Hong and Wai
[2015] FCCA 3448
•8 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HONG & WAI | [2015] FCCA 3448 |
| Catchwords: FAMILY LAW – Child almost aged 10 – father brought child to Australia without the mother’s knowledge and without her consent – child has lived in China with his mother for most of his life – whether the Court should consider the matter summarily or engage in a full hearing. |
| Killam & Loeng [2015] FamCAFC 41 ZP & PS [1994] HCA 29 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 Gilmore & Gilmore (1993) FLC 92 – 353 Re L (1974) 1 WLR 250 |
| Applicant: | MS HONG |
| Respondent: | MR WAI |
| File Number: | MLC 11287 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 8 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 8 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Strum SC appearing with Ms Renwick |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Mr Davis |
| Solicitors for the Respondent: | Blackwood Family Lawyers |
ORDERS
The respondent father forthwith and within 24 hours deliver the child X (‘the child’) born (omitted) 2005 to the applicant mother.
The father deliver the child’s current passport to the applicant mother at the same time as returning the child.
Upon the respondent father’s compliance with these orders that order 3 made on 12 December 2015 be discharged, thereby removing the child from the watch list.
The mother is permitted to remove the child from Australia.
Liberty to apply is granted to all parties.
IT IS NOTED that publication of this judgment under the pseudonym Hong & Wai is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11287 of 2015
| MS HONG |
Applicant
And
| MR WAI |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The instructing solicitors and counsel on both sides have worked hard in a short period of time to bring this matter before the Court. It is not a straightforward case. The Court has been greatly assisted by the thorough preparation and focused advocacy.
This concerns X, who will be 10 years old on (omitted) 2015. Somewhat unusually in family law matters, there are a lot of background facts that are agreed between the parties, and, again, that is a measure of the focus that the lawyers have put into this case so that what has been argued has really been focused on the issues that are relevant for determination rather than being taken up with other issues that are very important to parties but not relevant to the particular issues to be argued today.
Both parents were born in China. The parties had a fairly short relationship from 2005 to 2007 when they lived in (country omitted). X was born in (country omitted) and is a (country omitted) citizen. The mother concedes that she returned to China in mid-2007 with X for a holiday. The relationship between her and the father deteriorated further and she decided in December 2007 not to return to (country omitted).
The father says that he did not agitate parenting proceedings at that time because he thought that, given X’s very tender age, it was in his best interests to be with his mother. He was aware that he was living as a single man.
It is also clear from the history that both parties give that X has only spent fairly limited time with his father over the years. What is in dispute is the reasons behind that. The reasons behind that, whether or not it is the mother not encouraging the relationship or it is the father not taking up the opportunities to develop that relationship do not need to be decided by me for today’s purposes.
The parties’ competing proposals are as follows. The mother initiated these proceedings urgently after the father brought X to Australia without her knowledge or consent. She seeks that I deal with the matter summarily on a final basis today, which would allow her and X to return to China. Whether or not there would then be proceedings in China concerning arrangements for X would be a matter for the parties.
The father urges me not to take that approach and to determine the parenting issues on its merits. He seeks a section 11F child inclusive conference and then further argument after that conference. In my view, an 11F report, which is a very summary, preliminary intervention, would not be of assistance to me in this matter because the issues that the consultant would need to consider are not straightforward and X is not an English speaker. It would be necessary to arrange an interpreter, which would present various challenges that can be somewhat overcome in a more detailed assessment, such as a family report.
It is apparent from the history of the matter, which is set out in both parties’ affidavits, that the father over the years has had fairly limited time with X, as I indicated previously. He moved to China from 2012 to 2015, he says, so that he could spend more time with X. He did not move to the same locale as X and the mother but was living a few hours plane ride away. He also says that the mother restricted his time with X, and prior to him taking X to Australia, he had only had one overnight period with him.
The father has remarried and has another child. Somewhat ironically, that child is living in China currently with the father’s parents. The father makes some complaint in his affidavit that X was primarily cared for by the maternal grandfather. He alleges that the mother and her mother work long hours.
As this matter is being dealt with on the papers today, I cannot determine those types of issues which I assume, although the mother has not been given the opportunity, there may be some dispute about. I do not say that the mother has not been given the opportunity to respond critically, because the matter was brought in such urgent circumstances. It was of some credit that the father filed the material that he filed today, and it is just the circumstances that lead to that.
What I do note is that, certainly, in my experience, it appears to be culturally appropriate and common practice, for grandparents in China to have a significant caring role for children whilst parents are working.
The father does not make any serious complaint about the standard of care for X apart from a couple of comments, including a picture that is supposed to show a bruise from 2013, although it is not clear from the photo that I saw, and a comment about physical discipline. He makes it clear in his affidavit that his primary concern is that he felt that if he did not take X to Australia, he would not be able to have an ongoing, meaningful relationship with X.
