with no criminal investigation on foot, there should be no impediment to the mother returning to Taiwan either with or without the child in her care. That probably explains why the undertakings not to make any further complaint against the mother have been given, with a view to convincing this Court that the mother, and her parents, can now travel to Taiwan if they wish to, without fear of arrest and prosecution.
As for the other undertaking, the father is making it clear to the Court that he will ask the Taiwanese Court to make orders mirroring this Court’s orders within 21 days of this Court making orders and that this is a significant factor as the mother will not be required to send the child to Taiwan unless and until he has done that or, at least, she would be in a position to ask this Court for an order varying any order it makes providing for the child to travel to Taiwan to visit his father if the father has not abided by his undertaking.

The efficacy of those steps the father is undertaking to take or not to take having regard to the Taiwanese law and justice system

In trying to address the issue of the efficacy of the Taiwanese law and justice system and its relevance to this particular aspect of this matter, evidence of Taiwanese lawyers was adduced before this Court. Each of the mother and the father filed affidavit evidence from Taiwanese lawyers addressing various questions relating to Taiwanese law and legal process. The Taiwanese lawyer who gave evidence for the father is the lawyer who has been acting for the father in the Taiwanese civil custody proceedings. The Taiwanese lawyer who gave evidence for the mother has not been acting for the mother in any of the Taiwanese proceedings.
Having read their evidence and heard them both cross-examined over the telephone, I am satisfied that the criminal prosecution against the mother and her parents in Taiwan could be re-opened or re-activated in certain circumstances. They are:-
(i)If new facts or evidence are discovered;
(ii)Where exhibits on which the original decision not to prosecute was based have been proven to be false or to have been altered;
(iii)Where material testimony, expert opinion, or interpretation on which the original judgment is based is proven to be false;
(iv)If a judge who participated in the determination to drop the prosecution, or a prosecutor involved in the investigation has been corrupt or neglectful in their duty such that the original judgment is affected.
Interestingly, when the father’s Taiwanese lawyer was asked if the mother could be prosecuted again if she goes back to Taiwan he said he could not say she would not as he “is a lawyer and not a judge”. Accordingly, whilst it appears reasonable to say that it is not likely, it is not possible for me to say conclusively, whether or not the father and his parents honour their undertakings, that the mother and her parents definitely will never be prosecuted again.
In any event, in my judgment, it is not the issue of whether the mother is ever likely to be prosecuted again that is the critical issue here. Rather, it is the issue surrounding the father’s undertaking to have the Taiwanese Court make an order mirroring this Court’s order and the efficacy of such an order in ensuring the child’s return from visits to Taiwan.
There was much evidence from the Taiwanese lawyers going to this issue. After reading, hearing and considering that, I am satisfied that the father and the mother could agree to have the Taiwanese Court make orders the same as the orders this Court makes. I am satisfied that would not take very long to activate. I am also satisfied that it would be most likely that the Taiwanese Court would act on their agreement and make the orders. Until it did, the mother would be reasonably excused from sending the child to Taiwan if this Court’s orders provided for that.
I was also satisfied that if such orders are made in Taiwan, the mother could commence enforcement proceedings in the Taiwanese Court in the event that the father does not return the child at the end of a visit and that if the Taiwanese Court’s orders remained unchanged she would have reasonably good prospects of securing enforcement of the order and return of the child to her care.
However, that is not the end of it. It became absolutely clear, that like this Court’s parenting orders jurisdiction, the Taiwanese Court’s jurisdiction in parenting guardianship/custody cases is never really final whilst ever the child remains a minor. It is a jurisdiction that can be invoked by a parent at any time and it is one where the Court’s discretionary exercise of its powers is guided by best interests considerations.
