Dai & Chu
[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 be at liberty to list the matter on short notice in the event of any difficulties in the implementation of paragraphs 1 to 3 above.
5.That all extant interim applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dai & Chu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The children X and Y, aged 11 and 5 years have lived in City D, Country B for almost all of their lives. In mid-2023, without notice to the mother or the maternal grandmother, with whom the boys lived, the father removed X and Y from their schools and travelled with them to Country F and Country G, finally arriving in Sydney, Australia on 13 June 2023.
The children have spent no time, nor communicated with the mother or the maternal grandmother since their departure from City D.
On 16 June 2023, three days after their arrival in Australia, the mother filed an application in this Court seeking the return of X and Y to City D. That application is supported by the maternal grandmother and opposed by the father.
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 law
That 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
At the time the Agreement was entered into, the child Z was being cared for in Country F and awaiting entry to Country B.
Section Six of the Agreement made provision for what should occur in the event of dispute between the parties. It provides:-
6.1Disputes arising from the performance of this Agreement shall be resolved by amicable negotiation between [the father] and [the mother]; where the dispute cannot be resolved by negotiation, either party may file a lawsuit with the court in the place where the marriage was registered.[5]
[5] Ibid p. 17
It is common ground that following the execution of the Agreement and in accordance with Section Four of its terms, the children continued to live at the home of the maternal grandmother.
In April 2023, the father travelled from Australia to City D to spend time with the children. He resided at the home of the maternal grandmother for that purpose. At that time, the mother was in Country J for her work.
On 31 May 2023, X and Y were delivered to their schools in City D by their drivers. The father attended those schools and collected them that morning. During the day, the father texted the boys’ drivers to inform them that he would collect the children from school. The boys’ nanny was informed by the father that he would be taking the children to a restaurant for dinner and a movie that evening.
Notwithstanding those communications, that day the father and the boys travelled from City D to Country F and then from Country F to Country G. Neither the mother nor the maternal grandmother were informed of the boys’ whereabouts.
On the evening of 31 May 2023 the maternal grandmother notified the police in City D that X and Y were missing. Attempts were made to communicate with the father as to his and the boys’ whereabouts, to no avail.
The boys and the father arrived in Sydney on 13 June 2023.
The mother filed an Application for Final Orders on 16 June 2023. That application sought the following orders:-
·That the children be placed on the Airport Watch List;
·That the father deliver the children to the child-minding section of the Federal Circuit and Family Court of Australia for the purposes of the children being delivered to their mother and returned with her to City D; and
·That the operation of the Airport Watch List Order be suspended to enable the mother and the boys to exit Australia pursuant to the preceding order.
That application was listed before a Judicial Registrar on 26 June 2023.
On 26 June 2023 the father filed a Response to Application for Final Orders. That application sought orders including that:-
(1)That the mother’s Initiating Application MLC… be dismissed alternatively stayed pending the outcome of the proceedings commenced in City D, L District Court…
(2)That the names of the children … be removed from the Family Law Watch List …;
…
(4)In the alternative in which the court finds the Federal Circuit and Family Court of Australia has jurisdiction:
5.1.the children…live with the father in Sydney, Australia;
5.2.the father has sole parental responsibility for the children…
5.3.the children shall see the mother as agreed between the parties in advance and in writing.
Orders were made by a Judicial Registrar on 26 June 2023 that:-
·the maternal grandmother be joined as the second respondent in the proceedings;
·the matter be listed for hearing before me on 8 August, 2023;
·the parties be restrained from removing the children from the Commonwealth of Australia; and
·the children be placed on the Airport Watch List.
Neither X nor Y have spent any time with or communicated with the mother or the maternal grandmother since their departure from City D on 31 May 2023. The child, Z, continues to live in City D at the home of the maternal grandmother.
The father deposes that he has enrolled X and Y at M School, in Year 5 and kindergarten respectively; they commenced Term 3 at that school on about 18 July 2023.[6] It is common ground that whilst X has some English language skills, Y is learning English.[7]
[6] Parenting Questionnaire filed 26 June 2023, [35]
[7] Affidavit of Mr Chu filed 27 July 2023, [38]
There appears to be no debate between the parties that until 31 May 2023, the place of habitual residence of X and Y was Country B. The mother contends that the father has abducted the children from that country and as such, they should be returned there, particularly in circumstances where there are pending parenting applications before the Courts in Country B.