It is of some significance that the father has never commenced any parenting proceedings with respect to X despite complaining that the mother has restricted his relationship. He says that he has no confidence in the courts in China determining parenting matters because he says the mother’s family is well known. That falls far short of supporting a submission that I could rely on that the Chinese courts could not deal with any parenting matter appropriately.
I do not have any evidence in this case about the Chinese law, and again, that is not a criticism of the parties. The circumstances of the urgency of this matter have not allowed for that. I do note that in the case of Killam & Loeng [2015] FamCAFC 41 the trial judge was faced with a similar application with respect to an application to make summary orders for a return to China. I will come back to that later on.
The father has been candid in his material and there is no doubt that he did not seek the mother’s consent to take X to Australia, even for the purposes of a holiday. It is quite clear that he approached her family seeking to be able to take X to visit his extended family in China. This was not a spur of the moment decision by the father, but rather had some planning.
The father obtained a second (country omitted) passport for X. I am aware that the (country omitted) laws only require one parent to sign a passport application. What I do not know is what the (country omitted) requirements are for issuing a second passport for a child or an adult in circumstances where there is another current passport. The father says that the mother did the same thing in 2007, although that is not quite the same situation as the father consented to the mother going on holidays to China, so presumably knew about the passport.
Certainly, the mother could be criticised for making the decision without the father to remain in China, but this is not a situation where one party can take, to use the vernacular, tit for tat measures. What is significant in this case is the undisputed evidence that X has grown up in China. He has gone to school in China. He has his grandparents in China. He has only come to Australia once before. He does not speak English or speaks very little, and that is certainly supported by the father’s own evidence that X is enrolled in (omitted) English Language School and is not able to attend a mainstream Australian school until he is sufficiently fluent in English, which is expected by the start of term 2 next year.
It cannot be disputed that the mother has acted as quickly as she could once she became aware that the father and X were in Australia, and there is no suggestion that the mother consented to X remaining in Australia with the father. This is clear when the whole communication between the parties is looked at. Despite the email communication discussing payment of school fees, it is also the case and significant to note that the mother is in Australia on a business visa which she obtained very quickly in order to be able to come to Australia to prosecute this application. There is no evidence that suggests she would be able to stay in Australia for an indefinite period or a long-term period. In contrast to that, the father has lived in China previously as recently as earlier this year and is a Chinese citizen, was born there and speaks the language. I was referred to the relevant authorities in this area in some detail and it was properly conceded that that was an accurate reflection of the authorities.
The first case is ZP & PS [1994] HCA 29. I should note that China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The circumstances in ZP & PS concerned Greece which was also not a signatory to the Hague Convention. Therefore, the High Court had to consider when it was a contest concerning courts in Greece and Australia as to the appropriate test to apply in determining such an issue of forum. It is very clear that it is not appropriate to simply apply the inappropriate forum test referred to by the High Court in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55, also referred to by the Full Court in Gilmore & Gilmore (1993) FLC 92 – 353 and other cases.
As this case concerns the welfare of a child it is necessary to consider X’s best interests and the issue becomes whether or not X’s welfare requires the issues in dispute about him be determined in Australia or China. Mason CJ, Toohey and McHugh JJ noted that and this is at page 4 of the judgment, that in some cases the welfare of the child might require that that dispute be determined in a foreign court. Whilst there are no proceedings on foot in China there is no suggestion that there could not be proceedings commenced in China and it would seem to me that either party would be able to do so and that whilst the father lives in Australia he is fluent in the Chinese language and would be able to seek such assistance as he thought appropriate if I do determine that the mother’s application should be successful.
What I am required to do is to consider whether or not it is in X’s best interests to make the summary orders sought by the mother or to make more detailed inquiries on the merits as the father seeks me to do. The High Court refers to a passage from a judgment of Buckley LJ in Re L (1974) 1 WLR 250 where he says:
“To take a child from his native land, to remove him to another country where maybe his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and to subject him to a foreign system of education are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors) which are likely to be psychologically disturbing to the child particularly at a time when his family life is also disrupted”.
As Mr Strum pointed out, that quote is applicable to the situation here. In this situation, X was removed from his familiar environment in China without any notice to him and taken to Australia where he does not speak the language except perhaps to a minor degree, where the culture would be different, where he is staying with his father when previously he has only spent one overnight with him and to be taken away from his mother and grandparents who have been the significant carers in his life. That causes me concern not with a view to being punitive towards the father but of concern for the psychological welfare of X because that must have been, at the very least, confusing to him if not distressing.
The father says that apart from X expressing regret that he did not say goodbye to his grandparents and school friends, that he has settled in well and he has not spoken of being distressed or missing his mother. That has to be seen in the context of this child only being in Australia for some six weeks but also one has to wonder how comfortable X would feel in expressing to his father his feelings about those issues when prior to now he has not had that kind of secure relationship with him. A child at 10 years old may well think it is an adventure but he may not realise the implications of being here long term and what that would mean in terms of his relationship with his mother and other family.
