LAI & LONG

[2018] FCCA 3776

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAI & LONG [2018] FCCA 3776

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Applicant: MR LAI

Respondent: MS LONG

File Number: PAC 5687 of 2018

Judgment of: Judge Newbrun

Hearing date: 14 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Parramatta

Delivered on: 17 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Bennett

Solicitors for the Applicant: The Australian Legal Practice

Counsel for the Respondent: Mr Blank

Solicitors for the Respondent: Profectus Legal

ORDERS PENDING FURTHER ORDER

1. The father’s proposed interim parenting Order that the children [X] born …2014 and [Y] born …2016 shall live the Applicant father until the child [Z] born …2016 is returned to Australia is dismissed.

2. The Respondent mother must do all acts necessary and execute all required documents so as to ensure that the child [Z] born …2016 is returned to Australia by no later than 28 December 2018. 

3. The Respondent mother is to notify the Court and Applicant father within three days and provide an update as to the progress of the return of the child [Z] born …2016.

4. The Respondent mother shall take all reasonable steps to ensure that the children [X] born …2014 and [Y] born …2016 are cared for on a full time basis by Ms A from 20 December 2018 to 28 December 2018 whilst the mother travels to China during such period.

5. During the Respondent mother’s absence from Australia from 20 December 2018 to 28 December 2018, the father shall be restrained from removing the children [X] born …2014 and [Y] born …2016 from the care of Ms A.

6. Pursuant to Section 68L of the Family Law Act 1975 (Cth) the children [X] born …2014, [Y] born …2016 and [Z] born …2016 shall be independently represented and the Court requests that the Legal Aid Commission provide that representation.

7. The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.

8. Leave to the parties and Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

9. The parties shall attend a Child Dispute Conference on 28 February 2019 at 9:00 am.

10. The proceedings are adjourned for mention to 1 March 2019 at 9:15 am. The Independent Children’s Lawyer is requested to attend this mention.

11. Direct that an interpreter in the Mandarin language be provided for each of the parties at the above Child Dispute Conference.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5687 of 2018

MR LAI

Applicant

And

MS LONG

Respondent

REASONS FOR JUDGMENT

1. This interim hearing relates to the children [X], date of birth …2014; [Y], date of birth …2016; and [Z], date of birth …2016.

2. These parenting proceedings came before the Court during its duty last week on an urgent basis.  The father’s Initiating Application filed 28 November 2018 sought, in Annexure A to that Application, certain “Urgent Orders”, including proposed urgent Airport Watchlist Orders seeking that the parties be restrained from removing the children from Australia for two years (proposed Order 1); that the children [X] born …2014 and [Y] born …2016 live with the father until the child [Z], born …2016, is returned to Australia (proposed Order 2); and that the Respondent mother must do all acts necessary and to execute all required documents so as to ensure that the child, [Z], born …2016, is returned to Australia within seven days from the date of these Orders (proposed Order 3). 

3. The parenting proceedings first came into the Court’s duty list on 10 December 2018 and then the proceedings were adjourned to 14 December 2018 for further consideration.  On 10 December 2018 the Court made by consent Watchlist Orders in relation to the children [X], [Y] and [Z], further ordered that the parties had leave to file further short updating Affidavits, and in Order 2 of the Court’s Orders of 10 December 2018, ordered that the father’s proposed urgent Order 3, set out in Annexure A in his Initiating Application filed 28 November 2018 was adjourned to 9:30 am on 14 December 2018.  A Notation was made to the court’s Orders of 10 December last that:

   The solicitor for the mother today informs the Court that the mother proposes to file and serve, consistent with the above Court directions, a short Affidavit from the mother’s cousin, whom the mother proposes that two of the children reside with for about a week in late December 2018 while the mother goes by herself to China to pick up the child [Z] with a view to bringing that child back to Australia. 

