Kien and Lavan

[2018] FCCA 4007

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIEN & LAVAN [2018] FCCA 4007

Catchwords:
FAMILY LAW – Children – parenting arrangements – where parties entered into consent orders on 15 September 2011 – where the father now seeks sole parental responsibility for the child – application made ex-parte – where the mother relocated to China in or about September 2016 and has not spent significant time with the child since that date – no communication between the mother and the child since 2 April 2018 other than by only known email address – service unable to be effected – whereabouts of the mother in China unknown – father solely responsible for child’s care including education and health.

Applicant: MR KIEN

Respondent: MS LAVAN

File Number: ADC 4258 of 2008

Judgment of: Judge Mead

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Adelaide

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Not applicable

Solicitors for the Respondent: Not applicable

ORDERS

1. That the order made herein on 15 September 2011 with respect to parenting issues be discharged.

2. That the father have the sole parental responsibility for [X] born … 2007 and that [X] live with the father.

3. That [X] spend time with and communicate with the mother at times and on conditions as agreed between the parties taking into account [X]’s wishes.

4. That leave be granted for the issue of a passport in the name of and for the child [X] born … 2007 and that the said child be permitted to leave the Commonwealth of Australia.

5. That the Passports Office of the Department of Foreign Affairs and Trade issue a passport in the name of the said child upon the filing of the appropriate completed application form exhibiting the permission of the father Mr Kien.

6. The requirement for the permission of the mother Ms Lavan to the issue of the said passport be dispensed with.

7. That the court requests that the Australian Federal Police remove the name of the child [X] (male) born … 2007 from the Airport Watch List at all points of international arrivals and departures in Australia.

8. That the application filed herein on 3 August 2018 be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4258 of 2008

MR KIEN

Applicant

And

MS LAVAN

Respondent

REASONS FOR JUDGMENT

1. This application was brought before the court by the applicant father, Mr Kien, by way of an initiating application filed on 3 August 2018.  He seeks to be able to proceed on an ex parte basis.  He requests that all previous parenting orders made in respect of the parties’ child, [X], who was born on … 2007 be discharged and for the applicant to have sole parental responsibility for  [X].  Further, that [X] is to live with the father and that [X] is to spend time with and communicate with the mother as agreed between the parties.  He seeks that [X] be removed from the Airport Watch List and that Mr Kien be able to obtain a passport for the child.

2. On 15 September 2011, Dawe J made a consent order with respect to [X]’s parenting arrangements in the Family Court of Australia.  Both parties were represented by solicitors.  At this time, [X] was separately represented.

3. The order contained a notation that the parties would attend mediation at Relationships Australia at the end of [X]’s first term of schooling in 2013.  The mediation was to address the appropriate timing and introduction of a move to a week about equal shared care arrangement.  If the mediation was unsuccessful, the parties would arrange for a family report to be carried out and if needed, would provide it to the court in due course.  The family report would provide some guidance as to [X]’s future parenting arrangements.  The order also noted that [X] was enrolled and on the waiting list at School A and that he was also enrolled and attending the Chinese School.

4. The order provided for the parties to have equal shared parental responsibility.  [X] was to live with the father from Saturday at 12.30pm until 9.30am on Wednesday of each week, and with the mother at all other times until such time as [X] was enrolled in and attending the School A Early Learning Centre.

5. When [X] began schooling at the Early Learning Centre he was to live with the father from 12:30pm on Saturdays to the commencement of his attendance at the Early Learning Centre on the Wednesday of each week.  [X] was to live with the mother for the rest of the week.

6. There were specific orders made for [X]’s time with each parent on Mother’s Day, Father’s Day, over Easter and at Christmas.  There were specific orders to provide for handover arrangements, communication between the parties, communication between [X] and each of his parents, the provision of a communication book, the progress of his education, the parents’ interactions with his school and learning centres and the attendance of [X] at Chinese classes.  Further orders, and what might be labelled as standard provisions, were made for the exchange of information about [X]’s health, education and the like.

7. This application has come about because the September 2011 order is over seven years old and [X] is now aged 11.  The father’s affidavit filed on 3 August 2018 deposes to things having changed quite dramatically since the order was made.

8. In the affidavit filed on 3 August 2018, the father said that at the time of the swearing of the affidavit:

   [X] lives with me full time and has not spent time nor communicated with the mother since 2 April 2018.

9. At my request, Mr Kien looked on his phone today and told me that on a date in August 2018, the mother attended [X]’s school and was apparently seen outside of the school talking with the child before the morning bell and that she gave him a gift on that occasion.  She did not communicate with the father at all and there has been no further communication between [X] and his mother nor between the father and the mother.  Other than that brief visit in August 2018, there has been no time spent or communication between [X] and his mother since 2 April 2018.

10. The father deposed to not having a section 60I certificate because the mother usually resides in China and has done so since September 2016.  He also deposed that he did not have an address for the mother or know how to contact her.  He said that the September 2011 consent order was adhered to until the mother informed him in or about 2014 that she was travelling to China for about four weeks and asked him whether he would look after [X] while she was away.

