FY and SYS and Anor
[2007] FMCAfam 2
•8 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FY & SYS & ANOR | [2007] FMCAfam 2 |
| FAMILY LAW – Parenting – biological father seeks that son 13 live with him – child expressing strong views not to see father – mother deceased – maternal aunt caring for child – no orders made for child to spend time with or communicate with father. |
| Family Law Act 1975 |
| H & W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | FY |
| First Respondent: | SYS |
| Second Respondent: | BB |
| File Number: | SYM 2262 of 2006 |
| Judgment of: | Sexton FM |
| Hearing dates: | 11, 12 and 13 December 2006 |
| Date of Last Submission: | 13 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Butland |
| Solicitors for the Applicant: | Alice Yang Solicitors |
| Solicitors for the First Respondent: | Rowley & Ross Solicitors |
| Solicitors for the Second Respondent: | Rowley & Ross Solicitors |
| Solicitor for the Independent Children’s Lawyer | Legal Aid Commission of NSW |
ORDERS
THE COURT ORDERS THAT:
All previous parenting Orders be discharged.
The child Christopher, born 30 May 1993 [“Christopher”] live with the maternal aunt, Ms SYS (“Ms Smith).
Ms Smith have sole parental responsibility for Christopher.
Ms Smith keep the father informed of her residential address and contact telephone number at all times and notify the father in writing within 7 days of any change of her residential address and/ or contact telephone number.
The father keep Ms Smith informed of his residential address and contact telephone number at all times and notify Ms Smith in writing within 7 days of any change of his residential address and/ or contact telephone number.
Ms Smith ensure at all times that Christopher has up-to-date information about the contact address and telephone number of the father and that such details are kept at a location in her home that is known and accessible to Christopher.
The father communicate with Christopher by sending him letters, cards and gifts and Ms Smith do all things necessary to ensure that any letters, cards or gifts sent to the child by the father or his family are received by Christopher.
Ms Smith do all such things as are reasonably necessary to facilitate Christopher communicating with the father by mail or telephone or spending time with the father at any time that Christopher requests to do so.
Ms Smith to provide the father with a written report as to Christopher’s welfare and progress by no later than 31 May 2007 and six monthly thereafter.
Ms Smith forward to the father within 14 days of their receipt, copies of Christopher’s school reports and school photographs each year and notify the father as soon as reasonably practicable of any serious illness or injury suffered by Christopher.
There be no order for Christopher to spend time with the father and the father not communicate with Christopher except as provided in these Orders, noting that Christopher is at liberty to communicate or spend time with the father at any time at Christopher’s initiative .
Ms Smith be permitted to travel outside the Commonwealth of Australia with Christopher and be permitted to apply to renew Christopher’s passport for the purpose of facilitating such travel.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 2262 of 2006
| FY |
Applicant
And
| SYS |
First Respondent
And
| BB |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for Christopher aged 13 years. Christopher’s parents were married in China and separated there when he was a few months old. They divorced in 1996. Christopher and his mother migrated to Australia in 2000 when Christopher was 7 years of age. He has lived in Sydney since then. The father has lived in China. The mother commenced an internet relationship with the second Respondent, Mr Brown in September 2005 but only lived with him for a few days before being hospitalised with a serious illness at the end of November 2005. On 14 December 2005 the mother died.
The father came to Australia on 23 December 2005, shortly after the mother’s death but Christopher remained living with Mr Brown until he left Australia alone on 25 December 2005 to stay with his mother’s family in China. The father did not accompany Christopher to China. Christopher and his maternal aunt, the First Respondent, returned to Australia at the end of January 2006 to enable Christopher to continue his schooling at CHS. Christopher has since lived with his maternal aunt who shares rented accommodation with Mr Brown in Metropolitan Sydney. They are not in a relationship. The father has been in Sydney for a substantial part of 2006. Christopher is adamant he wants nothing to do with his father.
The father strongly believes that Christopher should live with a biological parent in preference to anyone else. In his original Application filed in January 2006, the father sought an order that Christopher live with him, that he have sole parental responsibility for his care and that if he is unable to live with Christopher due to Australian visa problems that Christopher be looked after by the Department of Community Services in New South Wales. In his Amended Application filed in March 2006, the father seeks an Order that Christopher live with him. At the time of hearing, the father seeks an order that Christopher live with him and that he ensure Christopher communicates with his maternal family by electronic means at any reasonable time. The father says he will undertake to take Christopher to China at least every 12 months and will facilitate him spending time with his late mother’s family for up to 4 weeks a year. He says he cannot understand why “these people get involved in custody of my son.” He told Mr Lodge, the family reporter that the maternal aunt and Mr Brown have turned Christopher against him to enable the maternal aunt to achieve permanent residence status in Australia.