The father opposes that application, maintaining that his application for parenting orders should be determined by this Court.
MATERIAL RELIED UPON
The mother relies upon the following material:
·Outline of Case document dated 30 July 2023;
·Application for Final Orders filed 16 June 2023
·Affidavit of mother filed 17 July 2023;
·Affidavit of Mr K filed 17 July 2023;
·Father’s Response to Application for Final Orders filed 26 June 2023;
·Father’s affidavit filed 26 June 2023 (paragraph 26 and Annexure ‘C’, paragraph 48);
·Affidavit of mother filed 4 August 2023; and
·Exhibit M1.
The father relies upon the following material:-
·Outline of Case document filed 1 August 2023;
·Amended Response to Application for Final Orders filed 27 July 2023;
·Affidavit of father filed 27 July 2023;
·Parenting Questionnaire filed 26 June 2023;
·Notice of Child Abuse, Family Violence or Risk filed 26 June 2023; and
·Exhibits F1 and F2.
The maternal grandmother relies upon the following material:-
·Outline of Case document filed 1 August 2023;
·Notice of Child Abuse, Family Violence or Risk filed 18 July 2023;
·Response to Application for Final Orders filed 18 July 2023; and
·Affidavit of Ms Ling filed 19 July 2023.
ORDERS SOUGHT
In accordance with my directions the mother filed her Proposed Orders which seek the following:-
Plan A Mother’s Primary Position
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 […] 2021 and [Y] 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 make sure that the children have in their possession:
a.Their Australian passports; and
b.[X’s] [sic] [Country F] Identity card;
c.Any other official document bearing their name.
4.That the Mother be at liberty to list the matter on short notice in the event of any difficulties in the implementation of paragraphs 1 to 3 above.
Plan B Mother’s “Back up” Position
1.That the Father make the children available to the Mother at 2pm on [a date in] August 2023 in the reception of the [C Hotel], [Suburb E], Sydney.
2.That the Mother ensure that the children attend [M School] on Monday, Tuesday and Wednesday, 14, 15 and 16 August 2023.
3.That the Mother ensure that the children attend the Federal Circuit and Family Court of Australia, Melbourne Registry Counselling Service on Thursday 17 May 2023 at 9am.
4.That the Mother deliver the children to the Father at Sydney Airport by the Mother and children leaving Melbourne on Sunday 20 August 2023 on [O Airline] […].
5.That while the children are with the Mother, she ensure that they are able to receive a call each day from the Father.
The father filed his Proposed Orders seeking the following:-
Father’s Proposed Minute if the Court Orders that the Children be returned to [Country B]
1.That the Mother’s solicitor advise the Australian Federal Police of the discharge, with effect from 12 noon on Tuesday 29 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) referred to in Order 2 hereof; 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 [Y] also known as [U] born […] 2018 to the reception of the [C Hotel], [Suburb E], Sydney at 6pm on [a date in] August 2023.
3.That the Father not be required to comply with Order 2 unless and until the Mother provides documentary confirmation:
a.each of the children have a valid visa or travel documents for entry to [Country B] (and the father shall make available to the mother the children’s Australian passports if required to obtain said visa);
b.each of [Y] and [X] are re-enrolled and have a place at their former respective schools in [City D];
c.of a flight booking on which the Mother will be flying the children to [City D]; and
d.the address at which they will live in [Country B].
4.That when the Father delivers the said children to the Mother, he make sure that the children have in their possession their Australian passports NOTING that he does not have [Y's Country F] Identity Card or other official documents bearing the children’s names.
5.That the parties be at liberty to list the matter on short notice in the event of any difficulties in the implementation of paragraphs 1 to 4 above.
Father’s Proposed Minute for the children to spend time with the Mother if a Child Impact Statement is Ordered with interviews on 17 August 2023
1.That the Father make the children available to the Mother at 2pm on [a date in] August 2023 in the reception of the [C Hotel], [Suburb E], Sydney.
2.That the Mother ensure that the children attend [M School] on Monday, Tuesday and Wednesday, 14, 15 and 16 August 2023.
3.That the Mother ensure that the children attend the Federal Circuit and Family Court of Australia, Melbourne Registry Counselling Service on Thursday 17 August 2023 at 9am.
