KILLAM & LOENG

[2015] FamCA 53

FAMILY COURT OF AUSTRALIA

KILLAM & LOENG [2015] FamCA 53

FAMILY LAW – CHILDREN – welfare jurisdiction – whether it is in the children’s best interests to make a summary order for their return to a non-Convention country – Order made

Family Law Act 1975 (Cth) s 67ZC

In re L (minors) [1974] 1 WLR at 264-265
Karim & Khalid (2007) FLC 93-348; (2007) 38 Fam LR 300
Kwon & Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559)
Pascarl & Oxley (Edited) [2013] FamCAFC 47
ZP v PS (1994) 181 CLR 639

APPLICANT: Mr Killam

RESPONDENT: Ms Loeng

FILE NUMBER: BRC 125 of 2015

DATE DELIVERED: 6 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 3 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan QC

SOLICITOR FOR THE APPLICANT: Mr Jones of Jones Mitchell Lawyers

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steel

SOLICITOR FOR THE RESPONDENT: Ms Pullos of Cassandra Pullos Lawyers

Orders

1. The mother is forthwith permitted to remove the children R, born … 2008 (a female) and J, born … 2012 (a female) permanently from the Commonwealth of Australia.

2. The father forthwith instruct his solicitors, Jones Mitchell Lawyers, to immediately deliver all of the children’s passports and travel documents currently held by that firm to the mother’s solicitors, Cassandra Pullos Lawyers.

3. The Court requests that the Australian Federal Police immediately remove the children’s names from the Airport Watch List in force at all points of international arrivals and departures in the Commonwealth of Australia.

AND IT IS FURTHER ORDERED

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Killam & Loeng 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 125 of 2015

Mr Killam

Applicant

And

Ms Loeng

Respondent

REASONS FOR JUDGMENT

1. The parties and their two children, R born in 2008 and J born in 2012, flew from Shanghai into Melbourne on 19 December 2014 for an annual holiday. After spending a week or so there with the children’s paternal grandparents, the then family unit travelled to the Gold Coast to continue their holiday.

2. Despite the existence of travel plans which provided that the parties and children depart Australia on 11 January 2015 and return to Shanghai, they remain on the Gold Coast.

3. Since 7 January 2015, the children have lived with the mother in rental accommodation. Since 27 January 2015, they have spent some limited time with the father, who also continues to live in his own rental accommodation.

4. The continued presence of the children in Australia is contrary to the wish of the mother – who seeks their immediate return to Shanghai – but consistent with the wish of the father, who seeks that they hereafter live in Australia.

5. The mother left Shanghai believing that the family was travelling to Australia for a holiday as they had done in previous years. She does not want to live in Australia. The father does. Before telling the mother on 31 December 2014 that he did not intend the children to return to Shanghai, the father secured the children’s Australian passports and Chinese travel documents in a facility provided by an Australian bank.  The mother told him she did not agree to the children remaining in Australia after 11 January 2015.

6. The mother does not want the children to live in Australia. The father does.

7. As the best interests of the children are the paramount consideration for whatever orders are to be made - whether a summary order for their immediate return to China[1] or an interim parenting order (if an order for return is not made summarily) - it is, I think, imperative that immediate notice be taken of matters about, and relevant to, them.

   [1]s 67ZC Family Law Act (1975) (Cth); ZP v PS (1994) 181 CLR 639; Kwon & Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559); Karim & Khalid (2007) FLC 93-348; Pascarl & Oxley (Edited) [2013] FamCAFC 47.

The children

1. Both children were born in Shanghai. Both children are citizens of the People’s Republic of China. Both children are also Australian citizens and have been issued with Australian passports. Contrary to the assertion contained in paragraph 4 of the submissions prepared on behalf of the father, R has a Chinese passport – a document which, according to the father, should have been cancelled because she has an Australian passport. Both children have travel documents, issued by the People’s Republic of China, facilitating their travel to Australia. The children do not need visas to live in Shanghai nor do they need visas to travel to Australia. They are Chinese nationals as well as Australian citizens.

2. There is no issue about the children’s future status in either China or Australia.

3. Neither child has ever lived in Australia. Save for the period between December 2008 until early 2011 (when she lived with her parents in the Persian Gulf), R has lived nowhere but Shanghai. J has lived nowhere but Shanghai.

