Killam & Loeng
[2015] FamCAFC 41
•18 March 2015
FAMILY COURT OF AUSTRALIA
| KILLAM & LOENG | [2015] FamCAFC 41 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father has resided in China for 15 years – Where the mother and children have never resided in Australia – Where children have dual citizenship – Where the children have close relationships with family in China –Where the parties were on a holiday to Australia – Where the father retained the children’s passports so as to prevent them returning to China – Where the primary judge ordered the children be permitted to leave Australia to be returned to China – Whether the primary judge properly considered the children’s best interests – Whether the primary judge summarily dismissed the father’s application for parenting orders without giving proper consideration to the relevant principles – Whether the primary judge ought to have considered the likely outcome of parenting proceedings under Chinese law in considering the children’s best interests – Whether the primary judge gave appropriate weight to a risk that the children may be separated in China – Where the father alleges that he would suffer prejudice in family law proceedings in China – Whether there was an agreement between the parties to relocate to Australia – Whether the children would experience negative impacts if they were not returned to China – Whether the children had a significant association with Australia – Whether the primary judge’s findings were open on the evidence – Appeal dismissed. FAMILY LAW – COSTS – Where there were circumstances justifying an order for costs – significant wealth of the parties – Appeal wholly unsuccessful and without merit. |
| Family Law Act 1975 (Cth) |
| Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Edwards v Noble (1971) 125 CLR 296 EJK & TSL [2006] FamCA 730 In re F (Abduction: Custody Rights) [1991] Fam 25 In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 In re L (Minors) [1974] 1 WLR 250 M v M (1988) 166 CLR 69 McKee v McKee (1957) AC 352 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Pascarl and Oxley (2013) FLC 93-536 Randle & Randle [2011] FamCA 830 Reynolds v Reynolds (1973) 1 ALR 318 Ryan & Russell [2013] FamCA 787 ZP v PS (1994) 181 CLR 639 |
| APPELLANT: | Mr Killam |
| RESPONDENT: | Ms Loeng |
FILE NUMBER: | BRC | 125 | of | 2015 |
APPEAL NUMBER: | NA | 6 | of | 2015 |
| DATE DELIVERED: | 18 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
JUDGMENT OF: | Finn, May & Ainslie-Wallace JJ |
| HEARING DATE: | 18 February 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 February 2015 |
| LOWER COURT MNC: | [2015] FamCA 53 |
REPRESENTATION
COUNSEL FOR THE APPELLANT: | Mr S. T. White SC |
| SOLICITOR FOR THE APPELLANT: | Jones Mitchell Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr J. Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Cassandra Pullos Lawyers |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, the costs to be agreed and failing agreement to be assessed. Such costs to be paid 28 days after agreement or assessment.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 6 of 2015
File Number: BRC 125 of 2015
| Mr Killam |
Appellant
And
| Ms Loeng |
Respondent
REASONS FOR JUDGMENT
Finn J
This is an appeal by the father, Mr Killam, against orders made by Hogan J on 6 February 2015 which permitted the father’s wife, Ms Loeng,
“to remove” the two young daughters of the parties’ marriage “permanently” from Australia to the People’s Republic of China. The children are said to have dual Chinese-Australian citizenship.
The orders appealed were made after a hearing on 3 February 2015 which lasted just over an hour and in which no oral evidence was given, but with submissions being made (both orally and in writing) by counsel for each party relying on two affidavits from each party and an affidavit from a solicitor for the father annexing a translated opinion from Mr W, who is described in the opinion as “an expert of the Chinese Legal System”.
The question on this appeal is whether Hogan J erred in making the orders for the removal of the children from Australia to China on such a summary basis rather than after a full hearing of the father’s application for parenting orders to be made under the Family Law Act 1975 (Cth) (“the Family Law Act”), or at least, a fuller hearing of the mother’s application for the summary return order.
The facts of this case
The father was born in Australia in 1958 and remains an Australian citizen.
The mother was born in China in 1975 and is a Chinese citizen. On
10 November 2014 she was granted an Australian Partner Migration Visa for
five years. The parties married in 2002 in China where the father was conducting, and continues to conduct, a business. The mother also has business interests in China with her parents.
The parties’ first child was born in China in early 2008. The family moved to the Middle East in late 2008 for reasons to do with the father’s business. They returned to China in early 2011 and their second child was born there in
mid 2012.
According to the father’s affidavit (filed 15 January 2015), both children have dual Chinese-Australian citizenship and Australian passports. According to the mother’s affidavit (filed 16 January 2015) not only do they have dual citizenship but they also hold Chinese as well as Australian passports. However in his second affidavit (filed 30 January 2015), the father states (at [9]) that the children are not permitted to hold Chinese passports because they hold Australian passports but have been issued with Chinese travel documents. He also states that the elder child previously held a Chinese passport
“which should have been cancelled in light of her being issued with an Australian passport”.
If it be true that a Chinese passport cannot be held by a person if he or she holds a passport of another country, there would appear to be a question as to whether Chinese citizenship can be held if a person is a citizen of another country, and thus whether these children do in fact have Chinese citizenship as well as Australian citizenship. The only documents in relation to these issues which were before us were copies of the children’s Australian passports, which were annexed to the mother’s affidavit (filed 16 January 2015) and which do, of course, evidence Australian citizenship.
In March 2014 both children were enrolled at two private schools on the
Gold Coast, from 2015 in the case of the older child (although no place has yet became available for her) and from 2017 in the case of the younger child. Although the mother maintains that she has never agreed to the family relocating to Australia, she does concede (in her affidavit filed
16 January 2015) that she did agree to the children being enrolled in Australian schools on the basis that she would re-consider relocation if and when places were offered at those schools. The eldest child currently attends school in Shanghai and the younger some form of kindergarten or child care centre there.
On 19 December 2014 the family came to Australia on holiday and to visit the father’s parents, with return tickets booked for 11 January 2015. According to the mother’s affidavit (filed 16 January 2015) at [11], they “have in the past travelled to Australia every year for [a] holiday”.
On or about 1 January 2015, the father informed the mother that he wished to remain in Australia with the children. Shortly thereafter both parties engaged solicitors.
The father’s application and supporting evidence
On 15 January 2015 an initiating application was filed on the father’s behalf in the Family Court of Australia in which he sought orders to the effect that the children reside in Australia; that should the mother elect to remain in Australia, both parties would have “shared parental responsibility” for the children and that they would live with each parent “equally”; and that should the mother elect to return to China to live, then the father should have sole parental responsibility for the children and they would live with him.
By way of interim orders the father sought that pending final hearing of his application, the children should reside in Australia “equally” with each parent, with the parents having “shared parental responsibility”.
It is important for present purposes to note that in the written submissions of the father which were before Hogan J at the hearing on 3 February 2015, he also sought by way of interim order that a family consultant should be appointed to prepare a family report pursuant to s 62G of the Family Law Act.
Apparently for the purpose of founding jurisdiction for his application, the father (in section 11 of the application form) relied on his Australian citizenship (as provided in s 69E(1)(c) of the Family Law Act). He could also have relied on the children’s presence in Australia (under s 69E(1)(a)) and on their Australian citizenship (under s 69E(1)(b)).
In his first affidavit in support of his application, the father stated (at [15]-[16]) that he wished to remain in Australia not only because it was advantageous for his business, but “more so” because he considered it to be in the children’s best interests that they reside here for reasons, which included that (in his opinion) the Australian education system would be better for them than the Shanghai system, which he described as “extremely competitive and stressful on children”; that the Australian natural environment would be better than the pollution of Shanghai; and that because the children look more European than Asian, they are viewed differently in Shanghai.