4.That the Mother deliver the children to the Father at Sydney Airport by the Mother and children leaving Melbourne on [a date in] August 2023 on [O Airline] […].
5.That while the children are with the Mother, she ensure that they are able to receive a call each day from the Father.
The Solicitor for the second respondent indicated that the second respondent agrees with the Proposed Orders sought by the mother.
LEGAL PRINCIPLES
Section 69E of the Family Law Act 1975 (Cth) (“the Act”) identifies the bounds of this Court’s jurisdiction in parenting proceedings and provides as follows:-
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
"relevant day", in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court--the day on which the application is filed; or
(b)in any other case--the day on which the application instituting the proceedings is made.
Note:Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
In this matter, the children X and Y are present in Australia and were so on the date the mother’s application instituting proceedings was filed, as was the father. Further, the father has Australian citizenship. X has Australian and Country B citizenships and Y has Australian and Country F citizenships.
Having regard to those matters I am satisfied that prima facie, the Court has jurisdiction to hear the parenting proceedings.
The provisions of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, commonly referred to as the ‘Child Protection Convention’ (See part 13AA, Division 4 of the Act) have no effect in this case because Country B is not a signatory to the Convention.
Nonetheless, in circumstances where the mother and the maternal grandmother maintain that the children are habitually resident in Country B, it is necessary to consider whether this Court is the appropriate forum to determine the dispute.
The issue was considered by the High Court of Australia in ZP v PS (1994) 181 CLR 639 at [8] where it held that:-
Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. Moreover, proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access. Its duty is to make such order as will “best promote and protect the interests of the child”. It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child.
(Footnotes omitted)
At [6] Brennan and Dawson JJ said:-
The test of “clearly an inappropriate forum” is not an alternative test to the welfare of the child in determining the order to be made when the custody jurisdiction conferred by s.63 is to be exercised.
The question of the applicable law in relation to determining the appropriate forum for parenting matters was further considered by the Full Court of the Family Court of Australia in Kwon & Lee (2006) FLC 93-287. There the Court held:-
83. …We consider the following principles can be distilled from authority:
(i)where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;
(ii)in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti suit injunction based on common law principles;
(iii)the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;
(iv)in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA);
(v)if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;
(vi)in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;
(vii)in cases, such as in (ii) above, where the Act does not proscribe a ‘best interests’ requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and
(viii)that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.
I now turn to consider the parties’ competing applications having regard to those established principles.
THE HEARING
The hearing was conducted on the papers. Given the seriousness of the issues in dispute, I granted leave for the mother and the father to give brief oral evidence and to be cross-examined. The second respondent was not required for cross-examination.
THE MOTHER’S CASE
Relying on [83(vi)] of the decision in Kwon & Lee, the mother submits that her application ought be disposed of by way of a speedy summary hearing and orders for the return of X and Y to Country B. The wife confirmed that in making such order the Court will have regard to the children’s best interests as its paramount consideration.
The mother submits that the children’s best interests are served by returning to Country B.
Further in addition to a consideration of the children’s best interests, it was submitted that the Court should take into account the considerations identified by the Full Court in In the Marriage of Domroese & Leggett (1996) 20 Fam LR 213 at 220 where it stated:-
Major policy purposes behind the legislation include the discouragement of international child abduction and the discouragement of international forum shopping by placing a barrier before an unsuccessful litigant who wishes to disregard a judicial decision or relitigate the same issue in a different jurisdiction, together with the promotion of judicial comity by recognising decisions of the relevant courts.
Simply put, it is the mother’s case that the children have been abducted by the father from their home in City D to another country and removed from their stable routines and home.
In support of her application for the return of the children to Country B, the mother relies upon:-
·The fact that the father instituted custody proceedings in Country B in 2022, and indeed, at the time of the children’s removal from Country B those proceedings were listed for hearing on 10 July 2023;[8]
·In the father’s originally filed Response to Application for Final Orders, he contended that these proceedings should be stayed pending the outcome of the proceedings in City D;[9]
·The mother has acted as quickly as possible to remedy the position. Her application was filed three days after the children’s arrival in Australia and her Application For Final Orders sought an expedition of the proceedings;
·During his oral evidence, the father conceded that he had been planning to remove the children from Country B since August 2021 (which is the date he contends that separation occurred). Further, the father admitted during his oral evidence that he had informed the boys of his plan to remove them from Country B approximately one week prior to their departure, and that he had required them to keep those plans a secret.
