Lai and Sinclair
[2013] FCCA 1584
•11 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAI & SINCLAIR | [2013] FCCA 1584 |
| Catchwords: FAMILY LAW – Children – parenting orders – application to vary parenting orders – where mother wishes to take child out of Australia to see maternal grandfather who is seriously ill – the rule in Rice & Asplund considered – where applicant has shown a sufficient change of circumstances to justify a re-examination of the issue of travel outside Australia – application to proceed to final hearing. |
| Legislation: Family Law Act 1975 (Cth), s.60CA |
| Freeman & Freeman (1987) FLC 91-857 Hayman & Hayman (1976) FLC 90-140 |
| Applicant: | MS LAI |
| Respondent: | MR SINCLAIR |
| File Number: | SYC 3552 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 6 August 2013 |
| Date of Last Submission: | 6 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid NSW (Duty Solicitor) |
| Solicitors for the Respondent: | MMD Law |
ORDERS
The Response filed on 25 July 2013 insofar as it seeks interim Orders dismissing the Application brought by the mother to vary the orders made on 20 March 2012 and interim parenting Orders is dismissed.
The Application will proceed to a final hearing on a date to be fixed.
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 a little boy called X for permission to travel overseas with him to China to see her father, the child’s maternal grandfather, who is seriously ill and no longer able to travel. The child was born on (omitted) 2008 and is therefore 5 years old.
The father opposes the Application on the basis that this matter has already been judicially decided as recently as 20 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 Court would need to be satisfied that there is some changed circumstance that would justify such a serious step or that a new factor had arisen.
[1] (1979) FLC 90-725
Background
The mother’s application will involve a variation or suspension of the Orders made by this Court after a final hearing on 20 March 2012. On that date, Federal Magistrate Altobelli, as his Honour then was, made orders by consent providing that:
a)The parties are to have equal shared parental responsibility for the child;
b)The child is to attend the closest public school to where he habitually lives;
c)The child is to live with the mother;
d)The child is to spend time with the father:
i)on alternate Saturdays;
ii)on the Friday or Saturday of the off week;
iii)from 1 July 2013, one block period not exceeding five days in the school holidays;
iv)from the first day of Term 3, 2014, each alternate weekend and half the short school holidays;
v)for two weeks in the Christmas holidays in 2014; and
e)other orders not relevant to this proceeding.
His Honour heard some evidence from the parties and made some Orders about the parties attend counselling with a community based agency and about arrangements for changeover. The particular Order that is relevant to the mother’s Application is Order 10, that provides:
MR SINCLAIR and MS LAI, by themselves, their servants or their agents are restrained from removing or attempting to remove the child, X (“X”) born (omitted) 2008, from the Commonwealth of Australia unless with the written consent of both parents, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until such time as written notification is received from both parents.
The Current Application
The mother filed an Application on 23 May 2013 seeking the following interim orders:
1. That this matter be listed at short notice.
2. That the mother be permitted to remove the child, X born (omitted) 2008 (male), from the Airport Watch List for the period of no longer than 4 weeks after 15 May 2013.
3. That for the purpose of Order 2, the child’s name, X, born (omitted) 2008 (male), be removed from the Airport Watch List for the period it is proposed the mother travels to China with the child, and it is requested that the Australian Federal Police implement this order.
The mother seeks final orders in her Application:
a)discharging Order 10 made on 20 March 2012;
b)removing the child’s name from the Watch List;
c)restraining both parents from removing the child from the Commonwealth of Australia without the written consent of the other party and requiring the parent wishing to travel to provide to the other:
i)no less than 60 days’ notice;
ii)a proposed itinerary no later than 28 days prior to the intended date of departure; and
iii)once consent has been obtained, a copy of the child’s return flight ticket.
The Father’s Response
The father filed a Response on 25 July 2013 seeking interim and final orders in identical terms.
The orders sought by the father are:
a)That the mother’s Application be dismissed;
b)That the parties are restrained from removing the child from Australia from the Commonwealth of Australia except with the consent of both parents and that the child’s name be placed on the Watch List;
c)That child remain living with the mother but spend time with the father as agreed but failing agreement:
i)From 3:30 pm Saturday until 2:30 pm Sunday on alternate weekends;
ii)For half of the short school holidays;
iii)For two weeks in the 2013-2014 Christmas school holidays;
d)That six months before the child commences High School the parents are to agree on:
i)Where the child lives;
ii)Time spent with the father;
iii)Which high school the child will attend.
e)That handover be at (omitted) Railway station.
f)That the Orders of 20 March 2012 relating to special occasions, communications and special conditions be retained without alteration.
Evidence
The mother relied on her affidavits of:
a)23 May 2013; and
b)25 July 2013.