Christopher spent only two short periods with the father between 2000 and the time of his mother’s death, both when he was holidaying in China with his mother. Christopher has met with his father only twice since his mother died. The first time on 24 December 2005 for a short meeting at a railway station in the presence of Mr Brown and the second time at the Sydney Registry of this Court when interviewed for the Family Report. The father says he went to Christopher’s school twice during 2006 but Christopher would not meet with him. His December 2006 school report[1] states “Christopher displayed distress when his father has visited the school or was attempting to make contact outside the school.”
[1] Exhibit 3
The maternal aunt seeks an order that Christopher remain living with her. She says this is what Christopher wants, what his mother would have wanted and what her extended family want. Mr Brown supports the maternal aunt’s application. Mr Brown tells the Court he will return to live near his parents in India when these proceedings are finalised and no longer seeks a specific order that Christopher spend time with him. He intends however, to remain in contact with Christopher and to assist him financially if necessary. The maternal aunt is living in premises rented by Mr Brown and intends to remain living there. She intends to apply for permanent residence if the Court permits Christopher to live with her.
The maternal aunt and the father agree that Christopher will remain living in Australia so he can complete his education at CHS, a co-educational Selective High School.
Mr Paul Lodge, an experienced Family Consultant, prepared two Family Reports. He recommends that Christopher live with the maternal aunt in accordance with Christopher’s strongly held views, and that he not be forced to spend time with or communicate with his father. Christopher refused to meet with his father during interviews. When the father managed to gain access to Christopher (without the consent of either Christopher or Mr Lodge), Mr Lodge says the meeting was destructive. Mr Lodge observed Christopher’s reaction to his father as contemptuous and scornful. In Mr Lodge’s view, whether or not Christopher ever enjoyed a close relationship with the father, Christopher no longer has a relationship with him. Mr Lodge believes the relationship is most unlikely to develop and that the father’s decision to pursue his application in the face of Christopher’ strong opposition to seeing him, will further damage any prospects of reconciliation in the future. If the Court orders that Christopher spend time with the father, Mr Lodge believes Christopher will respond in a hostile and negative way.
The Independent Child Lawyer seeks orders in accordance with Mr Lodge’s recommendations.
This is a sad case. I am in no doubt that the father believes he has a duty to look after his son and badly wants to fulfil this strong sense of duty. I believe the father is confused as to why, as his only living parent, the Court does not automatically grant him ‘custody’ of Christopher. He believes he has a ‘right’ as a father to have his only child live with him. The father demonstrated no understanding of what Mr Lodge said in evidence, nor as to what he said in his reports. The father was incredulous as to Christopher’s strongly expressed views and simply could not accept them.
Background
This Court made Interim Orders on 30 May 2006 providing for Christopher to live with the maternal aunt, for the father to be at liberty to email and telephone Christopher and for the father to see Christopher once a week under the supervision of either the maternal aunt or Mr Brown. At the time, the Court noted that the maternal aunt and Mr Brown had no objection to Christopher spending time with the father but believed Christopher would not willingly do so. The maternal aunt says Christopher refused to talk to the father when the father telephoned him on a number of occasions after the Interim Orders were made, despite herself and Mr Brown telling Christopher how important it was for him to talk to his father.
The maternal aunt is 46 and the father is 56. The maternal aunt lived in China until the end of January 2006. She is married and her husband remains living and working full time in China. Their only child, a daughter aged 22, is at university in Beijing. The maternal aunt has two other sisters who live in China. She refers to her “very happy family”. The maternal aunt says she would rather Christopher studied in China but understands his reluctance to do so, given his inability to read and write in the Mandarin language, and his close connection to his peer group in Sydney. When her sister first died, she tells the Court she expected Christopher to live with the father. However, in the light of Christopher’s views, the maternal aunt has decided to stay in Australia to care for Christopher at least until he completes his schooling.
Mr Brown tells the Court he will return to India to live when these proceedings have been finalised. Nevertheless, the father’s counsel cross-examined Mr Brown at length about his criminal record and his financial position. Mr Brown has two convictions for obtaining benefit by deception[2] when acting as a migration agent in Melbourne, which resulted in a debt to a bank of $23,000.00. He says he still owes approximately $15,000.00. He says he will return to Australia once a year if Christopher is living with the maternal aunt. Given Mr Brown is not seeking any orders in relation to Christopher, I am not persuaded the evidence concerning Mr Brown’s criminal history and financial position has particular relevance.
[2] Exhibit 5.
The father, the father’s mother and the father’s extended family live in China. The father says he has sold his business and his real estate in China to pursue his Application for Christopher to live with him. The father does not adduce evidence of his current visa status. He says if Christopher is living with him, he will seek permanent residence so Christopher can continue at CHS.
Neither the maternal aunt nor the father speak or understand English. The case was therefore conducted with the assistance of interpreters in the Mandarin language with all the usual difficulties.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 65K provides that if a parenting order is in force providing for a child to live with one of the parents, that parent dies, and the orders do not provide for what is to happen in the event of that parent’s death, the surviving parent cannot require the child to live with him or her. This is the position here. The Order of a Chinese Court annexed to the father’s affidavit, dated 20 March 1996 which provides for Christopher to live with his mother, does not provide for what should happen in the event of her death. The father cannot therefore require Christopher to live with him.
Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) which includes “any other fact or circumstance that the court thinks is relevant.” In the present case, the protagonists are not the two parents, but rather the maternal aunt, supported by Mr Brown, and the father. I therefore have regard to the relevant subparagraphs of section 60CC by reference to the maternal aunt and the father. Section 60CC(4) requires me to consider also the extent to which each parent has fulfilled his or her parental responsibilities, including the obligation to maintain the child, and has facilitated the other parent in fulfilling his or her parental responsibilities. I must have regard to events that have happened and the circumstances that have existed, since the separation occurred.
Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The primary considerations
The benefit to the child of having a meaningful relationship with both the child’s parents
Christopher’s mother died 12 months ago. The father is therefore his only living parent. In Mr Lodge’s view, it is not possible for Christopher to have a meaningful relationship with his father because he has no attachment to him. He says[3] that Christopher:
has not spent sufficient sustained periods of time with his father during his formative years, to enable the development of an emotionally meaningful attachment relationship between them. This factor partially explains Christopher’s dispassionate demeanour when he is criticising his father and his apparent indifference to his father’s reactions to such criticisms.
[3] At page 7 of exhibit 2.
It is common ground that Christopher has had very little time with the father since he left China to live in Australia early in the Year 2000. On the father’s version of events, Christopher spent 2 weeks with him in 2001/2 and another 2 weeks with him in 2003/2004 each time in China. On the maternal aunt’s version, Christopher and his mother stayed with her during those visits and Christopher spent no more than 1-2 days with the father on each occasion.
From the time of his parent’s divorce in 1996 until early 2000, the father says he was on good terms with Christopher’s mother, lived close to her and spent time with Christopher every day or two. He says he had a close relationship with Christopher. When asked why he did not see Christopher when Christopher returned to China for a holiday in mid-2000, the father says he was unavailable due to his own father’s illness. The maternal aunt says the mother and Christopher lived with the mother’s mother after the mother’s divorce and the father only visited once during that four year period. When interviewed by Mr Lodge, Christopher could remember very little about any interactions with his father that might have occurred prior to his migration to Sydney. The few events he could recall and describe suggested to Mr Lodge that Christopher felt rejected by his father. In Mr Lodge’s view, which I accept, had Christopher enjoyed a strong relationship with the father early in his life, Christopher would recall something positive about him and would demonstrate at the very least some ambivalence towards seeing him again. I therefore prefer the maternal aunt’s recollection of events prior to 2000 to the father’s.
Mr Lodge says that because Christopher has no attachment to the father, there is no possibility of Christopher developing a meaningful relationship with the father in the foreseeable future. He says Christopher should be given his father’s contact details and the father should receive information about Christopher’ progress at school and his welfare generally, so that if Christopher does decide to communicate with the father in the future he can do so. In Mr Lodge’s opinion, though he admits it may be a difficult course of action for the father, the father should remain available to Christopher and support him from a distance in whatever way he can. Mr Lodge believes that if the Court were to make an Order that Christopher live with the father or that Christopher be compelled to spend time with or communicate with the father, it is highly unlikely Christopher would comply with the Order. This is so despite the maternal aunt and Mr Brown telling Mr Lodge that Christopher is generally respectful of authority.
Mr Brown says he spoke to Christopher’s mother only twice about the father during their relationship. The mother asked him never to discuss the father with her. She told Mr Brown her relationship with the father was abusive and that she wanted to forget it forever. Shortly before her death, Mr Brown says he asked the mother if she wanted him to call the father. She said that she had told him never to mention the father and refused to discuss it. I accept Mr Brown’s evidence on these matters. I was concerned that the mother’s attitude, if communicated to Christopher, may have made it impossible for Christopher to accept the father. It is noteworthy that Mr Lodge says the source of Christopher’s negativity makes no difference to his assessment of the prospects of a relationship developing between Christopher and the father. Mr Lodge says Christopher’s attitude is “resolutely antipathetic”.
I am satisfied, on the evidence of Mr Lodge, that Christopher does not have a meaningful relationship with the father and if there is any chance of such a relationship developing, Christopher must be the initiator.
This is a factor to which I give substantial weight.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
There is no evidence to suggest Christopher is at risk of physical harm whatever Orders the Court makes. In Mr Lodge’s view, Christopher may suffer psychological harm in the form of heightened anxiety if the Court compels him to spend time with or communicate with the father. The father’s counsel submits that the Court should order Christopher to meet with his father in a therapeutic setting so Christopher can gradually resume a relationship with the father. Mr Lodge sees no benefit for Christopher in any such Order. This is a factor I take into account.