[8] Exhibit M-, [28]
[9] Response to Application for Final Orders filed 26 June 2023, page 15, paragraph 1
It was submitted on behalf of the mother, and I accept, that such conduct in requiring the children to hide the father’s plans from the mother and the maternal grandmother, and involve them in the subterfuge was contrary to their best interests.
The father contends at [11] of his affidavit filed 27 July 2023 that the maternal grandfather is in imminent danger of imprisonment due to ‘the demise of the family business’, and that there is a risk in Country B of imprisonment or ‘disappearing’ of associated people; the father elected to remove himself and the children from what he described as ‘the looming danger’ of being persons associated with the maternal grandfather.
In response to those matters the mother contends such assertions are baseless and without any evidentiary foundation. Counsel for the mother described the father’s contentions as ‘a combination of nothings’.
In her affidavit filed on 17 July 2023 at [48] the mother deposed that:-
·There is no danger;
·The maternal grandfather is not at risk of imprisonment; and
·The maternal grandfather and his entities are involved in commercial disputes which have been on foot for some time.
The father raised these issues in his first filed affidavit (Exhibit M1) at [16], [17] and [18]. Those paragraphs were repeated in his second affidavit filed 27 July 2023 at [19], [20] and [21]. The father further deposed as to his knowledge of the Country B banking system at [22] of that affidavit, where he stated:-
In [Country B], the banks are owned by the government (ie. […]). Therefore, if you owe money to the bank, you owe money to the government. Some of the sanctions currently imposed on [Mr K] and [Ms Ling] include that their assets are frozen, they are not allowed to use any bank accounts (they have access to cash only), they are not allowed to travel by plane or train and face restrictions on exiting and entering the country. The sum of money owed by the company, and [Mr K] is very large (in excess of 20 billion Euros) and accordingly the banks will take drastic steps to enforce their judgments.
Having undertaken a careful review of the material relied upon by the father in relation to these matters, there is little evidence to support his claims as to the risk the maternal grandfather’s commercial disputes poses to the children. There is little independent evidence to support the father’s claims as to any penalties visited upon the maternal grandparents or as to actions that may be taken which will impact the children. I am satisfied that the father’s concerns are largely based on speculation and fuelled by fear.
The documents relied upon by the father in support of his position include a newspaper article (reporting on a decision of the Regulatory Bureau of the Country B Securities Regulatory Commission). That article was published in the P News in early 2023,[10] that being more than a month prior to the father’s removal of the children from Country B.
[10] Annexure A to the affidavit of the Mr Chu filed 27 July 2023.
Further, the father relies upon an enforcement reward listing, relating to debts owed by the maternal grandfather.
Finally, the father relied upon a ‘Letter from Attorney’ regarding debt risk.[11] That letter records that the maternal grandfather and the maternal grandmother have accumulated debts that have resulted them as being noted as ‘a dishonest person’. In conclusion that letter notes the consequences of such as follows:-
If the individuals intentionally conceal or transfer their assets, including domestic and overseas properties and shares, once such acts are discovered, they may face both civil and criminal penalties.[12]
[11] Ibid Annexure C.
[12] Ibid p. 20.
There is no evidence that the maternal grandparents have engaged in any concealment or transfer of assets that would give rise to such penalties against them. Accordingly, having regard to that material, I am satisfied that the father’s evidence does not identify or confirm that the maternal grandfather has been charged, convicted or imprisoned for any offence, or indeed that he is at risk of such action.
That view is bolstered having regard to the evidence of the maternal grandfather in his affidavit filed on 17 July 2023 where he deposes that:-
·He is not to be imminently imprisoned;
·He is involved in business and has been for decades as a respected entrepreneur and businessman in Country B;
·That commercial disputes and law suits between creditors and the company of which he was chairman and private shareholder and founder have been ongoing for some time; and
·If wrong-doing is found against the company, any penalties will be pecuniary in nature and further that there is no prospect that the company’s affairs will impact the mother or the children.