Curiously, she appears to have filed another affidavit on 19 September 2013. This affidavit was filed without leave of the Court and, as it was filed after the date of the hearing on 6 August 2013, cannot be considered. It has not been read.
The father relied on his affidavit sworn on 23 July 2013. In that affidavit he states that he seeks to rely on his earlier affidavits, which are presumably those that were filed in respect of the proceedings before Altobelli FM in March 2012. The relevance of those affidavits to the matter immediately before the Court, involving the mother’s application to depart from the earlier orders, is not immediately apparent.
In her affidavit of 23 May 2013 the mother deposes that her father, who lives in China, is elderly and seriously ill. His condition has deteriorated in the last 12 months and he is unable to travel. He has never met his grandson.[2]
[2] Affidavit of Ms Lai 23.5.2013 at paragraphs [7]-[8]
The mother annexed to her affidavit a document in the Chinese language together with an English translation. The Document is said to be a “Disease Certificate” from the (omitted) Hospital of (omitted) city, (omitted) Province relating to Mr L, a male aged 68.
The Certificate states that a preliminary diagnosis was made on March 27, 2013 to this effect:
1. high-blood pressure Level III with critically ill status; 2. Diabetes of Type II; 3. Sequelae of cerebral infarction
This is to certify that the patient has complicated symptoms for his old age and repeated illness attacks, and that he needs to take medicine and receive recovery treatment for a lone (sic) time.[3]
[3] Ibid Annexure “A”
The Certificate is signed by a Dr C.
The mother deposed that she told the father in 2012 that her father was sick and he replied that his mother in (country omitted) was also ill. She said that he could take X to see his mother.
The mother sought that the parties should attend mediation to discuss the issue but the father declined to participate.
The mother deposes that she has no desire to relocate to China. She has become an Australian citizen and has relinquished her Chinese citizenship. She claims that as a consequence she will no longer be allowed to reside in China. Both she and the child will require visas to travel to China. She has applied for an Australian passport and her Chinese passport has been cancelled. She has obtained a New South Wales driver licence and has purchased a car.
The mother annexed to her affidavit copies of her Australian Citizenship Certificate dated 15 May 2013, her cancelled Chinese passport and her New South Wales Provisional Driver Licence. She has also annexed a number of character references and testimonials to her affidavit.
It is the mother’s case that if the child is not allowed to travel to China with her there is no one in Australia who could look after him. The child has been spending time with the father but has never spent more than five days away from her.
In her affidavit of 25 July 2013 the mother deposes that she has now obtained an Australian passport. She has taken English classes to improve her English language skills. The mother also states that she would provide a bond with the Court to ensure that she will return to Australia.
In his affidavit of 23 July 2013 the father deposes that he opposed the mother’s application to take the child out of the country when the matter was before the Court on 20 March 2012. He considered the risk that the mother would fail to return to Australia with the child was too great. He noted that China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
He was concerned that the mother has no family or permanent ties in Australia.
The father deposed that the mother had claimed at the earlier hearing that her father’s health was declining and this circumstance was nothing new. His own mother is ill in (country omitted) and unable to travel. He annexed to his affidavit a letter dated 2 July 2013 from a Dr L of the (omitted) Hospice in (country omitted), stating that his mother, Ms T, is a patient on the hospice program with incurable cancer.
The father states in his affidavit that (country omitted) is a party to the Hague Convention.
The father also contends that the mother’s statement in her affidavit that she can no longer reside in China “is not true and is a deliberate lie intended to deceive the Court”.[4]
[4] Affidavit of Mr Sinclair 23.7.2013 at paragraph [15]
The father then, in paragraphs [16] to [19] of his affidavit sets out his contentions as to why he believes that the mother could regain her Chinese nationality and why he fears that she might take the child to China and never return him to Australia.
He deposes:
19. Ms Lai does not have any family living in Australia and does not have permanent ties to Australia.
20. I am afraid that if given the opportunity to travel to China with X, I would not see either of them again and that this poses an unacceptable risk.[5]
[5] Ibid at [19]-[20]
The father then goes on to state in his affidavit that since the Court made final orders on 20 March 2012 he and the mother have been able to agree to variations in the parenting orders allowing X to spend more time with him and he seeks to have those new arrangements formalised.
