CHOU & LONG

[2014] FamCA 1116

FAMILY COURT OF AUSTRALIA

CHOU & LONG [2014] FamCA 1116

FAMILY LAW – CHILDREN – Best interests – where the parents lived with the child in Taiwan –  where the mother brought the child to Australia – where the mother has retained the child in Australia without the father's consent – where the father seeks orders for the immediate return of the child to Taiwan – where the application is dismissed.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

ZP v PS (1994) 181 CLR 639
EJK v TSL (2006) 35 Fam LR 559
Karim v Khalid (2007) 38 Fam LR 300

APPLICANT: Ms Chou

RESPONDENT: Mr Long

FILE NUMBER: BRC 6334 of 2014

DATE DELIVERED: 12 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: ABA Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENT: NR Barbi Solicitor Pty Ltd

Orders

Until further order

(1)The child, L LONG, born … 2011 (also known as …), shall live with the mother.

(2)That the child shall spend such time with the father as is agreed between the mother and the father or as further ordered by this Court.

(3)That the child shall communicate with the father as is agreed between the mother and the father or as further ordered by this Court.

(4)That the child’s name be maintained on the Airport Watch List.

(5)That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child be independently represented by a lawyer and it is requested that the Legal Aid Office of Queensland make arrangements as soon as practicable to secure that independent representation of the child’s interests.

(6)That the competing applications of the parties for final parenting orders be listed for trial before his Honour Justice Forrest over four days in July 2015 on dates to be fixed and advised to the parties as soon as possible.

(7)That the father has liberty to file an Application in a Case seeking more specific orders for the child to spend time with him and to communicate with him pending the trial of the substantive applications in the event that agreement is not able to be reached between him and the mother about those matters and any such Application in a Case should be referred to his Honour Justice Forrest in the first instance for listing consideration.

(8)That the competing applications of the parties for final parenting orders be listed on a date to be fixed before a Registrar after an Independent Children’s Lawyer has filed a Notice of Address for Service in the matter, for the making of all directions necessary to have this matter ready for trial by July 2015.  

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

Respondent

REASONS FOR JUDGMENT

1.On Wednesday 10 December 2014, I heard an application by the father of three year old L Long for orders that would effectively provide for the immediate return of the little boy to Taiwan with his father, the child having been brought to Australia by his mother in mid-June this year.

2.I have determined not to make orders that allow that to happen at this point in time. The orders that I will make will provide for the child to continue to live with the mother, for the child’s name to be maintained on this country’s airport watch list, for the child to spend time and communicate with the father as agreed between the father and the mother, for an Independent Children’s Lawyer to be appointed and for the competing parenting orders applications to be listed for trial in July 2015, with the father to have liberty to file an Application in a Case seeking more specific orders that the child spend time with him and communicate with him in the period between now and the trial if he considers that is necessary.

Background

3.The father is a 41 year old citizen and life-long resident of Taiwan. The mother is a 36 year old Australian citizen who was born in Taiwan but migrated to Australia with her family when she was only 13 years of age. She moved back to live in Taiwan in a relationship of cohabitation with the father in late 2007, when she was 29 years of age, after having met the father through friends and having been in a long-distance relationship with him for about a year.

4.The couple lawfully married on a visit to Australia in 2009 but celebrated their wedding according to Taiwanese cultural traditions with a banquet in Taiwan in early 2010.  The father, a university graduate, works as a sales specialist for a company in Taiwan. The mother, also a university graduate, was a teacher at a school in Taiwan.  L, the couple’s only child, was born in 2011 in Australia, the mother having returned to give birth to him here and to stay for about a month or so with her own parents for the first weeks of the baby’s life. The mother and the child returned to Taiwan after a short time, but they have, in the child’s short life so far, travelled back to Australia each year and spent varying periods of time living in the home of the mother’s parents in Brisbane before returning home to Taiwan each time; at least until the trip that the mother and child made back to Australia in June of this year.

