Gin & Hing
[2010] FamCA 617
•20 July 2010
FAMILY COURT OF AUSTRALIA
| GIN & HING | [2010] FamCA 617 |
| FAMILY LAW – CHILDREN – International travel |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Kirkland and Granger [2007] FamCA 1471 Line & Line (1997) FLC 92-729 |
| APPLICANT: | Mr Gin |
| RESPONDENT: | Ms Hing |
| FILE NUMBER: | MLC | 4528 | of | 2010 |
| DATE DELIVERED: | 20 July 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 13 JULY 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Vohra |
| SOLICITOR FOR THE APPLICANT: | Schetzer Constantinou |
| COUNSEL FOR THE RESPONDENT: | Mr Weil |
| SOLICITOR FOR THE RESPONDENT: | Clancy & Triado |
Orders
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 from removing the child R (who is referred to in that order as RB (female) born … March 2010) from the Commonwealth of Australia said paragraph 1 is suspended during the operation of these orders.
That the wife MS HING is permitted to remove the child from the Commonwealth of Australia for the purposes of travelling to China for a period of one week only on the following terms and conditions.
The wife’s departure from Australia with the child is subject to the following:
(a)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; and
(b)No later than 7 days before the day of proposed departure from Australia, the wife confirm in writing to the solicitors for the husband that her grandfather in China is still alive and the details of any hospital/residence at which the grandfather is to be found to enable the husband and his family to make any necessary inquiries to confirm that fact.
To enable the Australian Federal Police to be sure that all conditions under these orders have been fulfilled, the solicitors for the wife SCHETZER CONSTANTINOU 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.
That the Court requests that the Australian Federal Police otherwise retain the name of R (who is referred to as RB (female) born … March 2010) on the Airport Watch List at all points of international arrivals and departures in Australia.
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.
That upon the wife returning to Australia with the child, she shall immediately advise the husband of her return.
That both MR GIN and MS HING forthwith do all acts necessary and sign all applications required to apply for a passport for R born … March 2010 but failing the joint application being completed by 4 pm on 23 July 2010, MS HING may make such application without first obtaining the consent of the child’s FATHER.
That both MR GIN and MS HING forthwith do all acts necessary and sign all applications required to enable the Chinese Ambassador in Australia or his delegate to issue a visa for the wife and the child to visit China solely for the purposes of these orders and failing any required co-operation by the husband, MS HING may make such application without the consent of the child’s father.
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.
That the application in a case be otherwise referred to Senior Registrar Fitzgibbon to complete any matters in the application before him.
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
The following are my reasons for making orders in a discrete dispute between MR GIN (the husband) and MS HING (the wife) concerning their daughter R who was born in March 2010.
As can be seen, the child is only 4 months old and embroiled in a controversy between her parents about whether her mother should be allowed to take her to China for 1 week so that the wife can visit her grandfather.
There is no argument that the child could not understand who her maternal grandfather is. There is considerable doubt about whether the grandfather who is 82 years of age is healthy enough to understand that he is being visited.
The underlying arguments are simple. 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.
The wounds of separation in this case are very raw and cloud reasoning of both parents.
Despite the simplicity of the apparent problem, the power I am exercising under the Family Law Act 1975 (Cth) (“the Act”) relates to making a parenting order.
Where the child travels and with whom, is a parenting responsibility issue. In the context of making decisions about a child’s schooling, in Kirkland and Granger [2007] FamCA 1471, I said:
There is little doubt therefore that an impasse between parents relating to both current and future education is a matter within the definition of parental responsibility and one which should the parties not be able to agree upon, a court should step into their shoes. The Act gives no guidance as to how that decision-making process is to occur save that any decision must be in the best interests of the child. Section 65D(1) says that subject to matters that are not relevant for this proceeding, the Court may make such parenting order as it thinks proper.
This case is no different to a schooling issue about determining what is best for the child save for one thing. 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. I shall return to that matter below.
The husband is a solicitor aged 30 years. He qualified in law. There is some significance in that because initially, his application to this Court was as a litigant without legal representation. His material before the Court then and now, is highly emotionally charged, making the task of assessing the risk issue difficult. His assertions of impropriety against his wife and her family are serious and as a legal practitioner, I would hope that he understands his professional and ethical obligations. I do not need to make findings about those matters but I raise them because in getting to the nub of the disputed issues, the Court should be entitled to rely upon a solicitor to know the evidentiary litigation process. To say that the jurisdiction is not his usual place of practice is not an explanation for raising some of the matters he did.
The wife is aged 28 and was described by the husband as a “store manager” but having recently given birth to the child, she is not currently engaged in anything other than home activities. She was born in China and came to Australia seven years ago.
According to the husband, the parties began their relationship of cohabitation and married on the same day. The marriage occurred in October 2009. The child was born in March 2010 and the parties separated two weeks later. They have not resumed their relationship.
To complicate matters, there have been and still are pending domestic violence proceedings in the Melbourne Magistrates Court. Those proceedings involve the wife’s family members.
All of the matters above make the discrete issue sensitive for both parties because there is no trust but at the same time, mixed communication messages being conveyed by text messaging.
