Jian & Hui
[2023] FedCFamC1F 107
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jian & Hui [2023] FedCFamC1F 107
File number(s): BRC 9028 of 2019 Judgment of: BAUMANN J Date of judgment: 2 March 2023 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time – Where the father is a citizen of Country B and Australia – Where the father is unable to return to Country B without fear of imprisonment – Where the mother is a citizen of Country B – Where the mother’s application for Australian citizenship is currently on appeal to the Administrative Appeals Tribunal Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 20 & 22 February 2023 Place: Brisbane Counsel for the Applicant: Mr Casey Solicitor for the Applicant: Clarity Legal Group Counsel for the Respondent: Ms Chiang Solicitor for the Respondent: Turnbull Mylne Counsel for the Independent Children's Lawyer: Mr McGregor Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor
Table of Corrections 24 March 2023 In paragraph 10 the word “2020” has been replaced with “2022” ORDERS
BRC 9028 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JIAN
Applicant
AND: MS HUI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
2 mARCH 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That the parents have equal shared parental responsibility for the child, X born 2016 (“the child”) and for this purpose, the parents will be jointly responsible for making major long-term decisions for the child including but not limited to:
(a)the child’s education (current and future);
(b)the child’s health;
(c)the child’s cultural and religious upbringing;
(d)the child’s name; and
(e)the child’s living arrangements to the extent that it affects the child’s relationship with a parent.
2.That the parents are required to make all decisions about major long-term issues in relation to the child jointly, and shall:
(a)advise the other parent of the decision to be made;
(b)discuss the options that are in the best interests of the child; and
(c)use their best endeavours to come to a joint decision.
3.That the child live with the parents during the
firstschool term as follows:(a)In week one (1), with the mother from 9.00am Saturday until before school (or 9.00am) Wednesday;
(b)In week two (2), with the mother from 3.00pm Monday (or 9.00am if a non-school day) until before school (or 9.00am) Wednesday; and
(c)With the father at all other times.
4.That the child live with the parents during school holiday periods as follows:
(a)For the term one (1), two (2) and three (3) school holiday periods for one-half of each period, with the mother in the first half in even numbered years; and
(b)For the term four (4) school holiday period, Orders 3(a) and 3(b) above shall apply.
5.That during the Christmas period, the child shall spend time with the parents as follows:
(a)In even numbered years with the father from 4.00pm Christmas Eve until 4.00pm Christmas Day, and with the mother from 4.00pm Christmas Day to 4.00pm Boxing Day;
(b)In odd numbered years with the mother from 4.00pm Christmas Eve until 4.00pm Christmas Day, and with the father from 4.00pm Christmas Day to 4.00pm Boxing Day.
6.That unless otherwise in the mother’s care, the child shall spend time with the mother for Mother’s Day from 9.00am to 5.00pm.
7.That unless Otherwise in the father’s care, the child shall spend time with the father for Father’s Day from 9.00am to 5.00pm.
8.That the child shall spend time with each parent on her birthday. The child shall spend time with the non-resident parent from 2.00pm (or after school) until 6.00pm.
9.That the child shall spend time with each parent for Country B New Year. The child shall spend time with the non-resident parent from 2.00pm (or after school) until 6.00pm.
10.That the child shall spend time with each parent for Country B Mid-Autumn Festival Day. The child shall spend time with the non-resident parent from 2.00pm (or after school) until 6.00pm.
11.That the child communicate with the parent she is not in the care of by FaceTime/Skype/or other agreed video call communication each Monday, Wednesday and Friday between 6.00pm and 6.30pm and at such other times as may be agreed between the parents or requested by the child.
12.That the parent who does not have the child in their care shall initiate the call, and the other parent shall ensure the child is ready, willing and able to answer such call, including ensuring that the mobile device is charged.
13.That the father and the mother will:
(a)keep each other informed at all times of their residential address, email address and land line and mobile contact telephone numbers and notify each other of any changes within twenty four (24) hours;
(b)keep each other informed of the names and addresses of any treating medical practitioners (this includes all main stream or alternate health practitioners) who treat the child and authorise those practitioners to provide the other parent with information about the child;
(c)inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness the child suffers and these parenting orders provide to any treating medical practitioner all authority necessary to provide to each parent all information about such illnesses or treatments; and
(d)keep each other informed of the current details of any private health cover held by each of the parents for the child.