In her affidavit filed 4 August 2023 the mother annexes Certificates of ‘No Criminal Record’ in relation to the mother, the maternal grandmother and the maternal grandfather. Those certificates each dated 30 and 31 July 2023 confirm that upon searching each of the mother’s, the maternal grandmother’s and the maternal grandfather’s personal identity cards there was no criminal record found between their dates of birth and 30 and 31 July 2023.
Having regard to the evidence of the maternal grandfather and the documents produced by the mother as to her and her parents’ criminal history, I am satisfied that the concerns raised by the father in his material have little basis.
In any event, even were the maternal grandfather involved in criminal proceedings, in circumstances where it is common ground that he does not live with the maternal grandmother or the children in City D, I am satisfied that such matters are unlikely to impact the children’s day-to-day care.
That view is bolstered having regard to the evidence of the maternal grandmother in her affidavit filed 19 July 2023, wherein she deposes that she is retired, that she does not have direct involvement with the companies operated by the maternal grandfather and that she is not being sought by Country B banks or the Country B Police. She denies the allegation of the father that there were court proceedings involving her i9nmid-2023.
The maternal grandmother was represented by her Solicitor at the hearing and attended electronically from City D. An interpreter was available to her at Court. The maternal grandmother was not required for cross-examination by the father’s Senior Counsel.
The mother challenges the father’s contention that the children are settled in Australia. I accept that position. The reality is, the children have been in Australia for a period of eight weeks. They commenced school in Australia on 18 July 2023 and have attended that school for a period of approximately three weeks. The mother has sought their return since three days after their arrival in Australia and before they commenced at that school. Having regard to those matters I am not persuaded that there is any basis for the assertion that the children are settled in Australia.
The mother also places reliance upon the Agreement entered into by the parties in April 2022. It was submitted, and I accept, that that Agreement sets out clearly what the parties’ intentions were with respect to parenting arrangements at the time of its execution.
The father seeks to rely upon the Agreement insofar as it indicates that disputes ought be determined in the Court in the place where the marriage was registered, in this case Australia. In my view, the father is “cherry picking” those aspects of the Agreement that suit his case, as he has disregarded the terms of the Agreement relating to the care arrangements for the children, as well as the requirement that the parties engage in “amicable negotiation” where disputes arise; on any view there was no amicable negotiation between the parties before the father removed the children from City D.
Further, in his first affidavit (Exhibit M1) the father challenged the mother’s evidence as to the terms of the Agreement. He did not identify at that time what the correct terms of the Agreement provided for in relation to the care of the children. At the hearing before me the father’s Senior Counsel conceded that the translation annexed to the mother’s affidavit filed 4 August 2023 was not the subject of challenge. It was submitted on behalf of the mother that the father’s original challenge to the Agreement was designed to create confusion; there is much force in that submission.
THE FATHER’S CASE
It was submitted on behalf of the father that this matter could not be treated as a ‘Hague’ matter as there is not reciprocity between Australia and Country B and the effect of a return order of the children to Country B would be to end these proceedings. As noted earlier, I accept that this is not a matter that falls under the Child Protection Convention.
It was submitted on behalf of the father that notwithstanding his application before the courts in Country B, he does not seek to proceed with that application as it has no prospect for success. There is no evidence to support that submission.
The father has provided little information as to the circumstances of the proceedings in Country B. The mother was briefly cross-examined in relation to those proceedings. She confirmed during her oral evidence that there was a hearing in mid-2023 and on that date, the proceedings were relocated from City D to City H. It seems that at that time the mother had on foot an application to transfer the proceedings to City H, as she was living there for a period during the global pandemic.
It was also submitted on behalf of the father that he has a genuine belief that the children are at risk if they remain in Country B. I have referred to those matters earlier in this judgment. I am not satisfied on the balance of probabilities that there is evidence of the children being at risk if returned to their home in City D.
The reality is that the father first raised concerns with respect to the maternal grandfather’s business dealings in his initial affidavit (Exhibit M1) filed 26 June 2023. One month later, in his affidavit filed 27 July 2023, he adduces no additional evidence that would support his claims. Further, in the intervening period, both the maternal grandmother and the maternal grandfather have sworn affidavits in the proceedings which deny that they are subject to any police prosecution or imprisonment and further, they produce criminal history records that indicate they do not have any criminal record from the dates of their birth until 31 July 2023 (in the case of the maternal grandfather) and 30 July 2023 (in the case of the maternal grandmother).