4. The matter came back before the Court for argument on 14 December 2018.  It soon became apparent that the main issue to be determined between the parties was whether the two children, [X] and [Y], should live with the father during a one week period from 20 December 2018 to 28 December 2018 whilst the mother travels to China, leaving Australia on 20 December 2018, to pick up the child [Z], born …2016, and then return to Australia on 28 December 2018.  The mother opposed such a limited live with Order in favour of the father, she proposing, finally, that her cousin’s fiancée, Ms A, care for the children [X] and [Y] whilst she travels to China for that one week period. 

5. Ms A filed an Affidavit in the proceedings on 13 December 2018.  The father also sought that a bond be placed by the mother to ensure that the mother returns to Australia with the child [Z].  That bond sought by the father was opposed by the mother. 

6. The mother relied upon her two Affidavits and the Affidavit of Ms A.  The father relied upon his filed affidavit material, his Case Outline and Notice of Risk.

   Again, ultimately, the father pressed proposed urgent Order 2 in Annexure A of his Initiating Application filed 28 November 2018.  In relation to proposed urgent Order 3 in Annexure A, the father pressed that proposed Order, although, not appearing to cavil with a proposed amendment to that Order which was consented to by the mother, deleting the last words of that proposed Order, “within seven days from the date of these Orders” and replacing those words with the words, “by no later than 28 December 2018”.

7. The father’s proposed urgent Order 4 in annexure A was agreed to by the mother and proposed urgent Order 5 in annexure A, ultimately, was not pressed by the father, it being anticipated that the mother would travel to China without the children [X] and [Y] in late December 2018 with a view to the child [Z] being returned by the mother to Australia in late December 2018.

Agreed facts unless otherwise stated

1. The parties separated in about April 2018 (according to the father) and in about September 2017 (according to the mother). 

2. In September 2018 the child [Z] was taken to China by the maternal aunt and that child remains in China presently. 

3. Since 5 November 2018 the father has not spent time with the children [X] and [Y]. 

4. Since July 2018, Ms A has assisted the mother in the day-to-day care of the children (see the Affidavit of Ms A).

5. Ms A asserts that she is able to care for the children [X] and [Y] on a full-time basis whilst the mother travels for one week to China during the period from 20 December to 28 December 2018.  She has a (Qualifications) from University.  She has a good relationship with the children (and see the photographs of Ms A with some of the children annexed to her Affidavit).

6. The father currently works full-time as a manager at Suburb P from 10 am Wednesday until 10 am Sunday each week. 

7. The father asserts that he is in a position to take time off work to enable him to care for the children during the period from 20 December 2018 to 28 December 2018. 

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled, go and see Goode& Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348 the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings.  Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part 7 of the Act relating to children that inform the making of parenting Orders.

6. In deciding whether to make a particular parenting Order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining Orders in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

The best interests of the children 

Section 60CC considerations

Subsection (2)(a): the meaningful relationship primary consideration

1. There is a significant suggestion on the material before the Court that the mother has been the children’s primary carer from birth to date.  The children would appear to have a meaningful relationship with her and would benefit from a continuance of that relationship. 

2. The nature and extent of the children’s relationship with the father is unclear on the material before the Court, noting the dispute between the parties as to the extent to which the father has spent time with and cared for the children during the relationship and post-separation to date.  The mother does not clearly assert that the father has no relationship with the children.  There is a significant suggestion on the material before the court that the children presently have a positive relationship at least with the father. 

Subsection (2)(b): the need to protect primary consideration

1. The mother asserts that the father has not taken care of the children on a daily basis as a father; the mother asserts that the father, during the relationship, worked long hours and never had time to spend with and take care of the children.  She also asserts that the father returned home from work smelling of alcohol and she observed him to drink alcohol frequently on a daily basis at home when unemployed during the period from June 2017 to March 2018.  He had, according to the mother, various traffic offences for drink driving. 

2. The mother asserts that whenever the father spent time alone with the children he never changed their nappies, causing nappy rash.