4. The only time the children have spent in Australia has been for and during annual holidays. These holiday visits appear to have been about four to six weeks in duration.

5. Neither child has ever participated in any education system in any country other than China. R is currently in Grade 2 at a bilingual international school in Shanghai. Her continued presence in Australia has meant she has missed the resumption of her school year and has not participated in an annual test which is part of the usual education process there. J has attended out of home care in Shanghai (according to the mother) or kindergarten (according to the father).

6. The children’s maternal grandparents also live in Shanghai. According to the mother, the maternal grandfather has previously collected J almost every day she was at day care to spend time with her. No submission was made to the effect that the father contended anything other than that the children’s maternal grandparents have historically spent a lot of time with both children and have been very involved in their lives.

7. Whatever the details, it is clear that the maternal grandparents have had a very significant presence in both children’s lives to date and, by virtue of this significant involvement, I am confident in concluding it is highly likely that they are very important to the children. 

8. There is no dispute that, before her non-return to Shanghai, R had the opportunity to spend regular time (every two to three days) with a maternal cousin who is her age. Given this interaction, I am confident in concluding it is highly likely that this cousin is also very important to R.

9. According to the father, the family enjoy a comfortable lifestyle in Shanghai. They live in a very comfortable apartment valued at about AUD$2,300,000.00, which the parties own. There is nothing to suggest that, if they return to Shanghai, the children will be unable to return to live in this property. That is, they will be able to return to a residence which is familiar to them.

10. The children are bilingual and speak both English and, I assume, Cantonese. They are Eurasian of appearance. Their experience is as children living with a Chinese national mother, interacting with Chinese grandparents, in a home shared by their father, who, from 1999, chose to make Shanghai his home also.

11. There is no real dispute that the parties have a large network of friends and acquaintances in Shanghai.  So much is highly likely given that they have made it their joint home for the majority of their married lives.

12. I consider that, for the children, Shanghai is their “native land” within the meaning of that phrase as referred to by Buckley LJ in In re L (minors)[2].  They are, I think, fundamentally connected to that place. It is their “home” country.

    [2] [1974] 1 WLR at 264-265

13. In contrast, the children’s connection to Australia is limited to them experiencing annual holidays here - events which enabled them to have the opportunity to spend time with their paternal grandparents, who live in Melbourne.

14. The children have only been in Australia on holidays since mid-December 2014 and, given that their only previous presence in Australia has been for holiday purposes, in such circumstance, I am not persuaded that they are “settled” here in the true sense of the word.

The parties

1. The parties met in Shanghai in 2000. They married and commenced cohabitation there in late June 2002. Save for the period from about December 2008 until early 2011 – during which they and R relocated to the Persian Gulf for purposes associated with the father’s business - the parties have lived in Shanghai at all times. The evidence establishes clearly that, until January 2015, the family’s nexus was with Shanghai.

2. The parties chose to return to Shanghai - and not move to live in Australia - when they left the Persian Gulf.  They chose to have their second child together, J, there.

3. The father is an Australian citizen who was born in Australia. He is not a citizen of the People’s Republic of China. He started living in Shanghai in 1999. Save for the period he, the mother and R lived in the Persian Gulf, he has operated his business - which involves exporting products from China to countries around the world[3] - from there since that time.

   [3]           Exhibit 1.

4. The mother is a citizen of the People’s Republic of China. She was born in Shanghai. She does not have Australian resident status. In November 2014, the Australian Department of Immigration and Border Protection granted the mother a Partner Migration Visa. This visa is operative for five years. It is not a condition of this visa that the mother live in Australia. Rather, it grants her the ability to make multiple entries into Australia before 10 November 2019 and to stay indefinitely within that period.

5. Whilst the mother had no formal educational qualifications, she has assisted her parents in buying, managing, renovating and selling real property in Shanghai. She has recently entered into a contract to buy more real property in Shanghai. She has also assisted the father in the business.

6. The mother has no practical support in Australia. She has never lived here. She has no connections to the Australian community, environment or culture other than via her marriage to the father and her holidaying here during the course of their marriage. In contrast, the father is well-established in Shanghai having lived there since 1999.