The litigation began in this court when the husband made an application ex parte on 18 May 2010. He represented himself and convinced the Senior Registrar of the need to grant injunctions precluding the wife from removing the child from Australia. In the course of submissions, apart from being invited to read all of the parties’ material, both counsel addressed the affidavits including those filed and responded to concerning the ex parte hearing.
The starting point in any ex parte hearing is to show that the normal rules of natural justice should be waived so that the matter can be dealt with in the absence of the party against whom orders are sought. In this case, in his affidavit, the husband said that he was concerned about statements by the nanny of the wife regarding the “intention and ability” of the wife to take the child overseas. There were concerns otherwise expressed about the problem of the child then being returned if she went overseas. Four days before this affidavit was sworn, the husband was in the Melbourne Magistrates Court in a dispute with the wife about an intervention order. The wife was represented by counsel at that hearing. Whilst I have no criticism of the making of the orders on 18 May, the husband’s emotive language in the affidavit put before the Court without notice to the wife, does him little credit.
After the making of the orders, the parties each filed further affidavit material. The parenting dispute came before the Senior Registrar on 13 July 2010 and because of the potential finality of the orders, the wife’s discrete application to be allowed to travel for one week in China was transferred to me. The Senior Registrar then dealt with the remaining interim parenting issues.
Counsel for the husband argued that the determination very much revolved around credit and because there was no urgency about the travel, she urged me not to make the orders. It was not however suggested that the matter should be adjourned. Rule 5.10 of the Family Law Rules 2004 provides that in respect of an interim hearing, it must be no longer than two hours and “Cross-examination will be allowed at a hearing only in exceptional circumstances”. No application was made to have any of the parties cross-examined in this case.
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.
The wife’s evidence was that she is living with her parents in their home having left the matrimonial home and taking the child. The parents own the home. It is to that property that the husband goes to see the child.
It is not disputed that the wife’s grandfather in China is ill. The extent of the evidence is unclear and as I earlier mentioned, it may even be that the grandfather is not able to communicate anymore. That certainly was the evidence of the husband’s mother who spoke to someone at the hospital. I do not think that matters in this case because it is clear that there is nothing in any such relationship for the child. Despite it being submitted by counsel for the husband that it was a reason not to permit the child to go to China, I can accept that there is every reason for the wife to go there to see her dying grandfather. There was no suggestion that the husband was seeking orders for the fulltime care at this stage of the child. Effectively therefore, a refusal to let the child go meant that the wife could not go.
It was submitted that the wife’s family has shown little interest in going to China to see the dying man but leaving aside the truth or otherwise of that, I would not draw any adverse inference against the wife in relation to the fact that her family might have a view about such a visit.
The wife’s evidence is that having come to Australia, she renounced her Chinese citizenship and is now an Australian citizen. The renunciation of her citizenship means that should she wish to visit China, she has to seek a visa and the assertion is that that could take three months. I raised what would then happen in the interim period if the grandfather died and counsel for the wife said that she would not go. That situation can therefore be factored into the orders that I propose.
The visitation to the grandfather by the wife is not something new. The evidence which I accept is that she went there in August 2009 just before the marriage but the husband’s view is that it was a peremptory visit. Be that as it may, it was still a visit.
The wife has offered an itinerary.
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.
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.
The husband’s initial evidence in the 18 May hearing was built on belief and assertion unsupported by any evidence. I must ignore most of it having regard to the husband having legal qualifications and understanding the importance of proof.
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.
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. The husband said that he was an immigration lawyer and I have concluded therefore that he had an understanding of the problems of migrants coming to Australia and the need to establish facts which might support this supposed mysterious past.
The husband referred to two important issues going to the credit of the wife and why she should not be trusted. First, he said he returned to the home and found her searching for her Chinese passport. The wife conceded that is exactly what she was doing but that it had expired. I have taken into account that the wife’s evidence is that she requires a visa to get into China. Again, as the husband is an immigration lawyer, nothing was said to suggest that the wife’s evidence was not true or that there was such a delay in getting a Chinese visa.
The second issue concerns the fact that the husband attended the Passports Office to report his child as a possible flight risk only to find the wife there with application for passport in hand. This evidence was not disputed by the wife but her counsel pointed to the fact that at that stage, there was no suggestion of going to China to see her grandfather but rather for a holiday in the future as outlined in her current application for final orders.
In respect of both of these issues, the explanations of the wife have a plausibility about them which I see no reason to reject.
Counsel for the husband pointed to his evidence before the Senior Registrar that reads as follows:
I learned that the Respondent has explained to her friends in China that she intends to live with her parents in China after divorcing me….
The respondent also text messaged me saying that she seeks to find new happiness, basically to remarry in China.
The wife’s response in her affidavit filed 10 June 2010 was simply a denial of the husband’s assertion.
The husband did not nominate the persons who provided this source of information. They are apparently in China. From whom he learned this information would be critical to his credibility.
The second sentence above would be damaging to the wife if the message had been provided. In circumstances where a very large amount of text messages was provided, the absence of this one is conspicuous. The last words of the sentence would not appear to be a quote from the wife but rather an assumption by the husband.
The evidence does nothing to assist me.
