Hsing and Song
[2016] FamCA 986
•17 November 2016
FAMILY COURT OF AUSTRALIA
| HSING & SONG | [2016] FamCA 986 |
| FAMILY LAW – CHILDREN – Best Interests – Where the child was living with the father and the paternal grandparents in China – Where the mother brought the child to Australia – Where the mother has retained the child in Australia without the father's consent – Where the father seeks orders for the immediate return of the child to China. |
| Family Law Act 1975 (Cth) ss 4, 60CC, 61DA, 65D, 65DAA, 65DAC Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| ZP v PS (1994) 181 CLR 639 EJK v TSL (2006) 35 Fam LR 559 Karim v Khalid (2007) 38 Fam LR 300 Zanda v Zanda [2015] 51 Fam LR 502 Killam & Loeng (2016) FACA 53 |
| APPLICANT: | Mr Hsing |
| RESPONDENT: | Ms Song |
| FILE NUMBER: | BRC | 10854 | of | 2016 |
| DATE DELIVERED: | 17 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 14 and 17 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hackett Mr Di Carlo |
| SOLICITOR FOR THE APPLICANT: | Bruce Dulley Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | T Lawyers Pty Ltd |
Orders
IT IS ORDERED UNTIL FURTHER ORDER
That the mother, Ms Song, and the father, Mr Hsing, shall have equal shared parental responsibility for making decisions on all “major long term issues” as that term is defined in s 4 of the Family Law Act in relation to the child, B born … 2012, (“the child”) save for and excluding the decision for the child to be returned to China as soon as practicable.
That the child shall live with the father and spend time with the mother as agreed between the parties in writing.
That the child be returned to China and to give effect to such order:
(i)The mother shall deliver the child into the care of the child’s paternal grandparents, as soon as they can be in Brisbane and attend at the home of the mother’s friend, Ms C, at D Street, Suburb E to collect him from her as soon as they can be here, even if that is within the next seven days;
(ii)The mother shall hand the child’s Australian passport to the paternal grandparents at the time she delivers the child to the paternal grandparents pursuant to 3(i) hereof;
(iii)When the paternal grandparents, Mr F born … 1961 (paternal grandfather) and Ms F born … 1957 (paternal grandmother), attend at the Brisbane International Airport with tickets to board a return flight to the People’s Republic of China with the child, B born … 2012 (male), in their care, with the intention of taking him on the flight with them to China, that child’s name shall be immediately removed from the Family Law Watchlist maintained at all points of departure in Australia by the Australian Federal Police and the said paternal grandparents shall be permitted to board the international flight to China with the said child in their company.
That notwithstanding paragraph 2 hereof that provides for the child to spend time with the mother as agreed between the parties in writing, in the event that the mother remains living in Australia then the time the child shall spend with the mother shall include some holiday time in Australia during his Chinese school holidays as well as some holiday time in China should the mother choose to travel to China to spend time with him.
That the said child shall communicate with the mother when he is not in her care by video chat facility at all reasonable times, but not less than on two (2) occasions each week, with such communication to be facilitated by the father.
That the competing Applications for final orders are listed to a Registrar for mention on the date to be fixed for the purpose of the making of any further directions considered necessary in the proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hsing & Song has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10854/2016
| Mr Hsing |
Applicant
And
| Ms Song |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On Monday the 14th and again today, Thursday the 17th of November 2016, I heard an application by the father of four year old B for interim parenting orders that would bring about the immediate return of the little boy to the People’s Republic of China to live there with his father, having been unilaterally brought to Australia from China by his mother in August of this year.
The little boy’s mother opposes the father’s application and wants to be allowed to continue to retain the little boy in Australia, living with her. She also seeks to be granted sole parental responsibility for the child.
Background
The father is a 32 year old citizen of China and lives in G Province in the north-east of that country. The mother is a 34 year old citizen of China, but is living in Australia now as a permanent resident of this country. Before coming to Australia to live, she previously lived in City H, in China, with her parents. City H is located some considerable distance to the south-east of where the father lives.