7. The father offers to assist the mother financially to live in Australia.  This does not eliminate the likely impact on the mother of a continued forced dislocation from her homeland in order to be present for, and parent, the children. Money cannot compensate for the unspoken supports previously provided by being in close proximity to one’s family and living within the culture previously agreed as that within which the family unit would live.

8. The father’s continued presence in China is supported by the existence of a visa granted to him because of his business. This apparently has been the situation since 1999. Whilst it was submitted on the father’s behalf that, if the children return to China, the father’s residential status there may revert, because of the parties’ separation, to him needing a tourist visa which would permit short term stays only, such submission ignores the reality that the father was able to live in China on the visa associated with his business, owned solely by him, before he married the mother in mid-2002. There is nothing to suggest the father’s residential status in China will change from that which it currently is unless he ceases to operate his business from there.

9. Whilst the father says his business has suffered a change in relatively recent times in that, from approximately 2013 onwards, its largest export target has been Australia and, consequently, he has identified it would be advantageous to the business it he lived in Australia, he does not assert that a failure to live here will bring about the end of his business. Additionally, he does not say that he will not return to Shanghai or that he cannot do so if a summary order for the children’s return to China is made.

10. There is no suggestion in the evidence nor was the submission made by Ms McMillan, who appeared on his behalf, that there is any impediment to the father returning to Shanghai that cannot be ameliorated by the continuation of his business there. As noted above, he does not say that he intends to close the business he has now operated in Shanghai for more than about 14 years. It is, it seems to me, always open to the father to increase his business profile in Australia by travelling here more regularly if he considers this necessary for the resurrection of the business he chose to base in Shanghai.

11. The father estimates that the net value of the parties’ property and resources is approximately AUD$6,200,000.00, two-thirds of which is situated in China. There is no evidence that the parties own property in Australia.

12. It appears uncontentious that the father previously raised with the mother the issue of moving to live in Australia. Both parties’ affidavits reveal that this was  a topic to which they returned over the last two or so years. They agreed to submit enrolment forms to two schools on the Gold Coast to see whether the children would be offered places there. This has not yet eventuated.

13. That the father did not tell the mother at any time before the family unit left Shanghai that:

    a)he intended to remain here permanently;

    b)he intended not to permit the children to return to Shanghai;

    c)he intended to retain the children’s passports and travel documents to prevent them from leaving Australia[4],

    seems readily able to be concluded given he ensured he had secured the children’s passports and travel documents before he told the mother of these intentions on 31 December 2014.

    [4]          Paragraph 14, affidavit of the mother filed 16 January 2015.

14. It would have been unnecessary for him to secure the children’s travel documents if, when they left Shanghai in December 2014, the parties’ common intention had been to move to live in Australia. It would also have been unnecessary if the father thought the mother agreed to his proposition that the children live in Australia rather than China.

15. The father’s actions in securing the children’s passports and travel documents are more consistent with a clear understanding on his part that the mother did not and would not, at this time, agree to the children living in Australia rather than Shanghai.

16. There is no suggestion that, if the father returns to Shanghai, he is at any risk of any prosecution for any offence as a consequence of his actions in refusing to agree to the children returning to Shanghai.

The proceedings and relief sought

1. The father filed an Initiating Application on 15 January 2015. There is no dispute that the Court’s jurisdiction has been regularly invoked.

2. No proceedings have been commenced in the People’s Republic of China. This fact does not, of course, mean that a summary order must not be made in proceedings commenced in Australia so that they are left to run the “full course” here. As noted above, the inquiry here is whether the children’s best interests – the paramount consideration – are met by an order for their speedy return to China.

3. The mother advocates that this is the case and that the children’s best interests[5] compel the Court to make a summary order directing their immediate return to China. The father opposes this. He advocates that the Court should determine parenting orders for the children in the manner which may be described as “usual”:  that is, the matter should proceed along the “usual” pathway followed by many parenting proceedings in this jurisdiction. It was, in essence, submitted that a full, and not summary, hearing is necessary to determine those orders which are in the children’s best interests.

   [5]see: ZP v PS (supra); EJK v TSL (2006) 35 Fam LR 559; Karim v Khalid (2007) 38 Fam LR 300;

Is it in the children’s best interests to make a summary order for their return to China?