The additional considerations
The child’s expressed views and the weight those views should be given
This is a significant issue in this case. In his May 2006 report[4] Mr Lodge says:
Christopher was emphatic in his view that he does not want to live with his father or have contact with him. He indicated that he does not feel close to his father…he advised that he has told his father that he would prefer to live with his maternal aunt and indicated that he was therefore angry with his father for persisting with Family Court proceedings.
[4] Exhibit 1.
Christopher has expressed his view clearly and consistently to the maternal aunt, to Mr Brown, to Mr Lodge and to the Independent Child Lawyer, that he will not spend time with or communicate with his father under any circumstances.
Mr Brown was with Christopher when the father rang him on 24 December 2005, 10 days after his mother’s death. I accept Mr Brown’s largely unchallenged evidence as to what occurred between Christopher and the father on 24 December 2005. Mr Brown asked Christopher if he would be happy to live with the father. Christopher said “I don’t want to live with my father”. Christopher told Mr Brown at that time he wanted to live with one of his aunts or if they are unable to come to Australia, he wanted to live with Mr Brown. The father asked to meet with Christopher that day. Mr Brown reports Christopher saying “I don’t want to meet him (the father).” I accept that Mr Brown insisted Christopher at least meet with his father but remained with him for the meeting at the Railway Station, the location chosen by the father. Mr Brown believes he understands what was said between Christopher and his father although the conversation was in Mandarin and he only understands a few Mandarin words. Mr Brown says he told Christopher what to ask his father and Christopher followed his lead. The father asked to see where Christopher was living and he and Christopher took the father to see their home. Christopher told his father he was leaving for China the following day until the end of January. Christopher asked his father when he was returning to China. The father told Christopher he did not know. The father declined to tell Christopher where he was staying in Sydney.
Mr Brown says on the one occasion the father came to their home during 2006 to see Christopher, Christopher refused to go out with him. Mr Brown said he went with Mr Brown’s encouragement. Christopher took his mobile phone and asked Mr Brown to call him after a few minutes so he would have an excuse to return home. When Mr Brown rang as requested after a few minutes, Christopher was already on his way home. Again, I accept Mr Brown’s unchallenged evidence as to what occurred when the father visited during 2006.
I accept the evidence of Mr Brown and the maternal aunt when they say Christopher has told them many times he wants nothing to do with the father. I accept Mr Brown’s evidence that in October 2006, Christopher told him how he managed to avoid the father when the father followed him and his friends to the train station. I accept Christopher has expressed his opposition to spending time with the father in the strongest of terms “if my father looks after me I will kill myself.”
Mr Butland, the father’s counsel argues that Christopher’ refusal to relate to the father may be based in an apprehension that spending time with or living his father would mean he would have to return to live in China. Mr Butland submits that Christopher would be justified in fearing a return to China given he cannot read or write in the Mandarin language. Counsel asks the Court to accept that Christopher associates his father with a need to return to China. He argues that if the Court orders compulsory counselling, Christopher will soon realise his father has no intention of forcing him to return to China, but will support him to stay at his present school until the completion of his secondary schooling. He contends this would moderate Christopher’s negative opinion of his father. I do not accept counsel’s submission. Mr Brown says Christopher has never mentioned in his many conversations with him about the issue, that living with his father would mean living in China. Mr Lodge states in his first report that Christopher’s views about his father “are unambiguously negative.” In his second report he describes Christopher’ “unrelenting and unequivocal hostility towards his father”. In Mr Lodge’s opinion, it does not matter whether Christopher associates his father with living in China or not, his views are unequivocal. Mr Lodge is in no doubt that Christopher would refuse to live with or spend time with the father whether the father was living in Australia or in China.
In his September 2006 report, Mr Lodge says:
When asked what he would say if he could talk directly to “The Judge” he replied, in a detached and deliberate manner ‘I definitely wouldn’t want to stay with him (i.e.: his father) even for a holiday, no telephone, no contact whatever, no letters.’ Christopher advised that he was not concerned that his father would read his comments in the Family Report.
Mr Lodge does not believe communication between Christopher and the father could be assisted in a therapeutic setting given Christopher’s very definite views. He describes Christopher “as an intelligent and articulate thirteen year old.”
The Full Court in H & W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
I am satisfied that Christopher means what he says and has the maturity to understand, at least in the foreseeable future, what it will mean to have no communication of any kind with the father. I give Christopher’s expressed views significant weight in reaching my decision.
The nature of the relationships between the child and each parent and the child and other persons
Mr Lodge assessed Christopher as having enjoyed a close relationship with his mother. He says Christopher is protective of his mother.
I accept Mr Lodge’s view that Christopher has a close relationship with his maternal aunt. The maternal aunt told Mr Lodge she has been like a second mother to Christopher all his life. She says Christopher is close to her family and speaks to them once or twice a week on the phone. Christopher confirmed with Mr Lodge that he either lived with or close to his maternal aunt until he migrated to Australia. He then spent 3-4 weeks with his maternal aunt in China in 2000, 2001/2 and 2003/4 and from 26 December 2005 until 26 January 2006, before living with her in Australia.