14.That both the father and the mother authorise the school the child attends from time to time to give each parent information about the child’s educational progress and other school related activities and interviews, and supply each other with copies of school reports, photographs, certificates and awards the child obtains (at the requesting parent’s cost).
15.That both parents are permitted to attend all events at the child’s school and extra-curricular activities which parents are usually invited to, including but not limited to parent-teacher interviews, sports days, assemblies, etc.
16.That during the time the child is with either parent, each parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully to the child; and
(c)not denigrate or insult the other parent in the child’s presence or hearing and use their best endeavours to ensure others do not denigrate or insult or criticise each of the parents in the child’s presence or hearing.
17.That the parents encourage and not undermine the child’s relationship with the other parent.
18.That until further Order or else subject to the written consent of both parents, each parent, MR JIAN born 1961 and MS HUI born 1984, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child, X born 2016 from the Commonwealth of Australia.
19.That the Deputy Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court, or authenticated written consent of both parties or when the child attains the age of 18 years.
20.That unless in the case of urgency or serious contravention of these Orders, in the event of any dispute as to the interpretation, implementation or enforcement of these Orders (including any claim by a parent that it should be varied) the parents shall first attend family dispute resolution (FDR) with an FDR Practitioner appointed by the parents and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the parent raising the dispute shall nominate three (3) FDR practitioners, one (1) whom shall be chosen by the other parent within fourteen (14) days.
21.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.It is noted the mother has expressed an intention that when her visa matters are resolved, she may bring a fresh application before the Court, to enable the child to travel internationally and/or to seek an equal time regime.
B.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10/14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 24 March 2023
BAUMANN J
INTRODUCTION
X, born 2016, is the only child of a brief and somewhat ambivalent relationship between the Applicant father, Mr Jian (currently aged 61 years) and the Respondent mother Ms Hui (currently aged 38 years). At the conclusion of the trial, the issue in dispute between the parties had narrowed, broadly as a result of the efforts of the Independent Children’s Lawyer, Ms Harrington (“ICL”), supported by her Counsel Mr McGregor, being a dispute as to whether, in a numerical sense, X ought spend five nights a fortnight during school terms with the mother (as the father now proposes) or six nights a fortnight during school terms as the ICL proposes – such proposal being supported by the mother. Those competing proposals reflected also an agreement with the other parts of a proposed order provided to the Court by the Independent Children’s Lawyer before submissions and which was tendered as Exhibit 2.
BACKGROUND
To understand the context for the dispute between the parties, the following background hopefully will be of assistance and is well-known to the parents. Statements of fact which appear shall be regarded as findings of fact. The father was born in Country B but has lived in Australia for many years, having obtained citizenship via, it appears, an application for a protection visa. Since at least 2003, the father has been aware that a warrant for his arrest was issued by Country B authorities for apparently his actions or words spoken against the government of Country B, and, as a result, he says, and I accept, he is not able to return to the country of his birth without fear of imprisonment.
Notwithstanding that impediment, the father began a relationship with the mother (a citizen of Country B) online, in mid-2008. They met in Country C in late 2011 and married shortly thereafter. The mother suffered a miscarriage of an early pregnancy, and then it seems they had little to do with each other post-marriage until approximately 2015, when again the parties spent time together on holidays in Country C. The mother fell pregnant during that holiday and X was born in Country B in 2016.
From birth until late 2017, the child and the mother lived in Country B. In mid-2017, the father lodged a visa application in Australia on the basis that the mother was his partner and sought her ability to enter Australia, which she did with the child in 2017. X was then just over a year old. Perhaps unsurprisingly, on reflection, the parents’ somewhat ambivalent relationship showed early signs of disharmony. No purpose is served in trying to understand why these quite different people of different generations and different lifestyles were not able to compromise for a happy relationship. They were simply mismatched.
In early 2018, the father withdrew, then recommitted within days, to the support of the mother’s visa application. However, by late 2018, he irrevocably withdrew his sponsorship of the mother. In the circumstances, the mother had no choice but to leave Australia, which she did a month later, without the child X, who was then just over two years of age. The father refused to allow X to leave Australia with the mother. The parties say, and I accept, that, at the very least, that was then regarded as the time of final separation and the end of their relationship as partners.