1. There is clearly a benefit to the children of having a meaningful relationship with both of their parents. No submissions to the contrary were made. Whilst the submissions made on behalf of the father seek to raise the spectre that the children will not have such benefit if a summary order for their return to China is made, I am not persuaded that this is the case. The children will be able to have such benefit if the father returns to Shanghai – where he has primarily lived since 1999.

2. As the mother has said that she will remain in Australia and parent the children here if they are not permitted to leave this country, they will similarly be able to have a meaningful relationship with both parents if a summary order for their return to China is not made.

3. There is no allegation of domestic violence or physical abuse in the material of either party. There is no suggestion the children have been exposed to harm or are at risk of exposure to harm from being subjected to or exposed to abuse, neglect or family violence.

4. The father’s unilateral actions demonstrate significant disregard for the likely impact on the children of a dislocation, without warning or notice, from school, day care, maternal grandparents and friends.  I consider that it is highly likely that, if the children are not speedily returned to Shanghai – their home – there is every likelihood of negative impacts upon them consequent upon their complete dislocation, without notice or opportunity to consider or adapt to the thought of the same, from their familiar surroundings.

5. Whilst the father asserts that the children’s best interests will be met by remaining in Australia because: 

   a)they will be removed from the Chinese education system which is, from his perspective, too competitive and demanding and causes great stress to the children[6]; and

   b)they will be protected from the very significant pollution experienced in Shanghai, the extent of which poses a health hazard to them and inhibits their opportunity to play outside on occasions[7]; and

   c)they will live in a home with a yard as opposed to their current high rise apartment; and

   d)they will be removed from experiencing long and extremely cold winters which restrict their outdoor activities[8]; and

   e)they will be removed from a country where, because they are eurasian, they are regarded as “westerners” and referred to as “little foreigners” with the consequence that they ‘know’ they are different and regarded differently and instead live in a country (Australia) where this will not occur[9],

   all of these matters are likely to have been apparent for the parties when they chose to return to Shanghai from the Persian Gulf and chose to have a second child together there.

   [6]          Paragraph 16 (a), affidavit of the father filed 15 January 2015.

   [7]          Paragraph 16 (b), affidavit of the father filed 15 January 2015.

   [8]          Paragraph 16 (c), affidavit of the father filed 15 January 2015.

   [9]          Paragraphs 16 (d) and (e), affidavit of the father filed 15 January 2015.

6. I consider that the matters outlined above do not represent significant risks to the children or risks that are incapable of amelioration by parenting decisions made by their parents. A house is not inherently superior to or better for the children than an apartment – especially one valued at more than AUD$2,000,000.00. Summer is not inherently more beneficial to the children than winter nor sunshine and its associated lifestyle opportunities more beneficial than snow and its associated lifestyle opportunities: they are just different.

1. I am confident in concluding that it is highly unlikely that the children will suffer any or any significant detriment if they return to Shanghai as was the ostensible intention of both parents when the family unit left there in December 2014 for their holiday. To conclude otherwise would suggest that, save for the issues associated with education, the father was prepared to continue to expose them to such detriment until only recently.

2. There is no independent evidence as to the children’s views. The father’s report of R’s comments are consistent with the comments of a child enjoying a holiday period; even if this is not the case, given her age, I do not think it appropriate to accord any views she expresses whilst on holiday any particular weight.  J is clearly too young to express any view.

3. It is not contended other than the children have a well-established and close relationship with each of their parents and, importantly, their extended maternal family in China. Their maternal grandparents have clearly been important in their lives and have had very frequent interaction with them. Continued separation from that almost daily interaction is, I think, likely to have a significantly adverse effect on the children, especially J who has been collected by her maternal grandfather from day care on many occasions.  Whilst the father says the maternal grandparents have the financial capacity to travel to Australia to visit the children if they remain here, there is no evidence to suggest they have previously travelled to this country or that they would be willing to do so in the future.

4. I accept that the children’s relationship with each of their parents is important to them. I have little difficulty concluding that the children have strong connections with both of their parents given that, until 7 January 2015, they have lived all of their lives with both of them.

5. There is no evidence to suggest that the children’s relationship with their paternal grandparents, who live in Melbourne, is anything other than an appropriate familial relationship established over the course of the children’s holiday visits to Australia. There is no evidence that the maternal grandparents have spent time with the children in Shanghai.