In his second affidavit in support of his application, the father outlined (at [49]) difficulties which he was now encountering running his business in China. Later in the same affidavit he stated that he was concerned first that if the children returned to China they would not be permitted to travel to Australia, and secondly, that the Chinese courts would not enforce an Australian order for the children to spend time with him.
I note at this point that while the opinion of the Chinese legal expert, which the father relied on before Hogan J, does not apparently refer to the first of these concerns expressed by the father, it does in [33] appear to contain some support for his second concern.
It is convenient at this point to make some further reference to the contents of the expert’s report. Much of the report consists of quotations from documents which appear to be in the nature of some form of codification of “General Principles of the Civil Law of the People’s Republic of China” ([20] of the opinion), or of “Opinions of the Supreme People’s Court on Several Issues Concerning the People’s Courts’ Handling Child Custody and Support in Divorce Actions” ([28] of the opinion). There are also some quotations from what the expert described as “Chinese regulations about recognition of court decisions made in other countries which involve child custody.”
Between these quotations in his report the expert expressed the following opinions from which, it will be seen, that it is only after divorce that future parenting arrangement can be finalised:
22.According to the above laws and regulations, the parents can jointly or separately perform guardianship or obligation of upbringing of their children. … Therefore, if Ms [Loeng] brings the two daughters back to China, Mr [Killam] can only claim his guardianship for their children, or claim the custody of the children upon divorce.
23. According to the above laws and regulations, in cases where the parents are not divorced, there is (sic) no specific regulations as to which parent the children must live with. The common judicial practice in China is that it will recognise if the children live with either both of the parents or any one of them.
…
27. Under the Chinese law, decision on the guardianship of children will only be made if the couple divorce. In this case, as mentioned before, if Mr [Killam] and Ms [Loeng] remains (sic) married, then
Mr [Killam] has no effective means to claim the guardianship and rights to visit, and is unlikely to be able to bring up the children.….
31. In this case, if Mr and Mrs [Killam] apply for divorce in the court of China, when the parties are unable to reach an agreement as to the custody of their daughters, it is very likely that the Chinese court will make a decision that gives each parent the custody of a child. If Mr [Killam] and Ms [Loeng] lives (sic) in different countries, then it is very likely that the two daughters will be separated for a very long time.
The mother’s application and supporting evidence
For her part the mother filed a response on 16 January 2015 seeking in the same terms both final and interim orders, including orders that the father’s application be dismissed and that she be permitted to return with the children to China.
In her first affidavit (filed 16 January 2015) in support of her response and her application to be permitted to return the children to China, the mother relied on the elder child’s school arrangements in Shanghai and on both children’s close connections with their maternal grandparents who were described as
“a daily part of our lives”. The mother also relied in that first affidavit and again in her second affidavit (filed 3 February 2015) on her own business commitments in China.
Submissions to the primary judge
When the matter came before Hogan J on 3 February 2015, counsel for each party provided her Honour with written submissions. The mother’s submissions commenced (at [1]) with the statement that she seeks “a summary disposal of the matter, allowing her to return with the children to their home in China and the restoration of the children to their normal life”. It was then stated that the mother “seeks a finding … as a preliminary determination that it is in the best interests of the children to make a summary order for their return to their home in China.”
Although the written submissions of senior counsel for the father (which were directed to the issue of jurisdiction) concluded with the submission that the matter “should be determined upon the ordinary principles governing parenting applications”, it is clear from the estimates of time required for the hearing given to her Honour by both counsel, being between an hour and an hour and a half, that all concerned understood that the issue to be decided on that day was whether there should be a full hearing of the father’s application for parenting orders, or a “summary disposal” of that application.
In her oral submissions to Hogan J senior counsel for the father while conceding some “formal shortcomings” in the expert’s report, submitted that the report raised some issues and concerns about the Chinese legal system which would concern an Australian court about having this case “repatriated to that jurisdiction”. Senior counsel also drew attention to the fact that the mother had not provided “a competing opinion … to say what the Chinese legal system would offer.” (Transcript 3 February 2015, p. 12, lines 9-21).
Later in her submissions, senior counsel returned to the issue of the expert opinion, submitting that on a reading of it, there would be real concern, particularly pending a divorce, as to what options the father would have even to see the children, and that this would be a reason for not acceding to the mother’s application for summary return (Transcript 3 February 2015, p. 16, lines 31-36).
Senior counsel further submitted that decisions about matters such as the father’s reasons for wishing to relocate (summarised in [15]-[16] of these reasons) and the parties’ previous intentions regarding a possible relocation to Australia, were not conducive to being decided in a summary hearing (Transcript 3 February 2015, p. 14, lines 4-38). She concluded her submissions by urging her Honour to bring the matter back for an interim or final hearing rather than according to “what, in effect is a fairly draconian relief”. (Transcript 3 February 2015, p. 17, lines 35-39)
In his oral submissions counsel for the mother referred to the authorities which establish that an Australian Court “can determine on a summary basis the issue in the best interests of the children as to whether they ought return a child” to a country which is not party to the Hague Convention on the Civil Aspects of International Child Abduction. (Transcript 3 February 2015, p. 18, lines 6-20).
Counsel then proceeded to canvass shortcomings in the expert’s opinion, before moving to emphasise the children’s connections with China, where they have lived “their entire effective life” and their lack of connection with Australia other than as “a holiday destination” (Transcript 3 February 2015, p. 20, lines 13-21 and p. 21, lines 25-27). Counsel also asserted that there would be a two year delay before a final hearing could be held in this Court.
The judgment of the primary judge
I do not propose at this stage to canvass in any detail Hogan J’s reasons for the order which she then made on 6 February 2015 permitting the mother to remove the children “permanently” from Australia. There were also ancillary orders made relating to possession of the children’s passports and travel documents and removal of their names from the Airport Watchlist.
It is sufficient here to say that her Honour’s reasons were extremely comprehensive and can be seen as addressing all matters raised before her. Her conclusion expressed in [86] of her reasons was:
86.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.
I will refer to other passages of her Honour’s reasons where necessary in the discussion which follows of the issues raised by the appellant father in support of his appeal.
The issues raised in support of the appeal
One of the difficulties about this appeal is that the father was permitted by this Court to rely on a further amended Notice of Appeal, which contained fifteen substantive grounds of appeal, none of which, we were told, was abandoned. (Transcript 18 February 2015, p. 40, line 36). Unfortunately, however, those fifteen grounds were not specifically addressed in the written summary of argument on behalf of the father (as is required by rule 22.22(2)(a) of the Family Law Rules). In fact in [11] of that summary six other matters were listed and were said to be a summary of the errors made in Hogan J’s reasons for judgment.
When at the commencement of the hearing of the appeal, we invited senior counsel for the father to explain what precisely were the matters relied on to challenge the primary Judge’s decision to return the children to China on a summary basis, he submitted that if there was to be a “summary transfer” of the children to China, the Court was required to be satisfied that:
· the courts in China would pay due regard to the best interests of the children, and it could not have been so satisfied on the basis of the expert evidence before it, and/or
· if the children were to remain in Australia pending final determination of the matter, they would suffer prejudice such that their immediate return to China was the only available option.
Senior counsel further submitted that as the summary return of the children brought an end to the father’s litigation in this Court (a fact, which it was submitted, her Honour accepted), if there was any doubt or uncertainty, particularly about how the courts in China might deal with the matter, the more appropriate course was “to ensure a speedy expedited hearing in which further evidence … would have been adduced.” (Transcript 18 February 2015, p. 2-3; see also p.10)
These opening submissions on behalf of the father can be understood as being in support of the following grounds in the further amended Notice of Appeal:
·Ground 2 which asserts error in the failure to consider “whether the best interests of the children could be served by an expedited final hearing”; and
·Ground 5 which asserts error in the finding that “upon the children’s return to Shanghai there would be a proper enquiry into the parenting arrangements”.