I accept Mr Lodge’s view that Christopher enjoys an “avuncular” relationship with Mr Brown. Mr Brown says he has told Christopher he will support him in whatever way works for Christopher, and has no negative intention in relation to the father. I accept Mr Brown travelled to the mother’s birthplace in China with her ashes, at considerable personal cost. I am satisfied Mr Brown is committed to Christopher’s welfare and was his main support immediately following his mother’s death. Given Mr Brown is leaving Australia shortly, I do not give significant weight to this finding.
As already noted, I am persuaded Christopher spent minimal time with his father from the time of his parents’ divorce until 2000. I found the father’s further evidence about his history of contact with Christopher inconsistent. Despite only seeing Christopher twice between 2000 and the end of 2005, the father says their relationship remained “good” until the mother died. He deposes to telephoning Christopher and the mother “frequently”, “several times a month on average” after they migrated to Australia, though in cross-examination, says he telephoned Christopher or the mother only 5-10 times a year, not always speaking to Christopher when he called. When they did speak, the father says he spoke to Christopher about his schoolwork and “I used to verify with the mother that all was well.” He says he did not visit Australia because the mother told him not to “I did not want to affect their life.” The father told Mr Lodge he spent time with Christopher and his extended family in China once in 2001/2 and again in 2003/4 for 2-3 weeks each time. In 2004 he says he took Christopher to visit his grandmother and to visit the tomb of his maternal grandmother. He says he had planned with the mother to visit Christopher at the end of 2005. He told Mr Lodge his “very good relationship” with Christopher ended when the mother died. He says “something has happened” “they (the maternal aunt and Mr Brown) are using my son as a weapon to deal with me.” However, in his affidavit, the father deposes to having telephone contact with Christopher every day once he learned the mother was admitted to hospital and to talking to him “a few times” after the mother’s death.
The father vehemently disagrees with Mr Lodge’s assessment of the quality of his relationship with Christopher. As already noted, Christopher presented to Mr Lodge as having no attachment to his father. Mr Lodge says two meetings in 6 years are not enough to sustain an attachment between a child and a father even if there had been an earlier attachment, which he doubts.
It is common ground that Christopher’s meeting with his father on 24 December 2005 was strained and distant. Christopher found it difficult to relate to his father and according to Mr Brown, needed Mr Brown to prompt questions. The father would not give Christopher his address when he asked for it and the father told him he was not returning to China with him. Following the meeting Christopher told Mr Brown he did not want to see the father again. The father did not farewell Christopher at the airport nor did he provide him with any financial assistance. Mr Brown paid for Christopher to return to China on 25 December 2005. I do not accept the father’s evidence that the father knew nothing about Christopher going to China.
Christopher denied the father’s assertions as to the nature of their relationship before his mother’s death and as to the frequency of their contact. He told Mr Lodge he might have spent 1-2 days with his father when holidaying with his mother in China in 2001/2 and 2003/4 but otherwise spent those holidays with his mother, his maternal aunt and his mother’s extended family. Christopher denied the father had phoned him regularly since he has lived in Australia. Mr Lodge says it is certainly Christopher’s view that he spent more time with the maternal family than with his father and the paternal family in his early years.
The maternal aunt told Mr Lodge the father “has been a disinterested, unsupportive and at times aggressive parent”…. “his father never loved him”. She told Mr Lodge the father never sent Christopher a birthday card or birthday gift and made very little effort to provide him with any kind of support. I accept this evidence which I find is consistent with the father’s total lack of emotional or financial support to Christopher following his mother’s death.
I prefer the evidence of the maternal aunt to that of the father in relation to the history of the father’s contact with Christopher. The maternal aunt’s evidence is consistent with Mr Lodge’s observations. The father’s is not.
I am satisfied Christopher is close to his maternal aunt and is closely connected to his mother’s extended family. I am satisfied Christopher has no relationship of any meaning with the father. I give this factor significant weight in reaching my decision.
The willingness and ability of each parent, and in this case, each party, to facilitate and encourage a close and continuing relationship between the child and the other parent
Having regard to the evidence of the maternal aunt and Mr Brown, I am satisfied the maternal aunt will facilitate any arrangements necessary for Christopher to spend time with or communicate with the father if Christopher wishes to do so. The maternal aunt and Mr Brown arranged for Christopher to meet with his father on 24 December 2005. The aunt had asked the father to attend the mother’s funeral and to bring Christopher back to China. The aunt believed when her sister died, the father would care for Christopher. The maternal aunt says she would consent to an order requiring her to telephone the paternal grandmother each fortnight, but doubted Christopher would agree to call. I accept her evidence. The maternal aunt impressed me as a frank and honest witness who is genuinely committed to Christopher’ welfare. I am satisfied the aunt has encouraged Christopher to have some kind of relationship with the father since his mother’s death, and would continue to do so if Christopher wanted it.