6. There is no undisputed evidence of the children suffering significant distress if they remain here pending a final hearing.  However, it cannot be forgotten that, until very recently, the children had otherwise thought they were going to return to China at the end of their holiday. It is impossible, therefore, to know whether they are likely to experience any significant distress if they remain in Australia, separated from family and friends and all that is known to them in Shanghai.

7. Whilst there was initially disagreement between the parties about the time the children would spend with the father after he told the mother of his decision to secrete their travel documents, this issue was resolved relatively quickly. The children have, since then, spent time with the father.

8. I am persuaded that the mother’s actions in hesitating to provide the children to the father are understandable given the father’s actions in taking control of the children’s passports and travel documents and then telling her he did not intend for them to return to Shanghai at the end of the holiday upon which they embarked in December 2014.

9. I am not persuaded that the mother’s response to the father at this time is indicative of an underlying opposition to the children’s ongoing relationship with him. Rather, I consider it completely understandable, in the circumstances, that the mother would be concerned to release the children to the father where he had possession of their travel documents, there were no existing orders in place requiring their return to her and the parties had previously travelled to and lived in the Persian Gulf.  It is highly likely that whatever trust existed between the parties evaporated when the father told the mother of his intention and actions.  It is almost impossible to conclude other than that she would have felt trapped in this country and betrayed.

10. While Ms McMillan criticised the mother’s approach to the facilitation of the children’s relationships with the father after he told her of his action in securing the children’s passports and travel documents and of his intention that they not return to Shanghai, I am not prepared to conclude, from her actions in refusing to provide the children to him until 27 January 2015, that this is demonstrative of an underlying attitude to the children’s relationship with their father. It is clear that, once agreement was reached with the assistance of the parties’ respective legal representatives, the children have had the opportunity to spend time with and interact and communicate with both of their parents.

11. It is, I consider, too early to know whether the recent events will irreparably colour the parents’ future relationship. It is, however, easy to conclude the father’s unilateral actions can only have been interpreted by the mother as an attempt by him to impose his will and desire for the children to live in Australia on her and the children;  it is also easy to conclude that the mother may well feel that the father has “abducted” the children – not from her – but from their home in Shanghai.

12. In such a circumstance, it is unlikely to assist the future parenting relationship if:

    a)the mother continues to feel that the children are retained in Australia unilaterally and contrary to her desire they live in the country which, until January 2015, was the parties’ mutual choice of residence; and/or

    b)she is forced to deal with the consequences of the father’s unilateral decision - expressed to her only once she was in Australia - that the children should continue to live in this country.

13. I consider it likely that there may well be a significant impact on the mother’s capacity to parent the children if she is required to do so in a place not of her choosing and without the frequent support - both practically and emotionally - of her parents, who have previously historically had significant involvement in the children’s lives.

14. There is no evidence the mother is likely to seek to restrict the children’s opportunity to spend time with the father in Shanghai.  Whilst the mother might be able to limit the children’s time with the father in China if they return there in the period until the parties’ divorce, there is no evidence about the divorce process and the time frame before the parties could obtain a divorce.

15. The father is experienced in living in China and has conducted business from that country for a significant period of time. He has already demonstrated a clear capacity to obtain legal advice and assistance from that country.

16. I accept that there may well be significant cultural matters, including the role of the extended family, to be considered in any decision about the children’s future parenting arrangements. There is, I consider, a risk that the nuance of the same for these children, born in China, may well be less understood here than if any future parenting proceedings occur in China. The failure properly to appreciate, recognise and/or place appropriate weight upon such important matters could not be thought to be in the children’s best interests.

17. As there are no proceedings on foot in Shanghai, a summary order for the children’s return to China will, in one sense, bring an end to litigation about the children. However, one cannot preclude the possibility that, if the children are returned to China, the parties may engage in a further litigation process in that country. Thus, wherever it occurs, the parties may engage in litigation – or some part of that process – to assist them in arriving at the future parenting arrangements for the children.