3. The mother asserts that the father never bathed or fed the children (such assertion is disputed by the father). 

4. The mother also asserts that the father physically abused the child [X] in January 2018 because this child did not go to the toilet in a proper manner.  She alleges that [X] told her that the father had physically abused [X] on an occasion when the father spent time with [X] on 22 July 2018 without the mother’s presence. 

5. The Court has not overlooked the father’s denials of abuse of the mother or the children.

6. The mother asserts the father physically abused “our son” ([Y]) in September 2017 and kicked and punched the mother with his fist, causing bruises and redness to the left side of the mother’s face (see the photos annexed to the mother’s Affidavit filed 7 December 2018).  The mother asserts that she then called the police, who attended the premises.  On 13 September 2017 an interim Apprehended Domestic Violence Order was made by the police for the mother’s protection against the father.  The Court observes that one restraint in the interim ADVO against the father was that he “must not approach or be in the company of [the mother] for at least 12 hours after drinking alcohol or taking illicit drugs”.

7. The mother asserts that post separation the father has only taken care of the children for a couple of hours during the daytime on Sundays but not overnight.  She asserts that the father does not have experience in, for example, putting the children to bed at night time and feeding them on a routine basis.  She asserts the father has no knowledge about the children’s daily routine. 

8. The father asserts, to the contrary, that he has cared for the children on Sundays from 11 am to 7 pm since at least March 2018 and that he has extensively cared for the children’s day-to-day needs during and post-separation while the children have been in his care. 

9. On the material before the Court, in the view of the Court, there is an unacceptable risk of the children ([X] and [Y]) being exposed to neglect, abuse or family violence if being cared by the father on a full-time basis during the period from 20 December 2018 to 28 December 2018. 

10. The Court has concerns:

    a)That the father lacks the parenting capacity to care for the children on a full-time basis including overnight time.

    b)Arising from the mother’s allegations of family violence perpetrated against her and the children (previously discussed) (and not overlooking the father’s denials in this context).

    c)Arising from the mother’s allegations of antisocial behaviour perpetrated by the father following consumption of alcohol.

11. The Affidavit of Ms A stands unchallenged.  Ms A has assisted the mother in the care of the children since July 2018 and has lived with the mother during this time.  The mother asserts that Ms A is very familiar with the children’s routine and daily schedule.  Ms A asserts that she has a good relationship with the children.  There should be no unacceptable risk of harm posed to the children [X] and [Y] being cared for by Ms A on a full-time basis during the period from 20 December 2018 to 28 December 2018 whilst the mother travels to China to pick up and return the child [Z] to Australia.  In this context, the Court also takes into account the tender ages of the children and their familiarity with the mother’s home, particularly in the night time setting and routine. 

12. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - additional considerations

1. Subsection (3)(a), the views of the children: the mother asserts that the children have told her that they have had “unpleasant experience” while spending time with the father “in various earlier occasions”.  By reason of the tender ages of the children, the Court does not attach significant weight to these alleged statements by the children to the mother. 

2. Subsection (3)(c): the mother appears to have taken such opportunities.  The father asserts that he has taken such opportunities, alleging that the mother has unreasonably withheld the children from him. 

3. Subsection (3)(ca): the mother appears to have maintained the children whilst in her care.  The father asserts the regular payment of child support, which is disputed, to some degree, by the mother. 

4. Subsection (3)(d): the father has been spending time with the children on Sundays during the daytime.  The parties are in dispute as to the amount of that Sunday time spent by the children with the father.  Should the two children [X] and [Y] not spend time with or live with the father during the period from 20 December 2018 to 28 December 2018, their positive relationship with the father should not be detrimentally affected.

5. Subsection (3)(f): the mother appears to have such capacities (whilst noting the disputation between the parties as to the father’s allegations against the mother that she is, inter alia, neglecting the children by spending time on the internet interacting with third party men; in this context, it is not without relevance that the father seeks an Order that the children live with him “until” the child [Z] is returned to Australia).  The father asserts that he is able to provide for the needs of the children, which is disputed by the mother. 