In contrast, there is no evidence to suggest the father has attempted to forge a relationship with the maternal aunt or the mother’s extended family for the sake of Christopher. The maternal aunt deposes to the father making no attempt to contact her or her relatives after 24 December 2005. The father gives no evidence of any attempts he has made during 2006 to communicate with the maternal aunt.
The father says he does not trust the maternal aunt or Mr Brown. I am therefore not satisfied the father would facilitate Christopher’s relationship with his maternal aunt or his mother’s extended family in the event Christopher were to live with him.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living
Christopher has lived in Sydney since he was 7. He wants to remain living here and wants to continue to attend CHS. All parties agree that to remove him from his school and his friends would be very distressing for Christopher.
Christopher holds a strong view that he wants to remain with his maternal aunt. He is close to his aunt. He has recently lost his mother. He does not want to live with the father. On the evidence of Mr Lodge, the maternal aunt and Mr Brown, I am in no doubt that to move Christopher from his present living circumstances would cause him significant distress and pain. This is a factor I take into account.
The practical difficulty and expense of a child spending time with and communicating with a parent
Although I accept that the father may return to China, this is not a factor to which I give consideration.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs
There is limited evidence before me as to the father’s capacity as a parent. Christopher has not lived with the father since 1996, has not spent regular time with him between 1996 and 2000 and has spent at best only 4 weeks in total with him in the last 6 years. The maternal aunt says Christopher has spent only a few days with his father since 1996 and has taken very little interest in his welfare since that time.
The father says he is a computer engineer with a university degree. He deposes to being committed to Christopher’s education, health and personal development and to being competent to manage all aspects of Christopher’s care. He claims to be in a position to assist with Christopher’s education, particularly in the field of mathematics, physics and computing science. He says he can give his son moral guidance and teach him appropriate values. He says he is competent domestically and can care for Christopher day to day. He says he has no criminal convictions and does not abuse alcohol or drugs. He is confident that if Christopher were to live with him, he would succeed in his application for permanent residence in Australia. He says he can afford to take Christopher to China to see his mother’s relatives and his own family every year.
Despite what the father says he can offer Christopher, I find the father has demonstrated limited commitment in the past to providing Christopher with any of these opportunities. On his own evidence he has provided only 18,000RenMinBi in financial support for Christopher in the last 10 years, the equivalent of $3,200.00 in Australian dollars at today’s exchange rate. He has provided no financial support to Christopher in the year since the mother died. He deposes to having taken out insurance for Christopher in China to help with Christopher’s educational expenses for his final years of school and for university, but adduces no evidence as to whether those funds will be available to Christopher if he is not in the father’s care.
In relation to his educational needs, on his own evidence, the father has paid for a computer for Christopher and has reprimanded him by telephone if the mother has ever said Christopher is not concentrating on his school work. However, the father has had no practical involvement in Christopher’ schooling or extra curricular education.
I am not satisfied the father has insight into Christopher’ emotional needs. Despite Christopher spending little time with his father since he was very young, Mr Lodge says the father reacted angrily when advised Christopher does not want to live with him or have any contact with him, and blamed the maternal aunt and Mr Brown for Christopher’s attitude. Mr Lodge says “he [the father] suggested they are trying to force him to kill himself by placing him under extreme stress. He strongly believes that he has been denied his natural rights as a father. He speculated that Christopher’s rejection of him may be because “they have threatened to kill my child if he sees me.” At the September 2006 interviews, the father told Mr Lodge “I think the child is controlled by Mr Brown and the aunt for visa purposes and for the mother’s assets.” The father shows no respect for Christopher’s stated views, nor has he tried to understand these views from Christopher’s perspective. He appears concerned only for himself and his own needs. When asked in cross-examination what strategies he would use to encourage Christopher to relate to him, the father said “I will tell him I am the father.” He has made no attempt to consult the maternal aunt or Mr Brown about how he might best assist Christopher. He insisted on seeing Christopher at the Family Report interviews, despite being well aware of Christopher’s wish not to see him. I can find no evidence of steps taken by the father to assist Christopher in any way since his mother’s death. I find the father demonstrates no insight into the damaging effects of this litigation on Christopher.
On the other hand, the maternal aunt presents as an unusually self-sacrificing individual who has selflessly disrupted her own life to meet Christopher’s needs. She has moved to Australia, away from her husband, her daughter and her extended family who live in China, in order to support her nephew who needs the security of continuing in the same school with the same friends after his mother’s death. The maternal aunt frankly concedes this situation is not what she wanted for herself. She would prefer Christopher to return to China with her or to live with his father. However, because this is not what Christopher wants, she is prepared to stay in Australia to care for him, in accordance with his wishes. I am satisfied the maternal aunt can meet Christopher’s emotional needs.