5.When the mother and child came to Australia this time, the mother had no intention of returning herself or the child to Taiwan. She did not tell the father that, but rather convinced him, seemingly by elaborate, well-planned means, that she was only coming to Australia again for a short-term stay and that she and the child would be returning to Taiwan. He let them come, but they did not return to Taiwan.

6.The mother’s intention not to return to Taiwan was confirmed and communicated to the father with the commencement of substantive parenting orders proceedings that are now before this Court. An Application for parenting orders was filed by the mother in the Federal Circuit Court in Brisbane on 17 July, this year; just a month after she arrived here. In that application, she sought orders that the child live with her, that she has sole parental responsibility for the child, that he communicates with the father via internet video conferencing and that he spend time with the father only in Australia.

7.The father, made aware of the mother’s application to the Federal Circuit Court in Australia, quickly commenced his own parenting orders proceedings in a Court in Taiwan on 11 August 2014 by way of the filing of a “Petition for Guardianship” of the child. In that application, the father seeks orders that appear to include the equivalent of sole parental responsibility for the child, and that the child live with him in Taiwan and only spend time with the mother in Taiwan.

8.Significantly, the father also filed a petition in a Court in Taiwan a few days after that apparently invoking the Taiwanese Court’s criminal jurisdiction against the mother. A little later, the father joined the maternal grandparents as co-defendants in those criminal proceedings. In his affidavit filed in the Federal Circuit Court here on 22 September 2014, the father says:

Under Taiwanese law:

a.Members of the public file a petition in the Court if they believe that someone has done something illegal and then the authorities investigate the complaint;

b.I am not allowed to disclose any of the information contained in the criminal petition.

9.In that first affidavit filed in these proceedings, the father said nothing more about those criminal proceedings other than:

On 1 September 2014, I received a notice from the Taipei District Prosecutor’s Office (dated 29 August 2014) that the Taipei City Police Department were investigating the matter.

10.In his affidavit filed on 8 December 2014, the father confirmed that he had filed a petition in the Taiwan Taipei District Court in relation to the mother’s “conduct in removing [the child] from Taiwan”. He said in that affidavit:

That matter is now with the Public Prosecutor’s Office of the Taiwan Taipei District Court and they will decide what happens. However, I confirm that [the mother], her parents and her sister have not yet been charged with any criminal offences but are wanted for questioning by the prosecutor.

11.He said that the mother, her parents, her sister, the child and the father were all summonsed to appear before the prosecutor on 28 November 2014. He said that on that day he appeared with his Taiwanese lawyer, that a lawyer appeared for the mother and the other members of her family, and that the matter was adjourned until 9 January 2015 with the prosecutor ordering the mother and other members of her family to appear in person on that day. He said:

[The mother’s] lawyer asked for confirmation from the prosecutor that a warrant for [the mother] and/or her parents’ arrest would not be issued. The prosecutor confirmed that no warrant would be issued between then and 9 January 2014.

12.A little later in the same affidavit, the father said that his lawyer “simply indicated to the Court in Taiwan that [the mother’s] conduct may have constituted the offence of “forcible abduction” under the Taiwanese Criminal Code.”  He said that is now a matter “for the relevant authorities” and that the mother has not yet been charged with any offence in Taiwan with the prosecutor adjourning matters until 9 January 2015 and saying that a warrant for “their” arrest will not be issued between now and 9 January 2015. He said nothing more about the matter in his affidavit evidence but the Court was told by the father’s counsel at the hearing of the application that she was instructed the criminal matter was now out of the father’s hands.

