Gin and Hing

[2011] FamCA 19

FAMILY COURT OF AUSTRALIA

GIN & HING [2011] FamCA 19

FAMILY LAW – CHILDREN – Overseas travel to China with very young child

Family Law Act 1975 (Cth)

APPLICANT: Mr Gin

RESPONDENT: Ms Hing

FILE NUMBER: MLC 4528 of 2010

DATE DELIVERED: 18 JANUARY 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 15 DECEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR NICHOLSON

SOLICITOR FOR THE APPLICANT: SCHETZER CONSTANTINOU

COUNSEL FOR THE RESPONDENT: MR DIXON SC

SOLICITOR FOR THE RESPONDENT: CLANCY & TRIADO

Orders

1. That to the extent that the following orders are inconsistent with paragraph 1 of the orders made 18 May 2010, that is, the order restraining the wife MS HING (also known as …) from removing the child R GIN (who is referred to in that order as RB GIN (female) born … March 2010) from the Commonwealth of Australia said paragraph 1 is suspended during the operation of these orders.

2. That the wife MS HING (otherwise known as …) is permitted to remove the child from the Commonwealth of Australia for the purposes of travelling to China for a period of 16 days only on the satisfaction of the condition set out in paragraph 3 of these orders ( as evidenced by the matters in paragraph 4).

3. No later than 7 days before the day of departure, the wife provide to the husband through his lawyers, copies of the travel itinerary including the addresses where she will be staying in China together with copies of  return airline tickets. 

4. To enable the Australian Federal Police to be sure that all conditions under these orders have been fulfilled, the solicitors for the wife CLANCY & TRIADO provide to them on behalf of the wife, the following:

   (a)      a copy of these orders;

   (b)a statement that they have been instructed that paragraph 3 of these orders has been fulfilled by the wife; and

   (c)a letter indicating the precise time that the wife intends to depart Australia and return to Australia.

5. That the Court requests that the Australian Federal Police otherwise retain the name of R GIN (who is referred to as RB GIN (female) born … March 2010) on the Airport Watch List at all points of international arrivals and departures in Australia.

6. That the husband have liberty to apply on short notice to make an urgent application for the release of the trust funds resulting from the sale of the former matrimonial home if the wife has not returned the child to Australia within 24 hours of the scheduled date referred to in the itinerary of the wife.

7. That upon the wife returning to Australia with the child, she shall immediately advise the husband of her return.

8. That the wife may provide a copy of these orders to the Australian Passports Office, the Australian Federal Police and the Chinese Ambassadorial staff to ensure the completion of these orders.

9. That all questions of costs of the interim hearing are reserved to the trial judge.

10. That all interim applications are otherwise dismissed.

11. Pursuant to s 65DA(2)and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4528  of 2010

MR GIN

Applicant

And

MS HING

Respondent

REASONS FOR JUDGMENT

1. Ms Hing (the wife) sought permission from the Court to be allowed to travel for a discrete period in January 2011 for the Chinese New Year.

2. Mr Gin (the husband) opposes the application.

3. The child who is the centre of the controversy is R. She is 9 months old.

4. The child is just starting to eat solid food but is still also breastfed. She has begun to have significant time with the husband away from her mother.

5. There is much acrimony between the parties stemming from a lack of trust and strong accusations of family interference and dislike.

6. The wife’s application was contained in a response filed on 16 November 2011. She sought orders that she be able to travel out of Australia for 4 weeks. She proposed conditions such as providing an itinerary and details of contacts. At the hearing, those were extended to include security over a large amount of cash held from the sale of the parties’ home.

7. The husband’s application was also filed on 16 November and in it, he made his position clear namely that the wife should be restrained from travelling out of the Commonwealth of Australia.

8. This is the second application of this type made by the wife. In July 2010, the wife sought a similar order because her grandfather was ill in China. Again, the husband opposed the order.

9. On 20 July 2010, I made orders permitting the travel with the child and, to the extent that they are relevant to the current application, gave the following reasons:

   4.The wife wants to see her dying grandfather and [the child] is vulnerably young requiring her mother to care for her. [The child] is being breastfed. The husband’s position is simply that he does not believe that his wife will return to Australia with [the child] at all.