I have no doubt that at any time after orders might be made in the Taiwanese Court, the father has a right to apply to that Court to vary those orders. He can do that even if the mother has already applied for enforcement of the orders in the event that the father has retained the child at the end of a holiday visit. The evidence of both Taiwanese experts and actual cases referred to by them confirms that. The father’s Taiwanese lawyer asserted that an applicant in fresh proceedings to vary any existing order would be expected to demonstrate some changed circumstances from those that were in place when the orders were made, not unlike what might be expected here in Australia in such circumstances. However, he gave no evidence as to what is considered necessary in Taiwan to constitute changed circumstances and, of even more concern, was the evidence of the mother’s Taiwanese lawyer about a case that had been decided by the Taiwanese Court in the past.
The Taiwanese lawyer gave evidence of parenting proceedings in Taiwan where the father had previously obtained a judgment in his favour from a court in New York State in the USA for a child to be delivered to the father and for the mother to be restrained from leaving the USA. Before the proceedings in the US were finalised the mother, apparently in violation of the New York Court’s order took the child with her to Taiwan. The father then took the New York Court’s judgment to the Taiwanese Court seeking enforcement of the New York Court’s orders. The Taiwanese Court then gave judgment recognising the New York Court’s judgment and approving its enforcement. However, the mother then applied for a change of exercise of guardianship over the child and restraint on the father being able to take the child out of Taiwan. She was successful and the Taiwanese Court gave her guardianship rights over the child and prohibited the father taking the child out of Taiwan. The father appealed but was unsuccessful and the child stayed with the mother in Taiwan.
The mother’s Taiwanese lawyer cited a passage from the first instance judgment in that case. It was, translated into English, as follows:
... based on the natures of continuity, public welfare, prospect, parental right inherited to the parental relation matter and the principle of changeability of non-contentious ruling, the court of our country may, due to change of circumstance and for the protection of interest of minor children, change the ruling on foreign parental rights or delivery of children that is effective in our country (domestically). The key point of the matter of change of guardianship that may be considered by the court is not limited to the “new” evidence generated after the counterparty has acquired guardianship. The requirements specifically provided for in the civil code of Germany specifically provides that “For significant reason continually affecting interest of children, without limitation to the change of circumstances that occur after the ruling, the guardianship court of family court should change its order. Even such reason already existed before the ruling, but continually affects interests of children; the original ruling may be changed based on such reason. For the non-contentious ruling of foreign court qualified for domestic recognition, the domestic court may change it based on the above reason” may be considered as a reference.
I understand that to mean that at least that Taiwanese Judge (and the judgment was said to have been upheld on appeal) considered that the best interests considerations in parenting proceedings commenced after there are already orders in place do not limit a Court to only considering changed circumstances occurring after the orders were made when determining a subsequently filed application.
In the other case referred to by the mother’s Taiwanese lawyer, final judgment had been given by this Court in Sydney with the parents of two children to have what was presumably shared parental responsibility for the children. There is no reference to an order providing for the children to live with one or the other parent. The father, who was Taiwanese, then took the two children to Taiwan in February 2014 without the mother’s consent. The father then applied to the Taiwanese Court for a change of guardianship in his favour. That application was made in October 2014. The father also applied for an interim order restraining the mother from taking the children out of Taiwan. That was made. The father also applied for an order that he be the sole custodian of the children on an interim basis. That order was made in March 2015. The mother, who was an Australian, applied for enforcement of the Australian order. Presumably, it must have provided for the children to live with her. The matter was still pending in October 2015, over a year after the father commenced the proceedings.