Later in his oral submissions senior counsel returned to the issue of prejudice to the children if they had to stay in Australia for a final hearing. In this context senior counsel relied on the statement made by Hogan J at [52] of her reasons that “[t]here is no undisputed evidence of the children suffering significant distress if they remain here pending a final hearing.” Senior counsel submitted that given that finding, the appropriate course would have been for there to have been “a speedy trial with a confined timetable requiring, for example a family report and maybe further expert evidence in relation to …any matters that were identified as being shortcomings … in [the Chinese expert’s] report’. (Transcript 18 February 2015, p. 28, lines 18-42. See also p.29, lines 15-34 and p.30, lines 1-5, and 29-33).
The final major matters which senior counsel addressed orally were the family’s connections with Australia and the plans, which the father claimed they had, to relocate here, with such plans being evidenced by the enrolment of the children in Gold Coast schools (Transcript 18 February 2015, p.36, lines 25-45; p.37, lines 35-47 and p. 38, lines 6-42). The ground of appeal to which these submissions were apparently addressed, was Ground 13 by which it was asserted that her Honour placed insufficient weight “on the parties agreement to enrol the children in private schools on the Gold Coast 12 months ago as being indicative of [the mother’s] agreement in principle to the children living in Australia.”
Discussion of Grounds 2, 5 and 13
In my view there is substance in Ground 2 which asserts that her Honour erred in failing to consider whether the children’s best interests could be served by an expedited final hearing.
It is true that at no point during the hearing before her Honour did senior counsel for the father apparently ask her Honour if a final hearing of the father’s application could be expedited. The only submission made in relation to the timing of a final hearing appears to have been made by counsel for the mother when he asserted, in the course of his oral submissions (Transcript
3 February 2015, p. 21, line 6), that in the Family Court the delay in a final hearing “will be two years”. After making that submission counsel did acknowledge that in two similar cases being Randle & Randle [2011] FamCA 830 and Ryan & Russell [2013] FamCA 787 “early trials had been arranged and scheduled within months”.
Notwithstanding this reference by counsel for the mother to similar cases where expedited trials had been arranged, her Honour can be seen as proceeding on the basis that there would be a delay of at least some 18 months before a final hearing could be held in Australia when she said in [75] of her reasons:
75.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.
This factor of a delay in a final hearing in Australia was clearly one of the factors which her Honour took into account in determining that it was in the children’s best interests that a summary order be made for their return to China.
In my view, it was, with respect, an error on her Honour’s part to take into account her concern about delay in the Australian court as one of the reasons for concluding that it was in the best interests of two young Australian citizens to be removed “permanently” to China without first ensuring that there had been an approach to the Chief Justice (who, under s 21B(1) of the Family Law Act, is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court) to ascertain if there could be an early final hearing of the father’s application.
Arrangements for such hearings in such circumstances have been able to be made in the past as the two cases referred to by counsel for the mother in his oral submissions demonstrate. It has to be assumed that no approach was made to the Chief Justice in the present case.
Thus, my conclusion about this matter is that the discretion involved in the making of the summary order for return miscarried because it was exercised on the mistaken basis that an expedited final hearing could not be obtained in this court.
It is, of course, unfortunate that those representing the father did not ask her Honour to ascertain if there could be an expedited final hearing of his application. But as I will later explain, I do not consider that omission fatal to the father’s case on appeal.
I also consider that there is substance in Ground 5 which asserts that her Honour erred in the finding which she made in the penultimate paragraph of her reasons being that:
87.… if the children return to Shanghai there will be proper enquiry into, and consideration of, their parenting [arrangements]. …
Earlier in her reasons her Honour had canvassed the contents of the Chinese lawyer’s opinion, and she had concluded (emphasis in original):
72.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 …
73.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.
74.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.
Earlier in her reasons, her Honour had also observed in relation to the expert’s opinion:
68.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.
It will thus be seen that her Honour recognised that there was an absence of evidence on the many important issues which she identified in [68], [73] and [74] of her reasons. Accordingly, I have difficulty in seeing how her Honour could then, at the conclusion of her reasons, have expressed herself satisfied that there would be a “proper enquiry” into the parenting arrangements for the children if they were to be returned to Shanghai.
I appreciate that her Honour may well have been proceeding on the basis that the absence of any evidence from the only expert then available in relation to the various matters mentioned in [68], [73] and [74] of her reasons, indicated that there could be no concerns, at least on the father’s part, about those various matters. But for my part, I do not consider that such an approach was adequate to protect the future of the children and their long term relationship with both parents.
This was particularly so in circumstances where senior counsel for the father was seeking the opportunity of a further hearing (and presumably the opportunity to adduce further evidence). Moreover, as was pointed out to her Honour by senior counsel for the father, there was no expert evidence at all from the mother, who was the party seeking a summary order for the return of the children to China, and who must, in my view, have borne some onus to establish the case for such an order. (See [24]-[26] above).
Put simply, there was not sufficient evidence before her Honour to permit her to conclude that there would be a “proper enquiry” into the parenting arrangements for the children if they were to be returned to China.
Again in relation to this issue of the lack of evidence about important aspects of the Chinese family law system, and as was the case with the lack of an application for an expedited final hearing, the father’s case at first instance can be the subject of criticism. However, given that proceedings concerning the future of children are not, in the words of the High Court in M v M
(1988) 166 CLR 69 at 76, “disputes inter partes in the ordinary sense of that expression”, and given the potentially irreversible consequences for the subject children of the orders appealed, I do not consider that those shortcomings in the father’s case at first instance should prevent the success of his appeal on the basis of the substance which I have found in Grounds 2 and 5. (See also in this regard Reynolds v Reynolds 1 ALR 318; McKee v McKee (1957) AC 352
at 364-5).
As to the complaint in Ground 13 that her Honour did not place sufficient weight on the parties’ agreement to enrol the children at schools on the Gold Coast “as being indicative of [the mother’s] agreement in principle to the children living in Australia”, what her Honour said about these matters was as follows:
33.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.
The above paragraph appears in that part of her Honour’s reasons where she outlined the history and present position of the parties. There is no mention of the previous enrolment of the children in Australian schools in her Honour’s subsequent discussion of whether it would be in the best interests of the children for there to be a summary order made for their return to China. It is perhaps understandable that the fact of their being, in effect, on waiting lists for Australian schools was not a particularly relevant consideration when deciding whether their best interests required a summary order for return to China. Nevertheless, this particular issue does provide some indication that the previous intentions of the parties concerning a possible relocation to Australia was a matter which required greater investigation than was able to be given to it in the summary hearing which occurred on 3 February 2015.
Conclusion
It has been accepted that since the decision of the High Court in ZP v PS (1994) 181 CLR 639 that an Australian court can order the return of a child to a foreign country on a summary basis. However, the essential point of that decision was that in a case involving a dispute as to the jurisdiction in which the future arrangements for a child should be litigated, the doctrine of forum non conveniens has no application, and that the issue is to be determined according to the test of what is in the best interests of the child (or in the language then used in the Family Law Act, what “the welfare of the child” requires).
In the present case there are no proceedings pending in China, and neither parent appears to have given any indication that he or she proposes to initiate such proceedings. Nevertheless, the decision in ZP v PS can be read as making available the option of a summary order for the return of a child to a foreign country even if there are no pending court proceedings in that country, provided that a parent can “fairly litigate” the issue of the future arrangements for the subject child in the courts of that country as was indicated by Mason CJ, Toohey and McHugh JJ in ZP v PS (at 659), or that “the courts of the other country will properly enquire into and determine the child’s permanent [parenting arrangements]” as suggested by Brennan and Dawson JJ in the same case (at 664).
