Lai and Sinclair
[2014] FCCA 2662
•18 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAI & SINCLAIR | [2014] FCCA 2662 |
| Catchwords: FAMILY LAW – Children – parenting orders – application to vary parenting orders – where mother wishes to take child out of Australia to see maternal grandparents and other extended family members in China. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Cases cited: Lai & Sinclair [2013] FMCAfam 1584 Line & Line (1996) 21 Fam LR 259; FLC 92-729 Kuebler & Kuebler(1978) 4 Fam LN4; FLC 90-434 M v M [1998] HCA 68 Rice & Asplund (1979) FLC 90-725 Scott & Kent [2013] FCCA 127 Time & Bailey [2014] FCCA 2094 Wheldon & Dinh [2010] FamCA 740 |
| Applicant: | MS LAI |
| Respondent: | MR SINCLAIR |
| File Number: | SYC 3552 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 14 November 2014 |
| Date of Last Submission: | 14 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ulbrick |
| Solicitors for the Applicant: | G & D Lawyers |
| Counsel for the Respondent: | Mr Dalyell |
| Solicitors for the Respondent: | MMD Law |
ORDERS
Order 10 made on 20 March 2012 is discharged.
The Applicant Mother is permitted to remove the child X born (omitted) 2008 from Australia for a holiday for the period 24 November 2014 until 22 December 2014.
The name of the child X born (omitted) 2008 is to be removed from the Family Law Watch List (also known as the Airport Watch List) maintained by the Australian Federal Police at all points of arrival and departure from the Commonwealth of Australia with effect from 23 November 2014.
By 4:00 pm on Friday 21 November 2014 the Mother is to provide to the Sydney Registry of the Court a signed transfer of ownership to the Respondent Father of her Mazda motor car registration number (omitted) together with its keys and a written notification of the location of the car as security for the Mother’s returning the child X to Australia AND IN THE EVENT THAT the Mother fails to return the child X to Australia by 22 December 2014 then fourteen (14) days thereafter the Father shall be entitled to take possession of the said motor car and register the said transfer.
By 4:00 pm on Friday 21 November 2014 the Mother is to pay an amount of $5,500.00 to the Sydney Registry of the Court to be held as security for the Mother’s returning the child X to Australia AND IN THE EVENT THAT the Mother fails to return the child X to Australia by 22 December 2014 then fourteen (14) days thereafter the Father shall be entitled to take possession of the said amount of $5,500.00.
The Mother must provide the Father with the following by 21 November 2014:
(a)A photocopy of departure and return airline tickets in the name of the child X;
(b)An itinerary indicating the addresses at which the child will be staying when out of Australia; and
(c)A mobile telephone number upon which the child may be contacted throughout the period when he is out of Australia in the care of the Mother.
Whilst the child is away from Australia in accordance with these Orders the Mother must do all things necessary to ensure that the child telephones the father on at least one occasion each week.
IT IS NOTED that publication of this judgment under the pseudonym Lai & Sinclair is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3552 of 2010
| MS LAI |
Applicant
And
| MR SINCLAIR |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of the parties’ son X for permission to travel out of Australia with him to visit her family in her native China, particularly her father, who is ill and no longer able to travel. He has never seen his grandson.
X was born on (omitted) 2008. He is six years and three months old. He was born in Australia and holds an Australian passport.
X’s father, the Applicant’s former husband, opposes the Application. He is not from China, but from (country omitted). He fears that the Mother plans to leave Australia permanently with the child, and he will have difficulty securing the child’s return to Australia.
Background
The parties have already litigated this matter at an interim, as the Father had opposed the Application on the basis that the matter had already been judicially decided as recently as 20th March 2012 and, consequently, the Court should have regard to the rule in Rice & Asplund[1], that the Court should not lightly entertain an application to reverse an earlier parenting order. The child’s name is currently on the Family Law Watch List maintained by the Australian Federal Police as a result of an order made on 20th March 2012.
