Fong and Lam

[2016] FCCA 448

FEDERAL CIRCUIT COURT OF AUSTRALIA

FONG & LAM [2016] FCCA 448

Catchwords:
FAMILY LAW – Interim parenting orders – neither party had legal representation – both parties required interpreters.

Legislation:

Family Law Act 1975, pt.VII

Goode and Goode [2006] FamCA 1346

Applicant: MR FONG

Respondent: MS LAM

File Number: MLC 11368 of 2015

Judgment of: Judge Harland

Hearing date: 24 February 2016

Date of Last Submission: 24 February 2016

Delivered at: Melbourne

Delivered on: 24 February 2016

REPRESENTATION

The Applicant: Appeared in person

The Respondent: Appeared in person

ORDERS

1. The mother and the father are to have equal shared parental responsibility for the children X born on (omitted) 2005 and Y born on (omitted) 2009 (‘the children’).

2. Each party MR FONG born (omitted) 1958 and MS LAM born (omitted) 1968 their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children X born (omitted) 2005 and Y born (omitted) 2009 from the Commonwealth of Australia until further orders or until the child attains 16 years of age.

3. The children be and are hereby restrained from leaving the Commonwealth of Australia.

4. It is requested that the Australian Federal Police give effect to this order by placing the name of the children on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders its removal, or until the child attains 16 years of age.

5. This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 13 of the Family Law Regulations 1984).

6. The children are to live with the mother.

7. The children are to spend time with and communicate with the father as follows:

   (a)Each alternate weekend from 6.00pm Friday until 7.00pm Sunday; and

   (b)After school each alternate Tuesday until before school on Wednesday.

8. The father spend time with and communicate with the children during school holidays as follows:

   (a)Each alternate weekend from 6.00pm Friday until 7.00pm Sunday; and

   (b)Each alternate Tuesday from 9.00am until Wednesday at 5.00pm.

9. If the parties intend on filing further material in these proceeding, that material be filed by 18 July 2016.

10. The mother produce the children to the childcare facility at the 5^th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria at 9.00am on 28 June 2016.

11. Pursuant to s.11F of the Family Law Act 1975, mother and the children attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services on 28 June 2016 at 9.00am with the father to attend on 28 June 2016 at 10.00am at the Melbourne Registry of the Federal Circuit Court of Australia for the purposes of the preparation of a short form written memorandum, which the family consultant is to provide within seven (7) days.

IT IS NOTED that publication of this judgment under the pseudonym Fong & Lam is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11368 of 2015

MR FONG

Applicant

And

MS LAM

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is the first return date of the father’s application for parenting orders with respect to the parties’ two children, X, born on (omitted) 2005 and Y, born on (omitted) 2009.

3. The father seeks parenting orders on a final basis which would see the children live in an equal-time arrangement.  However, as I have explained earlier whilst having discussions with the parties, he is not seeking that kind of arrangement on an interim basis and the purpose of today is to determine what interim orders to make, that is, what orders will be in place until the Court further considers the issues at a further interim or final hearing.

4. The mother has filed a response and affidavit.  Both parties require the assistance of interpreters and both parties appear today without a lawyer which makes the process more difficult for everyone concerned.  The orders that the mother seeks are somewhat inconsistent with what she raises as concerns and her affidavit does not set out any reason as to why the children are at risk in their father’s care. She proposes time for the father to spend with the children but she seeks that time to be much less than what the father seeks. She raises issues of family violence and, in fact, the father attaches the intervention orders that had been in place before.

5. I note too that the mother says that she has been the primary carer of the children since birth and that the father has been uninvolved with the children.  She talks about being under chronic stress and it seemed that the suggestion was, certainly by implication, that the father’s application is more about child support than any other issue.  I glean that from the reference about the father wanting to seek 28% of the nights. Normally when people talk in those terms, it is about child support or family benefit payments which I believe, the mother also mentioned.

6. It is apparent from the mother’s affidavit that the father pays child support but it is a modest amount in accordance with a child support assessment.  It is apparent that the mother has had some assistance in preparing her affidavit, not necessarily by a lawyer but it certainly reads as someone who has had some assistance and my impression is that the mother is not entirely clear what her own affidavit says and what orders she was actually seeking. The mother may well want to seek legal advice to gain some assistance in understanding the Court process because it is not possible for the Court to give either party legal advice.

7. It is clear that there are many factual issues between the parties which are in dispute and it is not possible for the Court at an interim hearing such as this, to determine those factual matters.  The Court needs to look at the affidavit material and apply the principles set out in part VII of the Family Law Act 1975 (Cth) and principles set out in the Full Court decision of Goode and Goode [2006] FamCA 1346. There are three matters that the parties have agreed on in their orders. Firstly is that they should have equal-shared parental responsibility for the children. Secondly, that the children live with the mother. Thirdly, that the children be placed on the watch list.