13.The father adduced evidence before me from a Taiwanese lawyer.  The mother’s counsel objected to its admissibility at the start of Wednesday’s hearing but I overruled that objection and, for reasons I gave at the time, I allowed it to be relied upon. Although that Taiwanese lawyer referred to a lot of matters in his affidavits he said nothing about the provisions of any Taiwanese law that the mother is alleged to have contravened. He said nothing about any punishment prescribed by any law for any offence or crime the mother is alleged to have committed. He did say that unless a warrant or a “circular order” has been issued by the public prosecutor or judge for the arrest of the mother or her parents that they will not be arrested at the airport in Taiwan if they return to Taiwan for the Court hearings currently scheduled. He said if a warrant or a “circular order” has been issued by the Public Prosecutor’s Office or the court, that the mother “will be released on bail after examination by the public prosecutor or the judge”.   In contrast, the mother said in an affidavit that she relied upon at the hearing that she has been told by a Taiwanese lawyer that it would be “unsafe” for her to return to Taiwan as she might be arrested at the airport. However, she did not adduce any evidence from a Taiwanese lawyer to that effect.

14.Additionally, the evidence of the Taiwanese lawyer adduced by the father about parenting cases in the Taiwanese courts is that where a parent applies to the court for a decision on exercising parental rights and obligations in respect of a child that determination of such applications is to be made “in accordance with the best interests of the minor child”. The Taiwanese lawyer went on to say that the interests of the child are to be taken into consideration, the views of the child and the child’s past primary caregivers are to be taken into account, as well as the “principal [sic] of continuation” and the “principle of good faith of the parents”. With respect to the “principle of good faith”, the lawyer said that “either parent should not hide their minor child or try to take the minor child out of the country, or take any action to hinder the other of exercising parental rights”. No evidence was given about what might happen on the hearing of the father’s application listed for early January 2015 if the mother and the child returned to Taiwan.

15.For her part, the mother deposed in affidavit evidence to having no intention of returning to Taiwan with the child. Indeed, her counsel informed the Court that her instructions were that if I acceded to the father’s application, the Court would have to order the mother to hand over the child to the father to return to Taiwan with him, as she will not return to Taiwan.

Pursuant to what law and principles is the application to be decided?

16.For reasons not known to me, 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. Accordingly, this matter is not to be decided pursuant to the Family Law (Child Abduction Convention) Regulations 1986. If it was, ‘best interests’ considerations would not apply and the matter would be determined principally by consideration of the question of whether the child had been wrongfully removed from Taiwan or wrongfully retained in Australia away from Taiwan (having regard to the meaning of “wrongful removal” or “wrongful retention” within those Regulations) and, if that was established, then by consideration of whether or not a discretion not to order the child’s return arises on the evidence and, if so, whether that discretion to refuse a return order should be exercised.[1]

[1]See Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986

17.Although there appears to have been a little confusion in respect of the nature of the application that the Court was being asked to hear in the lead up to the commencement of the hearing, it became very clear at the outset of the hearing that the Court was not being asked to determine a choice of forum dispute in accordance with forum non conveniens principles, but rather was being asked to determine whether a summary order for the return of the child to Taiwan was in his best interests. Both barristers who appeared at the hearing agreed that was what the Court was being asked to do. Clearly, having regard to authoritative decisions of the High Court of Australia and the Full Court of this Court, that is the correct approach.[2]  There was no dispute that this Court has jurisdiction to make parenting orders in respect of the parties’ child and to make orders relating to his welfare, and that in undertaking that task the Court must regard the best interests of the child as the paramount consideration. There was no dispute that the Court is exercising such jurisdiction when it is determining an application for summary return of a child to a non-Hague Convention signatory country.

[2]ZP v PS (1994) 181 CLR 639; EJL v TSL (2006) 35 FamLR 559; and Karim & Khalid [2007] FamCA 1287

18.It is clear (and the parties agreed) that the Court has the power to order that a child brought to Australia from a non-Hague Convention signatory country be immediately returned to that country when, on a summary hearing in which there has been no cross-examination of any witness and where the Court’s capacity to make findings in respect of disputed factual matters is, therefore, necessarily restricted, the Court nevertheless determines that it is in a child’s best interests to do so.

