Lam and Guan

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAM & GUAN

[2016] FCCA 1795

Catchwords:
FAMILY LAW – Parenting – whether the husband should be permitted to travel internationally with the child – whether a security deposit would adequately address the risk of non-return of the child.

Legislation:

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

Cases cited:

Line & Line (1997) FLC 92-729

Applicant:

MS LAM

Respondent:

MR GUAN

File Number:

CAC 1337 of 2014

Judgment of:

Judge Hughes

Hearing dates:

16 &17 November 2015 and

23 & 24 May 2016

Date of Last Submission:

24 May 2016

Delivered at:

Canberra

Delivered on:

18 July 2016

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Counsel for the Respondent:	Self-Represented
Counsel for the Independent Children's Lawyer:	Ms Smithies

Solicitors for the Independent Children's Lawyer:

Legal Aid ACT

ORDERS

Until 14 September 2022 each party is hereby restrained from removing the child X, born (omitted) 2009, from Australia or allowing or permitting any other person to do so except in accordance with a written agreement between the parties or an order of the Court.
To give effect to this order the Australian Federal Police are requested to place the name of the child on the Watchlist at all points of departure from Australia until 14 September 2022.
From 14 September 2022 each party may travel internationally with the child subject to the following conditions:
(a)the travel shall occur during school holidays unless the other parent gives their written consent to travel during school term;
(b)each parent shall make a reasonable effort to accommodate the other parent’s travel on the basis that if it encroaches on the other parent’s time with the child, reasonable make up time will be negotiated prior to the travel;
(c)the travelling parent shall give the other parent at least 28 days’ notice of the proposed travel;
(d)no less than seven days prior to departure the travelling parent shall provide to the other parent copies of return tickets for the child, a full itinerary setting out the names of the people with whom the child will be staying, the addresses at which the child will be accommodated while away and at least one emergency contact number while the child is out of Australia;
(e)the travelling parent shall ensure the child has a telephone which is fully charged and able to receive calls from the other parent at any reasonable time;
(f)the travelling parent shall ensure the child telephones the other parent at least once each week while out of Australia; and
(g)the travelling parent shall contact the other parent to confirm the child’s return within three hours of arrival in Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1337 of 2014

MS LAM

Applicant

And

MR GUAN

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings in which the only issue not resolved by agreement between the parties is whether or not the husband should be permitted to travel internationally with the parties’ six year old child. The wife alleges the husband has more than once threatened to retain the child in China where the extended family of both parents live.

Background

Both parties were born in China. They met in Australia and began living together in December 2005 according to the wife, or August 2006 according to the husband. They married in China on (omitted) 2008.
The child, X, was born on (omitted) 2009 and is now six years of age. He is an Australian citizen. The wife relinquished her Chinese citizenship and became an Australian citizen in August 2010. The husband did the same in September 2011.
The parties separated under the one roof on 26 August 2014. A month later, on 23 September 2014, the wife vacated the former matrimonial home with the child. The parties were divorced on 6 March 2016.
The wife said the parties fought a lot during their relationship and had a verbal altercation about once each week. She said she felt intimidated and belittled for most of the relationship. The husband denied behaving in any way which would cause her to feel that way.
Although both sets of grandparents live in China, they were very involved in the care of the child during the marriage. The maternal grandparents lived with the parties for three months from August to December 2009 and the paternal grandmother for the following three months.
In March 2010 when the child was six months old, he travelled to China with the wife and the paternal grandmother. In May 2010 the father joined them. The parents then returned to Australia leaving the child in China with the paternal grandparents. The husband’s evidence is that the wife was very focused on her career and wanted the paternal grandparents to care for the child so that she could return to work. That was strongly disputed by the wife. She said she felt coerced into agreeing to the child living with the paternal grandparents. She said that, at the time, she was afraid the husband would divorce her if she didn’t agree. She also said the father’s parents are very wealthy and she recognised to some extent that the child could have a better life with them in China because of all the resources and opportunities that would be made available to him. She said however that she became very unhappy about being separated from the child, especially when she was unable to obtain the cooperation of the paternal grandparents to speak to him by telephone or interact with him using Skype. She said the parties had such a fierce argument about the issue that the police were called by a neighbour. The husband said the parties were arguing about something else during that incident. However it is common ground that, although the original plan was for the child to live with the grandparents for three years, the parties travelled together to China in December 2010 and returned with him to Australia in January 2011.
The uncontested evidence of the wife is that she did not start work until July 2011, more than six months after the child had been back living in Australia. I accept her submission that this weighs against the husband’s assertions that it was her career ambitions which led to the child living with the paternal grandparents.
The paternal grandparents accompanied the parties back to Australia in January 2011 and remained until July of that year. The maternal grandparents then lived with the parties from July to November 2011. During 2012 the paternal grandparents lived with the parties for the first six months and the maternal grandparents for the second six months.
In early 2013 the paternal grandfather was diagnosed with kidney cancer and underwent an operation. The paternal grandparents did not come to Australia that year. The maternal grandparents lived with the parties for six months from July to December 2013.
In December 2013 the parents and child travelled to China. While there, the child was diagnosed with atopic dermatitis and was treated with traditional Chinese medicine. One of the reasons the husband wishes to take the child back to China is to continue his treatment with the same practitioner. The wife is content with the medical care the child receives in Australia.
The paternal grandmother came alone to Australia and lived with the parties from January to April 2014. The maternal grandparents lived with the parties from mid-August 2014, shortly before the parties separated. The paternal grandfather arrived on 13 September 2014 which was shortly after separation but while the parties were still living separately under the one roof. At the time of separation, therefore, not only were the parties living under one roof but so too were the maternal grandparents and the paternal grandfather. There was great tension in the household at the time. The paternal grandmother joined the husband and paternal grandfather on 11 October 2014 but by then the wife and her parents had moved out with the child.
Each party alleged in the proceedings that they were the primary caregiver to the child during the marriage. The wife’s evidence in that regard is supported by a formal agreement the parties entered into on 19 July 2011 after they realised their marriage was in difficulty and wanted to save it. The document is entitled “Marriage Relationship Statement” and is annexed to the wife’s affidavit filed on 24 September 2014. It sets out the duties each party was expected to fulfil in order to make the marriage work. It is plain from that document that the wife was expected to carry the bulk of the day-to-day care of the child with some assistance from the husband. The husband said in evidence that the agreement was to encourage the wife to take on a greater role with the child but that is disputed and I accept the plain words of the document as reflecting the parties’ agreement.