8. The father seeks the children be placed on the watch list because he says the mother has threatened to take the children to China and he is concerned that she may take the children to China without him knowing and he would not see the children.  The mother in her response also seeks the children be placed on the watch list and it seems from what she was saying today that this is because she says she does not intend to take them to China and assures the father she has no difficulty with that order.

9. As I indicated earlier, the primary consideration I have is what is in the best interests of the children and that particularly when there is an order for equal-shared parental responsibility, which I note both parties seek, the Court then has to consider whether or not it is in the best interests of the children to spend equal time with each parent. As I stressed earlier, that is not an order that either party seeks for me to make today, although the father seeks to agitate that on a final basis which would be at a final hearing where evidence is tested and after a family report.

10. Where equal time is not ordered, the Court must consider whether or not the father spending substantial and significant time is in their interests and as I explained earlier, substantial and significant time includes time on the weekends and times during the week. The aim of that being that children benefit from having their parents involved in all aspects of their lives, not just leisure time on the weekends but also being involved in the more routine tasks during the week, including taking the children to and from school, supervising their homework and preparing meals for them.

11. The parents are in agreement that the father spends alternate weekends with the children.  Where they differed was with respect to on the mother’s case it being from 8:30am Saturday until Sunday at 7:00pm or on the father’s case from after school Friday until Sunday at 7:00pm.  During the course of discussions this afternoon, the mother proposed that it be from 6 pm on Fridays and the father said he would agree to that. The main issue in contention is time during the week.  The mother says that the father can have any time during the week after school for a couple of hours but opposes the father having overnight time.

12. The father seeks to have time from after school on Tuesdays until before school on Wednesdays.  It is clear from both parties that these children have a lot of activities.  The children attend Chinese school on Sundays and that takes up a significant time on their weekends, both when they are with their mother and with their father and clearly, given that both parents are Chinese, that is something they think is important for their children to be fluent in their family’s language and that is important for their cultural upbringing as well. 

13. What it means is that the parents’ leisure time with the children is limited. It also means that on the current arrangement that the father’s opportunity to be involved in assisting the children with homework,   after-school activities and to be involved with the school is limited.  On his proposal, if he collects the children from after school on Tuesdays and returns the children to school on Wednesdays, that means that the children will experience him being interested in their schooling and provides the father with the opportunity to talk to their teachers if they are there or see their school by taking them to and from school.

14. That means too that the father will have the opportunity of helping the children with their homework on that night.  In my view, I think it is in the children’s interests that the father has the opportunity to have that involvement.  The other benefit of the father’s proposal is that it means that the parents do not come into contact with each other over that handover and it means it is happening with school in between which will not cause stress to the children.  What I also propose to do as I indicated to the parties during discussions this afternoon is order that the parties and the children attend a child-inclusive conference with a family consultant on 28 June 2016. 

15. A family consultant will then issue a memorandum which the parties will receive and they will have the opportunity to have that translated and I will then have the parties come back to court in a duty list before me on Thursday, 28 July at 9.30 am.  On that occasion, I will consider whether or not the interim orders should remain in place until there is a final hearing or whether there should be some change. One of the benefits of having this arrangement in place is that the children will have experienced this time before they see the family consultant in June. If this arrangement is not working from their perspective or there is some problem or, indeed, if they would like more time, that is something that they will be able to raise with the family consultant and given the children’s ages, it is important that their voices be heard.

16. What I propose to do for the moment is to have those orders remain in place during school holidays as well so that this pattern will keep going every week, whether they are at school or not. When they are not at school during the holidays, the father will have the children from 9.00am on Tuesdays until 5.00pm on Wednesdays, but on the next occasion I would anticipate that one of the issues will be the time the father should have during the school holidays.  For the moment, I think it is important that this pattern of time have an opportunity to be in place for a few months. I would anticipate that barring any difficulties that the father should have more time than that during the school holidays, with the time during the school term suspended which is a more usual pattern, but that is not an issue I am going to determine today. It is something that will be considered both with the family consultant at that conference and when the matter is back in Court.

17. The final order that I am going to make for today is that if the parties wish to file further material for me to consider on the next occasion about what orders to make on an interim basis, then I will order that they file that material by 18 July 2016.  That will give both parties the opportunity to consider the report from the family consultant and to then raise any issues of concern about that.  I will not let either party rely on material that is filed after that date so it is important that they file that material on time if they want to file anything further.  I will have these reasons reduced to writing so that you will receive the reasons in writing as well as the orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  3 March 2016