Goh and Trinh (No. 2)

[2009] FamCA 395

FAMILY COURT OF AUSTRALIA

GOH & TRINH (NO. 2) [2009] FamCA 395

FAMILY LAW – CHILDREN – Undefended
FAMILY LAW – PROPERTY – Undefended

Family Law Act 1975 (Cth)

APPLICANT: Mr Goh

RESPONDENT: Ms Trinh

FILE NUMBER: SYC 5992 of 2008

DATE DELIVERED: 22 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 22 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Kirkman, Armstrong Legal

FOR THE RESPONDENT: No appearance

Orders

1. That orders are made in accordance with paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of the Minute of Final Orders filed in Court today and signed by Judicial Registrar Johnston and placed with the Court papers as set out hereunder:-

   1.That within twenty-eight (28) days of the date of these Orders, the parties do all acts and things necessary to cause the Wife to transfer her legal and beneficial right, title and interest in the property situated at and known as C in the State of New South Wales, folio identifier … (“the [C] property”) to the Husband.

   2.That simultaneously with Order 1, the parties do all acts and things necessary to discharge the mortgage secured by the Commonwealth Bank of Australia, being registered mortgage number …, secured over the C property (“the [C property] Mortgage”), with the Husband to provide the funds and pay any fees charged necessary to discharge the C property Mortgage and, if necessary, entering into a new mortgage for this purpose.

   3.That simultaneously with Orders 1 and 2, the Husband indemnifies the Wife as to any debt owing in relation to the C property and the C property Mortgage.

   4.That unless otherwise specified in these Orders, each party retain their sole right, title and interest in any property, chattels, bank accounts, shares, motor vehicles, superannuation currently in their respective sole names, to the exclusion of the other party.

   5.That in the event that the Husband or the Wife or either of them fails, refuses or neglects to execute any document or do anything necessary to give effect to the orders above, and pursuant to Section 106A of the Family Law Act 1975, the Registrar of the Family Court of Australia be and is appointed to execute any deed or instrument in the name of the party, and do all acts and things necessary to give validity to the operation of the deed or instrument, including the Transfer in relation to the C Property and Discharge of Mortgage in relation to the C property Mortgage. The party who has failed, refused or neglected to execute any such documents will pay the other party’s legal costs in relation to any application pursuant to Section 106A.

   PARENTING

   6.That the Wife forthwith do all acts and things necessary to cause the child of the marriage, namely … (born … October 2006) (“[the child]”) to be returned to live with the Husband in Australia.

   7.That the Husband have sole parental responsibility for making decisions in relation to the child.

   8.That the child live with the Husband.

   9.That the child spend time with the Mother as agreed between the parties.

   10.That the Applicant Husband, Mr Goh, and the Respondent Wife, Ms Trinh, and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causng or permitting the removal of the child, … (born … October 2006) (“[the child]”) from the Commonwealth of Australia AND IT IS REQUESTED that the Austalian Federal Police give effect to theis Order by placing the name of the child on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court Orders its removal.

   11.…

   12.That the Wife forthwith surrender the child’s passport to the Family Court of Australia.

   Declarations

   13.That it is declared that:

   a)…

   (i)Pursuant to Section 61C(1) of the Family Law Act 1975, the Husband has sole parental responsibility for the child;

   (ii)That no order has been made by an Australian Court exercising jurisdiction under the Family Law Act 1975 so as to confer sole parental responsibility for the child upon the Mother;

   (iii)That no order has been made by an Australian Court exercising jurisdiction which would allow the Mother to remove the child from the Commonwealth of Australia without the consent of the Father and the Father has not consented to any such removal; and

   (iv)That the child was taken by the Mother from the Commonwealth of Australia on 17 March 2008, without the consent of the Husband or an Order of a Court.

2. That the above orders not commence operation until the expiration of 42 days after service by pre-paid overseas post the first day operating from the day of posting the covering letter.

3. That the wife is given leave to re-list these proceedings at her risk in relation to costs at any time until the expiration of the 42 day period referred to above.

1. That the husband’s application for costs is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5992 of 2008

MR GOH

Applicant

And

MS TRINH

Respondent

REASONS FOR JUDGMENT

1. These are undefended proceedings between Mr Goh, to whom for convenience I shall refer as “the husband” and Ms Trinh, to whom for convenience I shall refer as “the wife”.  The proceedings come before the Court on an undefended basis in circumstances where the Court is satisfied that the wife was personally served with the original and amended initiating application in Vietnam.  There have also been subsequent letters to her in Vietnam informing her that this matter is before the Court today.  Yet there has never been any interest shown by the respondent wife in these proceedings and she is certainly not before the Court today. 

2. The husband is seeking orders both in respect of final parenting arrangements and also in respect of the parties' property. 

3. The brief background matters are as follows. The husband was born in November 1972 in Vietnam.  The wife was born in March 1978 also in Vietnam.  They married in November 2003.  They separated in March 2008 in circumstances to which I shall soon refer.  There is one child of the marriage, a daughter, who was born in October 2006.  So the child is approximately 2 years 5 months of age. 

4. The husband migrated to Australia in 1985 and he is an Australian citizen.  The wife came to Australia in 2001 as a student.  The husband has been the major breadwinner for the family and the wife primarily cared for the child, although the husband was also very much involved in the child's care and his parents saw the child regularly.  In fact, his mother provided a considerable amount of care for the child. 