   …

   8.In respect of the question of whether an order should or should not be made, the Court is obliged to assess the risk of whether or not [the child] will be returned.

   …

   18.I have therefore approached the matter on the basis of the affidavit evidence of the parties. Wherever possible, I have drawn inferences from the facts presented. Where the evidence is significantly in conflict and I have been unable to decide the point, I have not taken that matter into account. As with all matters of this nature, I have determined the issue on the basis of the standard set out in the Evidence Act 1995 (Cth) namely, the balance of probabilities.

   …

   25.It was common ground that China is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. Leaving aside that problem heightening tensions between the parties, the wife offered security. The family home in which she and the husband have a joint interest has been sold and is awaiting settlement at the end of August 2010. The net proceeds are expected to be between $800,000 and $900,000. The wife’s interests could be therefore used as security.

   26.Further, one of the expressed concerns of the husband is his view that the wife’s parents not only travel extensively and have business interests in China but they also have access to other international destinations and that the movement of the parents would be an incentive for the wife to go with them. I suggested that if that was a concern, with the parents’ consent, I could injunct them from leaving Australia during the absence of their daughter. That did not provide any apparent comfort to the husband because he said that the family was wealthy and could evade these sorts of responsibilities. It is hard to see how that could be done but I do not exclude it as a possibility. As the husband did not seek that security, there is little point in me insisting upon it.

   …

   28.His case is that the wife will not return. He said that the parents were business migrants whose house has been on the market since March 2010. Counsel for the husband asserted that the parents spent a lot of time in China. Whilst that appears to be the case, that would not be sufficient for me to infer that there was some conspiracy that the parents and the wife were going to leave Australia permanently.

   29.As giving reasons for his concerns about the wife’s likely departure, the husband stated that his wife had had a mysterious past and had had a Canadian residency previously. All of this preceded the marriage. According to counsel for the husband, the wife was silent in her response to the husband’s assertion but in my view, it is better put that the wife’s evidence conflicted with that of the husband on her past. […]

   …

   44.On the limited evidence available to me, I find that there is a clear statement of the wife that she intends to be in China for a week and that she has every reason to return to Australia with [the child].

   …

   62.The factors to be considered in the assessment of that risk, that is of non‑return of [the child], were set out by the Full Court in Line & Line (1997) FLC 92-729.

   63.The factors were said to be as follows:

   (a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

   (b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

   (c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

   (d)Whether the country of travel is a signatory to the Hague convention.

   …

   67.I do not place any weight on the unsubstantiated assertions of the husband that the wife has connections in China who could manipulate the situation to his child’s detriment. It behoves him if he expects the Court to accept that to put cogent evidence before the Court.

   68.I am not satisfied on the balance of probabilities that there is any basis to find that the risk that the wife would deliberately not return [the child] is a significant one.

   69.I am satisfied that there is sufficient security to ensure the return of the wife within the Chinese legal system in the event of her non‑return. Whilst the purpose of the bond is often spoken of as being a form of security such as bail in a criminal matter, it is more to protect a person such as the husband in being able to quickly access the relevant sum to enable the instructing of lawyers, the payment of costs and the necessary travel required to obtain the return of the child. The restraint on the whole of the sale proceeds is more than sufficient for that purpose.

   70.I am satisfied that because of the wife’s citizenship status in Australia and also her ties here, the risk of non-return is low. That view is supported by the evidence above. The assets here and the life already set in train over the last seven years by the wife reduces her possible motives not to return.

10. Mr Dixon SC for the wife said that the husband’s opposition was simply based on opinion not fact. The wife had every reason to return to Australia.  She had provided security and corroborated her evidence by providing a copy of her Chinese visa.

11. Mr Nicholson for the husband said that this was a very different case to last time. First, the July trip occurred but only after there was an injunction against the wife’s parents from returning to China whilst she was there. The difficulty I have with that submission is that it tends to mask what really occurred.

12. On 20 July 2010, I ordered that the wife could travel to China. A notice of appeal was filed by the husband on 28 July along with an application for a stay of the orders under the appeal. The stay application came before Young J on 30 July 2010 and the parties agreed to compromise the situation. The order was then made that the wife’s parents would be restrained from leaving Australia for the relevant period.  I had not felt it necessary to require that order.  Rather, it was a compromised position between the parties.