The proceedings

The wife commenced proceedings in this Court on 23 September 2014, the day after she left the former matrimonial home. She sought both parenting and property orders. She sought equal shared parental responsibility and proposed that the child live with her and spend time with the husband every second weekend and one extra night each fortnight, plus half of all school holidays. On an interim basis, she sought orders for the child to spend time with the husband one night each week. She alleged the husband had threatened to take the child to live in China and sought an order restraining him from doing so. Her application was listed on an urgent basis on 25 September 2014.
The husband filed a response on 25 September 2014 in which he sought equal shared parental responsibility, that the child live with him and that the child spend time with the wife as determined by the Court. On an interim basis he sought orders for the child to spend time with the wife for two nights each week. He also sought a recovery order in relation to the child with a view to re-establishing the child’s residence with him in the former matrimonial home.
The catalyst for the wife and her parents leaving the former matrimonial home was the husband applying that day for a domestic violence order against the maternal grandparents. He alleged that they had assaulted him that day in the presence of the wife. He also alleged that the maternal grandparents were feeding the child non-prescribed Chinese medicine and food to which he is allergic. The husband was granted an ex parte interim domestic violence order that day which prohibited the maternal grandparents being within 100 metres of the husband or the child.
When the interim domestic violence order was served on the maternal grandparents they contacted the wife who arranged for them to stay with one of her work colleagues. She arranged to stay with the child with another colleague.
When the matter came before this Court for the first time on 25 September 2014, the wife denied she or her parents had ever fed the child food to which he is allergic. She said she and the husband administered to the child the same non-prescribed medicine they purchased in China.
Interim orders were made by consent on 25 September 2014 which prevented the parties removing the child from Australia and caused his name to be placed on the Watchlist. The consent orders also restrained the parties from feeding the child any food to which he had been diagnosed as allergic or administering to him any non-prescribed medication. The proceedings were adjourned to the following day to deal with the contested parenting arrangements.
On 26 September 2014 orders were made, not by consent, for a substantially shared arrangement given the history of care of the child reported by both parties. The orders permitted the wife to bring the child into contact with the maternal grandparents and noted that, to the extent of any inconsistency between the domestic violence order and the family law order, the latter prevailed.
Slight adjustments were made to the parenting arrangements by consent on 24 October 2014 and 3 December 2014.
On 12 February 2015 the husband retained the child in his care and refused to make him available to spend time with the wife. He filed an interim application seeking orders for the child to live with him and spend no time with the wife until further order. In support of the application he filed an affidavit which alleged the following:
a)on 10 February 2015 the child told the husband that the maternal grandmother had, the previous day, twice slapped him across his face. The husband took the child the doctor who made a report to the child protection authority; and
b)between November 2014 and late January 2015 the child made numerous reports to the husband that the wife and maternal grandparents were coaching him and compelling him to say bad things about his father and slapping his hands and face if he “gets it wrong”.
The wife filed responding material on 20 February 2015 in which she denied the allegations. She gave detailed evidence about her activities and those of her parents and the child on the evening of 9 February 2015 when the child was alleged to have been slapped. She also relied on the affidavit of a friend who had dinner with the family that evening.
The matter came before the Court on 25 February 2015 by which time the child had not seen his mother for 15 days. The wife had, in the meantime, made a number of proposals to see the child on a supervised basis or in a public place, none of which were agreed by the husband.
On 25 February 2015 orders were made by consent which imposed a range of restraints prohibiting each party denigrating the other party, physically disciplining the child or attempting to influence what the child says to others. Otherwise, the interim arrangements for the child remained as previously ordered.
On 28 April 2015 final property orders were made by consent. The parenting matter was listed for final hearing for three days commencing 16 November 2015. That day the parties reached agreement on all issues except the child’s international travel. The agreed parenting orders provided for the parents to have equal shared parental responsibility and for the child to live with them on a week about basis during school term and for half of each school holiday period. The orders provided for the child to remain on the Watchlist except for any travel sanctioned by order of the Court or agreement of the parties.