The father and mother met in 2004 in Brisbane. They were both here at that time as young adults, on student visas, studying. They both subsequently obtained permanent residency visas from the Australian Government, or at least that is what the mother asserts. They started living together as a couple in 2005, but in September 2006 the father returned to China for medical treatment for an illness he was suffering from at the time. They both agree that their relationship ended then and that they were not a couple whilst he remained in China for a period of time seeking treatment.
The father says he returned to Australia in early 2008. The mother says it was in early 2007. I cannot determine this disputed issue at this point and it does not matter to the outcome of this application.
They agree that they resumed their relationship and cohabitation upon the father’s return to Australia. They were lawfully married in Brisbane in 2010. Later that year, they had a wedding celebratory event back in China and they remained there in China for several months at that time.
They returned to Australia in December 2010 and again lived together in a home that I understand they had purchased in Suburb I in the south of Brisbane. They then also purchased a business together.
In late 2011, the father returned to China for more medical treatment for a spinal illness. I do not know if this was in any way related to the illness that he had earlier suffered that took him back to China previously. It was clearly a very serious illness, as nerve damage that the father suffered then has left him paraplegic, requiring the use of a wheelchair for mobility.
When the father returned to China in 2011, the mother was three months pregnant with their child, the child. Her father travelled to Brisbane from China to help her with the business and through her pregnancy. Initially, there was an apparent expectation that the father would recover and return to live in Brisbane. But when it became apparent that the father would not be returning to Australia, at least for some time, the mother’s father obtained an emergency visa that allowed him to stay here a while longer to help the mother. The mother’s mother also came to Brisbane to provide her with assistance. The parties also agree that the father’s mother travelled to Brisbane and helped the mother look after the baby boy for two periods that totalled several weeks during this same time.
The father asserts that when his health situation became clearer, he and the mother agreed that she would sell the home and the business and that she would return with the child to live with the father in China. The mother does not directly confirm that, though she clearly agrees that she was trying to sell the business. It seems that her evidence is that she, at least, was still hoping the father might be able to come back to Australia to live at some point.
When the child was about nine to ten months old, the mother and her mother travelled back to China with the child. The maternal grandmother’s visa permitting her to stay in Australia had apparently expired at that time and she had to return to China. The maternal grandfather must have already returned to China at the expiration of his visa that permitted him to stay in Australia. Clearly though, the mother, assisted by her parents for a lot of the time and the father’s mother for some of the time, had parented the child in Australia for the first ten months of his life, and the father had had no practical input to the child’s care in those months.
When the child was born, the mother and the father obtained Australian citizenship for him, as he was born here in Australia. At that time, they clearly wanted him to be an Australian citizen. The mother says China does not permit its citizens to hold dual citizenship, so they had agreed that the child would be an Australian citizen and that he would be brought up in this country. The father says that they opted for Australian citizenship because they thought it would be easy to obtain Chinese citizenship for him at a later time if they decided to do that, both of them being Chinese citizens.
When the mother took the child to China in March 2013, she only stayed there for about five days. When she took the child to China, she and the father had already agreed that the child would thereafter stay in China in the care of the father and his parents, the paternal grandparents, with whom the father was living. The mother says that she made what was a difficult decision to leave the child in the care of his father and his paternal grandparents as she had to return to Australia to run the business in Brisbane. She says that she considered that to be only a temporary arrangement until the business was sold, whereupon she intended to resume full-time care of the child here in Australia. The father certainly does not confirm that that was an agreed plan.
However, the father does say in his evidence that it is a Chinese cultural practice for the paternal family to care for a male child in circumstances such as this and he goes on to say that that decision was effectively imposed upon them because the maternal grandmother did not want to continue caring for the child. Indeed, the father exhibits to his first affidavit of evidence in the proceedings a copy of a document dated 9 January 2013, apparently completed and witnessed in the office of the Consulate General of People’s Republic of China here in Brisbane, an English translation of which has also been exhibited to the affidavit, in which the mother says that she and the father, who she says, in the document, is capable of taking care of their son, have agreed for the child to go back to China and to stay there with the father until February 2018.