I also have regard to the fact that notwithstanding the alleged risk to the children, the father elected to remove X and Y, whilst leaving Z in the maternal grandmother’s home in City D. If the father’s fears for the children were genuinely held, one might anticipate that he would remain in Country B with them to ensure their safety.
At [25] of his affidavit the father asserts that he will be unable to visit the children in Country B and that he will be at risk of arrest and imprisonment upon his return. Further, the father alleges that the children’s dual citizenship status is banned in Country B.
That evidence is inconsistent with the previous conduct of the father and the mother. The parents have made applications for the children to have dual citizenship. The father has routinely returned to Country B from Australia to spend time with the children, most recently between April and May 2023. Having regard to those matters, I am not satisfied on the balance of probabilities as to the risks asserted by the father.
At [26] of his affidavit, the father deposes as to the ‘political climate’ in Country B and as to the apparent power of the maternal grandmother and the maternal grandfather to cause him to be arrested if he returns to Country B. Those allegations are inconsistent with the father’s claims that the maternal grandfather is subject to police investigation and potential imprisonment. Accordingly, absent independent evidence of the matters asserted, I am not persuaded that there is any basis for the father’s alleged concerns.
It was also submitted on behalf of the father that the matter ought be determined in accordance with the best interests of the children, and that appropriate regard must be had to the considerations articulated in s 60CC of the Act. It was submitted that in order to undertake a fulsome consideration of those factors it was necessary for a Family Report or a Child Impact Report to be prepared, particularly as the views of the children are in issue. In support of that submission, the father relied upon [38] his affidavit filed 27 July 2023 wherein he deposed as follow:-
Both [X] and Y have said to me words to the effect of “We want to live where you live, dad”.
The difficulty with that evidence is that having regard to the children’s ages, particularly Y who is aged only five years, it is likely that little weight may attach to any views expressed by them. Further, I have regard to the fact that any statements that have been made by the children to the father have been made at a time where they have been removed from their home in City D, having been required to keep secret from the maternal family the father’s plan to relocate, and have had no opportunity to spend time or communicate with the mother or the maternal grandmother for a period of approximately eight weeks. Having regard to those factors, in my view any views expressed by the children should be treated with caution.
I am satisfied having regard to the history of the matter and particularly, the chronology of events that have lead the children to living with the father in Australia, that a report as to the children’s views at this time is likely to be of little assistance to me in determining the current interlocutory applications.
THE SECOND RESPONDENT’S CASE
The second respondent supports the application of the mother. In her response filed 18 July 2023, the second respondent confirms that she seeks orders in identical terms to those set out at [1] to [4] inclusive of the mother’s Application for Final Orders. In support of that application, the following submissions were made:-
·X and Y have lived in City D since their birth and have an established routine there;
·The father’s removal of the children from City D has disrupted their family life, their social connections and their schooling;
·The father’s unilateral action has disregarded the emotional and psychological well-being of the children;
·The father has reneged on the terms of the Agreement insofar as it relates to the ongoing care arrangements for the children;
·The maternal grandmother has no direct involvement in her husband’s company and is not at risk of imprisonment;
·The child, Z, remains in the maternal grandmother’s care. The effect of the father’s actions has been to separate the siblings;
·In circumstances where there are already proceedings on foot in Country B, it is the most appropriate jurisdiction to determine any parenting dispute;
·The children’s place of habitual residence is Country B. Their first language is Country B language and they are immersed in Country B culture; and
·The maternal grandmother has significant concerns for the children’s psychological welfare if they remain in Australia.
SHOULD THE CHILDREN BE RETURNED TO COUNTRY B?
The best interests of the children is the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in a children’s best interests. The Court must give greater weight to the need to protect the children from physical or psychological harm, from being exposed to abuse, neglect or family violence.[13] Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend on the unique circumstances of the case.
[13] Family Law Act 1975 (Cth) s 60CC(2)(b).
The circumstances of the children’s removal from Country B to Australia are not disputed; the father removed them from the care of the maternal grandmother and the mother, and transported them to Australia without notice to those who were charged with their primary care. It was submitted on behalf of the mother that the children were abducted by the father. Given the manner in which they were removed from Country B I agree with that assessment. Whilst X and Y are Australian citizens it is agreed between the parties that they have lived the majority of their lives in Country B.