The hearing

Late in the day on 16 November 2015 the Court began to deal with the remaining issue of international travel. The proceedings continued for a part of the day on 17 November 2015 but the parties were not well prepared for the hearing of that issue. It was adjourned to 22 May 2016 and completed on 23 May 2016.
The wife was unrepresented from June 2015. The husband was represented until late November 2015 but from then on he, too, was unrepresented. The Court had the benefit of an independent children’s lawyer.
The husband and wife both relied on relevant portions of affidavits previously filed in the parenting proceedings. They each gave oral evidence and were cross-examined by each other and by the independent children’s lawyer. No other witnesses were called.

The alleged risks

The wife alleged the following as warranting a restraint on the child’s international travel:
a)the husband has repeatedly threatened to take the child to China to live;
b)the husband believes he and his family can offer the child a superior level of parenting to that offered by the wife; and
c)the husband does not understand the importance to the child of the child’s relationship with his mother.
When the wife commenced proceedings on 24 September 2014 she deposed in her supporting affidavit to a number of threats made by the husband when she told him she wanted to end the marriage. She said the husband told her that his parents were coming from China to take the child to live with them; that the child would be better educated in China; that the child would receive better medical treatment in China; and that the wife would have no say in the matter. She alleged the husband also said “My father is half dead anyway and will do whatever it takes to take X to China.”[1]
[1] Affidavit of the wife filed on 24 September 2014 at paragraph 20
In his responding affidavit filed the following day, 25 September 2014, the father denied each of the allegations made against him and specifically denied ever threatening to take the child to China.
During cross-examination on 17 November 2015 it was put to the wife by the husband’s counsel that the husband was very angry at the time of separation and that any statements made by him were made in anger and not subsequently repeated. The wife rejected the proposition which seems to imply, in any event, that the threats were made. During his submissions the husband reiterated that he was very angry at the time of separation. When asked whether that meant he said the things alleged by the wife, he denied it.
On 22 April 2016, during the period in which the proceedings were adjourned, the wife filed an affidavit in which she deposed to a conversation she had with the child on 4 April 2016. She said the child told her that his father told him he was going to take him to China to live and that he could come back to visit his mother when he is older. Under cross-examination by the independent children’s lawyer the wife said the child had said similar things before. On further questioning she said that between February 2015 and April 2016 the child had made such comments more than five times but less than ten.[2]
[2] Transcript 23 May 2016 at page 147
The wife said the vehemence of the husband’s threat to take the child to China caused her to consult lawyers within days of telling the husband she wanted to separate. She alleged the husband repeated the threat many times. She said she does not now know whether or not he would carry out the threat but believed he was capable of doing so.
The wife said her fears were compounded by the shock of the allegations made by the husband against her parents in September 2014 and against her and her parents in February 2015. She said she does not trust anything the husband says because he was prepared to tell such serious lies about her treatment of the child. She said the February 2015 incident also caused her to realise the husband was prepared to separate her from the child and that he did not appreciate the damage that could be done to the child as a result.
The wife said she has never prevented the child from having a full and meaningful relationship with the husband and the extended paternal family. The husband did not agree with that proposition, saying that when the parties first separated under the one roof the wife would only let him spend one day each week with the child when he should have had him for equal time. Given they were all living in the one house at the time I do not accept that argument.
During cross-examination of the husband on 23 May 2016 the wife asked whether he really believed she had hurt the child. He said “Sort of, yes”.[3] He then prevaricated and ultimately said that, at the time, he believed she had abused the child but later began to think it was some sort of set up. He was asked how it would help the wife for her to set up a situation which caused him to believe she had abused the child. He could not explain the logic of the proposition. When pressed on the issue by the independent children’s lawyer, the husband said that he had no current concerns about the wife’s capacity to care for the child. However in his affidavit filed as late as 6 May 2016 he was very critical of the wife for failing to take the child to the doctor after keeping him home from school due to illness. He said he believed it was important to take the child to the doctor whenever he was too sick to go to school. He also stated that he felt he was better able to manage the child’s dermatitis and his strong preference was to take him back to China for treatment by a traditional Chinese doctor.
[3] Transcript 23 May 2016 at page 169