18. The People’s Republic of China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.  It is, I think material, as part of the ‘best interests’ consideration, to consider whether the Courts in the People’s Republic of China will properly enquire into and determine the children’s future parenting arrangements if a summary order is made for the children’s return to that country.[10]  

    [10]         ZP v PS per Brennan and Dawson JJ at [7]

19. Before recording my conclusions about the contents of the affidavit of Mr W, a Chinese legal practitioner from whom the father obtained material relied on in this proceeding, I think it important to record a concern about the contents of the correspondence forwarded by the father’s solicitors to Mr W. Despite the fact that the mother’s solicitors had corresponded with them on 7 January 2015 to inform that they acted for the mother, the correspondence sent to Mr W, dated 23 January 2015, contains an assertion that the mother and children are “in hiding”.  This phrase simply does not accurately represent the position, even taking into account that the father did not then know where the mother and children were staying.

20. I consider that the assertion that the mother was “in hiding” with the children misrepresents the true situation. A more accurate position could easily have been conveyed by telling Mr W that, whilst the father did not know the physical whereabouts of the mother and children, she had engaged legal representation through whom communication was occurring.

21. Whilst the correspondence asserts and records the father’s “fears” that, if the children return to China, the Court there will award custody of them to the mother and will make an order preventing them from leaving China, there is nothing in Mr W’s evidence to support the latter assertion.

22. His opinion, about which many of the criticisms levelled by Counsel for the mother have significant force, simply does not deal with the issue of whether it is likely or unlikely that a Court in China would permit the children to leave that country.

23. As noted, the submissions made by Counsel for the mother about the deficiency of the evidence given by Mr W have considerable force.  I consider that the contents of his correspondence or report establishes that: 

    a)the Articles contain factors not dissimilar to the s 60CC considerations;  and

    b)there is no presumption that children live with or be cared for or raised by their mothers; and

    c)the interests of children appear to be the focus of the Articles; and

    d)parties are able to reach agreement about the terms of future parenting arrangements and have the same sanctioned by the Court; and

    e)it is not the case that the mother is a preferred parent for the children at all given their ages;  and

    f)there is no suggestion that “custody” of the children would automatically be awarded to the mother;  and

    g)there is no suggestion of any threshold that the father must discharge before seeking parenting orders.

24. Additionally, an analysis of the contents of the Articles suggests significant similarity with the ‘best interests’ considerations applied under Australian law. For example, the phrasing of the Articles makes it clear that:

    a)either parent may be considered by the Court as the parent with whom children will live after the divorce of their parents;

    b)if a parent is unsuccessful in having children live with them, they are able to obtain access to the children and to have a Court enforce such rights; 

    c)parental capacity in broad terms is assessed and relevant;

    d)it is necessary to approach matters from the children’s interests and to ensure they are protected from harm (whether it be physical or otherwise).

25. It does not appear from the evidence before me that the application of Chinese law to parenting arrangements for these children will automatically favour the mother – no child here is less than two years of age.

26. At its highest, the evidence establishes that, until the parties divorce, the father may experience some difficulties in obtaining orders for the children to spend time with him if the mother does not agree about this time.  The mother may, in fact, agree that it is in the children’s best interests to spend time with him. She has done so thus far, agreeing that the children should spend time with him as soon as she was provided with his Undertaking filed 23 January 2015.

27. Further, once the parties are divorced, it appears that, if they are unable to reach agreement about the parenting arrangements for the children, a Court will make an appropriate determination about this. There is nothing to suggest that the father is precluded from approaching the Court to seek orders which favour the children living with him. There is nothing in the evidence to suggest that the father has no standing to approach the Court to seek orders in relation to the children. There is no evidence about whether each party can divorce each other, what is involved in obtaining a divorce or how long that process will take.

28. There is nothing in the material to say that the mother will bring proceedings in Shanghai if she returns there. There is nothing to say the father cannot himself commence proceedings in relation to the children. There is no evidence to suggest that a Court would automatically reach a conclusion adverse to him in any parenting proceedings which may occur in China.

29. There is no indication as to how long, if proceedings were started in China, it would take for such proceedings to be resolved. It is clear however that, given a call-over of matters in the pending cases list has just this week occurred in Brisbane, it is highly unlikely a final hearing of this matter could occur at any time before mid-2016.

30. Whilst there appears to be a possibility that a court hearing parenting proceedings in China may decide to make parenting orders which would see the children live separately, that possibility also exists in Australia as there is, of course, no statutory prohibition on such an order being made here. Additionally, the possibility of orders for sibling separation could only have any chance of manifesting if the parents themselves did not determine - as the father already has - that it is not in the children’s best interests for this to occur. That is, the children’s parents can easily eliminate any prospect of their children being separated from each other by simply agreeing that this should not occur.