The mother returned to Australia by a tourist visa more than six months later, in mid-2019. I am not satisfied that the father offered much support to the mother on her return, and, in fact, the conflict between the parties caused the mother, in mid-2019, to file an application in a State court for a protection order, which was ultimately withdrawn by her in late 2019 when she obtained an undertaking from the father not to do her harm. Therefore, no formal order was made.
When it became apparent that the father had concerns about the mother spending time with the child for whatever reasons were in his mind at the time, the mother filed an application in the Federal Circuit Court of Australia (as it was then known) on 2 August 2019. Because the mother’s application sought relocation with the child to Country B, a Judge of the Federal Circuit Court transferred the matter to the Family Court of Australia (as it was then known). Orders were made and family reports secured during the course of the management of the matter. However, when the matter came to me for the first time on 2 July 2021, it became obvious that the mother’s visa position was uncertain and that any prospect of the child being permitted to relocate to Country B in circumstances where she would never be able to have a relationship in that country with the father, were minimal.
On 10 September 2020, a Senior Registrar made Orders for the child’s time with the mother to occur from 9.30am Saturday to 3.30pm Sunday, and each Wednesday from 9.30am to 3.30pm.
Those interim Orders were not varied then for some time despite a family report being prepared by Psychologist Ms D. The Court Child Expert undertook interviews in January 2022 and published a report dated 4 February 2022. When I became aware of the matter for the first time, I was concerned that parenting orders for this young girl had not been reviewed for nearly two years. I listed the matter for an Interim Hearing on 28 June 2022, after which I made orders which included an increase in the time the child was to spend with the mother to be Saturday to Tuesday in week one, and Monday overnight in week two – effectively four nights a fortnight. I also made provisions for an extended block of time of five nights for the child to spend time with the mother in the forthcoming September 2022 school holidays.
I listed the matter for trial to commence on 15 December 2022. At the time the matter was listed for trial, the father had engaged highly specialised Brisbane CBD solicitors to appear for him. They had appeared for him during the course of the matter to that point. But then, he says, he was unable to afford those lawyers and so when the matter came before me for trial in December 2022, the father did not have legal representation. It was clear that section 102NA of the Family Law Act 1975 (Cth) (“the Act”) applied on a discretionary basis, and it would have been unfair to the father (who required the assistance of an interpreter) to proceed with a trial in December as he would have been unable to cross-examine the mother. Counsel for the ICL at the time, Mr K, agreed that the matter had to be adjourned. Arrangements were made on an interim basis, for X to spend some time with the mother over the Queensland gazetted school holiday period as set out in Order 2 made 15 December 2022.
Thankfully, when the matter returned to the trial list for hearing before me commencing 20 February 2023, the father had retained solicitors under the cross-examination scheme, and Mr Casey of Counsel appeared for him. The mother also had solicitors under the scheme or otherwise funded by Legal Aid Queensland, and Ms Chiang of Counsel appeared for her. Having identified the competing proposals earlier and based on the template offered to the Court by the Independent Children’s Lawyer, I believe the best way in which to consider the evidence and the very limited cross-examination I heard in respect to the disputed matter is to use the matrix of the primary and additional considerations in the Act after first noting the principles to be applied.
PRINCIPLES TO BE APPLIED
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
PRIMARY CONSIDERATIONS
Both the mother and father, through the proposals that they make, acknowledge that X will benefit from a meaningful relationship with each of them and the other parent.
The Court is required to give greater weight to the considerations in section 60CC(2)(b) than the benefit to the child of having a meaningful relationship with the parents. Section 60CC(2)(b) compels the Court to consider the need to protect the child from physical or psychological harm; from being subjected to, exposed to abuse, neglect, or family violence. X is indeed a lucky child in that although there are different parenting styles and attitudes by the parents, there is no evidence that would support a finding, nor did any of the Counsel seek a finding, that the child is at risk of physical or psychological harm, or of being exposed to abuse, neglect, or family violence in either parent’s care.