The wife submitted that the husband’s actions in withholding the child for two weeks in February 2015 demonstrate that he does not appreciate how important it is for the child to maintain a meaningful relationship with her and that he does not regard her as having an equal commitment to the child. The independent children’s lawyer submitted that the evidence supported such a finding. I accept that, whether or not it is in fact true, the perception by the wife is reasonable in the circumstances. There is ample evidence to support a finding that the husband believes that where he and the wife differ in their views about the child, his views are preferable. The wife is more sanguine. For instance, she takes no issue with the husband taking the child to the doctor more often than she would but resents the husband badgering her to do so when she does not regard it as necessary.
The wife maintained that the husband’s attitude reinforced her view that there was a credible risk he would retain the child in China if he was allowed to travel internationally with him.
The husband argued that it would be impossible for him as a foreign national to keep his son who is also a foreign national in China beyond the period permitted by the relevant travel visa. He said in his evidence and during submissions that it is compulsory for foreign citizens in China to report to a local police station and register their accommodation permit which allows the Chinese authorities to keep track of the movements of foreigners in the country. He put that to the wife in cross-examination. She said she had never heard of such a requirement and had never reported to a police station even though she had twice travelled to China on an Australian passport.[4] The father also asserted that the Chinese police carry out random checks of foreigners to check their documents but, even if true, that provides little reassurance as both parties are of Chinese appearance and are unlikely to be identified as foreign nationals.
[4] Transcript 23 May 2016 at page 100
The husband urged me to accept that China has a legal system which would appropriately deal with an Australian child being retained in that country. I have no difficulty in accepting that proposition. I also accept that because the wife was born and raised in China and lived there until about 12 years ago it is likely to be easier for her to navigate the legal system than someone who has no experience of China.
The wife took no serious issue with the proposition that there was a functioning legal system in China which she could access to seek to recover the child if he was retained. She said however that before she could do so she would have to find the child. She said she had no doubt that if the child travelled to China with his father he could disappear, be given a new identity and never be found. Her fears were reinforced by various news articles she produced about child trafficking in China including one published on the BBC news website which alleged that 20,000 children disappear each year in China and most are never found. The wife said she did not believe the child would be abducted by strangers but the fact that so many children can disappear each year means that false identity documents are able to be obtained for those children. She said she believed the father and his family would be able to arrange identity documents for the child which would make him impossible to find. I do not accept the articles as evidence of the facts asserted in them but I do accept that they have reinforced the mother’s pre-existing fears.
There is also a complicating factor concerning the wife’s university qualifications which requires some explanation.

