FAHERTY & NHOC

[2018] FamCA 1174

FAMILY COURT OF AUSTRALIA

FAHERTY & NHOC [2018] FamCA 1174

FAMILY LAW – CHILDREN – With whom a child spends time – Where the Court was asked to determine what time the child should spend with his Mother and where that time is to be spent – Where the Mother wants the child to be able to go and spend time with her in Vietnam during the child’s school holidays – Where the Court is satisfied that there is an unacceptable risk that the Mother would retain the child in Vietnam and not send him back to Australia should the child be permitted to travel outside Australia to spend time with the Mother – Where the Court is satisfied that it would be most unlikely that the Mother would facilitate, foster and promote an ongoing relationship between the Father and the child in such a circumstance – Where the child will most probably be able to maintain a relationship with both of his parents should he remain in Australia – Where the Court makes orders providing for the child to spend generous amounts of time with the Mother in Australia and that the Mother not be permitted to take him out of the country, at least until he is 13 years of age.

Family Law Act 1975 (Cth)

APPLICANT: Mr Faherty

RESPONDENT: Ms Nhoc

INDEPENDENT CHILDREN’S LAWYER: Elizabeth Rayment

FILE NUMBER: BRC 8014 of 2016

DATE DELIVERED: 24 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fronis

SOLICITOR FOR THE APPLICANT: Men’s Legal Service

COUNSEL FOR THE RESPONDENT: Mr Ashcroft

SOLICITOR FOR THE RESPONDENT: Keyworth Harris & Lowe

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr J. Thomas

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ELR Law

Orders

1. That the child, X born … 2012, (“the child”) shall spend time with the mother as may be agreed between the mother and the father in writing and in default of such agreement, conditional upon the mother being in Australia, then as follows:

   (a)For a continuous period of up to no more than half of the child’s December/January Summer school holidays each year, being at any time during those holidays;

   (b)For all, or any part of, two of the three remaining school holiday periods that otherwise fall during each calendar year, and to be clear, the child shall spend all of at least one of these three holiday periods in any one year with the father;

   (c)Subject to sub-paragraph (d) hereof, for any number of days up to two continuous weeks in any school term;

   (d)Should the mother be able to stay in Australia (other than during the Summer school holidays) for periods of longer than two weeks at a time (be that all school term time or be that school term and holiday time), then during such periods the child shall only spend time with the mother for up to a maximum of seven days at a time every fourteen of those days that fall within school term.

2. The mother shall give the father at least one week’s notice in writing of any intention to spend time with the child during school term and at least four weeks’ notice in writing of any intention to spend time with the child during school holidays.

3. The child shall transition between the parents at school if transition occurs on a school day and, if not, then at Hungry Jack’s Restaurant at Suburb B.

4. The mother shall also inform the father of where she will be residing with the child during the time that the child spends with her pursuant to these orders.

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 Faherty & Nhoc 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 BRISBANE

FILE NUMBER:  BRC 8014 of 2016

Mr Faherty

Applicant

And

Ms Nhoc

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parties in this contested parenting orders case that was listed before me for a two day trial were able to reach agreement on most issues just before the trial commenced. They asked the Court to make orders reflecting that agreement and that was done.

2. Those orders provide for their little boy, X, who is now six years of age, to live with the father in Brisbane, where he has been living for the last three years. They also provide for parental responsibility for X to be shared equally, for regular communication with the mother and for some other miscellaneous matters.

3. That said, the parties still asked the Court to determine what time X should spend with his mother and where that time is to be spent. The mother, who is Vietnamese and lives in City C, wants X to be able to go and spend time with her in Vietnam during the Easter, August/September and Christmas school holidays. The mother received some support for that position from the ICL, but it was strongly opposed by the father.

4. The father fervently believes (I am satisfied) that if X travels to Vietnam to spend time with his mother that she will retain him in that country and not send him back to Australia. The father believes the consequence of that would be that he would never see X again and that X’s relationship with him would thereby be destroyed.

5. I am a satisfied that there is a risk of that happening and that the magnitude of that risk is unacceptable having regard to the evidence viewed in the context of the paramountcy of the best interests of the child. I will not make orders that permit the child to travel out of Australia to spend time with the mother.

Some relevant background

1. The father is a 54 year old Australian man. The mother is a 33 year old Vietnamese woman.

2. The father went to Vietnam in 2008 and was living and working there with a working visa. He met the mother and they commenced their relationship in September 2009. They began living together in his rental apartment in early 2011 and they married later in 2011. They then took up residence in the mother’s mother’s family home. Together, they owned and operated a business which later failed.