13. Mr Nicholson also submitted that the parents were already in China and that they were very wealthy. He produced documentation to show that the parents’ inner city home had been sold. He pointed to the fact that in her material, the wife had neither mentioned the parents being in China nor that they had sold their house. It was apparently well known to the husband that the parents had gone to China. The sale of the parent’s inner city property came about because a title search was undertaken. However, the parents had not sold their bayside home. I am not convinced that either of these matters makes any difference but I accept it might heighten the anxiety of the husband.

14. It was not disputed by the husband that the wife’s grandfather is still gravely ill in China. That was the reason the wife went last time and subsequently she returned.

15. Mr Nicholson properly pointed to the fact that the child is beginning to develop a relationship with the husband whom she sees 3 days per week for short times. He said there was no detriment by the child not going to China. That creates the dilemma of the mother being tied to wherever the child is if she cannot enjoy her own cultural activities. Section 60CA of the Act refers to the best interests of the child being the paramount consideration. The use of the word “paramount” must also mean that the child’s interests are not the only interest.

16. The evidence of the husband is set out below but when it is considered in the light of his counsel’s submissions and the evidence of the psychologist assisting the parties, I consider most of his position stems from an absence of any trust in the wife.

17. I was provided with a report by psychologist Ms N that both parties referred me to.

18. Ms N asked the wife about her trip to China and she said she never intended to flee Australia and had found the husband’s arguments “silly”. The husband however said to Ms N that he had “serious and valid concerns”.

19. Ms N described the husband as “a rather intense man, who appears to be rather single minded and somewhat inflexible in his thinking”. She thought him a committed father.

20. Ms N thought that the wife’s behaviour to stem from the husband’s behaviour but she found her a committed mother.

21. The overall picture portrayed by Ms N was of two young parents who had a basic mistrust of one another.

22. Ms N’s views were helpful also because she said that the child needed to be the parents’ priority and constancy of care was critical. Ms N did not indicate what periods of time the child could manage without seeing the husband.

23. The wife’s evidence was set out in an affidavit filed 16 November 2011. She said that she wanted to go to China to celebrate Chinese Year which she had previously done except when she was heavily pregnant. She referred to the festivities involving extended families and set out her suggestions for the husband’s family’s opportunities to see the child and also the husband if he went as well. Her plans were detailed and had been sent to the husband.

24. There were also difficulties between the parties about travel relating to a trip that the wife took to Queensland in September. The husband went to Queensland and had time with the child and it seems the wife co-operated.

25. In respect of the proposed overseas trip, the wife provided a copy of the Chinese Government’s visa allowing her to be in China only for 9 days.  She is not recognized as a Chinese citizen.

26. The wife deposed to the fact that she considers Australia her home and became an Australian Citizen in 2009. Her parents have business connections in Australia.

27. The wife offered the cash in the sale proceeds as security.

28. The husband’s evidence is best set out as he said it:

    I continue my opposition to the respondent travelling overseas with our daughter. I remain concerned that the Respondent will not return our daughter to Australia. The proposed travel in early 2011 is not necessary and would not benefit the child. It would also preclude [the child] spending time with me and my family during Chinese New Year.

29. It must be observed that on the one hand, the husband saw no benefit to the child spending time in China for the Chinese New Year but on the other hand, somehow having a benefit here in Australia for that festivity.

30. There are two matters to be considered. They are first, the risk of not returning and secondly, the impact on the child of being away from her father having regard to the development of the relationship.

31. I am satisfied that on the balance of probabilities, the Court should presume that the wife will return. The security issue gives little assistance because security is intended as a fund for the other parent to access in the event that litigation in the foreign country must occur. In this case however, the wife has offered it anyway.

32. The second question is more difficult. Although I have no evidence as to the stage of development of the child, I think I can draw on social science literature to conclude that a very young baby needs not to be away too long. Four weeks is too long. I think at her current level of development in relation to the relationship with the husband, two weeks is more appropriate however I am also conscious of travelling times and as such will add a further 2 days.

33. I make orders accordingly.

I certify that the preceding Thirty Three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 January 2011.

Associate: 

Date:  18 January 2011