It would seem that there must have been some Chinese Government requirement for such a document given that the child was an Australian citizen, but that is not clearly explained on the evidence before the Court, save that the father does say in his evidence that the child has a permit from the Chinese Government to live in China until he reaches 18 years of age. The father says he is required to renew that permit each year at some cost. There is nothing said in the formal document that I previously referred to about the arrangements planned by the parents to come into play after 2018 and the father does not specifically say anything about that in his evidence, save that he has effectively said that he understood the mother was going to move back to China once she sold the house and the business.
After delivering the child to the father in China, the mother returned by herself to Australia in early 2013. Interestingly, the business was not sold until late 2015. The mother says that was “after years of attempting to sell it”. However, she says nothing about why it took so long to sell.
The mother again returned to China for five days in 2013 to celebrate the child’s first birthday. She says she next returned to China in January 2014 and that she stayed with the father and the child for about four months before coming back to Brisbane. The father does not mention that visit in his affidavit.
The mother says that she went over to China again later in 2014, around August, and stayed for about a month with the father and the child before returning to Australia. The father says that the mother stayed for about two months on that visit. He says that during that visit the mother insisted on taking the child to City H to visit her family but that she returned the child to the father only a day later, claiming that she was unable to settle the child in the father’s absence.
The mother says that the paternal grandmother next brought the child to Brisbane and that they stayed with the mother for a month in April 2015. She says she accompanied them back to China at the end of that time and stayed there with them again for another month before she returned by herself to Brisbane once more.
The mother says that when she finally sold the business in or around December 2015, she suffered a broken hip that prevented her from travelling to China until April of this year. She says she returned to China and spent some days with her own parents in City H before going to the father’s place in G Province to celebrate the child’s birthday. Sometime thereafter she travelled to Country J with friends of hers for a week in June, again leaving the child with his father and paternal grandparents in China. When she arrived back in China, by agreement with the father, she then took the child to spend some time with her and her parents in City H and then for a few days in City K, ostensibly to take the child to a City K theme park. After that, she returned with the child to City H and, on 17 July 2016, the father sent her a message asking her effectively when she was planning on returning the child to his care. She responded to that question with words to the effect of it having only been a short time that she and the child had been away together at that point in time. The father pointed out that it had already been a month. He was clearly looking for the child to be returned or information at least as to when he might be.
The father says that he then sent the mother another message on 4 August again asking when she was going to return the child. He says he did not get a reply to this one. He then next says that on 18 August 2016, he received a text message from the mother in which she bluntly told him that she and the child were back in Australia; that she wanted a divorce; that she wanted “custody” of the child and that she wanted a property settlement to be effected with him.
Evidence of English translations of Chinese text communications between the mother and the father over a period of days after the father first learned that the mother had taken the child back to Australia, unsurprisingly reflects, on my reading of them at least, a range of emotions and responses from the father. He oscillates between initial anger and asking the mother to let him have “custody” of the child to then outwardly acquiescing in the mother’s unilateral action. He responded to her assertion that “it is impossible for the court to give your child’s custody” because of matters related to his disability and because the child is an Australian citizen, with a plaintive response that has been translated for the Court as “I don’t want to give up [the child’s] custody. Only for the benefits of [the child’s] future development, he can live in Australia. That does not mean I do not want to have his custody”.
They exchanged messages relating to the subject of some kind of agreement being reached between them about matters and that agreement appears to have included the possibility of the child staying in Australia with the mother. They messaged each other about obtaining legal advice. It seems plain that no certain, final agreement was reached and it is apparent to me that disagreement about the parenting arrangements for the child has continued since then.
The father says that he contacted lawyers here in Brisbane and paid them some money for a retainer but after a while when he was not satisfied with the work that they were doing for him, he retained his current solicitors who he instructed to file this Application in this Court. That was done on 28 October 2016.
The father says in his affidavit material that he knows little of the current living arrangements of the child and it is clear from his affidavit material that he is rather concerned about the child. He clearly wants him returned to his care, where he continues to be assisted by his parents, as he has been for most of the last three and a half years. His parents are, as the evidence discloses, aged in their fifties, and they have apparently been assisting him in the day to day care of the child through all those years.