3. The father is not fluent in Vietnamese, but the wife is quite fluent in English.

4. X, their son, was born in early 2012.

5. The marital relationship quickly became volatile and unhappy for them both and they separated in February 2014. Each made allegations of physical assault being perpetrated on him or her by the other in the years prior to their separation. Each denied the other’s allegations. Given the parenting orders agreed to by the parties, I do not consider it necessary to make factual findings about these allegations.

6. At separation, X remained with the mother. I am satisfied that she was the parent who provided principal care to X in the first few years of his life and in the months immediately following separation. In this respect, the mother was assisted by the father but also by her mother. The father asserts that the mother’s relationship with her own mother was also a volatile one.

7. In contested factual circumstances, X was brought to Australia by the father in late August 2014. The father asserts that he did this with the mother’s knowledge and consent as she was planning to go to Country D to study for a time. The mother asserts that the father took the child to Australia without her knowledge and consent. She asserts that they had agreed that the father would return to Australia and that X would stay with her and that she would bring him to Australia later on.

8. I do not accept either of these versions as representing the truth of the matter. I consider it most likely that the father did bring X to Australia without the mother’s knowledge or consent. I base this conclusion on evidence in the form of an email that the father sent to the mother that the mother adduced into evidence. He sent it to her on 31 August 2014. The content of that email leaves me in no doubt that he had brought X to Australia without the mother’s knowledge or consent. It is, frankly, rather incredible that he maintained a case to the contrary, in the face of that e-mail.

9. Nevertheless, that was three and a half years ago, and this is not a summary return application. Neither is it an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, as Vietnam is not a signatory to that Convention. I make this determination to highlight the mistrust upon which this sad international parenting dispute is founded. Having said that, I hasten to add that I have no reason to accept the truth of the assertion by the mother that there was an agreement between her and the father that she would bring X to Australia in the future after the father returned to live in Australia. I do not accept that there was such an agreement. Certainly, I do not accept that the mother ever intended putting X into the father’s sole full-time care in Australia. Neither do I accept that there was an arrangement based on the mother’s intention to move to Australia and again take up with the father in a reconciliation of their relationship as I understood her case to be.

10. Indeed, the father provides some evidentiary basis for the actions he took in unilaterally removing X from Vietnam to Australia, though not admitting that is what he did. He said that after he separated from the mother in City C in 2014, he travelled to Country F temporarily for some medical treatment and that on his return he found “communications” between the mother and a man in Country E in which she mentioned the prospect of taking X from Vietnam and moving to Country E to live with this man when the father returned to Country F for further medical treatment. The father said that after he read that he was able to take X’s passports (Australian and Vietnamese) into his possession.  The mother denied that she ever had any such intention.  I cannot say that I accept her denial.

11. There was no evidence as to how the father, after separation, was able to take the boy’s passports into his possession, but there is no dispute he did do that. Having those passports in his possession clearly facilitated his departure from Vietnam with the child in August 2014. I am, as I said, satisfied he kept that secret from the mother.

12. The mother obtained a visitor’s visa and travelled to Australia in late 2014 and, according to the father, told him she wanted to reconcile their relationship and seek permanent residency in Australia.

13. The father said that they lodged an application for permanent residency for her but that before “the paperwork was completed” the mother told him that she had a new boyfriend and that they were in love. He said that she told him that after she obtained permanent residency status they could divorce. The father said that from that time on he refused to support the mother in her application for permanent residency, asserting that he could not be a party to falsely representing to the Australian Government that they were a loving couple. He said that relations between him and the mother seriously deteriorated then and that they “separated for the final time in or around February 2015.”

14. On the mother’s evidence, it is clear that she was seeking to get the father to agree to let her take X back to Vietnam with her but that he steadfastly refused. When she was asked at the hearing before me about her intention to take him from Australia at that time, she did not deny that is what she was seeking to do, but rather simply said she could not take him as she did not have either of his passports in her possession.

15. The mother then left Australia without X. Sometime that year she travelled to Europe to take up study. The father asserts a belief that she had entered a new relationship with a European man who was supporting her financially. This assertion was not put to the mother but her own evidence was that all of the money required to pay for her to undertake further studies in Country D and to live in Europe for nearly a year was provided by way of an unsecured, undocumented, personal loan of 30,000 Euros from the man who worked for an international organisation in City C. Her evidence was that she had obtained employment with a non-government organisation in City C which somehow facilitated the travel and study arrangements. There was no explanation given in evidence, nor was there any exploration of issues surrounding the reasons for such a person giving the mother an unsecured loan for that much money. The father said that his belief was also fuelled by things the mother told him about her life in Europe and things reported to him by others as having been said by the mother.

