Dai & Chu

Case [2023] FedCFamC1F 667

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dai & Chu [2023] FedCFamC1F 667

File number(s): MLC 6491 of 2023
Judgment of: JOHNS J
Date of judgment: 14 August 2023
Catchwords:

FAMILY LAW – PARENTING – parental child abduction – where the father unilaterally relocated with the children from Country B to Australia – where the children ordinarily reside with the maternal grandmother in Country B – where the mother and maternal grandmother currently reside in Country B – where the sibling group has been split, with the youngest child remaining in Country B – order for children to return to Country B with the mother

FAMILY LAW – JURISDICTION – where the father has commenced parenting proceedings in Country B – where Country B proceedings were first in time – where the father and children are Australian Citizens – found Federal Circuit and Family Court of Australia has jurisdiction to hear the matter – suitable for matter to be determined in Country B

Legislation:

 Family Law Act 1975 (Cth) ss 60CC(2), (3), 69E

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children  
Cases cited:

In the Marriage of Domroese & Leggett (1996) 20 Fam LR 213

Kwon & Lee (2006) FLC 93-287

ZP v PS (1994) 181 CLR 639

Division: Division 1 First Instance
Number of paragraphs: 123
Date of hearing: 8 August 2023
Place: Melbourne
Counsel for the Applicant: Dr Ingleby
Solicitor for the Applicant: T Squared Legal
Counsel for the First Respondent: Mr Bartfeld KC
Solicitor for the First Respondent: Rubin Blight Hardy Family Lawyers & Mediators
Solicitor for the Second Respondent: Melbourne Law Offices

ORDERS

MLC 6491 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DAI

Applicant
AND:

MR CHU

First Respondent

MS LING
Second Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

THE COURT ORDERS THAT:

1.That the Mother's solicitor forthwith advise the Australian Federal Police of the discharge, with effect from 12 noon on Tuesday 15 August 2023 of paragraph 6 of the orders made by a Judicial Registrar (as amended on 8 August 2023 to include the Country B names of the children) and it be requested that the Australian Federal Police confirm their receipt of this advice.

2.That the Father deliver the children X also known as T born 2012 and X also known as U born 2018 to the reception of the C Hotel, Suburb E, Sydney at 6pm on a date in August 2023 for the purpose of the Mother returning with the children to City D, Country B from Sydney Airport Terminal 1 (international departures) on a date in August 2023 on N Airline.

3.That when the Father delivers the said children to the Mother, he do all acts and things to ensure that the children have in their possession:

(a)Their Australian passports; and

(b)Y's Country F identity card; and

(c)Any other official document bearing their name.

4.That the Mother…

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AGLC
Dai & Chu [2023] FedCFamC1F 667
Case
[2023] FedCFamC1F 667
Decision Date

CaseChat Overview and Summary

The case involves Dai, the mother, and Chu, the father, of three children, X, Y, and Z. The dispute centers around the children’s residence, with the mother seeking their return from Australia to their home in Country B. The case was heard in the court of L District, City D. The legal issues revolve around the determination of the children’s best interests in light of their current residence and the parents' wishes for their future custody and care arrangements. The court was required to consider the parents’ respective roles in the children’s lives, the children’s stability and routine, and the impact of any delays on their welfare.

The court’s reasoning focused on the children’s best interests, considering their established lives in Country B and the arrangements outlined in a prior agreement between the parents. The court highlighted the importance of the children’s return to their familiar environment in City D, noting that the children have had no communication with the mother or the maternal grandmother since their removal to Australia. The court found that any delay would not benefit the children and that their return should occur as soon as possible to maintain their stability and relationships. The court also considered the ongoing proceedings in Country B regarding future parenting arrangements, deeming it appropriate for these matters to be resolved there.

