Chu and Lorde

[2019] FamCA 560

FAMILY COURT OF AUSTRALIA

CHU & LORDE [2019] FamCA 560

FAMILY LAW – CHILDREN – Parenting – interim application by the Mother to take the children on overseas travel – where there are final parenting orders in place – where the Father has limited contact with the children – where the Mother wants to travel to China for a dental surgery – where the Mother is not able to afford the dental surgery in Australia – where the Mother’s extended family reside in China – where the children will have the opportunity to experience part of their cultural heritage – where the Father says that the Mother poses a risk of non-return – where the Father says that the Mother is isolating the children from him – where it is in the best interests of the children for them to travel to China with their Mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC.

Kuebler & Kuebler (1978) FLC 90-434
Lees & Halstead and Anor [2018] FamCA 970
Line & Line (1997) FLC 92-729

APPLICANT: Ms Chu

RESPONDENT: Mr Lorde

FILE NUMBER: CAC 478 of 2012

DATE DELIVERED: 16 August 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The Mother is permitted to travel with the children R, born … 2008, and C, born … 2012 (“the children”), to China between 4 September 2019 and 5 October 2019, and to that end is entitled to remove the children from the Commonwealth of Australia. 

2. It is requested that the Commissioner of the Australian Federal Police remove the children from the Family Law Watchlist.

3. The Mother is at liberty to uplift from the Canberra Registry of the Family Court of Australia the passports of the children and to use those passports for the purposes of the proposed travel to China. 

4. The Mother shall return the children’s passports to the Canberra Registry of the Family Court of Australia immediately following her return to Australia. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 478 of 2012

Ms Chu

Applicant

And

Mr Lorde

Respondent

REASONS FOR JUDGMENT

1. The parties to these proceedings are, Ms Chu, the Applicant Mother, and Mr Lorde, the Respondent Father.  There are two children of the relationship, R, born in 2008, and C, born in 2012.

2. The Mother has filed an Initiating Application seeking orders in relation to international travel for herself and the children.  At this interim stage the Mother seeks interim orders to allow travel to China in September/October 2019. 

3. The context of this Application is that the parties were engaged in a parenting dispute which was resolved by contested hearing and judgment delivered on 20 March 2017.  Final orders made in that judgment gave primary care of the children to the Mother, sole parental responsibility to the Mother and provided for the Father to have frequent daytime contact with the children during school holidays and on five occasions each fortnight.  These were orders that the Mother was strongly opposed to. 

4. On 24 May 2017, shortly after the final determination in the matter, the Mother made an application for international travel with the children.  I refused to allow the Mother to travel internationally with the children in the circumstances of the above orders due to a concern that the Mother would not return to Australia with the children, particularly given her opposition to the orders that were then in place.

5. Sometime after the orders were made, the Father was found guilty of committing an assault upon the oldest child, R in the ACT Magistrates Court. Consequently, the parties entered into new orders, this time by consent, on 23 May 2019. Those orders provided for a structured therapeutic intervention involving the Father and the children followed by a gradual and therapeutically facilitated transition to the children spending short periods of time with the Father. The orders do not provide for overnight time and the Mother retained sole parental responsibility.

6. In that context, the Mother has filed a Further Initiating Application to support regular international travel, but also interim orders for the travel to China as described above. 

7. In terms of general context, the parties met and formed a relationship in China.  The Mother is from China but is now an Australian citizen, having relinquished her China citizenship.  The interim orders sought by the Mother would enable her to travel to China with the children, which would enable them to experience a significant part of their cultural heritage and to see their grandparents and other extended members of their family. 

8. However, the primary reason for the application is that the Mother seeks surgical care for her teeth which she cannot afford in Australia.  That treatment is cheaper in China, even taking into account the travel for herself and the children to China, and cheaper to an extent where she says she will be able to afford the surgery there, whilst she cannot afford it in Australia.  To that end she has purchased return tickets for herself and the children covering a time span of September/October 2019.