The Rule in Rice v Asplund
Put simply, the rule in Rice & Asplund[6] states that a court should not lightly an entertain an application to reverse an earlier custody order, because to do so would be to invite endless litigation:
Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…[7]
[6] supra
[7] (1979) FLC 90-725 at 78,905 per Evatt CJ, Pawley SJ and Fogarty J agreeing
The Court approved the earlier decision of Hayman & Hayman[8] where Murray and Lusink JJ followed a 1967 decision of Barber J in the Supreme Court of Victoria in a matter called Gilder v Gilder. In Hayman, their Honours quoted with approval this statement from Barber J:
However for me to reverse my previous order after such a short time, the father must show some changed circumstances which will justify such a serious step, some new factor arising since I made that order, or at any rate some factor which was not disclosed at the previous hearing and which would have been material.[9]
[8] (1976) FLC 90-140
[9] (1976) FLC 90-140 at 75,680
Since that time, the decision in Rice & Asplund has been followed in Freeman & Freeman[10] and a number of more recent decisions including Miller & Harrington[11], SPS & PLS[12] and Marsden & Winch[13].
[10] (1987) FLC 91-857
[11] [2008] FamCAFC 150; (2008) 39 Fam LR 654; FLC 93-383; 220 FLR 300
[12] [2008] FamCAFC 16; (2008) 39 Fam LR 295; FLC 93-363
[13] [2009] FamCAFC 152
Mr Dalyell, who appeared for the father, also referred the Court to the decision of Cleary J in Gough & Apostolou[14], where her Honour quoted with approval the words of Collier J in King & Finneran[15] [44]:
To apply the test in Rice v Asplund (above) is to make an assessment on the material available to the Court as to whether or not the matters raised in this material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the Court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary, collectively, and the impact they may have on the children.[16]
[14] [2013] FamCA 249
[15] [2001] FamCA 344; (2001) FLC 93-079
[16] Quoted in Gough & Apostolou at [27]
It is clear that, when considering the proposed orders as a threshold issue, the Court may take the Applicant’s evidence at its highest (see Miller & Harrington[17], where the Full Court of the Family Court, referring to the decision of Warnick J in SPS & PLS, said at [80]-[83]:
80. In our view, that passage need not be taken as saying that the only way in which the rule in Rice & Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
81. Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice & Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
82. However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
83. This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.[18]
[17] supra
[18] [2008] FamCAFC 150; (2008) 39 Fam LR 654 at [80]-[83] per Warnick, Boland and Murphy JJ
Conclusions
The mother is seeking to vary the earlier orders restraining the parties from removing the child from Australia so that she may take the child to see his grandfather, who is unable to travel due to his state of health. The changed circumstances which she claims are sufficient to reopen the issue that was decided at the previous hearing are:
a)That her father’s health has deteriorated since the previous hearing; and
b)That her ties to Australia have demonstrably strengthened by her acquisition of Australian citizenship and her renunciation of her previous Chinese citizenship.
The father claims that these matters have already been litigated and that there is no change of circumstances sufficient to justify re-opening the issue. Some of his claims, such as his accusation that the mother is untruthful and attempting to deceive the Court, as set out at [26]-[27] above, cannot be the subject of a factual finding at a hearing such as this, where the evidence has not been tested by cross-examination.
Interestingly, the father in his Response is seeking to re-open the earlier decision as he seeks parenting orders that would allow him to spend more time with the child. It is curious that he should be relying on the rule in Rice & Asplund to oppose the mother’s application to vary the earlier Orders yet in his Response he seeks to do exactly the same thing. His case is that the parenting Orders should be varied in his favour to reflect the reality of the arrangements that he claims he has made with the mother.
Again, the Court must need to consider whether the father has shown some change of circumstances or some new factor that has arisen since Altobelli FM heard the matter in March 2012 that would justify a variation of the earlier Orders.
I have obtained a transcript of the proceedings before his Honour, although, unfortunately, no copy of his Honour’s reasons for decision is available. What happened on the last occasion is that the Family Consultant who prepared the Family Report was cross-examined and, after a short adjournment, the parties were able to agree on some Consent Orders relating to parenting.
However, they were unable to agree about other Orders, and these Orders were made after his Honour heard short evidence and submissions from the parties’ lawyers.
This has been a preliminary hearing to determine whether the Court should permit the parties to engage in further litigation about whether the mother should be permitted to take the child out of Australia to visit family members in China, especially her father.
In my view, the mother has demonstrated that there has been a sufficient change of circumstances to justify a further consideration as to whether she should be permitted to take the child on a holiday to China. Those circumstances are:
a)The apparent decline in her father’s health; and
b)Her establishment of stronger ties with Australia by virtue of becoming an Australian citizen and relinquishing her citizenship of the People’s Republic of China.
The changes to parenting arrangements sought by the father are relatively minor. On their own, they would be unlikely to be regarded as of sufficient significance to warrant reopening the parenting proceedings, but as the question of taking the child to China is to be re-litigated, it will be appropriate, in my view, to permit a further examination of parenting arrangements.
Accordingly, I decline to dismiss the mother’s Application. I am not prepared to grant the application for interim orders varying the final orders made on 20 March 2012. I will make directions for the matter to proceed to a final hearing.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 11 October 2013
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