The court has ordered that the children return to their home in City D, Country B, with the mother as soon as possible. The decision emphasized the importance of resuming the children’s routine and reestablishing their connections with their maternal family and friends. The court did not find merit in the father’s request for a delay, concluding that it would not serve the children’s best interests. The order aligns with the mother’s application for an immediate return and seeks to restore the children’s sense of normalcy and stability.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow I have made orders as sought by the mother.BACKGROUND X was born 2012 and is aged 11 years. His brother, Y was born 2018 and is aged five years. The boys have a younger sister, Z who was born 2020 and is aged three years. X and Y have lived in City D, Country B since they were born. Until 31 May 2023, they were living at the home of the maternal grandmother, Ms Ling, who is the second respondent in these proceedings. The evidence of the maternal grandmother is that the child Z, who was born in the United States of America, has also lived at her home since about April 2021, being the date of X’s arrival in City D.[1][1] Affidavit of Ms Ling filed 19 July 2023, [7] The children’s mother, who is the applicant in the proceedings, was born in Country B in 1981 and is aged 42 years. She too has lived in Country B most of her life. She is engaged in full‑time employment and describes her occupation as business-woman. At various times during the children’s lives the mother has travelled for work and has spent periods of time in City H, Country J and Australia. Otherwise, she has lived in City D with the children and since April 2022, has lived in an apartment in City D near her mother’s home. The father, Mr Chu was born in 1981 and is aged 41 years. The father describes his occupation as being a Director. He is an Australian citizen, having obtained citizenship in about 2002. It is the father’s evidence that until early 2020, the wife and he lived together in City D with the children. He deposes that the children lived with the mother and the father in their own home and that the maternal grandmother assisted with the care of the children. It is common ground between the parties that the children have lived in City D for most of their lives and that the children have had nannies and drivers employed by the maternal grandparents to assist with their day-to-day care. The mother and the father married in late 2009. The mother contends that the parties separated in January 2020, whilst the father asserts that separation occurred in August 2021. I make no finding as to when the parties’ separated. What is agreed is that in early 2020 the father left City D to travel to Australia for work, whilst the children remained in City D in the care of the mother. By application dated March 2022 the father filed a Civil Complaint in the Courts of L District, City D[2] seeking the following relief:-That the marital relationship between the [father] and the [mother] be dissolved at lawThat the custody over the 3 children of the [father] and the [mother] be granted to the [father]That the litigating cost of the current case be borne by the [mother][2] Exhibit M1, p. 20-21 In his affidavit filed 26 June 2023 (Exhibit M1) the father deposed that that application was listed for hearing in mid-2023.[3] He has provided no further evidence as to the progress of those proceedings.[3] Exhibit M1, [28] In April 2022, the father, the mother and the maternal grandfather, Mr K entered into a ‘Marriage, Children and Assets Arrangements Agreement’ (“the Agreement”). The Agreement confirmed the parties’ intentions in relation to arrangements for the care of the children as follows:-4.1It is agreed by mutual consent that their children will be jointly nurtured, supervised, and reside with [the mother] and [the mother’s] parents.4.2The [mother] will be the point of contact and liaison person responsible for handling external matters related to the children’s education, school applications, parent-teacher meetings, and other necessary academic and daily life affairs.4.3Both parties shall, through mutual consultation, expedite the return of the youngest daughter, [Z], to [Country B], and bring her back to live in [City D] as soon as possible. [4][4] Affidavit of Ms Dai filed 4 August 2023, p. 16

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is common ground between the parties that in the event of the children’s return to Country B, this may end these proceedings. CONCLUSION Having regard to all of the above matters I am satisfied that the children’s best interests will be served by their return to their home in City D, Country B. This is particularly so in circumstances where:-·the Courts in Country B are seized of applications by the father and the mother as to future parenting arrangements for all of the children;·it is common ground that X and Y have lived the whole of their lives in Country B;·the parties entered into the Agreement as to the children’s day-to-day care which confirmed that they would live with the mother and the maternal grandmother; and·Z remains in Country B. The father sought orders that in the event a return is ordered it be delayed to 28 August 2023. I do not consider a delay to be in the children’s best interests. The mother seeks that she return with the children to Country B as soon as possible and has secured flights for them for 15 August 2023. The mother submitted that the new school year is to commence for the children on 31 August 2023 and 1 September 2023 respectively. Accordingly, she seeks to return the children to their familiar environment and to enable them to settle and resume their relationships with the maternal family and the children’s friends. In circumstances where the father does not criticise the care arrangements that were in place prior to the children’s removal, I am satisfied that the children’s best interests will be served by a resumption of their routine and a return to the stability they once knew as soon as possible; that view is bolstered in circumstances where the children have had no communication with the mother or the maternal grandmother since 31 May 2023. In my view, there can be no benefit to the children of any delay in their return to City D. Accordingly, I have made orders as sought by the mother. For the reasons set out above, it is in my view in the best interests of X and Y that they return to Country B with the mother and the dispute relating to their future parenting be dealt with there.

Ratio Decidendi

Legal Principle Established

In the Notice of Child Abuse, Family Violence or Risk filed by the mother on 15 June 2023, she identifies the father’s abduction of X and Y as an issue of risk. Given the agreed facts in this case, there is ample foundation for those concerns. The Additional Considerations: Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; I have referred to the views of X and Y as reported by the father and my findings in relation to those matters. Given their ages and the circumstances in which those views are said to have been expressed, in my view little weight can attach to them.(b) the nature of the relationship of the child with:(i)each of the child's parents; and(ii)other persons (including any grandparent or other relative of the child); Each of the parties contends that the children have a close relationship with them. What is agreed between the parties is that the children have lived in the home of the maternal grandmother for an extended period of time, and that the care of the children has been supported by nannies and drivers employed by the maternal grandmother. The Agreement confirms the mother’s primary role in the care of the children and in making decisions regarding their education and daily life. It is also common ground that the children have spent regular time with the father on occasions when he has travelled to City D to visit them and that he has lived with them in the home of the maternal grandmother for that purpose. The father is critical of the mother as she has been absent from City D for extended periods for her work. During her oral evidence the mother conceded that she had lived in City H for her work and that she had also travelled to Country J. The mother indicated that she needed to work to support the family. I am satisfied that the issue of the mother’s work travel and its impact on her ability to care for the children are matters more appropriately addressed in the proceedings in Country B, where the evidence of those matters will be more readily available to the Court.(c)the extent to which each of the child's parent has taken, or failed to take, the opportunity:(i)to participate in making decisions about major long-term issues in relation to the child; and(ii) to spend time with the child; and(iii) to communicate with the child; The father alleges that the mother has not taken the opportunity to communicate with or spend time with the children, particularly since they arrived in Australia. The question of whether the father has permitted the mother or the maternal grandmother to communicate with the children since their arrival in Australia is in dispute. The sad reality is that by virtue of the conduct of the adults in the dispute, the children have been deprived of the opportunity of spending time with or communicating with the mother, the maternal grandmother or their sister for a period of eight weeks.