Relevantly, the father says that between July 2014 and June 2015, the child attended childcare in China and that from June 2015 to June 2016 he attended kindergarten for five days a week at a school in their neighbourhood with “most of his classmates” being their “neighbours”. The father obtained approval he says for the child to have a few weeks of leave from kindergarten when the mother was there in the middle of the year, to spend that time with the mother.
The father says that when the mother arrived at his home in China this year to celebrate the child’s birthday, he “understood from [her] that she did not intend to return to Brisbane”. He says he thought she was going to stay with them there. He says his parents even paid for her airfares for the return flights to City H and back, so that she could visit her parents and take the child the child with her to visit them.
The father says that whilst he agreed to the mother taking the child for a month to visit her parents in City H and to visit City K during that time, that he did not give her permission to take the child from China to Australia as she did.
Although the mother does not expressly admit in any of her affidavit material that it was a unilateral decision to bring the child back to Australia without the father’s knowledge or consent, she does not make out any serious case that it was not. Whilst there is evidence of a text communication between the mother and the father in July when she had the child at her parents’ home in City H, in which she says, apparently in anger “I am going to take [the child] to Australia”, the father says he did not take that seriously at the time, thinking she was just angry. In my judgment, I do not consider that statement by her in that context as seriously giving the father some sort of notice of a firm intention to return to Australia with the child that can in any way be regarded as a proposal that the father then acquiesced in by not firmly and assertively telling her that he did not agree with her taking the child to Australia.
The mother now seeks to keep the child here in Australia over the father’s insistence that he return to his care in China. The mother seeks parenting orders from this Court confirming that position. The mother proposes in her response to the father’s application, that she will make the boy available to spend time with his father, but here in Australia if his father comes here to visit. By her response, she is not proposing to take the child to China to visit his father or his paternal grandparents. She has however, to her credit, facilitated regular video chat time between the child and his father on about two occasions each week since he has been in Australia. The father confirms that and speaks of that in his evidence.
In support of her opposition to the child going back to China, the mother refers to the fact that she and the father originally intended for the child to grow up in Australia and to be educated here. She also refers to her own expressed intention, said to have been maintained through the years, to go back and get him and bring him back to Australia to live with her after she had sold the business.
The mother also asserts that she and the child have “a very strong bond” and that he is very attached to her. It is to be remembered that she principally cared for the child for the first ten months of his life without his father being present in his day to day life at all at that time. However, from the age of ten months to four years, the child has been cared for by his father with the assistance of his paternal grandparents, with the mother spending some periods of time over those years, totalling some several months, with the child and being involved in his care during those times. For the last four months of course, she has been principally caring for him, the first month in China with the father’s approval and the last three months in Australia after the unilateral removal from his father and from China.
In her affidavit evidence the mother says “the main reason why” she brought the child back to Australia in August was because he can commence Prep School here in late January 2017 and she wanted him to start to learn English by attending childcare here for the rest of the year so as to make it easier for him to adapt to school life when he starts Prep. She says nothing at all in her affidavit evidence about any consideration that she might have given to the impact on the child of removal from his father and his paternal grandparents. She says nothing at all in her evidence about any consideration she might have given to the impact on the father and the paternal grandparents of the child’s removal from their care.
The evidence discloses that the mother has, as I have heard, casual employment in a business here in Brisbane and that the child attends childcare from day to day when she is working.
The mother also sets out some evidence in her affidavit material that could be described as criticism and complaints that she has about the care she sees the child receiving from his father and his paternal grandparents and she lists some of those things that she says concern her. Seemingly, she does that to provide some sort of explanation or justification for her unilateral removal of the child from their care and support for the proposition that he should remain in her care. Those matters though quite clearly did not stop her from leaving the child in the care of the father and his parents from early 2013 until the middle of this year notwithstanding that she had several visits of several months in total over that period of time.
In his affidavit, the father is also a little critical of the mother’s day to day care of the child. Seemingly, he does that to add some weight to his claim that the child’s best interests require him to be returned to China and that the living arrangements that have been in place for all this time be put back in place. However, I also observe that his concerns did not stop him letting the mother take the child for a month in July of this year before she unilaterally brought him to Australia.