The mother’s Taiwanese lawyer said that an application to enforce the delivery of a child would normally take about six months to be heard and determined in Taiwan but where the other party applied for orders that the child live with him and suspension of enforcement, it would take longer. The case she referred to that was still pending at least in October 2015 evidences that is correct.
Accordingly, even if the father and mother consensually have the Taiwanese Court put orders in place that mirror this Court’s orders, the father already knows that he could thereafter resist an enforcement application brought by the mother and seek fresh orders for the child to live with him and stay in Taiwan. He already knows that process could take over a year before it was finalised and that he could very well have the child living with him in the meantime. He already knows that all he needs to do is again raise the mother’s departure from Taiwan in 2014 and her unilateral retention of the child in Australia as well as, but not necessarily, some alleged change of circumstances in relation to the well-being of the child, and that he might have prospects of securing a change of orders.
With all due respect for the integrity of the Taiwanese Court system and the Judges of that country, I simply cannot be satisfied that such action by the father would not bear fruit for him and his parents and that he would not end up with the child in his permanent care in Taiwan. Even if he did not, the prospect of the child being held in Taiwan for up to a year or even longer whilst such litigation progresses to determination through the Taiwanese system is not one that I consider is in the child’s best interests.
Furthermore, as touched upon before, albeit in a slightly different way, the parents of the father are clearly very well resourced and, I accept, very well connected Taiwanese citizens. The father even stressed to the mother before she left Taiwan in mid-2014 that she had to be aware of the fact that he and his family were far better positioned than her to seek out and obtain the best quality legal advice and representation in Taiwan. I am satisfied that is probably true. Regrettably, I have come to the conclusion that the likelihood of the father and his parents doing that and seeking to retain the child in Taiwan if he goes to visit them there is so high that the risk to the child’s well-being by such action that would separate him from his mother and the environment he has become accustomed to here in her care permanently, or even for a year or more, is an unacceptable one, given that I must consider his best-interests as paramount in determining the proper parenting orders to make.
In considering the proper orders to make for the child to spend time with his father and his paternal grandparents and the issue of whether or not he should travel back to Taiwan for visits, I am also mindful of the proven fact that the father and his parents made several visits to Australia to spend time with the child whilst these proceedings were pending. I am quite satisfied that they have the capacity to continue to do that and that given the opportunity they will do that at least a few times per year. The father did give evidence that in the new employment position he has obtained he only had five days of paid leave in 2015, that it would increase to six days in 2016 and then to seven days in 2017. He said in oral evidence, though not in affidavit evidence or with any corroborative documentation being produced, that from 2016 he would have no entitlement to any additional unpaid days of leave. If that is correct, that will inhibit his capacity to travel to Australia to spend time with the child.
I will make parenting orders that will provide for the child to spend time with the father for more than seven days in Australia each year, so as to permit it to happen in the event that the father was wrong about the number of days of leave he will be able to secure. It might be that his employer, understanding the circumstances, might give him more days of leave than the father currently thinks. In any event, I will make orders that permit the child to spend all of the time that I provide for him to spend with his father with his paternal grandparents as well or instead, where the father is unable to get time to travel to Australia.
The orders I will make will be reasonably reflective of the orders the ICL submitted should be made in this case. The mother’s counsel submitted that the mother also advocated the making of those orders. Of course, given that the parents agree on an order conferring equal shared parental responsibility for decisions about the child on them, such an order will be made but with appropriate recognition for the fact that a decision for the child to live with his mother in Australia whilst his father lives in Taiwan accompanies that. That fact necessarily determines the impracticability of orders for the child to live on an equal time basis with each parent or even on a substantial and significant time basis with his father (s 65DAA of the Family Law Act 1975 (Cth) (‘the Act”)). I am quite satisfied that each parent’s legal representatives had, by the time consent of each parent to the conferral of equal shared parental responsibility with respect to the child on each of the parents was proffered, provided advice to their clients about the requirements of s 65DAC of the Act, so each parent is aware of the statutorily imposed obligations once the equal shared parental responsibility order is made.
Indeed, the time provided for in the orders for the child to spend with his father and/or his paternal grandparents that I will make, as advocated by both the ICL and the mother, is in my judgement reasonably generous in the circumstances, albeit all having to be spent in Australia. If the father and his parents can get out to Australia as often as the orders will provide for, or even for some significant portion of them, in addition to regular reliance on the online, video communications provisions that will be in the orders, the relationships between the child and his father and the child and his paternal grandparents should be able to be well maintained in the child’s best interests. It is also to be hoped that the father and the mother are, with the finality of this judgment, able to put their difficulties behind them and to begin to co-parent the child in a way that rebuilds trust between them. If trust is rebuilt between them, there may come a day in the future when the mother trusts the father enough to allow the child to travel to Taiwan to spend time there with him, knowing that he will come back to Australia when that time is finished. The parents reaching such a level of trust could only be good for the child.