As I concluded in my discussion of Ground 5 of this appeal, there was an absence of evidence before the primary judge on the issues as to whether both parents would be able to litigate parenting arrangements in China (at least prior to a divorce) and also as to whether a court in China would permit the children to leave that country. Because of the importance of these issues to the children’s long term welfare, both the father, and indeed also the mother
(given that she was the applicant for the summary return order), should have been given, in my opinion, the opportunity of a further hearing at which they could attempt to satisfy the court one way or another about such issues. I have earlier indicated that I consider that arrangements could be, and indeed should have been, made for an early further and fuller hearing of the matter.
It may well be that after such a further hearing at which the likely position for this family under the Chinese legal system has been better explored, that the Australian court would conclude that the future parenting arrangements for these children could “fairly” be litigated by both parties in China. If such a conclusion was reached, an order could then be made for the return of the children to China. Such an order could also, of course, be made after a full hearing here of the father’s application for final parenting orders.
I am not unduly concerned about any difficulties which the children may experience in remaining in this country for a further hearing given Hogan J’s finding at [52] of her reasons that “there is no undisputed evidence of the children suffering significant distress if they remain here pending a final hearing”.
I would therefore allow the appeal and set aside the orders made on 6 February 2015. I would then remit the matter for an urgent hearing for the purpose of establishing the likely position for this family under Chinese law, and also whether against the background of that position, the children’s best interests required a hearing in this country of the father’s application for final parenting orders, or whether their best interests required that they be returned to China so that the future parenting arrangements for them can be determined there.
In accordance with the usual practice when matters are remitted by this court for rehearing, it would be preferable if the rehearing was to be conducted by a judge other than Hogan J.
If this appeal was to have such an outcome, there would be no justification for any order for costs.
May and Ainslie-Wallace JJ
Mr Killam (“the father”) appeals against orders made by Hogan J on
6 February 2015 relating to two children, R (born in 2008) aged seven and J (born in 2012) aged two. Ms Loeng (“the mother”) opposes the appeal.
The orders relevant to the appeal are as follows:
IT IS ORDERED BY WAY OF FINAL ORDER THAT
(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.
History
The father is an Australian citizen. The mother and children are citizens of the Peoples Republic of China. The children also hold Australian passports and Chinese Travel Documents.
The father and mother met in Shanghai in 2000 and married there in 2002. Apart from a two year period in which the parties and their then only child R lived in the Persian Gulf while the father pursued business interests, they have lived in Shanghai. They own significant property there and the father has, from about 1999, been conducting business from Shanghai.
The parties and the children travelled to Australia on 19 December 2014 from their home in Shanghai, for what was ostensibly an annual holiday in which the children and parties would visit the paternal grandparents who live in Melbourne. The mother believed that they would be returning to China on
11 January 2015, indeed the family’s air tickets provided for a return on
11 January 2015.
On or about 1 January 2015 the father told the mother that he did not intend to return to China nor did he intend for the children to return. He had previously taken the children’s Australian passports and Chinese Travel Documents and lodged them in a bank.
The father by Initiating Application filed in the Family Court of Australia on 15 January 2015 sought final orders that the children reside in Australia and, if the mother lives in Australia, that they live with each parent equally or, if the mother returns to China, that the children live with him. He also sought other final parenting orders including orders in relation to parental responsibility. The interim orders sought by the father were as follows:
1. That pending the final hearing of the Applicant Father’s Initiating Application to determine the children’s ultimate residence, “the children” of the parties:-
(a)[R] … born … 2008 (nearly 7 years); and
(b)[J] … born … 2012,
reside in Australia.
By a response filed on 16 January 2015, the mother sought orders, both final and interim, in the same terms:
1. That the application be dismissed.
2. That the father deliver all passports in his possession or control (including passports issued by Australian and Chinese Authorities) relating to the children of the marriage [R] born … 2008 and [J] born … 2012 (“the children”) to the mother by 5.00pm on the date these Orders are made by delivering the passports to the mother’s Solicitors, Cassandra Pullos Lawyers, located at … Southport in the State of Queensland.
3. That the mother be permitted to return with the children to their home country, being China, in accordance with Section 65Z(2)(b) of the Family Law Act 1975.
4.That the Airport Watch Listing activated by the father preventing the mother from removing the children from the Commonwealth of Australia be removed forthwith and it is requested that the Australian Federal Police give effect to this Order by removing the names of the said children on the Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.
5.That the father pay the mother’s costs of and incidental to this application on indemnity basis.
6.Any other order that the Court may deem meet.
After the hearing on 3 February 2015 and the making of the orders on
6 February 2015 to which we have referred, the father by oral application on that same day requested and was granted a stay of the orders until further order and the Application for a Stay of the operation of the Orders was listed for 9 February 2015.
It being anticipated that an appeal would be filed, on 9 February 2015,
her Honour granted a stay of her orders until 18 February 2015. On
10 February 2015 the father filed his Notice of Appeal and later that same day he filed his Amended Notice of Appeal. By order of the Full Court made at the conclusion of the appeal hearing, her Honour’s order was amended to provide for the continuation of the stay until the determination of the appeal.
Primary judge’s reasons
The judge found that there was no practical impediment to the father returning to live in Shanghai. Although the father said that the focus of his business has shifted to Australia, the judge found that he could foster his business interests in Australia while living in Shanghai: [30] and [31].
In relation to the children her Honour found:
· Neither child has lived in Australia and the only time each has spent here has been on annual holidays [10] and [11];
· The older child is at school in Shanghai and the younger child is at a ‘kindergarten’ or ‘out of home care’ [12];
· The maternal grandparents who live in Shanghai have spent a lot of time with the children and have been very involved in their lives [13]. Her Honour concluded that it is highly likely that they are very important people in the children’s lives [14];
· Shanghai is, for the children, their “native land” and their connection to Australia is limited to them having annual holidays here [19] and [20];
· She rejected the suggestion that the children were “settled” in Australia [21].
In determining whether it was in the children’s interests to order their return to Shanghai, her Honour concluded:
· There is a benefit to the children from having a meaningful relationship with each parent and that the benefit could continue if they return to China and if the father returns to live in Shanghai [41];
· There would be “every likelihood of negative impacts upon [the children] consequent upon their complete dislocation, without notice or opportunity to consider or adapt to the thought of the same, from their familiar surroundings” [44];
· Notwithstanding the father’s contentions that the children’s best interests would be met by their remaining in Australia, the matters to which he referred did not represent significant risks to the children or risks that could not be ameliorated by decisions made by the parents [46]; and
· It was highly unlikely that the children will suffer any or any significant detriment if they return to Shanghai [47].
The primary judge was able to make these findings because there was no allegation that the children were not well cared for by their mother and their father.
After considering the evidence presented in the father’s case about Chinese family law, her Honour concluded that there were apparent similarities between the Family Law Act 1975 (Cth) (“the Act”) and the relevant provisions of the Chinese law in regards to the principle of ‘best interests’ of children [70]. The primary judge concluded that there was no evidence to suggest that a court in China would “automatically reach a conclusion adverse to [the father] in any parenting proceedings which may occur in China” [74].
The judge found:
· For the children to remain in Australia would be to remove them from their “native land” and require them to live in a “foreign” country [78] (The reference to ‘native land’ is taken from the decision of Buckley L.J. in In re L (Minors) [1974] 1 WLR 250, to which we will later refer);
· The children’s experience of culture thus far in their lives is likely to have been significantly reflective of the mother’s and the maternal family’s Chinese heritage [78];
· If the children are not returned, the older child will have been removed from her school and the younger from day care without an opportunity to say goodbye to their friends and to enrol them in Australian schools would “complete their dislocation from all that has previously been known to them” [80]; and
· There is no evidence that the children have established “roots” in Australia, there is no established pattern of care for them and it is likely that they regard this current time in Australia as an extension of their holiday [83].