In any event, it is impossible for me to determine matters of fact in respect of the complaints that the father makes about the mother’s care of the child and about the complaints the mother makes of the care provided for the child by his father and his paternal grandparents in China at this stage of proceedings. Findings of fact on contested issues like that require more than a two hour hearing on the papers before they can properly be determined.
How then is this matter to be determined?
China is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague in October 1980 (“the Hague Convention”), to which Australia is a signatory. The dispute between the parents is not to be decided pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). If it was, “best interests” considerations would not apply and the matter would be determined principally by consideration of the question of whether the child had been wrongfully removed from China and, if that was established, then by consideration of whether or not a discretion not to order the child’s return arises on the evidence and, if so, whether that discretion to refuse a return order should be exercised.
In this case though, although the father is a Chinese citizen and lives in China, he has invoked the jurisdiction that this Court has to make orders in relation to the child the child, as the child is an Australian citizen and was present in Australia on the day the father’s application was filed.[1]
[1] Family Law Act 1975 (Cth), s 69E.
The orders the father has formally sought in his application filed on 28 October are, as I have already said during the course of discussion this afternoon, with respect to the draftsperson, somewhat confusing. They are divided between interim orders sought and final orders sought. The interim orders he sought in his Application include location orders, seeking that information as to the whereabouts of the mother and the child be provided to him, that are clearly not now necessary to be considered or made. They include recovery orders authorising recovery of the child from the mother by police and delivery of him to the father. They include injunctive restraint on the mother from taking the child from the country other than to place him in the care of the father via an international flight from Brisbane to a particular named airport in China. They include orders authorising the child’s name to be placed on the Family Law Watchlist at points of departure from Australia. Most relevantly though, on an interim basis, they include an order sought by the father for the mother to “immediately return the child the Applicant father”.
In the same application, interestingly, the father seeks final orders that the mother deliver the child’s passport to the father’s solicitor and that the father be permitted to return with the child to China.
Although he has not expressly sought such clearly defined orders, it seems clear to me that the father actually wants interim and final parenting orders in the matter that provide for the child to live with him. It is unclear what orders he seeks in respect of the issue of parental responsibility and I cannot discern whether he would seek to share that with the mother or whether he would seek sole parental responsibility for the child. It is, however, and most importantly I consider, also clear to me that he seeks interim orders that include the mandatory immediate return of the child to China and into his care, and the related delivery to him of the child’s Australian passport. The final orders he seeks clearly contemplate the child living with him in his care in China.
This Court clearly has the jurisdiction to hear and determine the father’s interim application for the child to live with the father and for him to be immediately returned to China to give effect to such an order. In undertaking the determination of this application, most particularly in respect of the application for the order that the child be immediately returned to the father in China, the Court must, nevertheless, still regard the best interests of the child as the paramount consideration (See ZP v PS (1994)181 CLR 639; EJK v TSL (2006) 35 FamLR 559; Karim & Khalid [2007] FamCA 1287; Zanda v Zanda [2015] 51 FamLR 502). Those authorities, in my respectful judgment, most particularly countenance an order being made for the immediate return of a child to another country from which the child has been taken, upon a summary hearing, if the Court, having regard to the best interests of the child as the paramount concern, determines that should happen.
Relevantly, these proceedings involve the determination of competing interim parenting orders applications, therefore the Court is empowered, subject to s 61DA, to make such parenting order as it thinks proper (s 65D). When doing so, s 61DA 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. It is s 60CA that then mandates regarding the best interests of the child as the paramount consideration when deciding whether to make a particular parenting order. Section 60CC(1) also mandates that certain matters be considered when considering what is in the best interests of a child. Those matters are listed in s 60CC(3), but the last one is “any other fact or circumstance that the court thinks is relevant”, evidencing that the enquiry is a broad one indeed.