The mother’s evidence

Before I conclude these reasons for judgment, I consider I must say something about one aspect of the mother’s oral evidence. Rather extraordinarily, given that in my judgment on the interim applications delivered in December 2014 I had made conclusive findings (that I really did not consider were disputed) that the mother had left Taiwan in June 2014 with the father believing that she would be returning from Australia with the child after a holiday in Brisbane with her family whilst intending herself to stay in Australia and not return to Taiwan, at the commencement of her oral evidence in the witness box at the trial, the mother said that she had not intended to stay in Australia when she left Taiwan and that she had rented a place in City B after separation and before she left that she intended going back to. I regarded that evidence as rather naïve and foolish in the circumstances. It was given so tentatively and nervously by her such that it was given without any serious prospect of it being believed. Indeed, when I immediately pressed her on the point (bearing in mind my previous finding) she quickly conceded that what she had said was not true. She was clearly embarrassed and remorseful, in my judgment.
Despite that, I did not determine that the concern and fear she has consistently expressed for the child’s unlikely return to her in Australia if he was permitted to go to spend time with his father and paternal family in Taiwan was not genuine, or that her attitude was truly one of actually wanting to deny the child an ongoing relationship with his father and paternal family. Further, I did not consider that it threw her other evidence on contentious, disputed matters necessarily into doubt.
Unsurprisingly, the father and his parents ran a case based significantly around the premise that the mother selfishly wants to completely restrict the child’s relationships with them or even to alienate him from them completely. I do not accept that proposition, even with the acknowledgment that the mother was not totally candid in the witness box at the start and even after having regard to solicitors’ letters that went back and forth between the mother and the father. I am quite satisfied that comforted with the security of knowing that her continued care of the child has been accepted as in his best interests and that it will be secured by Court orders protecting his presence in Australia, she will get on with the job of making a good life for herself and the child here in Brisbane whilst at the same time promoting his relationship with his father and his wider paternal family as well as she can within the parameters prescribed in the orders and by their disparate living circumstances.

One final matter

At the commencement of the interim hearing that I heard and determined in December 2014, the father proffered an undertaking to the Court to pay $10,000 into the mother’s solicitors’ trust account to help defray the mother’s anticipated costs of returning to Taiwan. Of course, the mother did not return to Taiwan and probably will not now, at least for a long time. However, the father did pay in the $10,000 and after I delivered the interim judgment the parties and their lawyers continued to dispute whether that money should be retained by the mother in any event or whether it should be repaid to the father because I did not order the child to be returned to Taiwan, which was the underlying factual premise upon which the undertaking had been proffered.
The mother and the father remained in dispute about it right up until the trial. After I had listened to the audio recording of the interim hearing I informed the parties that the father’s counsel had told the Court the undertaking was proffered unconditionally, regardless of whether the child was ordered to be returned to Taiwan. Notwithstanding that fact, the mother and the father reached a common position about the money that was put to the Court before the conclusion of the trial. The money was to be repaid to the father in the event that the parenting orders I made did not provide for the child to spend time with his father and paternal grandparents in Taiwan. It was to be retained by the mother if I ordered the child to be able to visit Taiwan. That was, I considered, a very reasonable outcome and my orders will provide for it to be repaid by the mother to the father within thirty (30) days given that I will not be ordering that the child spends time with his father other than within Australia.
I make the orders that are set out at the commencement of these reasons.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 September 2016.

Associate:

Date: 27 September 2016

[2016] FamCA 818

27 September 2016

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