9. The Father opposes this travel.  He expresses the concern that the Mother will not return with the children, may place the children in danger (noting that previously R has fallen ill while in China) and will undermine the relationship with the Father.  He also says that it will disrupt the children's education by virtue of them being away from Australia for a period.  In large part his concern is based upon behaviour which he reasonably says has involved the Mother excluding him from the children's lives.  The circumstances of this exclusion were set out in the previous final judgment.  The Father is concerned that the Mother taking the children to China would be the final step in that process, as the Mother could retain the children in China so that he would have no time with them ever again.  In further support of this he produced abusive correspondence he has received from the Mother, which illustrates her hostility toward him.

10. The Father correctly notes that China is not a signatory to the relevant Hague Convention and that the Mother has made previous threats to relocate to China or to Country M.

11. The Mother says that she does not pose a risk of non-return. The Mother points to the circumstances that she is an Australian citizen, that she studies in Canberra, that she has work in Canberra and that she is willing to post a $1,000 to $1,500 bond.

12. The Mother’s application comes in very different circumstances to the previous application.  The previous application was met with circumstances whereby there was a strong concern that the Mother would not return to Australia generated by the Mother's resistance to the children spending time with the Father in accordance with the previous orders.  Here, however, there are different circumstances.  The parties have entered into consent orders which are highly restrictive of the time that the Father will spend with the children.  They are significantly more restrictive than the ones that the Mother vehemently opposed previously.  It is no longer the case that the current orders are in significant conflict with the Mother's view as to what should happen regarding the children.

13. In relation to the dangers raised by the Father they in large part did not appear to be significant.  It may be true that R previously became ill in China, but that gives no cogent reason to think that it is because of some fault on the part of the Mother nor that there is a likelihood of recurrence.  On the issue of potential damage to the children’s education, it could not be thought that a month away from school (noting a likelihood of overlap with school holidays in any event) would be significantly harmful to the children's education.  The third matter raised, which is danger to the children by virtue of the undermining of the relationship between the Father, is a consideration subsumed within the question about whether or not the Mother is likely to return the children.

14. The key issue is whether the Mother will return the children, as balanced against the benefits that may accrue to the children from a trip as seen in their spending time with family and with the Mother engaging in medical treatment.  The benefits in respect of medical treatment are that the Mother can afford treatment in China but not in Australia in the context where she has the sole care of the children and has no real financial support from the Father at all.  She is currently in chronic pain and requires removal of her wisdom teeth and canal treatment.  The current state of her teeth leaves her in pain and means that she is prone to infection.  Further, her evidence is that she has nowhere else that she can turn for the support of her children.

15. In considering the question of an interim application for international travel, Justice Berman in Lees & Halstead and Anor[1] helpfully sets out the key legal principles from the Full Court cases of Kuebler & Kuebler[2] and Line & Line[3]:

    In Kuebler & Kuebler (1978) FLC 90-434 the Full Court set out a number of factors that are relevant to an application for children to travel overseas including the length of stay, the genuineness of the application, the effect on the child of any interference or interruption with orders for time between children and other parties and the extent to which the Court can be satisfied that the children be returned to the jurisdiction together with any threat to the welfare of the children in terms of the proposed destination of travel or environment.

    In Line & Line (1997) FLC 92-729 the Full Court relied upon Kuebler (supra) and further considered that it was a relevant factor as to whether a parent is to travel with a child to a country that is, or not, a signatory to the Convention on the Civil Aspects of International Child Abduction 1980, namely the Hague Convention. The Court considered that in relation to an application for the children to be taken to the USA for a holiday, given the mother was born in the USA there was a risk that she may not return the children to the jurisdiction, however, it was a risk that could be lessened by fixing an appropriate level of security for the children’s return.

    In fixing an appropriate level of security the Court may take into account the following as outlined by the Full Court in Line (supra) at 83,846-47:-

    (a)That the sum must be sufficient to “realistically entice the person removing the children to return” and to enable the party remaining in Australia to take whatever action as may be necessary to have the children returned;

    (b)The extent to which the risk of the mother not returning the children can be ascertained;

    (c)The financial circumstances of the parties; and

    (d)Whether the country of travel is a signatory to the Hague Convention.[4]

    [1]Lees & Halstead and Anor [2018] FamCA970.

    [2]Kuebler & Kuebler (1978) FLC 90-434.

    [3]Line & Line (1997) FLC 92-729.