In this particular case, the father has not specifically sought an order that confers parental responsibility in any particular way, as I have already observed. Similarly, as I have already observed, the mother seeks an order be made on an interim basis conferring sole parental responsibility upon her. If parental responsibility was not specifically dealt with in the interim parenting orders to be made, each parent would retain parental responsibility as s 61C(1) expressly confers parental responsibility for a particular child who has not attained 18 years of age on each parent of that child. Of course, s 61C(3) then makes that conferral subject to any order of a court otherwise in force. However, it is very important to note, at least in my view, that the parental responsibility conferred by s 61C(1) is not shared parental responsibility and therefore can effectively be exercised jointly or indeed severally by the parents of the subject child.
In this case, the Court is being asked to make parenting orders in respect of the subject child. Even the order the father seeks for the child to be returned to China is a parental responsibility order. In such circumstances the s 61DA(1) presumption must be applied unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence (s 61DA(2)). As I discern it, neither parent really makes out such a case against the other. The s 61DA(1) presumption may also be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child (s 61DA(4)). Further, when an interim order is being considered, as in this case, if the Court considers that it would not be appropriate in the circumstances for the presumption to be applied, then it does not apply (s 61DA(3)).
In considering whether it would not be appropriate to apply the presumption and/or whether there is evidence that satisfies that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child it is, in my judgment, necessary to consider the effect of a parenting order that confers or provides for equal shared parental responsibility.
Pursuant to s 65DAC, when an order provides for two or more persons to share parental responsibility for a child and the exercise of that parental responsibility involves making a decision about a “major long-term issue” in relation to the child that order is “taken to require the decision to be made jointly by those persons”. That rules out such a decision being made severally by either parent. If such a decision is not made jointly by those persons it cannot be made at all by one of them acting unilaterally.
That is not all, though. By s 65DAC (3) the order is also taken to require each of the persons to consult the other person in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.
Issues that are described as “major long-term issues” in relation to a child are defined in the Act as issues “about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
In my judgment, evidence about the way in which parents have, do and would likely communicate with each other when making parenting decisions in relation to their children is relevant, principally because of the s 65DAC obligations, to determining whether an order that parental responsibility for a child is to be shared between those parents is in a child’s best interests. In this case, I have not seen any evidence or heard any submissions that actually persuade me that the s 61DA(1) presumption is rebutted or that that it would not be appropriate to apply it. Accordingly, in this case, I will make an order that parental responsibility for the child is to be shared and shared equally between the parents.
The father seeks orders that the child be returned to China and to live with him. It is not clear, as was pointed out, what orders he proposes for the child to communicate or spend time with his mother if the Court orders in accordance with the father’s proposal for the child to return to China to live with him. The mother seeks orders that the child lives with her in Australia, that the child continues to communicate with his father by video chat and that he spends time with his father if and when his father visits Australia. The options could not be more starkly contrasting. What then are the proper orders to make having regard to the boy’s best interests as the paramount consideration?
Having regard to the matters set out in s 60CC as I must, and as I have, I am satisfied of the following:
(a)The child is too young for any views he might have expressed about where he wants to live and with whom he wants to be to carry much weight and, in reality, I have no evidence of any weight relating to this matter, although each parent has said some things about what they perceive about the boy’s happiness and satisfaction with matters in his day to day life, said to be based on things the boy has said to them;
(b)The father, though paraplegic, with the assistance of his parents who he and the boy have been living with in China for the last three and half years prior to the boy’s removal from China, apparently cares adequately for the child, in terms of physical (including financial support) and emotional care;
(c)There is evidence suggesting the father might use or favour the use of some physical discipline on the child at times, though I can make no absolute finding about that other than that he advocated its use to the mother once when she was having difficulty with the boy’s behaviour, when she was in City H in July, and asking the father for advice on how to deal with it;
(d)The child would have very significant emotional attachments to his father and his paternal grandparents consequential on living in the same home as them and being cared for by them since he was a ten month old infant;
(e)The child would have developing social relationships with other children around his age from his neighbourhood, including with those with whom he attends kindergarten;