19.Of course, in this case, counsel for the father submitted that immediate return of the child to Taiwan is in the child’s best interests, whilst counsel for the mother submitted that it is not.

20.The mother concedes that she brought the child from Taiwan to Australia with the intention of unilaterally retaining him in Australia without the father’s consent. She concedes that she duped the father into letting her and the child travel to Australia believing that it was a short-term stay and that they would be returning. She admits she went to some lengths to instil that belief in him. She admits that she acted as such, conscious of the fact that Taiwan is not a signatory to the Hague Convention, thereby knowing that she would not face proceedings in Court in this country for a return order pursuant to that Convention.

21.International child abduction by parents who are separated from the abducted child’s other parent is abhorrent. No less should be said. Such conduct is not to be encouraged. It is not to be condoned. It has the potential to cause distress to everyone involved, including, most particularly, the children.  It is, no doubt, for these reasons and also because of a view that it is most appropriate for determinations about the parenting arrangements for children whose parents have separated to be made by the Courts of the child’s place of habitual residence that the Hague Convention was brought into existence in the first place. However, as Taiwan is not a signatory to the Convention, the Convention’s principles do not apply to this case and simply cannot override the Court’s statutory obligation to determine the matter with the child’s best interests being the paramount consideration. It is not simply enough to say, without more, that the child’s best interests are served by ordering him to be returned to Taiwan where questions relating to his parenting arrangements may be dealt with pursuant to Taiwanese domestic law. Albeit a summary hearing, when determining in this case what is in the child’s best interests the Family Law Act mandatorily requires consideration of matters set out in s 60CC to s 60CG of that Act.

More relevant factual matters

22.The mother asserts, but the father denies, that there was always agreement between them that they would move to live permanently in Australia and that any children they had would be raised as Australian. The mother asserts, but the father denies, that she constantly urged the father to adhere to the promise to move to Australia. She says his failure to honour the agreement and her desire to live in Australia made her very unhappy during the marriage and explains her frequent, extended travel to Australia since she has lived in Taiwan. She asserts, but the father denies, that he eventually agreed to move to Australia when their little boy turned three, but that he again resiled from that commitment when the time came around early this year.

23.The mother asserts,  but the father denies, that the father was controlling and violent towards her over the course of their marriage. She deposes to a number of specific incidents of alleged physical violence against her over the last few years. She deposes to having received a written apology for such violence from the father, which she kept, but which she says disappeared from its place of storage.  She deposes to having had photographs of injuries caused by the father’s physical assaults but which she also says have disappeared from their place of storage. The father denies these allegations.

24.The mother deposes to the relationship between them deteriorating early this year and another incident of violence occurring in April in front of the child, causing him to actively comfort her. She says that she went to work the next day and confided in a colleague who urged her to see a doctor. She did and the doctor issued a report called a “Domestic Violence Examination Report”. The mother has put a copy of that, along with an English translation, into evidence. The doctor has recorded some observed bruises on the mother’s arm and lower back. The father denies that he was violent towards the mother as alleged on that occasion.

25.The mother deposes to the father becoming enraged with the child’s crying one morning in April or May this year and angrily operating an electric drill in front of the child’s face in a way that frightened the child, with the father allegedly conceding to the mother that he was deliberately trying to scare the child. The father denies that he did this.

26.The mother says separation occurred on 9 June this year when she moved out of the apartment she shared with the father and went to stay with friends. After a couple of days she moved into a hotel and she stayed in that hotel from 12 June to 17 June when she and the child flew to Australia. There appears on the affidavit evidence to be dispute between the parties as to whether the mother went back to the home for a couple of days or not just before leaving Taiwan, and as to whether the child was in the mother’s care or the father’s care during this period when she was away from the home before leaving Taiwan.  I am not able to determine that factual dispute or the other serious factual disputes I have just referred to on this summary hearing.