ADDITIONAL CONSIDERATIONS
Although the family report writer, Ms D, interviewed the parties for a report in January 2022, the interview of X by Ms D was short. Paragraphs 106 to 113 of the family report in evidence before me, made clear that X appeared relaxed and comfortable, and was able to engage in the short interview. She spoke in English, which – as the evidence has unfolded – is not the preliminary language being used in each of her parent’s homes. X made it clear that she was going to “big school” in 2022, and in fact that is the case. The Court has the benefit of reports from J School annexed to the father’s trial affidavit to show the steady progress the child has made at school. She seems to be a delight in that environment, according to her teachers.
There is nothing in the interview – brief though it was – between the report writer and X that created any concerns or suggested other than she felt a close and loving relationship with each of her parents. I am satisfied that the child is bonded to and has a warm relationship with each of her mother and father. On the evidence, I would not regard either relationship as superior to the other. Her history of care has been, as the background reveals, somewhat disjointed. At this stage with the regular time with both parents occurring, she has formed a close and loving bond with both of them.
I do not ignore the fact that the father has a daughter, Ms E, who is aged 37 years, and who is a mother herself. Ms E has a child called F, who is approaching his third birthday. I heard evidence from Ms E that she, her husband and F spend regular weekends with her father and X, and that I should accept, on the father’s case, and do accept, that there is a warm relationship with that extended family. Ms E gave evidence and presented as a highly intelligent person, and no doubt, the father would say that she is a good example of the quality of his parenting.
There has been restrictions to the extent to which the mother has taken or failed to take the opportunity to participate and spend time with X, but in my view, on a holistic assessment, that arose as a result of the inability of the mother to remain in Australia.
Certainly, when the child was younger, the father had been reluctant to allow the mother to have extensive time with the child. In a number of ways, I regard that as mostly associated with his lack of understanding of her as a parent through their limited relationship. She has, as his final proposition identifies, developed a greater level of confidence in him about her capacity to parent.
The biggest change likely for this child, and one which I can really do nothing about, arises from the mother’s possible inability to remain in Australia by reason of a failure to gain success in her ultimate aim of a compassionate decision by the Minister for Immigration, to her application now being a student visa.
The mother accepts that if her application, which is currently on appeal to the Administrative Appeals Tribunal (“AAT”) (having been refused by a delegate), is refused by the AAT, then the only option left to her at this stage is to seek the Minister's compassionate intervention. There is evidence from the migration agent, Ms G, that a resolution of the mother’s right to remain in Australia could take a further three years to be resolved, which apparently is the time it will take for all the migration applications to be dealt with to finality. It is a matter which I raised prior to submissions that does concern me, and that is maximising the opportunity for this child to spend time with the mother in circumstances where her ability to remain in Australia is uncertain, and may result in being required to leave the country for a period of time on short notice.
In the circumstances of this case, there is little prospect of this child living other than in Australia. There are no real practicalities or expenses in the child spending time with each parent in Australia as they live within a similar community on the H Region, close to the child’s school at J School.
Some of the material in the parties’ affidavits seeks to emphasise differences in the other parent’s capacity and attitude to parenting. But on reflection, and on the whole of the evidence, it seems to me that the mother and father are entirely different people from different generations; with a significantly different life experience; with different experiences as a parent, and as a result, are likely to – and do – parent differently.
The mother acknowledged this to be the case, and when asked in cross-examination what she saw as the differences, she, I think genuinely and honestly, identified the fact that the father is “more strict” and she is “more relaxed”. I accept that evidence.
The father, at different stages of his application before the Court, has emphasised the need for the child to perform well at school and he has been very concerned that there be no disruption to her scholastic training and school education, such that he sought and was previously successful in limiting the mother’s time to weekends, on this basis.
The child’s performance at school, since the mother has had more involvement with the child during school weeks, has reflected positively in the mother’s capacity to support the same ideal for the child to gain the best education she can, as the father seeks.
I felt both parents’ capacity to parent is, to some degree in Australia, diminished by their lack of effective English-speaking skills. In my view, the mother showed, in the witness box, a capacity to engage in English more easily and readily than did the father, which, is surprising, considering how many years the father has lived in Australia.