(f)The child would have strong familiarity with the home in which he has been living with his father and paternal grandparents, the neighbourhood within which he has been living, and the kindergarten he was attending;
(g)The mother voluntarily placed the child, as an infant, in the care of the father and his parents and she signed an official document attesting to her belief that the father was well capable of caring for the child as well as an express intent for the child to remain living with his father at least until early 2018;
(h)The mother visited the child, the father and the paternal grandparents on several occasions over the three and a half years the child was living in their care and took no steps before August this year to change the arrangements that had been until then agreed upon and then, when she did so, she did so unilaterally and surreptitiously;
(i)The mother likely knew the father would not agree to her taking the child from China back to Australia to live at that time, explaining, at least to my satisfaction, why she did not ask him beforehand;
(j)Between the mother’s visits to the father’s household in China over the last four years, the father has apparently remained sensitive and amenable to the child’s relationship with the mother, the father has apparently facilitated positive memories of the mother being held by the child, and the father has continued to accept, apparently, the importance of the mother’s relationship with the child and fostered that relationship;
(k)The child does have a good relationship with his mother and when he is with her she provides adequate care for the child;
(l)Unilateral removal and retention away from the care of the adults with whom the child would be principally attached, the social peer group the child was familiar with, and the immediate physical environment that he was familiar with on a day to day basis would, in my judgment, have a considerable impact on the child’s emotional well-being;
(m)Removal and retention away from a cultural and language environment that the child has spent key formative years within and placement within a distinctly foreign language and cultural environment with a requirement to adapt quickly to that sudden change would add to the impact on the child’s emotional well-being;
(n)Though the mother facilitates regular video chat communication between the child and his father, the mother has otherwise demonstrated little sensitivity to and regard for the impact on the child of removal from his father and paternal grandparents in China to Australia and she continues to do so by her proposals for the immediate future, including proposing limiting any time the child spends with the father to occasions when the father might visit Australia;
(o)The mother’s parents, from whom she has obtained much support in the past, live in City H, China, where the mother was born and raised by them, and there are, apparently, no close relatives of the mother or the father living here in Australia;
(p)The father’s capacity to visit Australia is affected by his physical disability;
(q)There is no apparent impediment to the mother returning to China to live and/or to work, although it is not her preferred course, and there is no apparent impediment to her returning to China on a regular basis, as she has done in the past, if she chooses not to return to live there, so that she can visit the child on those regular visits and to spend time with him and during that time to facilitate his relationships with the other members of the extended maternal family;
(r)Previous intentions formed by the parents about the preferred citizenship of the child and his likely place of residence and upbringing prior to the changed circumstances of the father’s return to China several years ago and the child’s relocating there at the age of ten months, though relevant in this determination are far from determinative;
(s)Previous, short-lived expressions of acquiescence by the father in the immediate aftermath of new arrangements unilaterally forced upon him by the mother, are also far from determinative;
(t)Returning the child to his father’s care in China and permitting him to spend regular time with his mother if she returns to live in China would allow him to maintain his existing relationships with his father and his paternal grandparents and to further develop his existing relationships with his mother and her family;
(u)Returning the child to his father’s care in China and permitting him to spend regular time with his mother on occasions when she visits China, or even in Australia during his Chinese school holidays if the mother decides to remain living in Australia, would restore the child’s day to day and ongoing living arrangements to exactly what they were before the mother unilaterally so dramatically changed them and would also allow the child to maintain his existing relationships with his father and his paternal grandparents as well as further developing his existing relationships with the mother and with her family;
(v)Keeping the child away from his father and his paternal grandparents any longer now would likely further exacerbate the impact on the child’s emotional wellbeing;
(w)International child abduction, particularly whereby the child is taken from its habitual place of residence, by a parent who is separated from the child’s other parent is abhorrent and is not to be encouraged;
(x)It is most appropriate for determinations about the parenting arrangements for children whose parents have separated to be made by the parents themselves, but, in the event that is not possible, it is most appropriate that they be made by the Courts of the place of the child’s habitual residence. In this case, I am firmly satisfied that the child’s place of habitual residence is China;
(y)It is nevertheless quite appropriate for this Court to make those determinations where the jurisdiction of the courts of the child’s place of habitual residence has apparently not yet been invoked and this Court has the relevant jurisdiction in any event.