Her Honour said:
85. 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.
As to the disposition of the case, the mother’s position was that in the children’s best interests the court should make a summary order providing that the children return to China. Her Honour observed that the father opposed this course and noted that the father contended that the court should determine the parenting issues in line with the usual disposition of such cases in the Family Court and give the matter a “full” rather than summary hearing [40].
Her Honour further observed that there was no evidence before her as to the length of time it would take to resolve proceedings commenced in China but observed that a final hearing of this matter if conducted in Australia would not occur before mid-2016 [75].
Her Honour concluded:
86. 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.
The appeal
On the eve of the appeal hearing the father sought to amend his grounds of appeal to add four further grounds. That application was opposed although counsel for the mother sensibly conceded that he was not prejudiced in the conduct of the appeal by reason of the amendment. Leave was thus given to the father to file a Further Amended Notice of Appeal.
Some fifteen grounds of challenge to her Honour’s orders were raised in the Further Amended Notice of Appeal. At the commencement of the hearing of the appeal, counsel for the father distilled the consideration of the grounds into broad issues contending that all of the grounds of appeal could be considered under that general rubric.
Summary dismissal or summary hearing
It was contended by counsel for the father that the effect of her Honour’s order was to summarily dismiss the father’s application for parenting orders and because her Honour failed to give proper consideration to the principles relevant to a summary dismissal, she erred in law. It was argued that the order made by her Honour which provided for the children to be removed from Australia effectively finally determined the father’s application for parenting orders. That being the case, it was argued that her Honour was required, before making the order, to be satisfied that there were no facts in dispute which were material to the issues to be decided and that the father had no arguable case.
Further, it was argued that her Honour’s orders were not expressed to be interim orders and were clearly not meant to be. It was submitted: “The orders … were not made pending final order and no directions were made requiring the Mother to provide a bond or otherwise secure her attendance at some future final hearing” (Father’s written submissions paragraph 13).
The orders were not expressed to be interim orders and it is tolerably clear from reading her Honour’s reasons that she did not intend them to be. It is significant however that at no point did counsel appearing for the father before the primary judge ask for a bond or security to ensure the mother’s attendance at any further hearing in Australia.
The competing proposals before her Honour as reflected in the parties’ applications required her Honour to determine the issue of the forum in which the parenting dispute between the parties was to be heard.
As we have noted, her Honour determined that issue and ordered the children to return to China.
As we will shortly discuss, the case before her Honour was conducted on the basis that her Honour was determining the issue of forum and that she was not entertaining an application for summary dismissal of the father’s application for parenting orders. Although it might be anticipated that her Honour would either permanently stay or dismiss the father’s application for parenting orders consequent on her orders that the children should be returned to China, such an order was not made. No submission was made to her Honour as to further orders. Any failure to make other orders does not speak of appealable error in this case.
We do not accept that the effect of her Honour’s orders was to summarily dismiss the father’s final application for parenting orders.
We are fortified in coming to that conclusion by the conduct of the case before her Honour. A reading of the transcript reveals that her Honour was not asked to summarily dismiss the father’s application by counsel appearing for the mother. Indeed counsel then appearing for the father observed that the mother was seeking “summary determination” in relation to forum and orders consequential to give effect to whatever conclusion she reached.
It was accepted by her Honour at [63] that a determination that the parenting issues should be resolved in China would effectively bring to an end the father’s litigation in the Family Court. She said:
63. As there (sic) 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. …
Her Honour’s reference to the making of a “summary order” is exactly what she was asked to do, not a summary dismissal of the father’s application for parenting orders.
We finally observe that there was no doubt that counsel then appearing for the father understood the ambit of her Honour’s enquiry. Her Honour said in relation to the mother’s application:
HER HONOUR: ….What she seeks is a determination by way of summary assessment, and that I should make an order on a summary basis that’s in the best interests of these children that they return to China, and whatever thereafter takes place will take place.
MS MCMILLAN: Yes.
(Transcript 3 February 2015, p. 12).
We do not accept the submission that her Honour summarily dismissed the father’s final application for parenting orders.
The summary order
Her Honour, in determining the issue, had before her the affidavits of the parties and of an expert in Chinese family law and written submissions of the parties. Her Honour was asked to determine the issue by reference to the documents before her and the submissions made by counsel. No objection was raised by either counsel for the father or the mother to the adoption of that process, and no request was made for cross examination of any witness.
At the commencement of the hearing before her Honour, both parties handed to her written submissions in which each set out the orders they sought. The father sought orders in line with his filed application and further sought an order for the engagement of a Family Consultant. The proposed orders contemplate a further hearing at which the Family Consultant might be cross-examined.
The mother’s written argument contended that she sought “summary disposal” of the matter to allow her to return to China. Further the mother submitted that she sought a preliminary determination that it is in the best interests of the children to make a summary order for their return to China.
In written submissions to her Honour, the father relied on the authority of
ZP v PS(1994) 181 CLR 639 to rebut an anticipated argument by the mother that Australia was not an appropriate forum in which the dispute should be heard. The mother did not so contend, rather, she conceded that the Family Court had jurisdiction to make parenting orders but argued that the best interests of the children required their immediate return to China where any arguments between the parties could be dealt with by the Chinese legal system.
The decision in ZP v PS supports the nature of the hearing and approach adopted by her Honour.
In ZP v PS, Mason CJ, Toohey and McHugh JJ said, apropos the exercise of jurisdiction in relation to a child brought to Australia without the knowledge and consent of the other parent and, after finding that the doctrine of forum non conveniens had no application to the issue:
…In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.
However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction (at pages 647-648).
(Footnotes omitted)
Their Honours at page 648 quoted with approval the statement by Neill LJ in In re F. (Abduction: Custody Rights) [1991] Fam 25 at 32 where he said:
The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.
Their Honours continued, saying at 648, that when the question arises whether the Family Court or a foreign court should determine the issues of custody of children:
…In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that the Court should embark on determining the issue of custody itself.
In EJK & TSL [2006] FamCA 730 the Full Court said, after reviewing the authorities:
83. …We consider the following principles can be distilled from authority:
….
(vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;
….
The concept of a summary determination and return of a child was addressed by Baroness Hale of Richmond in In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 at [28] where her Honour said:
28. It is plain, therefore, that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child.
It was contended in argument on appeal that her Honour, in determining the matter on a summary basis, deprived the father of the opportunity of adducing further evidence. On appeal it was said that the father may have wished to adduce further evidence from an expert about the nature of Chinese law as it relates to family issues. We observe that no such submission was made to her Honour in the hearing before her. No other relevant evidence was identified in the hearing before the primary judge or on appeal said to be necessary to properly determine whether summary orders are in the children’s best interests.
Before her Honour was a report from an apparent expert in Chinese law (whose expertise was not necessarily embraced by her Honour). That report addressed itself to questions asked of the expert by the father’s legal advisers. It was not articulated, either before the primary judge or on appeal what, if anything, would need to be supplemented on a final hearing.
It was further contended to the primary judge and on appeal that a method for her Honour assessing whether the children were distressed by being kept in Australia would be through the provision of a family report to the court.
As we have indicated, the father sought an order for a family report in the submissions provided to her Honour in the hearing. However, the issues identified in the father’s orders to be addressed by the Family Consultant did not concern specifically whether the children were experiencing distress at being kept in Australia. Rather, the father sought that the Family Consultant:
19. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the Children and the factors contained in s.60CC of the Act the following opinions should be included:
(a) What, if any, interventions might assist the parties to achieve a cooperative parenting outcome;
(b) What, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the Children in the future.