16. I make no findings about any of this and do not consider that I need to.

17. The mother came to Australia again for another visit in July 2015.  She gives evidence that between January that year and her return in July that the father facilitated video conferencing via the Skype internet platform between her and X at least once per week for up to one hour’s duration. She also confirms that the father repeatedly refused her requests to complete documentation with the Australian Immigration Department saying he was her spouse sponsor supporting her application for a permanent residency visa.

18. For the July 2015 visit, the mother initially stayed at the father’s house but their difficult relationship led to him asking her to move into a hotel room in the city. The mother said in her affidavit evidence it was at this time that she realised that there was no prospect of reconciling their marriage and said that she regards final separation as being in August that year. She left and travelled to Europe and asserts that it became more difficult to be able to speak via Skype with X after that, although she was still able to.

19. In evidence though, is an email letter the mother wrote to the father in November 2015 in which she politely thanks him for taking care of X whilst she is studying in Country D. Interestingly, it concludes with the mother saying “When I have my own income and settle down, I will support you and X. Please wait for me.”

20. The mother returned to Australia again to see X in December 2015.  She was here for several weeks. Relations between her and the father were no better.  Each refers to some physical altercations between them during this time. There is no doubt the father was very protective of X and careful to ensure that the mother did not have time with X away from him without supervision. I am satisfied he feared that she might try to remove X from the country without his knowledge.

21. Again the mother returned to Europe to her studies in early 2016. She said that her communication by Skype with X was still difficult though it was happening.

22. The evidence adduced by the father supports a finding that in or around July 2016 the mother was still trying to get the father to support her to obtain a permanent residency visa for Australia based on their still subsisting lawful marriage although on the evidence of both of them their actual marriage relationship had ended in 2015. I am satisfied that the mother was trying to persuade the father to join her in representing to the Department of Immigration that they were still in an “intact” marriage although both knew that their relationship had broken down and that it was merely a lawful marriage that had not yet been formally dissolved. I am satisfied that she wanted to secure a permanent residency visa to come to live in Australia to be able to spend time with and have a relationship with her son. The father made it clear to the mother that he would not make false representations to the Australian Government in support of such an application.

23. The mother came to Australia again in August 2016 and was here for some weeks. She spent quite a deal of time with X, particularly at his day care centre, never allowed to take him away from there. During this visit the father applied to the Federal Circuit Court for parenting orders and put the child’s name on the Airport Watch List maintained by the Australian Federal Police. The mother left the country for a few days travelling, ostensibly for work, to City G in Country H before returning again to Australia.

24. The first orders were made in the Court in October 2016 and the mother received confirmation that her spouse visa application had been withdrawn. She travelled to City G again for a few days before returning to Australia again. She also returned to Vietnam for a few days before coming back to Australia. She stayed until 18 January 2017. She had been able to spend time with X on many occasions, regularly and in accordance with Court orders in the months between October 2016 and January 2017 when she left the country.

25. The mother’s evidence is that in February 2017 she commenced work as a Senior Project Assistant for a company in Country H on a six month contract.

26. The mother was able to come to Australia again in late April 2017 and spent time with X as well as attending family report interviews. She left the country again soon after but came back again for another month in June 2017. During that month she spent a lot of time with X.

27. In early July the mother returned to Vietnam. She said that she was able to have Skype conversations with X on various dates throughout July and August 2017.

28. Their marriage was dissolved in August 2017.

29. The mother was again able to come to Australia in late October 2017 and stayed to 27 December 2017. She spent a lot of time with X during those months.

30. Up to the day of the trial before me on 10 April 2018, the mother was prosecuting an application for an order that X live with her and that she be permitted to take him to live with her in Vietnam.

Some Concerning Parts of the Mother’s evidence

1. The mother said in her affidavit that from 2007 to 2014 she earned about AUD$200 per week in Vietnam teaching. Curiously, she said that from July 2011 to October 2013 she owned the business (that she owned and ran with the father) and that from September 2012 she was earning AUD$300 per week from that business. From October 2013 to February 2014, she said that she continued working in teaching.

2. She said that from February 2014 to August 2014 she was working for the non-government organisation for 20 hours per week and still working 12 -15 hours per week at a tertiary institution and 10 hours per week doing private tutoring.

3. Then, notwithstanding the evidence about studying in Europe from later in 2015 to the middle of 2016, she said that from September 2015 to August 2016 she was working 40 hours per week with the non-government organisation. I do not understand how this evidence sits with her evidence about studying full-time in Europe.