In this case I have absolutely no evidence before me about Chinese law that might relate to parenting disputes. I have no evidence about where, by whom and how they are determined. I have had, however, a first instance decision of one of my fellow judges provided to me by counsel appearing in this case today. That decision is in the matter of Killam & Loeng (2016) FACA 53. In that case Justice Hogan made reference to some evidence that had been led before her in a not too dissimilar matter to this one where the evidence related to parenting orders disputes and how they might be determined in the People’s Republic of China. I can say at least from reading that, that it is appears that each of the parents in this particular case has a right to litigate disputes about parenting arrangements in respect of the child in an appropriate tribunal or court in the People’s Republic of China if they choose to do that in that country.
Weighing all of the matters that I must and I have, I am satisfied that the proper interim parenting orders to make having regard to the paramountcy of the little boy’s best interests include orders that the boy be permitted to be taken out of Australia so that he is returned to China to his father’s care, as soon as that can properly be arranged.
I have already indicated that I consider equal shared parental responsibility to be an appropriate order at this stage as well. However, as “changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent” are listed as falling with the meaning of “major long-term issue” in the statutory definition of that term, and an order requiring the child to be returned to China against the mother’s wishes will, I concede, make it significantly more difficult for the child to spend time with his mother than he currently does, unless of course she also moves back to China, I consider that I must expressly deal with this particular matter in the parental responsibility order that I will make in any event.
I will order that the parents have equal shared parental responsibility for making decisions on all “major long-term issues” (as that term is defined in s 4 of the Family Law Act1975) in relation to the child, save for and excluding the decision for the child to return as soon as practicable to China which is a parental responsibility decision being made in this case on an interim basis by the Court.
I am, therefore, also required by s 65DAA of the Act to consider whether the child spending equal time with each of the parents would be in the best interests of the child and also whether the child spending equal time with each of the parents is reasonably practicable and, if satisfied as to those two matters, I am required to consider making an order for the child to spend equal time with each of the parents.
At this point in time, given that the child has been living with his father for the three and a half years and has not seen his mother a lot in that time until a few months ago, I am not persuaded that it would be in the child’s best interests to spend equal time with each of the parents and I consider that he should go back into the principal care of his father on an interim basis.
Having regard to the other consideration about reasonable practicability, I cannot say that I am satisfied that it is reasonably practicable for the child to spend equal time with each of the parents considering the matters I must consider that are set out in s 65DAA(5) and considering the absence of any evidence whatsoever that the mother will relocate back to the same location in China as the father lives in the event that the child returns to live in China.
Consequently, I simply cannot make an order that the child spends equal time with each of the parents.
That said, the very same two considerations must now be given to the question of the child spending substantial and significant time with each of his parents. Pursuant to s 65DAA(3) a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Again, whilst I am reasonably satisfied that it would be in the child’s best interests to spend substantial and significant time with both of his parents, it is the impossibility of finding that such would be reasonably practicable given, as I have said, the absence of any evidence that the mother will relocate to the same location in China as the father lives in the event the child returns to live in China, that prevents me from making at this point in time, an order that the child spends significant and substantial time with the mother.
I intend to make orders that do facilitate the return of the child to the father’s care in China as soon as that is practicable, but at this point, I consider it appropriate to give the mother and the father, together with the assistance of their legal representatives, an opportunity to agree on the wording of such proper orders so that the logistics of how that happens can, if possible, be agreed upon and so that the time that the mother spends with the child might also be agreed upon.
Now, unless persuaded otherwise, I intend to stand down for 30 minutes to give the parties the opportunity to bring in agreed minutes of such orders for me to consider making. To be clear, the mother is not being asked to consent to such orders, but is being given the opportunity to have some input into the form of orders that are to be made that effect return of the child to China as soon as practicable. Of course, before I make such orders I will observe that they are clearly not made with the mother’s consent. And before I make any such orders, or if no agreed minutes can be provided, then I will hear any further submissions as to the form of the orders that each party submits I should actually make to give effect to my determination before I actually make the orders.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 November 2016.
Associate:
Date: 21 November 2016