[1] (1979) FLC 90-725
The Mother was successful at the interim hearing, and orders were made that:
a)the Father’s Response seeking the dismissal of her Application was dismissed; and
b)the substantive Application would proceed to a final hearing[2].
[2] Lai & Sinclair [2013] FCCA 1584
An updated Family Report was ordered. An earlier Family Report was prepared for the proceedings in 2012. In each Report the Family Consultant supported the proposal that the Mother should be permitted to take the child to China for no more than four weeks at a time, at intervals of no less than two years, provided that the Court is satisfied that appropriate arrangements have been made to ensure the child’s return.
The background facts are conveniently set out in the Mother’s Case Outline prepared by her solicitor, Mr Ulbrick.
The Father was born on (omitted) 1960 in (country omitted). The Mother was born on (omitted) 1971 in China.
The parties met in China in 2005 and the Mother emigrated to Australia in 2007.
The parties commenced living together on 31st August 2007 and were married on (omitted) of that year. There is one child of the marriage, X, who was born on (omitted) 2008.
The parties separated on 15th April 2010 and were divorced. Their divorce became final on 23rd August 2012.
The Mother became an Australian citizen on 15th May 2013 and renounced her Chinese citizenship.
The issue in dispute
The issue is a simple one, namely, whether the Mother should be permitted to take the child out of Australia to spend time with extended family members in China, or whether she should continue to be restrained from taking the child out of the country. The People’s Republic of China is not a party to the Hague Convention on International Child Abduction (Convention on the Civil Aspects of International Child abduction, 1980).
Evidence and Submissions
The Mother relied on her affidavit of 7th November 2014. She gave oral evidence and was cross-examined on her affidavit by the Father’s solicitor, Mr Dalyell.
The Father relied on his affidavit of 23rd July 2013. He was not required for cross-examination.
It is the Mother’s case that she has no intention of returning to China permanently, but only seeks to go for a holiday so that her family may see her son. She has become an Australian citizen and has renounced her Chinese citizenship. She has made Australia her home.
The Mother gave evidence that it had not been possible for her to travel to China before because she had the care of X and she did not previously have the funds. However, a friend has offered to lend her the sum of $3,000.00 to assist with her travel expenses.
Her proposal is that she will offer as security:
a)her Mazda motor car, which she purchased in July for $5,500.00; and
b)the sum of $5,000.00 in cash.
The Father’s case, as set out in his affidavit, is that the Mother has no family living in Australia and it would be comparatively easy for her not only to regain her Chinese citizenship but to obtain Chinese citizenship for X.
Mr Dalyell, for the Father, submitted, that the Mother’s Australian citizenship was a “sham” and had been obtained only to support her case that she should be able to take the child out of the country. He referred the Court to the decisions of the High Court of Australia in M v M[3], the decision of the Family Court in Wheldon & Dinh[4], and the decision of this Court in Scott & Kent.[5]
[3] [1988] HCA 68
[4] [2010] FamCA 740
[5] [2013] FCCA 127
Mr Ulbrick for the Mother referred the Court to the decisions of the Full Court of the Family Court in Kuebler & Kuebler[6] and Line & Line[7] on the matters to be considered by a court where a party wishes to take a child out of the jurisdiction. He also referred the Court to a recent decision by Judge Baker of this Court in Time & Bailey[8], where her Honour, relying on the decision in Kuebler, summarised the considerations which should be given to an application which involves a parent taking a child out of the jurisdiction.
[6] (1978) 4 Fam LN 4; FLC 90-434
[7] (1996) 21 Fam LR 259; FLC 92-729
[8] [2014] FCCA 2094
Mr Ulbrick drew the Court’s attention to a medical certificate annexed to the Mother’s affidavit, translated into English, relating to the maternal grandfather’s poor health. The certificate, from a Dr C of the (omitted) Hospital of (omitted) City, (omitted) Province, states that the grandfather suffers from:
a)Sequelae of cerebral infarction;
b)Gouty arthritis;
c)Type II diabetes; and
d)High blood pressure.