Fraudulent university degree

The wife said that when she first applied to come to Australia, her English was extremely poor and she could not read or write English sufficiently to complete an application for a student visa. She said she engaged an agency to complete all of the paperwork for her. She said that sometime after her arrival in Australia she discovered that one of the documents prepared by the agency indicated she had an undergraduate degree from (omitted) University when in fact she had completed only sufficient study to be awarded the equivalent of a Diploma. She said she had nothing to do with the obtaining or production of the document which was done by the agency. She said she told the husband about it very early in their relationship and he was aware of it throughout the marriage. She said she had never relied on the false document, relying solely for her employment on qualifications she achieved in Australia. She said the issue arose at separation when the husband threatened that, unless she conceded custody of the child to him, his father would make trouble for her concerning her degree and would have her arrested in China if she ever travelled there. She said she believed the husband would act on that threat in order to stop her travelling to China or to hamper any recovery action taken by her if the child was retained in China.
The wife said she is confident that she would ultimately be able to defend any action in relation to the fraudulent document brought against her in China but is afraid that may take a long time during which she could be arrested and separated from the child for a prolonged period.
The husband had a different version of events about the fraudulent document. He deposed that in about July 2014, a month or so prior to separation, the wife told him that her undergraduate degree from (omitted) University was a fake. He said shortly after they separated, the wife threatened to tell the Court that he knew about the false document and that he helped her to obtain it before they married. The husband said he was shocked and distressed, firstly, that the wife had never told him that the degree certificate was fraudulently obtained and, secondly, that she would threaten to implicate him in her wrongdoing. He said he became very worried about the implications and spoke to his father who said he would make enquiries about it in China.
The husband’s father instructed lawyers in China to investigate the veracity of the mother’s undergraduate degree. The University confirmed that the notarised document used by the wife to obtain her student visa was false. A notice was published in the (omitted) Legal News on 10 February 2015 publically rescinding the certificate purportedly issued to her. The wife said her only source of information about the revocation of the notary certificate was the husband’s affidavit.
The wife denied ever threatening to implicate the husband in the obtaining of the fraudulent certificate. She said it is well known that the parties met in Australia, which was after the document had been obtained and, clearly, the husband had nothing to do with it. The husband said that gave him no comfort as the wife had previously lied about the commencement date of their relationship and believed she would falsely state that they met before the offence occurred.
The husband said in his evidence that the wife has nothing to fear in travelling to China as, even if the authorities were alerted to the issue, they would not take any action against her because she is an Australian citizen. I do not accept him as an authority on the topic. There is no basis for this Court to accept his assertion that the Chinese Government would not take action against a foreign national who engaged in fraud in that country. The husband also contradicted his own evidence by saying that he is very worried about what could happen to him in China if the mother carried through with her alleged threat to tell the authorities that he assisted her to carry out the fraud. During submissions he made the following statements about his concerns for his own welfare in such a situation:
I’m not worried about this integrity, this law in Australia, because you have to have evidence. But if you lie to Chinese Government, because I’m Australian citizen – and that lie is resulting – I have some sort of bad result. I cannot go back to China. And that’s the only threat I’m really fear [sic] of. [5]
and:
I don’t want to incriminate the mother. But this event is so serious, because if she reported to Chinese Government and says I help her to gain this fraudulent document I will be in serious trouble. But, most importantly, is when she made those allegation, there is no way I can prove I’m innocent unless there is hard evidence been presented. And that’s the only reason why I engaged a lawyer and that investigation.[6]
[5] Transcript 24 May 2016 at page 212
[6] Transcript 24 May 2016 at page 230
If the risk to the husband is so serious that he would not be able to travel to China in the event the wife reported him to the authorities, the risk to the wife must be so much greater as it is she who is alleged to have committed the primary offence. She also has more reason to be concerned because the incident has now been brought to the attention of the University and could easily be brought to the attention of the police. I accept that the wife’s fear of arrest and prosecution is reasonable in the circumstances.