5. Most unfortunately for this child and certainly also for the husband, the wife removed the child to Vietnam on or about 17 March 2008 without the husband's consent.  The husband has been untiring in his endeavours to ascertain what had happened to the child.  He telephoned the various relatives and ascertained very quickly that the wife had removed the child to Vietnam and, in fact, she left him a note.  But so concerned about the child's welfare has he been that he has travelled to Vietnam on no less than four occasions since the child was removed there.  The most recent of those occasions has been in February this year. 

6. On each occasion that he has visited his daughter in Vietnam he spent between 21 and 29 days there because he has a very strong commitment to the child and he is desperate to be able to maintain and develop further his relationship with his daughter. 

7. As indicated above the wife has never been interested in these proceedings.  In fact, she seems to have been critical about the husband’s efforts to use the Australian legal system to endeavour to have the child returned to Australia. Unfortunately, Australia does not have any arrangements with Vietnam under The Hague Convention on International Child Abduction.  So it has been impossible, at least at this point, for the husband to be able to achieve the return of his daughter to Australia.

8. The matter came before me on an earlier occasion, that was 25 March 2009.  On that occasion I made various orders providing for details of the child to be included on the airport watch list in the hope that if the mother was to bring the child back to Australia then, at least, by having the child's details on that watch list the Australian Government would be able to prevent any further removal of the child to Vietnam. 

9. But I also made declarations that this Court was asked to put in place. These were really to facilitate the bringing of proceedings under Vietnamese law by the husband with a view to trying to achieve the restoration of the child to Australia. Those were declarations to the effect that pursuant to section 61C(1) of the Family Law Act 1975, in the absence of any order to the contrary, the parties have shared parental responsibility for the child.  I declared that no order has been made by any Australian Court exercising jurisdiction under the Act so as to confer sole parental responsibility for the child upon the mother. 

10. I put in place a declaration that no order has been made by an Australian Court exercising jurisdiction which would allow the mother to remove the child from the Commonwealth of Australia without the consent of the father.  I also made a declaration to the effect that the child was taken by the mother from Australia on 17 March 2008 without the consent of the child's father or an order of this Court.  And I made certain other machinery orders and also orders to process the matter as an undefended proceedings today.

11. So far as the parenting aspect of these proceedings is concerned, the husband is seeking orders to the effect that the wife forthwith cause the child to be returned to live within Australia with the husband and I propose to make such an order.  The husband also seeks an order to the effect that he have the sole parental responsibility for making decisions in relation to the child, that the child live with him, that the child spend time with the mother as agreed between the parties and orders confirming the maintenance of the child's details on the airport watch list.

12. The matter which the Court has to consider in any parenting proceedings is the best interest of the child.  The Act sets out how the Court is to endeavour to do that.  In my view, it is unnecessary to go slavishly through all the requirements of the legislation, because in my view there is one major disqualifying factor in terms of the mother's enjoyment, in a practical sense, of the sole parental responsibility for the child.  This is that she has simply acted unilaterally and, if I might say so, in a rather highhanded way, completely ignoring the father's shared parental responsibility for the child.  In my view, that reflects very poorly on her in terms of her attitude to parenting, her capacity to properly parent the child and her capacity to be able to promote and cooperate in the child being able to have a relationship with each of the parents.

13. In my view, those matters are so serious that they outweigh other relevant matters such as the fact that the father concedes that the mother has been the primary carer of the child.  In my view, therefore, even though the child is not in this country and even though the child has always lived with her mother, it is such a serious deficiency in terms of the mother's parenting responsibility that the Court would be justified in making the parenting orders which the child's father is seeking.  So that is something I propose to do in the best interests of the child.

14. Turning to the property aspect of these proceedings, what the husband is seeking, in effect, is that the parties' former matrimonial home at C, under orders of this Court, becomes into his sole ownership.  The wife would be required to transfer her interest in that property to him, he would discharge the mortgage on the property and otherwise the parties would enjoy the property that they have and their superannuation.  The husband has quite valuable superannuation, in excess of $222 000 and this property has considerable value. 

15. The property which is available for division consists of that property, so that is the former matrimonial home at C, to which the husband attributes a value of $165 000 for his one half share.  There is $250 000 in the bank.

16. I do not propose to slavishly go through the process in respect of this matter.  I am informed that the C property has a value in the vicinity of about $800 000.  What the husband is asking is that the Court facilitate a situation in which he becomes the owner of the entirety of that property in circumstances where the respondent has not bothered to participate in these proceedings and, in fact, has given him every impression by conversations that she has had with him and also in writing, that she is not interested to have any part of his property. 

17. It is the case that she has not made a financial disclosure.  So neither the husband nor this Court know what property she enjoys.  The wife concedes that she owns a property in joint ownership with her parents in Ho Chi Minh City.  She did not give any indication what the value of that property might be.  But in any event, her attitude seems to be one of whatever she has is hers and whatever the husband has is his.

18. Ordinarily, one might think that that situation would not comply with the requirements of subsection 79(2) of the Act, namely, that the Court make an order that is just and equitable.  But in the circumstances where the wife simply walked out in the way that she did, in view of her high handed attitude in relation to the parenting aspect of this to which I have already referred, in view of the fact that she has made no financial disclosure, in view of the fact that she is qualified in a profession and the husband thinks that she is probably practising her profession in Vietnam and, in effect, she has told him that he can keep whatever he has, ultimately, for the child, I propose to make the orders. 

19. In all those circumstances and bearing in mind the flexibility which the Court has pursuant to subsection 75(2)(o) of the Act, in my view, it is appropriate that the orders sought by the husband be made. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Judicial Registrar Johnston

Associate:     

Date:              19 May 2009