27.With both parents working in Taiwan, the child began attending at a Montessori school there during the day in August of 2013. As I was informed during the hearing that formal education does not start until the age of seven in Taiwan, I considered that the child’s attendance must have been a child care/pre-school like arrangement. Outside that, he was cared for by the parties, sometimes assisted by an employed maid who cleaned their apartment on three days a week.  There is no evidence of any important peer friendships or relationships that the child has in Taiwan and I am satisfied that is consistent with the developmental stage he has reached at this point in his life.

28.The father’s parents and family also live in Taiwan. The father deposes to them having loving relationships with the child up to the point of his departure from Taiwan. The mother’s evidence does not support that. What seems clear on the evidence is the absence, at least now, of any relationship of trust and mutual respect as between the mother and the paternal grandparents. Similarly though, there is an absence of any current relationship of trust and mutual respect as between the father and the maternal grandparents who live here in Australia.

29.The apparently non-contentious evidence about the child having been breast-fed by the mother for the first few years of his life, his travelling with her with the father’s consent to Australia each year and staying with his mother with members of her family for weeks at a time whilst here, satisfies me that the child’s principal or primary attachment at this very young age of three years and nine months is with his mother. Indeed he has been living with her here in Australia now since mid-June and has seen little of his father in that time.

30.That said, I hasten to add that I am not persuaded that the child does not have a warm and loving relationship with his father and his paternal grandparents. I am quite certain that the father and his parents love this little boy very dearly and miss him when he is not in their presence. I am satisfied, at this point in time, that the maintenance of those relationships with his father and his paternal grandparents is very much in the child’s best interests. So too, though, is the maintenance of the very important relationship that he has with his mother and the relationships that I am satisfied he would have with the maternal grandparents and their family.  Indeed, I am reasonably satisfied, on the evidence that is before me, that this young child’s relationship with his mother is, at this particular point in his development, the single most important point of reference, stability and comfort for him as opposed to the immediate environment within which he was living before he left Taiwan or in which he has lived since he arrived in Australia. I am satisfied that immediate separation from his mother followed by return to Taiwan without her and continued absence of her from his day to day life would, at this point in his development, be extremely distressing and traumatic for the child and likely to be productive of emotional difficulties.

31.The evidence certainly suggests, at first glance, that the mother does not value and respect the significance of the father’s relationship with the child. She tricked him into letting her take the child from Taiwan, whilst keeping from him that she intended not returning the child to that country. She has significantly restricted his time and communication with the little boy since she and the child have been living in Australia. Currently, she is proposing the child spend no more than a few hours at a time during daylight hours with the father when he can be here in Brisbane. She alleges that he is violent and has mental health problems and that provision of greater time with him presents a risk to the child. The evidence does though at least demonstrate that the father has the capacity to travel to Australia from time to time, can enter and remain in the country for short periods of time without apparent restriction and currently has the desire to do so to spend time with his son. If the father considers it necessary, further applications by the father for more time with his child in Australia could be heard and determined on their merits in a timely fashion.

32.On the other hand, the father’s known position in respect to the mother is comparable to the mother’s in respect to him. He seeks an order that lets him immediately take the child back to Taiwan where he has, through his “petitioning” of that country’s criminal justice system, intentionally exposed the child’s mother to arrest and being charged criminally with potential consequences that are not known to this Court if she herself was to return to Taiwan. He has done that with knowledge of her stated desire not to return to Taiwan. At the same time, he also alleges the mother has mental health problems. He would have to be conscious of the probability that the mother will, therefore, not voluntarily return to Taiwan whilst the prospect of possible arrest, being charged criminally and some unknown penal consequence potentially awaits her. Conscious of that though, he nevertheless seeks the child’s immediate return to Taiwan and he seeks orders from that country’s courts that place the child in his sole care and limit the time the child spends with the mother to only such time as would take place in Taiwan. Given that she is most unlikely to return to Taiwan, as things currently stand, that would seriously impact upon the child’s relationship with his mother. It would, I am satisfied, probably end it.