    [4]Lees & Halstead and Anor [2018] FamCA970, [28]-[30].

16. When examining the matters raised in those cases, it can be observed here that given the restrictive nature of the time the children spend with the Father there is little, if any, interruption of his time occasioned by the proposed travel.  The travel is based on a genuine need on the part of the Mother and is for a short period of time, spanning 4 September 2019 until 5 October 2019.  There is no real threat to the welfare of the children in China.

17. It is relevant that China is not a Hague Convention country and so their return is unlikely to be compelled by the China authorities.  While the Mother offers $1,000 to $1,500 surety, that would not be likely to be effective under these circumstances in either securing the children's return nor as a motivation for the Mother to ensure their return if she decided to retain them in China.

18. In considering the risk of non-return it must be borne in mind that these are interim proceedings.  There is limited fact-finding available and it is important to rely on the non-contentious aspect of the facts raised by the parties and to take a conservative approach.  Justice Berman in Lees & Halstead and Anor emphasised the need to be risk averse and cautious:

    I consider that a cautious approach should always be adopted in circumstances where the evidence has not yet been tested. That does not mean that the Court is not able to make an appropriate interim order until and unless the evidence has been tested. At an interim hearing the Court should generally be risk-averse and cautious.[5]

    [5]Lees & Halstead and Anor [2018] FamCA 970, [32].

19. When considering the Mother’s application, I am to be guided by s 60B of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects and principles underlying Part VII of the Act. Part VII of the Act deals with decisions involving children. In particular, I must regard the best interests of the child as the paramount consideration in my decision making, pursuant to s 60CA of the Act.

20. Deciding what is in the best interests of a particular child, or children, is to be done by a consideration of the matters set out in s 60CC of the Act. A central s 60CC consideration in these proceedings is the benefit of a meaningful relationship between the children and their Father. This needs to be seen in the context of what is a very limited relationship that is likely to occur between the Father and the children pursuant to the consent orders in place. Any benefits from this meaningful relationship are to be balanced against the benefits of relationship with the maternal family in China and the benefits that come from the Mother receiving treatment. Currently, the Mother is the primary carer who has the responsibility for providing emotionally and physically for the children but is subject to a tooth condition which leaves her in chronic pain.

21. Several factors in this matter are apparently non-contentious. These are:

    a)That the children have a very limited relationship with their Father under the current parenting orders;

    b)That the Mother has medical issues necessitating treatment;

    c)That the Mother's medical treatment necessitates her having the assistance of other people to help care for the children during that period and that she does not have access to such people in Australia;

    d)The Mother has also previously travelled to and returned from China;

    e)The Mother is an Australian citizen;

    f)The Mother studies and has work in Canberra, Australia; and

    g)It appears uncontentious that the Mother has been highly abusive of the Father (see correspondence from the Mother to the Father in exhibit F1) being abusive correspondence predating the previous determination but also in part in relation to the current application.

22. Under these circumstances I cannot rule out completely a risk of retention of the children in China.  However, given that the matters that are raised in relation to this risk appear in large, if not wholly, to be non-controversial, it appears to be a low risk, even taking a conservative approach as is appropriate in interim proceedings.  Unlike in many interim cases, in this one I have the benefit of having conducted a previous final hearing which enables the factors that increase a risk of non-return to be definitively understood.  The matters which tend against such a risk are largely uncontroversial.  This means that confidence can be given to this assessment given that it is in large part reliant on non-controversial aspects of the application. 

23. It may also be observed that this low risk of retention is coupled with what is at best a marginal relationship which is to occur between the children and their Father under the current orders.  That is, there is a low risk of retention, which if it did occur would undermine orders which provide for a low level of benefit of relationship between the Father and the children.  Against this there is a high risk of the Mother continuing to suffer from chronic and ongoing pain while she exercises the sole care for the children in both a physical and emotional sense.  It must be expected that this will impact on her capacity to do so although the extent to which it will do so is not identified.

24. In this balance, even taking a conservative approach as is appropriate in interim proceedings, the best interests of the children are supported by orders which will permit them to travel to China with their Mother on this occasion as proposed by her.  Orders will be made accordingly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 August 2019.

Associate:

Date:  16 August 2019