Counsel for the mother contended to the primary judge and on appeal that there were no issues requiring determination in a further hearing. He submitted that the court did not require an expert opinion to inform it whether these children were now or would suffer distress at being removed from their home and environment.
We agree. It is difficult to see, in the circumstances of this case, and taking into account the submissions of counsel for the father to her Honour, what issues a further hearing would take into account.
However, even if it be the case that in determining the question summarily as her Honour did, some issues in relation to Chinese family law were not entirely ventilated, that is not necessarily inconsistent with the children’s best interests.
In ZP v PS in the joint judgment of Brennan and Dawson JJ,
their Honours at 663 adopted the following passage of Buckley L.J. in In re
L (Minors) [1974] 1 WLR 250 at pp 264-265:To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts…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 a 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 roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly. An order that the child 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.
The primary judge used similar language to that used in these authorities and referred directly to ZP v PS [77].
We do not accept that the procedure adopted by her Honour was inconsistent with a proper consideration of the best interests of the children nor, indeed, that there were issues that required exploration at a further and more extensive hearing.
It is of some relevance to a consideration of this issue to note that at [75] her Honour took into account that; “… it is highly unlikely a final hearing of this matter could occur at any time before mid-2016.”
If her Honour’s estimation is correct, an attenuated time before a resolution of these issues, as so potently explained in the above passages, could itself be inimical to the children’s best interests. Further we note that her Honour was not asked to enquire whether an expedited hearing could be made available. Although on appeal it was contended that her Honour ought to have ordered an expedited hearing, we are not persuaded that, given the way the father conducted the case before her Honour, she ought be criticised for not expediting the hearing of the matter of her own volition.
Best interests
Many of the asserted grounds of appeal challenge her Honour’s consideration of the children’s best interests.
There can be no doubt that when considering the application before her, the judge appreciated that decision required reference to what is in the children's best interests (See Pascarl and Oxley (2013) FLC 93-536).
The father’s submissions contend that her Honour was required to consider the provisions of s 61DA of the Act and that she erred in failing to take it into account. That section concerns itself with the making of parenting orders and the requirement that the court apply a presumption that it is in the best interests of the child that his or her parents have equal shared parental responsibility for the child.
This submission mistakes the task being undertaken by her Honour. She was concerned with the determination of forum, not with making parenting orders. Had her Honour determined that the children’s best interests were served by having the parenting applications determined in the Family Court, in any hearing conducted under the Act, issues such as those raised in
s 61DA and others would be considered. In any event, the orders made by the judge did not interfere with the legal rights and responsibilities of the parents.
The Law of China
A significant plank in the father’s argument was the operation of Chinese family law. As we have noted, the father obtained and relied on the opinion of a family lawyer practising in Shanghai, Mr W.
Her Honour found that as China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction:
64. … 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.
(footnotes omitted)
The thrust of the father’s submissions both to her Honour and on appeal was that the evidence of the Chinese lawyer demonstrated that if the children were returned to China, proceedings conducted under Chinese law would not provide for a “proper enquiry” into future arrangements for the children.
In ZP v PS at 659, Brennan and Dawson JJ said:
If the Family Court forms the view that the welfare of a child prima facie requires that a foreign forum should determine the custody of the child, it can only be in an exceptional case that a parent’s refusal to litigate the issue in the foreign forum can affect that view. If the parent was liable to be jailed or subjected to some cruel or unusual punishment in the foreign forum, it would be right to take into account that the refusal of the parent to litigate the issue of custody might result in an order that is contrary to the welfare of the child. But except in that class of case or some analogous case, a voluntary refusal to litigate the issue in the foreign forum should be disregarded if the parent can fairly litigate the issue in that forum. …
(Our emphasis)
Further their Honours said at 664:
The Family Court is the only court that can appropriately make an order for speedy return and it has no jurisdiction to remit the question of permanent custody for determination by a court in another country. The Family Court must therefore make the order that is appropriate in the unique circumstances of the case at the time when the proceedings are before it. In determining an application for speedy return of the child to another country, it may be material to consider whether, if an order is made, the courts of the other country will properly inquire into and determine the child’s permanent custody.
(Our emphasis)
It was submitted on the appeal that the expert’s opinion as to the operation of the Chinese law as relates to children and parents, of itself, ought to have caused her Honour to conclude that the best interests of the children required the parenting issues to be heard in Australia.
In the appeal it was submitted that her Honour erred in failing to give sufficient weight to the opinion. It was also argued that her Honour erred in rejecting the expert’s opinion that a Chinese court would, where the parties could not agree, separate the children. It was contended that her Honour rejected the opinion because she considered that there was a possibility of separating children in Australian law.
We reject both submissions.
As to the asserted “risk” that the children may be separated by a Chinese court where the parties could not agree as to their arrangements, we do not accept that her Honour rejected that part of the opinion on the basis asserted. It does not properly reflect her Honour’s reasoning process. As her Honour’s discussion in the reasons and in argument with counsel about the weaknesses of the expert report clearly demonstrates, her Honour’s hesitation in accepting the opinion of the lawyer on this point was that he provided no basis at all for the opinion other than his experience, about which he gave no detail.
The arguments in relation to the opinion of the Chinese lawyer rely for their foundation on the assumption that her Honour ought to have uncritically accepted the opinion.
The opinion and its scope was the subject of criticism before her Honour by counsel for the mother. Her Honour considered the expert’s opinion and said:
65. 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.…
67. 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.
Her Honour concluded that Mr W’s opinion did not deal with the issue of whether the children would be permitted to leave China [68]. She further found that the criticisms addressed to the opinion “have considerable force” [69].
She further found that:
68. 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.
Regarding the contention that, absent agreement between the parties, the Chinese court would separate the children, her Honour observed that the opinion about separating children of parents was apparently given based on the lawyer’s “own knowledge and experience” and noted that she had no basis to know whether this opinion is based on “… one case in which that has been the outcome, or rests upon a long series of published decisions or decisions, rather, published by the court in China outlining the implementation of that.” (Transcript, 3 February 2015, p. 11, lines 36 and 43-45).
Counsel for the father said in response:
MS MCMILLAN: Your Honour, I accept I can’t go further than what appears on the printed notes …
(Transcript, 3 February 2015, p. 12, lines 4-5).
There is no doubt that her Honour was not obliged to accept the opinion of the Chinese lawyer even though no other expert was called to contradict it (see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 per Heydon JA at [67].
As his Honour said at [64]:
64. The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.
Her Honour’s criticisms of the opinion of the expert based on the absence of support for the assertions contained within it were well open to her. We reject the submission on appeal that her Honour was obliged to accept every aspect of the opinion and that of itself ought to have caused her to determine the forum issue in favour of the children remaining in Australia.
However, it is clear that on other issues raised in the opinion, her Honour had regard to it.
It was contended that her Honour was obliged, as part of her consideration of best interests, to be satisfied that under the relevant Chinese law there would be a “proper enquiry” into the children’s interests if the children returned to Shanghai. It was further argued that the evidence before her did not support a finding that there would be such a “proper enquiry” in the Chinese courts.
Counsel for the father submitted that the opinion demonstrated that:
MS MCMILLAN: …there is sufficient there on an interim basis to raise an index of concern that should the matter be left to the Chinese legal system that there are some issues and questions raised which would concern this court about having it, if you like, repatriated to that jurisdiction…
(Transcript 3 February 2015 p. 12 lines 9-12).
Her Honour found, based on Mr W’s report, that within the relevant Chinese law there were factors “not dissimilar” to those contained in s 60CC of the Act and further that [69]:
· There is no presumption that children live with, be cared for or raised by their mother;
· The interests of children appear to be the focus of the law;
· Parties can agree about arrangements for their children and have those arrangements sanctioned by the court;
· The mother is not the preferred parent at all ages;
· There is no suggestion that “custody” of children would automatically be awarded to the mother; and
· There is no suggestion of any “threshold” to be met by a father before seeking parenting orders.