6. Subsections (3)(j) and (k): the Court refers to its discussion above under the need to protect primary consideration.

7. Subsection (l): it is appropriate at this point to briefly deal with the father’s application that the mother cause a bond of $20,000 (or such other sum as the Court sees fit) to ensure her return to Australia with the child [Z]. 

8. The mother asserts that she has already enrolled the children [X] and [Z] at the School 1 at Suburb O and paid their application fee.  She asserts that she did not form any romantic relationship with any man during the parties’ marriage. 

9. The parties and the children travelled to China in …2017 and returned to Australia in …2018. 

10. On the material before the Court, the risk of the mother not returning to Australia from China with the child [Z] on 28 December 2018 is a low risk.  The existence of the two children [X] and [Y] presently in Sydney, and subject to an Airport Watchlist Order, is a sufficient motivation, in the view of the Court, to ensure the mother’s return to Australia from China with [Z] on 28 December 2018. 

11. Prior to the Court making its reasons for judgment this morning the Court, inter alia, raised with the parties’ legal representatives whether or not the Court should make an Order that during the mother’s proposed absence from Australia from 20 December 2018 to 28 December 2018, the father should be restrained from removing the children [X] and [Y] from Ms A’s full-time care in the event that the Court was to dismiss the father’s proposed interim Order that those children live with him during this one-week period whilst the mother travels to China to bring back the child [Z] to Australia. 

1. The parties’ legal representatives this morning made some brief submissions in relation to that query by the Court.  In the view of the Court such a restraining Order against the father would provide comfort to Ms A during the one-week period that she would have the full-time care of the children, bearing in mind that the parties would appear, on the material before the Court, to be in high conflict presently in relation to the care of the children, and that in particular they would appear to be in high conflict in relation to this issue of whether or not the father should have the full-time care of the children for this one week period in late December 2018. 

2. The restraining Order, assuming the mother travels to China and returns to Australia during this one week period in late December 2018, is not a lengthy restraint and, again, will provide certainty and comfort to Ms A while she has the full-time care of the children for this limited period. 

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim Orders and the Court makes the following interim Orders:

   (1)     The father’s proposed interim parenting Order that the children [X] born …2014 and [Y] born …2016 shall live the Applicant father until the child [Z] born …2016 is returned to Australia is dismissed.

   (2)     The Respondent mother must do all acts necessary and execute all required documents so as to ensure that the child [Z] born …2016 is returned to Australia by no later than 28 December 2018. 

   (3)     The Respondent mother is to notify the Court and Applicant father within three days and provide an update as to the progress of the return of the child [Z] born …2016.

   (4)     The Respondent mother shall take all reasonable steps to ensure that the children [X] born …2014 and [Y] born …2016 are cared for on a full time basis by Ms A from 20 December 2018 to 28 December 2018 whilst the mother travels to China during such period.

   (5)     During the Respondent mother’s absence from Australia from 20 December 2018 to 28 December 2018, the father shall be restrained from removing the children [X] born …2014 and [Y] born …2016 from the care of Ms A.

   (6) Pursuant to Section 68L of the Family Law Act 1975 (Cth) the children [X] born …2014, [Y] born …2016 and [Z] born …2016 shall be independently represented and the Court requests that the Legal Aid Commission provide that representation.

   (7)     The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.

   (8)     Leave to the parties and Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.

   (9)     The parties shall attend a Child Dispute Conference on 28 February 2019 at 9:00 am.

   (10)   The proceedings are adjourned for mention to 1 March 2019 at 9:15 am. The Independent Children’s Lawyer is requested to attend this mention.

   (11)   Direct that an interpreter in the Mandarin language be provided for each of the parties at the above Child Dispute Conference.

2. To remove any doubt, the Court has relied upon all Affidavit material filed by the parties in these proceedings, including their Notices of Risk, the father’s Initiating Application, the mother’s Response, and the Affidavit of Ms A.  The Court has also considered the Case Outline of the father. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 18 December 2018