The maternal aunt looks after Christopher day to day. She says he goes to school and does martial arts twice a week. The maternal aunt was cross-examined by the independent child lawyer in relation to Christopher’s attendance records at school. The records show Christopher was often late to school in 2005 and 2006. The maternal aunt says the school contacted her and she spoke to Christopher about his attendance and he has since improved. According to his school reports, Christopher is performing at just below the middle of the class. He has improved in English, but otherwise his performance has been consistent in Years 7 and 8. Mr Brown says he does provide Christopher with some assistance with his school work, but believes the maternal aunt is equally capable of providing Christopher with the necessary encouragement and support, once he has returned to India. The maternal aunt says she is determined Christopher will enjoy the same opportunities educationally as her own daughter, who has achieved well, and is now attending university in Beijing. I am satisfied, with the assistance of the school, the maternal aunt has the capacity to support Christopher intellectually.
The maternal aunt is supporting Christopher financially with some minor assistance from Mr Brown. She says her husband earns approximately 15000 RMB a year and they own their own home in Jilin. Her husband has been sending her funds. The maternal aunt receives a “high” pension and her sisters help her financially. She says she will return to China when Christopher is 18 but will stay on “if he needs me.” She intends to learn English if Christopher is to live with her in Australia. She hopes to run her own business. She is receiving no government support nor any support from the father. I am satisfied the maternal aunt can meet Christopher’ financial needs. Mr Brown gave some evidence as to Christopher’s likely inheritance. He expects Christopher to receive the whole of his mother’s estate which includes $20,000.00 in cash, life insurance of approximately $125,000.00 and a superannuation entitlement. It is therefore possible that Christopher will be in a position to assist with his own financial support.
The attitude to the child and to the responsibilities of parenthood demonstrated by each parent
The maternal aunt tells the Court that she has a special customary responsibility to care for Christopher as the mother’s oldest sister. She told Mr Lodge it was her sister’s wish that she care for Christopher in her absence. She says she had no wish to come to Australia at the end of January 2006 but the mother’s relatives asked her to come. The maternal aunt says she wanted Christopher to study in China but he was reluctant to do so because of his lack of skills in Mandarin. She says she is willing to keep the father informed of information concerning Christopher’s education and health if Christopher continues to live with her. She says she is willing to encourage Christopher to remain in contact with his paternal family if he wishes to do so.
As already noted, I am satisfied both the maternal aunt and Mr Brown have encouraged Christopher to communicate with the father and intend to provide Christopher with every opportunity to contact the father should he wish to do so. The maternal aunt says she will comply with any order requiring her to ensure Christopher communicates with his paternal family. Her concern is Christopher’s likely negative attitude to such an order. In Mr Lodge’s opinion, it would be very difficult for anyone to obstruct a relationship between Christopher and the father, because no relationship exists.
The father is angry about the maternal aunt’s involvement in Christopher’s life. He does not trust the maternal aunt. He believes she and Mr Brown are fully responsible for Christopher’s negative attitude towards him. The father takes no responsibility for the position in which he finds himself. He pays no regard to Christopher’s views. I find it unlikely that the father would encourage a relationship between Christopher and his maternal family if Christopher were to live with him. This is a factor I take into account.
The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Both the maternal aunt and the father are Chinese with extended families living in China. The maternal aunt says Christopher speaks to members of his extended family in China twice a week and she intends visiting China with him twice a year if he lives with her. The father says if Christopher lives with him, he will take him to China for a month each year. On either party’s proposal, I am satisfied Christopher will enjoy the benefits of his Chinese heritage.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision–making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child
As already noted, I find the father has had limited involvement in Christopher’s life at least since he and the mother divorced in 1996. Even on the father’s evidence, the father has provided almost no emotional support, and very little financial assistance to Christopher since the mother and Christopher migrated to Australia 6 years ago. The father has not provided Christopher with support of any kind since the mother died 12 months ago.
I find the maternal aunt has done her best to fill the void left by the mother’s death in caring for Christopher. She has provided Christopher with emotional and financial support and ensured the continuation of his education at CHS. She has demonstrated an extraordinary commitment to Christopher’s welfare.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested
This factor is not relevant.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable
Given Christopher’s strongly expressed views, his age and level of maturity, I am satisfied contravention proceedings are likely if the Court orders Christopher to spend time with or to communicate with the father.
Parental responsibility
Section 61C(1) provides that each parent has parental responsibility for the child but section 61C(3) provides the joint parental responsibility is subject to any order the Court may make. Parental responsibility relates to decision making. Section 61DA, which requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In my view, the presumption has no application to orders for parental responsibility made in relation to others who are not parents.
The father’s counsel submits the Court should order the father and the maternal aunt to share parental responsibility for Christopher. He contends the father’s involvement in major decisions about Christopher’s welfare, particularly as they relate to his education, will be in Christopher’ best interests. The father’s counsel submits the father was poorly informed about the mother’s death and therefore distrusted the mother’s family. Counsel submits the father has had documents read to him by the interpreter during the course of the hearing which has caused the father to change his attitude to the mother’s family. Counsel submits the father should therefore be permitted to play some role in Christopher’s life. I am not satisfied counsel’s submissions are supported by any evidence. The father gave no indication in cross-examination that he had changed his attitude to the maternal aunt and/or Mr Brown. In any event, I find counsel’s submissions are focussed on the welfare of the father rather than on the welfare of the child. They ignore the evidence of Mr Lodge as to the nature of the father’s relationship with Christopher.