I find the husband’s asserted fears less persuasive. It seems unlikely the wife would report the husband to the authorities for aiding and abetting her to commit an offence as by doing so she would expose herself to prosecution for the more serious offence. Even if the wife made the threat (which I doubt), there is no evidence she has ever acted on it. On the contrary, her sworn evidence is that the production of the document occurred well before she met the husband. Presumably the husband could rely on that in his own defence. By way of contrast, at least one concrete step has been taken on behalf the husband which would assist him if he were to carry out the threat he is alleged to have made. He now has prima facie evidence that the fraud occurred and the person most likely to have to answer for that is the wife.
There is no independent evidence about the Chinese legal system and how it operates in the family law context and particularly in the event the child was retained in China. The husband filed an affidavit by Mr Guan (no relation to the husband), a solicitor practising in Beijing, and sought to rely upon him as an expert in Chinese law. Mr Guan annexed to his affidavit a letter written to the husband setting out the legal position of Australian citizens travelling in China, the capacity of foreign citizens to acquire Chinese nationality, the options available in the event the child was not returned to Australia and how the Chinese legal system would deal with such a scenario.
Mr Guan did not refer to the provisions of division 15.2 of the Federal Circuit Court Rules nor to Division 15.5 of the Family Law Rules relating to expert evidence. It was not apparent whether he was guided by them or even knew of their existence. On 16 November 2015 counsel for the husband indicated that he proposed to remedy that defect by having Mr Guan give oral evidence to the effect that he had read and understood the relevant provisions and agreed to be bound by them. However, Mr Guan is a partner in the same firm of solicitors engaged by the paternal grandfather to investigate the status of the wife’s Chinese tertiary qualifications. He could not be considered to be an independent witness and on 16 November 2015 both the wife and the independent children’s lawyer objected to his evidence. The proceedings were adjourned to the following day, 17 November 2015, to allow the parties to enquire about the availability of more independent evidence about the Chinese legal system.
On 17 November, counsel for the husband indicated he had been referred to an appropriate independent witness. It was agreed that the parties would jointly brief the expert and the proceedings be adjourned for hearing on another date. Counsel for the husband indicated he would no longer be relying upon the evidence of Mr Guan.
When the proceedings resumed on 23 May 2016 both the husband and the wife were unrepresented. The husband said he was unable to afford to pay for the independent expert to give evidence about the Chinese legal system because it was going to cost approximately $10,000.
The husband argued there was no risk of him retaining the child in China. He pointed to the fact that he has lived in Australia for many years; that he has a permanent job in Australia; and that he owns a home in Canberra. He argued that, at most, he should be required to provide some sort of security to ensure his return to Australia. The wife said no amount of security would be a sufficient enticement to him to return because his parents are so wealthy that whatever security is offered would be meaningless. The husband denied his parents are very wealthy. During discussions before the proceedings were adjourned in November 2015 it was pointed out by the Court that the husband could address that issue by having his parents give evidence about their financial circumstances. Counsel for the husband said there may be cultural issues which make the provision of such evidence difficult. The husband was ordered to file a financial statement concerning his own financial situation and an affidavit addressing, to the extent of his knowledge, the financial circumstances of his parents. The orders noted that the husband had been encouraged to file affidavits sworn by his parents as to their financial circumstances.
The husband filed an affidavit on 30 November 2015 setting out his own financial circumstances and, to the best of his knowledge, those of his parents. However, all of the financial information concerning his parents was redacted in the affidavit he served on the wife. The husband was advised during a mention on 9 December 2015 that he would not be able to rely on any evidence which was not provided to the wife. He was not prepared to make the information available to her. He stated in his affidavit filed on 6 May 2016 that he chose not to rely on the material as it would be culturally inappropriate and disrespectful for him to reveal that information about his parents. Accordingly, there was no information before the Court about his parents’ financial circumstances. His parents are not parties to the proceedings and are not required to reveal their financial situation. However, the Court is then left with assertions by the wife that the paternal grandparents are very wealthy and assertions by the husband that they are not. Neither party bears an onus of proof in relation to the issue but the party with capacity to address the matter to a greater extent is the husband.
The wife argued that the husband’s delay in obtaining Australian citizenship also indicated an intention to return to live in China. She said she and the husband obtained permanent residency in Australia at the same time she did but he waited for a year longer than her to become an Australian citizen. I do not accept that argument. The husband was not asked about the issue in cross-examination. There may be many reasons why a person might delay relinquishing citizenship of their birth country. I do not regard that as an indication of an intention to return to live in China at that time or the present.