In his affidavit filed 7 July 2010, the husband said that there had been discussions between he and the wife about a reconciliation as late as the middle of June 2010. He annexed a long list of text messages and it was to these that his counsel pointed as evidence of the future permanent intentions of the wife. As is often the case, such statements contain cryptic messages. Sequentially, the messages began on 15 June with the husband saying that the wife’s mother should travel to China for her father and it was urgent. His position however was that the wife should then come and live with him and they could both then fly to China if it was urgent. That seems to suggest that the husband recognised the wife’s need to see her grandfather.
The messages on 15 June all point to the husband’s desire for a reconciliation but the wife is said to have sent a message asking about the “baby’s” passport. The wife said: “If you love me then trust me this once”. The husband was not responsive.
It was the husband who had begun the conversation about withdrawing intervention orders and getting back together again and then raised the question of when the wife was “flying”.
On the morning of 16 June, the wife asked whether it was the husband’s condition that if she returned home to him, he would withdraw the injunction and intervention order. His response was to avoid a direct answer.
There is nothing in the heart-rending statements that I could find that amounted to a statement of intention for the wife to abandon Australia and return to live in China.
Counsel for the husband submitted that there was a significant risk of the wife not returning.
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.
On the basis of the evidence before me now, there is however a sufficient reason to maintain the airport watch order because there is no trust between the parties and questions of future parenting orders remain unresolved. It is important to note that the husband did not seek orders for the child to live with him but his affidavit certainly says that that is his future intention. Those types of vague statements do little to engender confidence. The wife too has not helped the situation at this stage by seeking an order for sole parental responsibility. Whilst all of these statements may be said in the emotional stresses of the litigation, the parties need to focus on the needs of their vulnerable daughter. The text messages highlight that adult needs are being given much consideration.
To add to the mistrust, there are pending intervention order proceedings and whilst those remain extant, the negotiations about any sort of parenting order would appear remote. That is particularly troublesome where the child is only a few months old and her daily needs will constantly change.
In the circumstances, I would not discharge the injunction of 18 May 2010 on a permanent basis. I do propose to lift it on this limited occasion.
The application of the wife sought orders in relation to the wife being able to seek a passport. I propose to order both parties to sign the necessary application by a particular date failing which, the order will provide for the wife to be able to solely seek that passport.
It is clearly distressing for any person who has to obtain the return of a child even in countries where the Convention operates. There are travel expenses not to mention legal costs. In circumstances where trust is absent, it seems to me that it is appropriate to consider giving some comfort to the party opposing the travel. That comfort is the cash security of the injunction over the sale proceeds of the home. The husband will have liberty to apply on an urgent basis if the need arises for money to be released from that fund to enable him to travel to China to seek the return of the child.
In every case, the decision of a parenting nature has to be made with the best interests of the child in mind.
Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. It therefore includes questions such as international travel because s 61C(3) provides that parental responsibility is subject to any order of the Court.
Section 64B(2) provides that a parenting order may deal with any aspect of parental responsibility for a child not otherwise covered by the section. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which relevantly provides 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.
Because the child is so young, any attachment to the husband must begin now and I note that the Senior Registrar has ordered that. To suspend that for one week does not seem to me to be likely to damage the relationship that has already begun.
Fundamental to my decision in this case is s 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests.
Turning to the question of s 60CC, it is quite clear that some of the factors are not in dispute. As I have indicated, neither parent was challenged on their capacity or responsibility as a parent nor could they be at this stage of their parenting. The husband however asserts that the wife is irresponsible with the child because she will not return to enable him to have a significant role in his daughter’s life. The determination of that issue comes down to the question of the risk to which I shall turn.
The child has the right to share her cultural history as part of the consideration of s 60CC but having regard to her age, commonsense dictates that it is not an issue at this stage.
What is very concerning is the question of family violence. I am not in a position to make any finding about that at this stage because there are proceedings still pending. The outcome of that is a matter that becomes relevant to both how parenting responsibility will be determined in the future but also whether there ought be a distinction between parents in the role that they play in their daughter’s future life.
In the circumstances it is appropriate to make the orders of the type to which I shall shortly turn.
I do not propose to deal with the issues of equal shared parental responsibility because those matters are impossible to determine in an interim hearing where there are diverse statements about who should have what responsibility but also where the evidence of the capacity for the parents to act sensibly and take their parenting role seriously is very much under challenge.
This case is therefore about the assessment of risk.
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.
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.
Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.
It is obvious that I cannot do more than balance the evidence of the parties and determine what I think is best for the child in the context of a young breast-feeding mother wishing to spend a limited time with her dying grandfather. It is an exercise of doing the best that one can. I clearly cannot make a finding that the wife’s promise to return from China after the week will be honoured. That is not the function of the Court.
China is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction but that does not mean that it does not have a legal and justice system that would simply ignore the fact that there are two Australian citizens with a baby born here who have a parenting dispute. I have no evidence to the contrary but I have little doubt that there is a justice mechanism in China to which the husband could turn if the wife did not return.
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.
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.
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.
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.
I propose to make orders accordingly.
I certify that the preceding Seventy One (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 20 July 2010
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