33.Comparison of the parent’s respective positions clearly reveals the high stakes of the matter so far as each of them is concerned. The most important thing to remember though is that the child’s best interests remain the paramount consideration. 

34.Relevant to this also, in my view, is a consideration of the evidence about what would happen if the child is immediately returned to Taiwan, particularly in respect of the legal proceedings that are already underway there. There is evidence from a Taiwanese lawyer that Taiwanese domestic law requires any determination of the father’s application in respect to parenting issues to be made on “best interests” principles. He says that mediation would be tried for a few months and that a trial could be expected to take place in around ten months if the dispute is not otherwise resolved. However, I am very concerned that there would be little room for consideration of best interest outcomes for this child if he goes back to Taiwan with his father and his mother does not go back herself or, if she does, she is charged, convicted and imprisoned for the commission of a criminal offence. In addition, there is no evidence before this Court at all demonstrating that a parent wanting to leave Taiwan with a child has any sort of right to try to obtain a Court’s order permitting him or her to do that if such a proposal is opposed by the other parent. 

35.In contrast, I am satisfied that at a trial of competing substantive parenting orders applications in this Court proper consideration can be given to determining many of the issues relevant to final parenting orders that simply cannot be determined at this point in time, and most particularly, I am completely satisfied that any application by the father to have the child live with him in Taiwan will be able to be appropriately and carefully considered on its merits in this Court and determined having regard to the best interests of the child. I am also satisfied that the parties’ competing parenting orders applications can be listed for trial in this Court in July of 2015, just over six months from now, that an Independent Children’s Lawyer can be appointed to independently represent the child’s best interests in these proceedings who can, if she or he considers it appropriate, retain an expert social scientist to conduct interviews and write a family report for the assistance of this Court.

36.Whilst I make no finding that the mother’s evidence about the father’s violence towards her is to be accepted over his denials, or that the mother or the child could not be adequately protected against any such violence from the father in Taiwan, I have considered the mother’s and the father’s evidence and my obligation to make orders, consistent with the child’s best interests being the paramount consideration, that ensure that neither the child nor the mother is exposed to an unacceptable risk of family violence.  Clearly, given my inability to make findings of fact about these highly contentious matters of fact, the immediate decision about making orders for the child to be returned to Taiwan or not is one in which this consideration is of relatively little weight.

37.Both parents and their extended families are of Taiwanese Chinese ethnicity. Mandarin is the father’s language. The mother speaks Mandarin and English. There is no suggestion on the evidence that the mother would somehow forsake or neglect the child’s use of the Mandarin language or his knowledge and understanding of his Taiwanese Chinese cultural traditions, even whilst living in Australia. In any event, the father made no argument that immediate return of the child to Taiwan was particularly necessary for language and/or cultural reasons.

Conclusion about immediate return

38.Ultimately,  I am not satisfied that the nature and degree of this little boy’s connections with Taiwan as opposed to his attachment to his mother are such that his best interests would be met by making orders that permit his father to take him back to Taiwan in circumstances where I am currently satisfied that his mother would not go back to Taiwan at the same time and where, even if she did, there is no reasonable certainty that the child would get to spend significant time in her care.

39.As I have observed, the father has demonstrated an immediate willingness and the capacity to come to Australia and spend time with the child.  I am also satisfied that questions around any increase in the time the child spends with the father can be appropriately dealt with on their merits in this Court in a timely fashion, and I will make provision for the trial of the substantive proceedings to take place in July next year with an Independent Children’s Lawyer as a party. In all these circumstances, I do not consider it contrary to the child’s best interests for him to continue to reside in Australia for the period between now and when that trial takes place.

40.Accordingly, I refuse the father’s application for orders facilitating the child’s immediate return to Taiwan and I make the orders set out at the commencement of these reasons.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 December 2014.

Associate: 

Date:  12 December 2014