4. Nevertheless, she said in the affidavit that in 2014 and 2015 her income was the equivalent of about AUD$15,000 per year net of tax.

5. When she gave oral evidence at the hearing before me, when she was asked about her current employment, she initially said that she was working for the non-government organisation as a junior expert. She said that she was earning USD$15,000 per year and was not taxed on that as it was earned with a non-government organisation. She said that she was working 20 hours per week for that organisation.

6. She said that she had been able to make all of the visits to Australia and stay as long as she had on those trips although she was only earning that amount of income that she referred to.

7. After a little while during her cross-examination, when she was asked questions about her capacity to continue to travel to Australia as regularly as she had in the past, the mother then incredibly told the Court that she was no longer working with the non-government organisation as she had been “sacked” for taking so much time off and making all the trips to Australia. She then said that she had secured a new job which she had not yet started. She said she was going to be working in finance consulting with a private financier in City C starting on 16 April. She said her income would be USD$16,000 per year but that she would be taxed on this at the amount of 13.8% per year. She said that she would be working 20 hours per week with this employer also. She then went on to say that she would only be given 12 working days of holidays per year, plus the 7 days of holiday during the lunar new year or Tet festival in Vietnam, as well as public holidays.

1. She said that she had not even discussed her parenting situation and any need for travel to Australia or any extra time off for such travel with her new employer. She explained this by saying she wanted to get the job and did not want to risk not getting it by telling them this.

2. I was left with a great deal of concern about the honesty of this evidence about her employment and its apparent inconsistency. It seemed to me that the mother quickly “changed tack” and started talking about this new job and the difficulties it presented for her to be able to continue coming to Australia when she realised the Court was particularly interested in her capacity to be able to continue to travel to Australia as frequently as she has in the past three years.

3. I was also troubled by the mother’s evidence about child support. It was common ground that she has not being paying child support to the father at all for the child whilst he has been in the father’s care. The mother asserted and wanted the Court to accept that she wanted to pay child support and had offered to pay the father $200 per week by bank transfer, but that the father told her he wanted her to pay him in cash. That, of course, could only be done if and when the mother was in Australia. She asserted that he wanted her to do that so that it did not affect his pension. She did not go on to give evidence that she had paid him in cash or that she had nevertheless set up the bank transfer that she preferred.  She rejected the proposition that she was not being truthful about this when it was put to her by counsel for the father.

4. I do not accept that her evidence about this was truthful. It was not something the father was cross-examined about but there are a number of reasons, apart from my overall assessment of the mother’s credibility, that I do not accept it. Firstly, I do not accept that the father, who was conscious of not being part trying to deceive the Australian Government through the visa application process, would then so readily try to deceive the same Government through the pension process. Secondly, I do not accept that he would prefer to wait until the mother was in Australia, as unpredictable as that event might be, to receive child support from her in the form of cash. Thirdly, I would not expect the father’s pension payments to be reduced on a dollar for dollar basis for each dollar of child support he received, so I do not think he would forego regular weekly bank transfers for the possibility of irregular cash payments made only when the mother was in Australia.

5. I consider the mother was not being truthful in her evidence about this issue and I am satisfied that her failure to pay child support to the father in any amount is demonstrative of her ill-feeling towards him.  I do not consider it is because of ill-feeling towards the child and there is no doubt that the mother appreciates that there are significant costs involved in raising and supporting a child. I am satisfied that ill-feeling could easily translate to a determination not to send the child back to Australia at the end of any holiday visit to Vietnam.

6. The mother categorically agreed with counsel for the ICL when he asked her whether she still wanted X to live with her permanently in Vietnam. Her counsel submitted to me that I should be satisfied that she did not correctly understand the question, but I was satisfied that she did. The mother came to Court that day apparently intending to prosecute her international relocation application and compromised that on the day. I accept that her preferred position remained one where X lived in her principal care in Vietnam.

Other relevant factors  

1. Vietnam, as I have observed, is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. If X was retained by his mother in Vietnam after travelling there on a holiday, the father could not rely upon the Hague Convention to try to secure his return. The mother adduced no evidence at all about family law in Vietnam or about any legal process by which the father could seek to lawfully effect a return of the child to Australia against the mother’s will. In contrast, the father asserted that he could not get any access to courts in Vietnam and he went as far as asserting that you only get what you want in Vietnam if you pay enough money. He asserted that corruption is rife and that, effectively, the rule of law cannot be relied upon, at least by non-Vietnamese people like him. Without going as far as saying I accept those assertions by him as being correct, I am satisfied that the father does not have the financial resources, the “practical” skills or the knowledge to be able to travel to Vietnam and secure the return of X to his care if X goes to Vietnam and is retained by his mother.