Despite this concern having been raised by the Court in earlier case management hearings, there is no real evidence that either of them has sought to do anything significant to improve their English over the last 12 months or so. The mother, of course, engages as an allied health worker with English-speaking customers and feels more comfortable in that environment speaking English.
The father, although he says he is currently reliant on government support and support from his daughter, Ms E, hopes that he may be able to obtain employment in an educational facility. He said his strength is not language but he is good at logic, and I understand from his evidence is experienced in the computer area. When asked about how he would be able to work in education in any subject, he indicated that the intention was that it be a Language-speaking class.
This capacity to not speak English well does provide a concern to the development of the child insofar as interaction with her peers and their families and interaction with school, but both parties have a deficit in that regard. My view is that the mother is more willing to improve her English skills than the father sees at this stage, and at his age, the need to do so.
The other area which concerned me was the lack of financial support made by the father towards the mother. His evidence is somewhat vague about how he supports himself. In cross-examination by Mr McGregor for the ICL, it was apparent that he has had the benefit of some support from his daughter, who ran a trust for the family; although she was the trustee and the primary beneficiary.
None of the evidence from the father adequately satisfied me that he could not have done more financially to assist the mother and thereby support the child in the mother’s care. The mother is in a particularly difficult situation. She has no right to government support. She must work to survive and if she works, she is not available to look after the child. Trying to find a balance between these challenges has not been easy for her. But on the evidence, I find the mother has demonstrated impressive resilience.
The father, on the other hand, appears to have plenty of availability to look after the child because he has no other commitments outside of the home.
I do not regard their attitudes to parenting as particularly different. They are different ages, look at the child with slightly different perceptions, but she is much loved and both parents want the best for her.
I note there were some proceedings in a State court for a family violence order, but no such order was made and there is no evidence of family violence between the parties.
Section 60CC(3)(l) invites the Court to consider “…whether it would be preferable to make an order that would be least likely to lead to further proceedings.”
If the mother is required to leave the country because of an inability to remain under any visa offered to her by the Australian Government, then that will be a significant loss for this child. I have indicated, in my view, that uncertainty does require the Court to consider the benefits to the child of maximising the available time between the mother and the child whilst the mother remains in the country. I anticipate, however, that if the mother is successful in one form or another to obtain permanent residential status, then – and depending on when that occurs and how the relationships with the child are then placed – a variation to whatever order I make today may well be in the child’s best interests, including an equal time order. That is a matter for another day.
CONSIDERATION
The parties agreed to an order of equal shared parental responsibility, and as a result the Court must consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with the parents. Neither party urge that upon the Court, but both parties – but in slightly different ways – urge the Court to consider the child living with the father and the child spending substantial and significant time with the mother. I accept the father, by the end of the trial, had somewhat moved his position and contended that the child should spend more time with the mother than the current interim Orders prescribe.
The father had a fairly entrenched and fixed view that the arrangements put in place by interim order in June 2022 were still in the child’s best interests and should not be expanded upon. However, in final submissions Mr Casey identified that the father was prepared to agree to a proposal which he says was in the best interests of the child, whereby the child would spend time with the mother during school terms from after school, or 6.00pm on Friday until before school Tuesday (four nights) and then from after school Monday to before school Tuesday in week two. I give credit to the father in considering the additional time would be in the child’s best interest and instructing his Counsel to make that submission.
CONCLUSION
I conclude and find, for the reasons articulated by the ICL and those articulated above, that the proposed orders of the ICL for time to occur during school terms in week one from 9.00am Saturday until before school Wednesday, and in week two from after school Monday to before school Wednesday, are in the child’s best interests. I am satisfied, despite no corroborative evidence offered by the mother, that she is so able to manage her Tuesday work commitments in such a way she can make arrangements for the child to attend and be collected from school on the Tuesday.
I do not regard the extra time that the child will spend with the mother will put at risk the basic structure in the father’s household, which he seeks to maintain. At her age, time with the parents is paramount. The uncertainties for this child in the future are such that, on balance, the extra time with the mother at this stage is in her best interest. Accordingly, I make the orders as set out in the commencement of these Reasons, as they are in the best interests of X at this time and for the foreseeable future.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 2 March 2023
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