Conclusions

1. The following comments by Buckley J in In Re L (Minors)[11], approved by Mason CJ, Toohey and McHugh JJ in ZP v PS (supra), have particular resonance for me in this case:

   To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has become accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors) which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of the Court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English Court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a Court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing routes in new soil, and what conflicts this can occasion in the child’s own life. Such routes can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the Courts of that country may well be regarded as being in the best interests of the child.

   [11] [1974] 1 WLR at 264-265.

2. I consider that, in remaining in Australia, the children will be removed from their “native land” and be required to live in a country that is “foreign” to them.  Their culture thus far is likely to have significantly reflected the fact of their mother’s and maternal family’s Chinese heritage.  It is highly likely that they have been exposed to and lived within an environment and society in which there may be significantly different cultural norms than those they would have experienced had they lived in Australia. R has previously attended at a bilingual school in China and it is unlikely, if she remains in Australia, she would be able to do so either at all or in the near future.

3. I am not persuaded that it is likely that the children’s lifestyle, culture or traditions have been “western” whilst living in Shanghai. I arrive at this conclusion because they lived there with their Chinese national mother supported by their maternal grandparents. It is not difficult to conclude, therefore, that it is highly likely that, as a consequence of this, the children have been exposed to and imbued with the many cultural and social mores of their maternal family. Additionally, the chronology of the matter establishes that it is within that social and cultural society that the father has chosen to live since 1999.

4. R has been engaged in formal education in China. She is in Grade 2. If the children are not returned summarily to China, they will have the experience of being removed from school and day care without an opportunity to say goodbye to their friends or to participate in any transitional arrangements. On the father’s case, they will be enrolled into schools in Australia and be required to commence education here.  This will complete their dislocation from all that has previously been known to them.

5. Whilst the father says that there may not be a place available for R at her school in Shanghai – because he determined not to pay this Terms school fees – there is nothing from the school to say that a place would not become available if fees are once again paid.

6. I consider that, from the children’s perspective, they expected to return to Shanghai at the end of the school holidays – as they had done previously. The evidence about R’s shared birthday party with a friend and her anxiety/distress about missing this is likely a demonstration of the likely confusion and upset she will experience if not returned immediately to China.

7. There is nothing in the material to suggest that the children have established “roots” here in Australia. There is no established pattern of care for them here and, at this stage, from their perspective, their current time in Australia is highly likely to be nothing more than an extension of the holiday they commenced in December 2014.

8. As already noted, there is nothing in the material to suggest that the children would be at any risk of harm if they were returned on a summary basis to Shanghai. If they remain in Australia, they will be removed from the almost daily contact with the maternal grandparents. I consider that, if the children remain living in Australia, they will be divorced from the societal customs and language to which they are accustomed and, for R in particular, her education is likely to be significantly disrupted, given the absence of the opportunity to attend a bilingual school

9. I am persuaded that if the children remain in Australia they will be isolated and dislocated from the cultural environment in which they have been enveloped – with both parents consent – since birth.

10. I am well persuaded in this case that a summary order for the speedy repatriation of the children to their homeland of China is an order which is in the children’s best interests and will promote their welfare. To retain them here in Australia pending the completion of the proceedings commenced by the father would continue their complete dislocation from all things with which they are familiar. Such a dislocation could not, in any sense, be thought to be in their best interests.

1. The factors outlined above support such a conclusion, especially given the children’s close attachments to China and the fact that, save for holidays and the period in the Persian Gulf, the entire family has based itself there. I am persuaded that, if the children return to Shanghai there will be proper enquiry into, and consideration of, their parenting arrangements. For the reasons I have expressed above, I consider it highly likely that many of the same or similar considerations would attend any judicial consideration of the appropriateness of future parenting orders, in the event that the children’s parents are unable to reach agreement about them.

2. A continued disturbance of the children’s well-established connections with the city that has been their home is likely to produce factors detrimental to them of such significance that they must be eliminated as soon as possible. It is, I think, clearly contrary to the children’s best interests that they remain in Australia, a country in which they have only previously been visitors.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 6 February 2015.

Associate:                 

Date:    6 February 2015