Mr Ross for the maternal aunt and Mr Brown, and the Independent Child Lawyer, submit the maternal aunt should have sole responsibility for decisions about Christopher, both long term and short term. Both submit it would be impractical for the maternal aunt to consult with the father about decisions concerning Christopher given the father’s attitude towards the maternal aunt, and given his failure to appreciate Christopher’s wishes and needs.
It is common ground that the father and the maternal aunt have not cooperated to make decisions about Christopher’s welfare since the mother’s death. The father commenced these proceedings without consulting the maternal aunt. The father has adduced no evidence of any attempts made by him to consult with the maternal aunt about Christopher.
Mr Lodge has concerns about the father’s ability to co-operate in decision making and believes he would be unlikely to agree with the maternal aunt. He says the mutual mistrust and antipathy between them would make sharing parental responsibilities impractical. This would be made worse if the parties lived in different countries. I agree with Mr Lodge that an order for the father and the maternal aunt to share parental responsibility would be unworkable. I agree with Mr Lodge’s recommendation, supported by the Independent Child Lawyer that the maternal aunt should have sole responsibility for all decision-making concerning Christopher.
Conclusion
Christopher wants nothing to do with the father. In Mr Lodge’s view, there is nothing the father can do to change Christopher’s view. Christopher is mature and articulate and according to Mr Lodge, understands the implications of not spending time with, or communicating with his father, at least in the foreseeable future. As already noted, I accept the evidence of Mr Lodge that Christopher has no current attachment to his father and it is improbable he will ever form a relationship with him.
The father says “I must fulfil my responsibility as his father” as he has fulfilled his duty to care for his own father when his father was ill. His view is a fixed one. He believes that as Christopher’s biological father, he has a right to have Christopher living with him, whatever the nature of their relationship, and however Christopher feels about it. It is noteworthy that the father’s position did not change after the release of the Family Report, nor after hearing Mr Lodge’s evidence early in the hearing. I find the father has no interest in any other position than his own.
The father says the Court should make an order that Christopher live with him. Although not instructed to amend the orders he was seeking, the father’s counsel submits that Christopher would be advantaged by an order requiring him to at least meet with his father. Mr Lodge says an order for ‘minimal’ contact would be pointless: It would lead to a build up of anxiety for no good purpose. I find the only basis for the father’s counsel’s submission is the father’s needs. I find the father is focussed on his needs rather than on Christopher’s needs. I have concluded that if I were to order Christopher to spend time with or communicate with his father, I would be creating an artificial arrangement for Christopher, which would not be in his best interests.
As conceded by the father’s counsel, given the strength of Mr Lodge’s evidence, it would be difficult for the Court to justify the making of Orders as sought by the father. However, despite the clarity and compelling nature of Mr Lodge’s evidence, the father did not amend the orders he was asking the Court to make. I do not expect the father to readily accept the Orders I have made or to seek to understand the Reasons for the Orders. Regrettably I have formed the view that the father sees this case as a win/lose alternative. The father says that if Christopher lives with the maternal aunt, she must take all responsibility for his welfare without assistance from him. I am not satisfied his attitude will change. He has had the opportunity to provide Christopher with support in the past and has chosen to do so in a very limited way. Since the mother’s death, he has not offered any financial or practical assistance of any kind to the maternal aunt or Mr Brown who have accepted the financial and emotional responsibility for Christopher’s care. I want the father to understand that there is nothing in the Orders to prevent him from sending letters and gifts to Christopher or from providing Christopher with financial assistance in the future. I urge him to do so.
The Independent Child Lawyer submits she can see no way Christopher’s relationship with his father can be currently promoted. However, I accept her submission that the door should be left open for Christopher to contact his father in the future if he wants to. I have therefore ordered that the maternal aunt and the father keep each other informed as to their contact details and that the maternal aunt ensure that the father receives regular information about Christopher’s welfare.
I am satisfied Christopher is living in a settled household with his maternal aunt and Mr Brown. His maternal aunt plans to remain in the same home when Mr Brown leaves for India. She says she wants Christopher to have “a happy life”. She says she is part of a happy family and wants Christopher to have the benefits of family life that he has missed. Christopher speaks to her family at least twice a week on the internet. I am satisfied he is enjoying his school life and enjoys close friendships amongst his peers. I am satisfied the maternal aunt will ensure Christopher has regular contact with his Chinese relatives and will facilitate any contact Christopher wishes to have with his father or extended paternal family in the future.
I am satisfied that the Orders set out at the commencement of these Reasons are in the best interests of Christopher.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 8 January 2007
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