The primary judge further found “significant similarity” with the best interests considerations applied under the Act [70] and concluded that the application of Chinese law did not seem “to automatically favour the mother”, where, as in the instant case, no child was aged under two [71].
The primary judge concluded:
72. 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.
(Emphasis in original)
The primary judge noted that once the parties are divorced [73]:
· If the parties cannot themselves agree as to the children's arrangements, the court will determine the issue;
· The father does not appear to be prevented from approaching the court seeking orders; and
· It is not suggested that the father had no standing to seek parenting orders.
Her Honour said that there was no evidence about whether the parties can divorce each other or how long that might take [73].
The primary judge further noted that there was no evidence that the mother would bring proceedings in China, that the father could not commence proceedings about the children or that the court in China would automatically reach a conclusion adverse to him in any parenting proceedings [74].
Counsel for the mother argued that the evidence demonstrated that there are apparently many similarities between the Australian and Chinese family law systems. In his oral submissions, counsel for the father conceded by reference to articles 21, 36 and 38 set out in the opinion of Mr W regarding Chinese law that the relationship between parents and children does not come to an end on divorce in China. In addition both before and after divorce the father and mother have guardianship of the children.
On appeal it was submitted that her Honour’s conclusions about the similarities between the Chinese law and concepts within the Act were “not open on the evidence”. We disagree; her Honour’s conclusions were firmly based on the evidence before her. Further, as is well established, the bar to appellate intervention in relation to findings of fact made by a primary judge is set high indeed. In Edwards v Noble (1971) 125 CLR 296 Barwick CJ said at 304:
The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the primary judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the findings of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same findings.
It was further contended that the exposition of the Chinese law demonstrated a “risk” that the Chinese court might not properly examine the children’s best interests.
In our view, this and indeed other arguments about the asserted deficiencies in any enquiry to be conducted into the arrangements for the children by a Chinese court are misconceived. We observe that these submissions on appeal as to whether the Chinese court would “properly enquire” were made in what we regard as an evidentiary vacuum. There was no approach to the mother’s lawyers to obtain a joint expert report in relation to the relevant law in China. Significantly, there was no evidence before her Honour of any enquiry of the mother as to whether she would, if the parties and children returned to China and did not resume married life, afford time between the children and the father. It was conceded that there had been no such enquiry. Further, given the father’s assertion that he wished the marriage to remain on foot and for he and the mother to reconcile, it is by no means clear that there would be in the future any need for recourse to the Chinese legal system.
Although her Honour considered whether the courts in China would enquire properly into the future parenting arrangements for the children, we are unpersuaded that a consideration of best interests in determining a case such as this requires a deep analysis of foreign law with a consequent satisfaction that any enquiry into the children’s arrangements will be in conformity and in terms consonant with those in the Act.
Counsel for the father relied on the decision of Kent J in Randle & Randle [2011] FamCA 830 in support of the submissions. In that matter his Honour, in determining the issue of forum, examined “the potential outcomes” that would result from an order returning the child to the United Arab Emirates (“UAE”). His Honour found this to be a relevant consideration. His Honour concluded that Sharia law provided a presumption that a child of the age of the child with whom he was dealing would automatically be placed with the mother and imposed a high threshold for a father to meet in challenging that. He thus concluded that it was not in the best interests of the child to make a summary order for his return to the UAE. Thus, his Honour determined at [119] of that judgment, based on the evidence before him, there would be no proper consideration of or inquiry into the child’s best interests as understood under the Act.
His Honour’s determination in that case was one based on its particular facts. It cannot properly be seen as providing a template for determination of such cases and we reject any submission that a detailed examination of foreign law and satisfaction to the level asserted by the father in this case is required.
In In re J (A Child) (Custody Rights: Jurisdiction) (op cit) Baroness Hale considered the interplay of a consideration of the law of the foreign country in the determination of where the determination of the parenting issues would be heard. She said:
35. This brings me to the question of different legal conceptions of welfare. The first reported cases in this area which came after In re L [1974] 1 WLR 250 and In re R 2 FLR 416 were concerned with removals from countries in the common law or western European traditions: G v G (Minors: Abduction) [1991] 2 FLR 506 (Kenya); In re F (A Minor) (Abduction: Custody Rights)[1991] Fam 25 (Israel); see also In re M (Abduction: Non-Convention Country) [1995] 1 FLR 89 (Italy). It is not surprising that the courts here were prepared to assume or accept that the approach in those countries would not differ significantly from that of the English courts.
36. Nevertheless, in In re F [1991] Fam 25, 31h, Lord Donaldson MR referred to "whether the other court will apply principles which are acceptable to the English courts as being appropriate". There followed cases from other countries in which principles which were not necessarily the same as those applied here were considered "appropriate" because of the family's close connection with that country: see In re S (Minors) (Abduction) [1994] 1 FLR 297 (Pakistan) and In re M (Abduction: Peremptory Return Order) [1996] 1 FLR 478 (Dubai), in which the court went so far as to refuse to admit evidence of the legal system in the other country and assumed that the wife would receive a fair hearing there. These culminated in the difference of view expressed in In re JA (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 (United Arab Emirates), Osman v Elasha[2000] Fam 62 (Sudan), and again in the present case.
37. Like everything else, the extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child. …. We are not so arrogant as to think that we know best.
….
39. In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned. If those courts have no choice but to do as the father wishes, so that the mother cannot ask them to decide, with an open mind, whether the child will be better off living here or there, then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give the judge pause (as Hughes J put it in this case); it may be a decisive factor. On the other hand, if it appears that the mother would not be able to make a good case for relocation, that factor might not be decisive. There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight.
In this case, her Honour found that the provisions of relevant Chinese law provided “significant similarity” with Australian family law and further found that there was no evidence that the father could not approach the Court in China and no suggestion that he did not have standing to do so [73].
We find no error in her Honour’s consideration of or approach to the determination of this issue.
Counsel for the father contended that her Honour’s enquiry ought to have been whether it would be contrary to the children’s interests to remain in Australia pending a final hearing rather than determining whether their best interests required a speedy return to China. We reject that argument. The nature of the enquiry into best interests in a matter such as this is well established and well accepted and is as her Honour identified.
Delay in Australia and effect on the children
The father challenged her Honour’s findings about the effect on the children of them being kept in Australia for many months awaiting a final hearing.
Her Honour carefully considered the daily detail of the children’s lives before leaving China, both as they individually may have experienced it and in living with their parents in an intact marriage. She took into account their close relationship with the mother’s family, in particular to the “almost daily” contact between the maternal grandfather and R. She found, as was well open to the primary judge on the evidence, that to be required to remain in Australia (rather than returning home after a holiday) would be a dislocation for the children and that if they did not return 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.” [44].
In coming to that conclusion, her Honour acknowledged the matters that the father said were of concern to him if the children were returned to live in China being:
· A competitive education system which causes stress to children;
· Significant air pollution;
· Living in a high rise apartment without a yard in which to play;
· The long, extremely cold winters which restrict outdoor activities; and
· In China they are regarded as “Westerners”, thus they “know” they are different.
However her Honour found that 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.” [45].
The primary judge found that these matters do not represent significant risks to the children returning to live in China [46].
Her Honour concluded:
47. 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.
It was contended on the appeal that this finding was not open on the evidence. We disagree. As her Honour’s reasons clearly demonstrate, her undisputed findings as to the magnitude and likely effect of the present dislocation on the children were powerfully in favour of a speedy return. Her finding that the father’s expressed concerns did not pose “significant risks” to the children and further that a return to their “native land” was unlikely to cause any or any significant detriment to them were not only open on the evidence, but in our view compelled by the evidence.