The legal principles

Parenting orders in Australia are governed by Part VII of the Family Law Act 1975. Section 60B of the Act sets out the objects of Part VII and the principles underlying it. Particularly relevant for this case is the following object:
Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
and the following principle:
Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).[8]
[8] Section 60B(2)(e)
When making any parenting order the Court must regard the best interests of the child as the paramount consideration.[9] In determining what is in a child’s best interest the Court must have regard to the primary considerations set out in section 60CC(2) of the Act which are:
(a) the benefit to the child of having a meaningful relationship both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[9] Section 60CA
There is no doubt the child would derive a benefit from having a meaningful relationship with both parents. He currently enjoys such a relationship with each of them. There is no evidence of a need to protect the child from physical or psychological harm, which leaves as the primary consideration the benefit of a meaningful relationship.
The Court must also take into account the additional considerations set out in section 60CC(3) of the Act. The first of these is any views expressed by the child and the weight to be accorded to such views. There is no evidence about the child’s views. However, I have no doubt that he would not wish to be separated on a long-term basis from either parent. In the event the parents agreed to the child travelling to China with one or other of them it is likely the child would be content to do so.
The next consideration is the nature of the child’s relationship with each parent and other persons including grandparents or other relatives. The evidence is clear that the child has a close and loving relationship with each of his parents and with each set of grandparents. I accept that it is in his best interest to maintain those relationships. If the child is not permitted to travel internationally, it will be increasingly difficult for him to maintain his close relationship with his grandparents as there is a limit to how long they would be able to withstand the rigours of international travel. The husband’s evidence is that his parents have already reached that stage and are no longer able to travel to Australia.
Next is the extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making about the child, to spend time with him and to communicate with him. There is no doubt that both parents are highly motivated and have taken every opportunity to spend time and communicate with the child and to participate in decision-making concerning him.
The next consideration is the extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child. Each takes their financial responsibility for the child seriously and each fulfils their obligation in that regard.
The next consideration is the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either parent or other person with whom he has been living. This is probably the most important consideration in the context of this case but would only come into play in the event the wife’s fears were realised and the husband fails to return the child to Australia. I am satisfied on the evidence that if the child was separated from his mother for a lengthy period he is likely to be emotionally distressed and potentially psychologically harmed given her prominent role in his life and his emotional attachment to her. Such an outcome would clearly be contrary to his best interests.
The next consideration is the practical difficulty and expense of the child spending time and communicating with a parent and whether it will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. If the child was unlawfully retained in China there would be significant practical difficulties and expense involved in the child spending time and communicating with his mother. The husband asserted that the Chinese legal system would have regard to orders made in Australia under the Family Law Act. That may be the case but there is no objective evidence in support of it. The wife argued that the Chinese legal system is irrelevant if the child disappears and that, even if she wanted to access it, she would be hampered in doing so by the fear that the father and/or his family would attempt to have her arrested for fraudulently obtaining tertiary qualifications. I accept those concerns are reasonable.