The agreement between the parties executed in April 2022 provided that the children be cared for and live with the mother and the maternal grandmother, and that the mother be responsible for making decisions regarding their care.
Proceedings have been on foot in Country B in relation to parenting arrangements since March 2022. It is common ground between the parties that those proceedings are continuing.
If the proceedings are to be fully defended in Australia, it will be many months before a final hearing is allocated.
The children have been dislocated from all that they are familiar with, their home, their school, their friends, their culture and their maternal family in Country B. I am satisfied that such dislocation from everything they have known cannot be in their best interests.
Having regard to the s 60CC considerations, I find as follows:-
Primary Considerations: Section 60CC(2)
(a)the benefit to the child of having a meaningful relationship with both of the child's parents;
Both parents have had active involvement in the children’s lives. The chronology of the parents’ movements as set out in each party’s affidavit indicates that the children have had the benefit of involvement of both parents in their lives. I am satisfied that the children will benefit from continuing to have meaningful relationships with the mother and the father and also with the maternal grandmother, with whom they were living at the time of their removal from Country B.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
In his Notice of Abuse, Family Violence or Risk filed 26 June 2023 the father alleges that the children have been subjected to verbal and physical abuse at the hands of the maternal grandmother and verbal abuse by the mother. The alleged abuse by the maternal grandmother is said to have occurred in December 2022. As to the mother, the father alleges that she slammed a door injuring X’s fingers during a family holiday to Country Q. He does not identify when that event is said to have occurred.
Curiously, those matters were not addressed during submissions by Senior Counsel representing the father. Similarly, those matters are not addressed in the Outline of Case document relied upon by the father.
Notwithstanding the issues raised by the father with respect to the conduct of the mother and maternal grandmother, it would seem that he was content for the children to remain in their care until 31 May 2023.
The maternal grandmother and the mother deny the father’s allegations. I am satisfied that those matters are more appropriately dealt with in the context of the proceedings before the Court in Country B.
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.
That this is so reflects poorly on the father, who removed them from the care of the maternal grandmother and the mother. He alleges that the mother has not attempted to communicate with the children. The mother alleges that she has not been able to communicate with the father as she has not been provided with a working telephone number.
I am cognisant of the fact that the mother has actively pursued the return of the children since 31 May 2023. Her application to the Court was filed within three days of the children’s arrival in Australia. The mother has travelled to Australia for the purposes of this hearing. Having regard to those matters I am satisfied that she has actively pursued, to the best of her ability, the opportunity to spend time with the children.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
It is common ground between the parties that the children were supported by the maternal family until their removal by the father from Country B.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The orders I make will return X and Y to the living arrangements that existed prior to their removal from Country B. The children will be returned to Country B so as to enable them to resume their education at the schools previously attended by them and to resume their relationships with their friends and family as existed prior to their departure from Country B.
The father will have the ability to travel to Country B to spend time with the children should he wish to do so, as occurred prior to 31 May 2023.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The evidence of the parties indicates that the children were well settled in their home in Country B and in the case of X, attending the R School of City D, and Y the S School; both children were progressing well at their schools. The father levels no criticism as to the care provided to the children by the maternal grandmother and the mother in meeting the children’s physical and intellectual needs.
Rather, the issues raised by the father relate to the alleged risks to the children arising from the maternal grandfather’s business interests. I have addressed those matters earlier in the judgment.
The father is also critical of the mother’s absence from City D due to her work commitments. The question of the extent of the mother’s absences and their impact on the children in my view is an issue more appropriately addressed in the proceedings in Country B where evidence may be adduced more readily with respect to those matters.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father’s actions in unilaterally removing the children from Country B without notice to the mother or the maternal grandmother, and in circumstances where the children were placed in the invidious positon of concealing his plans raises significant concerns as to his attitude to his parental responsibilities. I am satisfied that the father’s conduct shows little regard for the children’s needs and demonstrates poor insight as to the potential adverse impact upon them of their removal from their home and schools in Country B. In my view the dislocation of the children from all that is familiar to them shows little regard for their emotional or psychological well-being.
The mother has shown a strong commitment towards her responsibilities to X and Y. She has actively pursued the return of the children to her care since their removal from Country B.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(j) any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family -- any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have addressed the issues regarding alleged family violence earlier in the judgment.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;
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.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 14 August 2023