2. I was not satisfied to the requisite level that the mother could be unconditionally trusted to return X to Australia voluntarily at the end of each holiday period that he might spend in Vietnam if such was ordered. I am also satisfied that in such circumstances it would be most unlikely that the mother would facilitate, foster and promote an ongoing relationship between the father and the child, even if the father were to travel to Vietnam and make himself available to continue to have a relationship with X. I am not satisfied that the father could expect such an ongoing relationship to continue and be protected by the law of Vietnam in the absence of the mother’s consensual participation in that. I am not satisfied that the mother would consensually participate either.

3. On the other hand, the evidence does satisfy me that the mother cares enough about the child and her relationship with him that she will not simply abandon it if she is not able to have X spend time with her in Vietnam. She has consistently and regularly travelled out to Australia in the past three years. When she has been in Australia, the father has facilitated her time and her relationship with X. He has demonstrated that he is willing to and capable of doing that provided his concerns about maintaining his own relationship with his son are met.

4. I am not persuaded by the mother that her circumstances have, all of a sudden, become so different that she will no longer be able to come out to Australia to visit and spend time with X. I expect that she will continue to travel here as often as she can to maintain her relationship with her son.

5. Accordingly, I am satisfied that should X remain here in Australia he will most probably be able to maintain relationships with both of his parents. I am also satisfied that this will permit him to be exposed, as he continues to grow, to the Australian culture and also to the Vietnamese culture. His father deposes to various things he does to expose the child to aspects of Vietnamese culture here in Australia and I accept that he does that. Of course, it is not as good as if he was able to travel to Vietnam from time to time, but at least he is being exposed to some aspects of it here. I am not as confident that he would continue to be exposed to Australian culture if he was living with his mother in City C.

6. I consider that there is a risk of the mother not returning the child to his father in Australia if he spends holiday time in Vietnam at this relatively young age. The mother proffered a $10,000 security bond be ordered to be put in place by her prior to the child being permitted to travel to Vietnam. The ICL submitted that should be as much as $30,000.  The father opposed any such order, telling the Court in his oral evidence that he would not even think that a security bond of $100,000 would be sufficient to deter the mother from holding on to the child and that even that amount would not be sufficient for him to secure the return of the child.

7. I do not consider that an amount of $10,000 or even $30,000 would be sufficient security to deter the mother from taking steps to withhold the child if he went on a holiday to her home in Vietnam. The evidence demonstrates that the mother has, in the recent past, obtained an unsecured loan to the amount of EUR30,000, satisfying me that she could potentially get such funds again in the future and not even be too worried or concerned if she lost all that money, but nevertheless was able to hold onto her child in Vietnam.

8. I will make orders that provide for the child to spend generous amounts of time with the mother whenever she might be in Australia, but she will not be permitted to take him out of the country, at least until he is 13 years of age. That is the age when the father said he would consider the boy ought to be able to travel to Vietnam and the age that he agreed the boy’s name could be taken off the Federal Police Family Law Watchlist.   

9. My orders will allow for the child to spend any number of days in his Summer school holidays with the mother, up to a maximum of half of those holidays with the mother choosing when that time should start and finish within those parameters.

10. The orders will then allow for the child to spend time with the mother in any two out of the three remaining school holiday periods in any one calendar year. The mother may elect any number of days in the two holiday periods she chooses, up to the entirety of each of those two holiday periods if she can be here for all of them. The child shall have all of at least one of the three holiday periods with the father.

11. The orders will then also allow for the child to spend time with his mother for up to two weeks at a time in any school term. However, apart from the Summer school holiday period, should the mother be able to stay in Australia for longer than two weeks at a time, and any of that time is school term time, then the child shall not spend more than seven days at a time with the mother every fourteen of such days that fall within school term. This is to be understood as permitting the mother to have the child stay with her during school term either just before or just after the school holidays when she has him for the whole holidays, but such that he does not spend more than a week of such school term time with her in any one block.

12. My orders will provide for transitions of the child between the parents to take place at school on school days and otherwise at a local restaurant known to the parties.

13. The mother shall be required to give one week’s notice of her intention to exercise time with the child during school term but should she intend spending time with him during any school holiday period she shall be required to give the father at least four weeks’ notice in writing of that intention.

14. I make the orders set out at the commencement of these reasons.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 April 2018.

Associate: 

Date:  24 April 2018