The doctor expressed the view that “the course of disease is long and he is critically ill. He will possibly become worse to be impending death at any moment”.
Mr Ulbrick further submitted that the Mother has given no priority to the child learning Cantonese and has therefore shown that she has no intention for him to live in China. Contrary to the submissions on behalf of her former husband, the Mother has engaged with the local community and intends to remain a resident of Australia.
Conclusions
Whilst it is a factor to be considered that the People’s Republic of China is not a party to the Hague Convention, that is only one factor to be considered. Ultimately, it is a question of fact.
In my view, with respect, her Honour Judge Baker succinctly summed up the considerations in Time & Bailey[9] at [120]:
[9] supra
These include:
(a) The length of the proposed stay out of the jurisdiction;
(b) The bona fides of the application;
(c) The effect on the child of any deprivation of access;
(d)Any threats to the welfare of the child by the circumstances of the proposed environment;
(e)The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.[10]
[10] [2014] FCCA 2094 at [120]
The Mother proposes staying out of the jurisdiction for a period of four weeks. That length of time is in accord with the recommendations of the Family Consultant in the two Family Reports. Bearing in mind the fact that the Mother has had to borrow money to go on this trip, and the fact that she has not visited China for seven years, it does not appear to be an unreasonably long period of time out of the country.
The central question is whether the application is bona fide. Mr Dalyell, for the Father, has submitted that it is a “sham”, although there does not appear to be a great deal of evidence to support this description, other than the Father’s suspicions. It would be an elaborate process for the Mother to renounce her Chinese citizenship and obtain Australian citizenship purely for the purpose of leaving Australia permanently in order to return to China.
I note that the Mother is volunteering almost all of the money that she has saved for her son’s future, and is borrowing money to make this trip. If she were to decide to live permanently in China once she and the child arrived, she would have virtually no funds and the child would have little facility in the Cantonese language.
Why, one asks rhetorically, should she wish to leave Australia permanently? She appears to have settled permanently here and made a serious effort to learn English. She gave oral evidence in English as much as she could, but relied on the interpreter at times when the wording of the questions in cross-examination became too difficult for her, but that is quite understandable and is a regular occurrence in court proceedings.
I formed the view that the Mother gave honest and credible evidence and I am satisfied that she does not intend to leave Australia permanently.
The child will not see his father for a period of four weeks, but could speak to him by telephone whilst he is away. Four weeks is not an inordinately lengthy time for him to be away from his father.
There is no evidence that the area of China, (omitted) Province, poses any unacceptable threats to the child’s welfare.
All in all, I have formed the view that the Mother’s application is genuine. Even allowing for language difficulties, she appeared to give honest evidence and I believe that she was a credible witness.
There is, of course, a risk that the Mother would not return with the child, or at all. In Line & Line[11], the Full Court of the Family Court set out the principles to be considered in imposing security to ensure the return of the child:
a)The purpose of the security, to provide a sum which will realistically entice the person removing the child to return;
b)To provide a sum to adequately provision the party left in Australia to take action and proceedings to endeavour to obtain the return of the child;
c)Whether the country of travel is a party to the Hague Convention;
d)The financial circumstances of the parties and the relative hardship which the departing party would suffer by the imposition of security at a particular level.[12]
[11] supra
[12] (1996) 21 Fam LR 259 at 264-265
True it is that the People’s Republic of China is not a Hague Convention country, but, against this, the Mother is offering as security a significant amount of money and a motor car. There is no evidence that she has other assets. She would find herself almost penniless in China if she were not to return.
I propose to set the cash security at $5,500.00, which is a little higher than the amount of cash offered. It will not leave the Mother with much in the way of assets if she chooses not to return with the child.
However, in my view, the Mother has established that her application is bona fide, and it is in the child’s best interests that he should spend some time with his extended family in China. It must follow that at some time in the near future it would be in his interests to travel to (country omitted) with his father to meet his extended family in that country and learn something of his (omitted) heritage. That is a matter for another day.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 18 November 2014
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