It was further argued that the primary judge’s finding as to the likely effect of the children being separated from the maternal grandparents was “not open on the evidence”. No cogent argument was addressed to this ground of appeal, and, in any event, on its face it cannot be sustained as a reading of her Honour’s reasons on this point make plain.
Association with Australia
It was argued for the father that the children had a significant association with Australia and that her Honour failed to give that association any or any proper consideration.
The asserted association was said to comprise:
· The presence of the father’s parents in Melbourne with whom the parties and children were accustomed to spending a few weeks as part of their annual holiday to Australia. The paternal grandparents had never visited the children in China;
· The father had previously told the mother that he wished to live in Australia and had no intention of living permanently in China. We pause to observe that, at least on the evidence before her Honour, these matters may be controversial, but nothing turns on that for these purposes;
· The parties had taken steps to enrol the children in private schools on the Gold Coast in Queensland, although no places were available to the children at the present time;
· The children were familiar with Australia; and
· The older child had expressed excitement about attending school in Australia and had said that she did not wish to live in China.
It was contended that her Honour erred in not giving sufficient weight to the mother’s acquiescence to enrolling the children in schools in Australia as being “indicative of her agreement in principle to the children living in Australia”.
First, the mother’s evidence was that she had never agreed to living in Australia and, although she and the father discussed the matter, no agreement was reached. Secondly, even if she had agreed to enrolling the children in schools, and even if that agreement could by any stretch be regarded as an “agreement in principle” to the children living in Australia, all of the evidence before her Honour made it plain that the mother did not want to live in Australia with the children.
The matters to which counsel for the father referred as constituting an “association” with Australia were clearly before her Honour in the evidence and taken into account by her in determining the issue of forum.
Essentially, the father’s argument as to the effect of the children’s association with Australia on her Honour’s determination of their best interests and, in respect of other findings made by the primary judge, devolved to a question of the weight her Honour gave to certain pieces of evidence.
The weight or importance assigned to particular pieces of evidence is quintessentially a matter for the primary judge. In Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J said:
… I shall not repeat the references I made in Lovell v. Lovell to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. …
(Footnote omitted)
It was further contended on appeal that her Honour erred in not finding that while the children remaining in Australia until a final hearing may be a dislocation for them, it would not cause them distress. It was further argued that her Honour’s findings in paragraphs [44], [49], [52], [85] and [86] are inconsistent and thus her Honour erred in the exercise of her discretion.
At [44] her Honour considered the likely negative impact on the children of them being removed from their school or day care and contact with their maternal grandparents and friends without notice. In [49] her Honour reflected on the apparent importance of the maternal family to the children and that the children had “…almost daily…” interaction with them would have a significantly adverse impact on the children, especially J.
Her Honour said:
52. 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.
The primary judge recorded at [85] her finding that for the children to remain in Australia would leave them “…isolated and dislocated from the cultural environment in which they have been enveloped – with both parents [sic] consent – since birth.” At [86] she concluded that to retain them in Australia would continue their complete dislocation “…from all things with which they are familiar.”
Great emphasis was placed on her Honour’s findings in [52] which, it was argued, meant that since it would be “impossible” to know whether the children are likely to experience distress at remaining in Australia, it led to only one possible conclusion which was that the children would not be distressed if they remained in Australia pending a parenting hearing.
Read in context of her findings in paragraphs [44], [49] and [85] it is clear that the uncertainty of whether the children would be distressed on learning that they would not be returning to China was insufficient to persuade her Honour that their best interests required them remain in Australia.
Her Honour said:
59.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.
It was submitted that this finding by her Honour of a likely impact on the mother’s ability to parent the children was one not open on the evidence. We disagree. Her Honour had before her un-contradicted evidence of the way in which the mother’s parenting of the children was conducted in Shanghai and the assistance she received from her parents. Further, her Honour had before her evidence that, as a result of the father’s determination to remain and require the children to remain in Australia, she had to find temporary accommodation on the Gold Coast with, no doubt, such clothes and possessions brought with her for the purposes of a holiday. It is entirely likely that the mother would find these circumstances posed an impediment in her care of the children. However, even if this finding was not open on the evidence, it neither drove her Honour’s conclusions, they being based on the children’s best interests, nor loomed large in her consideration of the evidence.
It was further contended in the grounds of appeal that her Honour’s finding at [62] was not open on the evidence and thus she erred in so finding.
Her Honour said:
62. I accept that there well 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.
No written argument was addressed to this asserted error, although counsel for the father referred to it in passing in oral argument. Perhaps highly nuanced issues concerning familial importance for children living in China might not necessarily be well understood by Australian judges. However, even if this finding was not able to be sustained on the evidence before her Honour, and was, in effect, put to one side, the remaining findings of her Honour as to the children’s best interests not only supported her order that they immediately return to their home but, in our view, compelled that finding.
Finally, counsel for the father contended that her Honour erred in failing to give sufficient regard to the views of the child R when it was reported that she was excited about starting school in Australia and when she said that she would rather live anywhere but China.
It is worth recalling that R has just turned seven. It is difficult to understand what relevance or weight her Honour could have placed on the views as expressed by R. No cogent submission was addressed to how or to what extent her Honour ought to have taken these views into account. We see no error in her Honour’s approach.
CONCLUSION
Counsel for the father referred to the following passage from the decision of Dean and Gaudron JJ in ZP v PS at 671:
There may be cases where preliminary welfare questions can be answered in favour of the foreign court simply by having regard to the earlier custodial arrangements and the circumstances under which the child was brought to Australia. That will usually be the case if a non-custodial parent unilaterally and unlawfully removes the child from a long-established, stable and secure environment. Cases of that kind will often be cases that can be determined “on the papers” or, at least, without investigation of issues beyond those involved in the child’s presence in Australia. However, other cases may not be so clear-cut: they may require a determination of matters going to the ultimate welfare of the child. A wider examination of that kind will be required if, for example, there is some feature of the earlier arrangements which appears not to be in the child’s best interests and that feature is not likely to be remedied by the courts of the other country. Usually that will require resolution of contested issues of fact and not merely a determination “on the papers”.
In this case, reference to the earlier custodial arrangements, an appreciation as to why the children did not return to China as planned, together with the absence of any ‘features’ indicating the approach taken by the judge and the orders made by her Honour were not in the children’s best interests lead to the conclusion that the primary judge was clearly correct and the appeal should be dismissed.
COSTS
At the conclusion of the hearing of the appeal we asked for submissions in relation to costs. Counsel for the father asked that there be no orders as to costs.
Counsel for the mother asked for an order that the father pay the costs.
In our view the father should pay the mother’s costs.
Section 117(1) provides that subject to s 117(2) and other provisions of the Act, each party shall bear their own costs.
Section 117(2) provides that if the court is of the opinion that there are circumstances justifying an order for costs the court may make such an order.
In this case the relevant provisions of s 117(2) are as follows:
(a)the financial circumstances – it is uncontroversial that the mother and father lead a comfortable lifestyle in China. The father calculates the value of their apartment in Shanghai to be approximately AUD2.3 million and the net value of their property, resources and liabilities to be approximately AUD6.2 million; and
(e)one party has been wholly unsuccessful – not only has the appeal failed it must also be noted that counsel for the father urged us to allow the appeal and make the necessary directions for an expedited hearing. This was not an order sought before the primary judge: Apart from the absence of merit, it must be recalled that these proceedings were commenced by the father after ostensibly bringing the mother and children to Australia for a holiday.
We have found no merit in the appeal, therefore the father should pay the mother’s costs.
I certify that the preceding one hundred and ninety eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May, & Ainslie-Wallace JJ) delivered on 18 March 2015
Associate:
Date: 18 March 2015
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