11. The father said that from about June 2014 the order had been varied during the school holiday period such that [X] spent most weekends with the mother.  That arrangement was in place until 7 February 2016.  This was to allow [X] to spend time with his mother on the weekends during the holidays as she worked on weekdays.  After the school holiday period finished, the original September 2011 consent order arrangements were put back in place.

12. The father deposed to the mother not having any involvement with the day-to-day responsibilities for [X] such as taking him to doctors’ appointments, involvement with his school and other parental responsibility.  The father also said that [X] apparently spent a significant amount of time with his maternal grandparents.

13. The father deposed to the mother requesting to vary the orders between 7 February 2016 and 15 January 2017.  The orders were varied so that [X] would spend time with his mother on Sunday and Monday nights.  In or about January 2017, the mother told the father at a handover at the Suburb B Library that she was taking a trip to China for three months and asked if he would have any issue in caring for [X] full time.  She left in January 2017 for China and since that time, the father deposes to [X] having lived with him and spending time with the mother when she requested on an intermittent basis.  In 2017, [X] spent some time with his mother on various dates between March and May 2017.

14. The father deposed to the mother leaving the country again in May 2017.  He accompanied [X] to the Adelaide Airport to see the mother off.  The mother was in China between May 2017 and March 2018.  He said the mother did not contact [X] during that period.

15. [X] tried to contact her for Chinese New Year in February 2018.The father said that he tried to contact the mother for Chinese New Year in February 2018 via an email address but there was no response, nor was there a response when he called the Chinese mobile phone number that he had.  He tried the next day to contact the mother again via email but there was no response.  He said that on 16 February 2018 [X] used his paternal grandfather’s iPad to contact the mother via the Chinese messaging platform WeChat.  He wanted to send a message to his mother to wish her Happy New Year.  There was limited contact established with the mother on that occasion via video chat.  There were no other attempts by the mother to contact [X] while she was in China.

16. The mother arrived back in Adelaide in mid-March 2018 and spent some brief time with [X] on various occasions.  This included: at a hobby class on 19 March 2018, from 11:00am to 8:00pm on 25 March 2018, and time after a Chinese class from 3.45pm on 31 March 2018 until 8:00pm on 2 April 2018.  The mother travelled back to China on or about 18 April 2018.  The father said the mother did not provide any contact details to him or [X] to get in touch with her nor provided the address of where she was staying in China.  There was no answer to any of the attempts made trying to contact her via mobile phone.

17. The reason the father sought that the matter be dealt with ex parte was that he did not have an address for the mother or her family.  There was no way of obtaining this detail.  Significant efforts were made by the father and by the Northern Community Legal Service to contact the mother through her previous solicitor, Mr Richardson.  These were however, unsuccessful.

18. The father deposed to [X] being at School A in grade 5, achieving regular milestones, having a high academic standard in his first term of 2018 and often being praised by his teachers for his schoolwork.  The father believes that [X] needs a stable family home environment for his upbringing.  The mother does not have regular contact with [X], lives an almost transient lifestyle and only contacts [X] when it appears to be convenient for her.

19. In early 2016, the father says he had discussions with [X] about perhaps the need to live with one parent and spend time with the other.  [X] understood this but apparently wanted some time to think about it.  He then said to his father that he was happy to live with him and spend time with his mother as could be arranged.

20. The father then deposed in paragraph 43 to there being times when [X] has really wanted to contact his mother and has not been able to do so.  He said [X] has been and continues to be encouraged to have a good relationship with both his father and his paternal grandparents as well as his mother and his maternal grandparents.  [X] has said that he would like to travel overseas, particularly to China, and that he would like to be given the opportunity to see his mother in China.

21. He says that [X] is in good health and that he does not have any pre‑existing or ongoing medical issues.  The father and [X] live with the father’s parents, that is, [X]’s paternal grandparents who are aged 76 and 84.  The father assists with their care.

22. The father says that it is in [X]’s best interest to live with him as [X] is primarily attached to him.  Since [X]’s birth, the father has attended all doctors’ appointments, schooling events and other related appointments due to the mother’s limited English capacity and inability to attend the appointments.  [X] always sought his father for solace if he was upset or frustrated about something.  The father is concerned that the current orders do not reflect the reality of [X]’s life.  The father is of the opinion that [X] needs to have some stability and know exactly what the arrangements will be.  He is not opposed to the mother continuing to spend time with [X] because he knows that is what [X] wants.

23. When the matter came before Registrar De Corso on 10 September 2018, she ordered that in the first instance, personal service of the application be dispensed with and in lieu thereof all of the originating documents be forwarded to the mother by email at the only email address that the father has.  The father, subsequently, on 7 November 2018 filed an affidavit of service and I am satisfied that the documents were sent to that email address.

RECORDED:  NOT TRANSCRIBED

The father has not had any response.

1. In those circumstances, I consider it to be in [X]’s best interest that I discharge the existing orders; that I make an order that [X] live with his father and spend time with his mother as agreed and in accordance with [X]’s wishes; and an order that [X] be able to obtain a passport.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 27 June 2019