It raises concerns in terms of the father’s capacity to appreciate his responsibilities towards parenthood and his understanding of the emotional needs of X. It is of concern that he would take such action, to make such a drastic change to X’s life and to indicate that that is not causing him any confusion or distress. He also says that he felt that taking this action was the only way that he could ensure that X had a meaningful relationship with both his parents but it is not clear to me how the removal of X from his familiar environments and where he has lived most of his life would facilitate that and in fact, it is clear that the father has rights of residence in China and had gone to China and lived there for a couple of years.
It is of note that he did not take any action whilst in China to initiate any proceedings or take any actions through lawyers to negotiate some increase in time and did not live in the same city. The action that he took was really quite extreme and as I said before was clearly planned in advance. And whilst it was also clear that the High Court in ZP & PS and in many cases since have talked about public policy issues in cases like this, particularly with respect to the need to discourage parental child abduction, which this case clearly is about although not covered by the Hague Convention, the public policy issue is not the determining factor.
The determining factor is the consideration of X’s best interests and of relevance to considering that issue is determining whether or not the relevant questions as to his welfare are answered by returning him to China on summary orders made today or acceding to the father’s request that there be a determination on its merits in Australia. If I were to accede to the father’s request, in my view that would require a full family report not a section 11F process. Ordinarily, matters that come into my duty list such as this today would be getting a hearing date in 2017.
In a case like this, however, it would be necessary to look for a speedier solution at the expense of other cases. I raise that as that was a matter that was also considered in Killam& Loeng but I note again, that that is not the decisive factor. It would be possible to make inquiries either at this registry or look at transferring it to the Family Court to have the matter dealt with quickly. However, on any view that would involve, particularly given that it is December, the matter taking at least a couple of months to be heard.
I was also referred to the Full Court decision of EJK & TSL and it is clear that the relevant consideration is that in some circumstances where there is an abduction to a non-Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. And in making that summary order the Court is having regard to that child’s best interests as the paramount consideration.
The Court also went on to note that in determining issues like this, it is necessary to consider the child’s long-term welfare issues as well as short term and the Full Court also quoted Baroness Hale in Re L. It was relevant to consider the degree of connection the child has with both countries, not in a technical Hague Convention sense about habitual residence, but more looking at the issues that I have already touched on, such as nationality, culture, language and education.
The case of Killam & Loeng concerned the issue of whether or not the court should make summary orders returning a child to China and for any parenting issues to be determined there. The majority of the Full Court approved of the trial judge’s decision. The trial judge considered factors, including the likely impact on the children of the dislocation without notice or opportunity to adapt. That is certainly a relevant factor here, which I have referred to before.
In that case, there was some evidence about the laws that apply in China, although the evidence was clearly less than satisfactory. However, the Full Court found that even if the issue with respect to Chinese family law was not fully ventilated, that was not necessarily inconsistent with the children’s best interests requiring a child to be returned. The majority refers to another decision of Baroness Hale where she says that a summary return should not be the automatic reaction to any and every unauthorised taking or keeping of a child from his home country. On the other hand, a summary return may very well be in the best interests of the individual child, and that certainly summarises, very well, the task that I have to determine here.
The task is not for me today to engage in an exhaustive determination of parenting issues on its merits, rather, determining whether or not any such determination should happen in China or Australia. There is nothing before me that would lead me to assume that the usual inference about the comity of courts should not apply in this case, particularly bearing in mind, as I indicated previously, the father is in a good position to litigate in China should he wish to and it is also relevant to note that he owns real estate in Australia and says he is on a salary of about $110,000 a year.
I was certainly taken to the authorities in detail and whilst I have not referred to all of what I was taken to, I have considered carefully the submissions by both counsel and the affidavit material before me. Having considered those factors, in my view, X’s best interests dictate that I make orders in accordance with the mother’s application. X has strong connections with China. That is the environment that he has known. It does not mean the end, necessarily, of litigation or the end of his relationship with his father.
If X were to stay here, he would be remaining in an unfamiliar environment. He has been removed in circumstances where it would be confusing to him and if he were to stay here until this matter could be determined that would involve some significant disruption to his schooling. The school year in China is entirely different to Australia. Whilst the Australian school year is winding down, in China it is in the early stages of the school year and if he were to remain here, it is likely that he would fall behind, particularly if the end result was that he returned to China. That is not the primary factor, but it is one of many and it is also relevant that the mother is here temporarily, really, in the circumstances to prosecute this case.
Whilst this is a difficult matter, as these types of arguments are, I am satisfied that it is in X’s best interests that I make the orders requested by the mother in her amended initiating application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 22 December 2015
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