The next consideration is the capacity of each parent and any other relevant person to provide for the needs of the child. Both parents can clearly provide well for the child’s practical and intellectual needs. I accept the wife’s submission that the husband’s failure to facilitate the child spending any time with her for two weeks in February 2015 and his application at that time to suspend all time between her and the child demonstrates a lack of insight into the child’s emotional needs and, consequently, a deficit in his capacity to meet them. By contrast the wife has demonstrated an understanding of the importance to the child of a meaningful relationship with both parents and has fostered the child’s relationship with his father. In my view she can be trusted to do so in the future.
The next relevant consideration concerns the child’s cultural background. Although the child was born in Australia he is of Chinese cultural heritage. He is likely to benefit from experiencing that culture in a variety of ways including by spending time in China and associating with members of his extended family who live there. Both parents regard this as important. If he is unable to travel to China for some years, he will miss out on experiences from which he is likely to benefit. However he will still be exposed to his cultural heritage through his parents, each of whom place a high value on it and encourages the child to experience it in Australia.
The last relevant consideration is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. In my view both parents have demonstrated a responsible attitude to the child although the husband’s failure to facilitate the child’s relationship with his mother for two weeks in February 2015 and his application to continue that situation indefinitely reflects poorly on him in that regard.

Security deposit

The husband argued that an appropriate amount of security could be lodged by him with the Court prior to him taking the child to China which would ensure his return with the child and provide funds for the wife to use in the event he did not.
In Line & Line (1997) FLC 92-729 the Full Court of the Family Court of Australia set out the matters a court should consider when setting an appropriate level of security in circumstances in which one parent wishes to travel internationally with a child and the other parent opposes it. They are as follows:
a)the two-fold purpose of security being, firstly, to provide a sufficient enticement to the person removing the child to return and, secondly, to provide an adequate sum for the parent left in Australia to take proceedings to secure the return of the child;
b)the degree of risk that the travelling parent will not return;
c)whether the country to which the parent intends to travel is a signatory to the Convention on the Civil Aspects of International Child abduction (“the Hague Convention”); and
d)the hardship the travelling parent would suffer by the imposition of a particular level of security compared with the hardship the other parent would suffer if the security was fixed at a lower level.
It is difficult to assess the extent of the risk of the husband not returning with the child were he permitted to take him out of Australia. Although both parents were born in China they have both relinquished their Chinese citizenship by becoming Australian citizens. The child was born in Australia and is an Australian citizen. The father argued forcefully and well that he became an Australian citizen because he had decided to settle permanently in Australia. However, that was before the parties separated. There is no information about how difficult or otherwise it would be for the husband to relinquish his Australian citizenship and reclaim Chinese citizenship which is what the wife fears.
I found the husband to be a generally credible witness. He appeared earnest and sincere and I have no doubt that he has a genuine desire to travel to China with the child to allow the child to experience his cultural heritage at a deep level and to spend time with the paternal grandparents and great-grandmother which is culturally very important. I have separately mentioned aspects of his evidence which I did not find credible.
At first blush the risk of non-return of the child seems remote: the husband has strong ties to Australia; he is an Australian citizen; he has permanent employment in Canberra; and he owns a house here. Although he is very close to his parents who live in China he has other relatives in Sydney. He said he would like the child to be educated in Australia, although he also hopes to enrol the child in either (omitted) or (omitted) College in (country omitted) for his senior high school years with a view to him being accepted into a prestigious university such as (omitted).
The wife alleged the husband’s ties to Australia are not as strong as they seem given the wealth of his parents, the flexibility in the husband’s employment situation and his desire to live overseas. The husband confirmed in cross-examination that he was unemployed between April 2013 and June 2015. He said he studied during that period with a view to changing his career and lived off his savings and financial support provided by his parents. He is currently employed as an (occupation omitted) at (employer omitted) but said he wants to work on a long-term basis as a (occupation omitted). He said that, after working for a firm in the industry for two years, he would be able to work for himself from home. He said his preference was to move to Sydney to be closer to relatives but given the parenting orders the parties have entered into, that seems unlikely to now occur. It was put to the husband that if he could work as a (occupation omitted) from home in Canberra or Sydney he could also work from home in China. The husband initially denied that but eventually conceded it was possible but said it was not his intention.
I found the wife to be a credible witness. She gave thoughtful answers, conceded reasonably and the general tone of her evidence was moderate. Where her evidence directly conflicted with the husband’s I generally preferred hers. I found her evidence about the husband’s threats to take the child to China to live more compelling than his denials. I also found her evidence that the husband said the child would be better cared for in China compelling. However, some of those statements were made shortly after separation when the parties were involved in a struggle over where and with whom the child was to live. Things have settled significantly since then and especially now that final parenting orders have been made. I am satisfied on the evidence that the husband still believes the child would at least receive better medical care in China which is one of the reasons he wishes to take him there. However, that does not mean he would not return him to Australia.
China is not a signatory to the Hague Convention. The infrastructure and assistance that might otherwise be provided to the wife to help her recover the child in the event of non-return will not be available. There is no reliable evidence before the Court as to the workings of the Chinese legal system and, particularly, in circumstances in which a child is not returned to Australia.
The husband has a house which he said is worth approximately $665,000. He has a mortgage of $362,000, leaving equity of $300,000 in round numbers. He said he owes his parents $173,000 for legal fees paid for him by them. He said he may need to sell his house and buy a smaller one in order to repay his parents and consolidate his finances following these proceedings. He initially proposed that he provide security of $45,000 but during submissions suggested that $85,000 was an appropriate maximum amount. He said he thought he would be able to manage that sum. An alternative scenario was explored in which the husband could be required to sign documents transferring his house to the wife so that she could sell it in the event he failed to return to Australia with the child. While the husband accepted there would be no prejudice to him as long as he returned with the child as required, he submitted that such a requirement was onerous and unwarranted.
Nothing but a complete ban on the child travelling internationally for many years was acceptable to the wife. The husband argued that would be highly prejudicial to him as his parents are not well enough to travel to Australia. He also argued that it was very important for the child to visit his paternal great grandmother who was gravely ill at the time of the trial. It seems unlikely that the child will greatly benefit from visiting his dying great-grandmother. However, I accept that in the future it may be important for him to know that he had visited her before she died. The wife wished the same opportunity to travel with the child but is afraid of the husband and his parents causing trouble for her with the Chinese Government if she did. She has returned to China on only one occasion since separation to visit her grandmother who was very ill and who subsequently died. She said she did not tell the husband she was travelling in order to avoid him making trouble for her. She said, and I accept, that she very much wishes to travel to China with the child to visit members of her extended family but is not prepared to take that risk in the current circumstances. The fact that the wife is prepared to suffer the consequences of the child not being able to spend time with her extended family other than if and when the maternal grandparents come to Australia helps to persuade me that her fears are genuine.
The wife initially applied for a restraint on overseas travel by the child until he was an adult but later said that she accepted that it may be appropriate for him to travel at a much younger age. She said the critical factor is that, currently, he would not be able to identify where he was in China and make contact with her to help her find him. She said that once he was old enough to be more assertive and self-protective and was able to telephone her to tell her where he was, she would feel more confident about him travelling.
The wife said that she hopes that once all of the litigation is over the relationship between the parties will improve and a level of trust develop between them which will enable both of them to travel to China with the child. The wife appeared to be genuine in this desire and I accept her evidence about it.
There was some discussion about the possibility of the parties travelling together with the child to China but the wife said she did not trust the husband enough to do so. She said his false accusations of her abusing the child in February 2015 caused a setback in the parental relationship reinforced by his allegations of her neglect of the child’s medical needs in May 2016. She said she was afraid that if the husband made similar false allegations while she and the child were in China a court in that country might be persuaded by them. She said this combined with the husband’s threats to have her arrested for falsifying her tertiary qualifications led her to reject any proposal to travel together with the child to China.
The independent children’s lawyer submitted the issue was finely balanced. She submitted that there was merit in delaying permission for the child to travel to China until he is older but did not want to nominate the period such a restriction should remain in place. She also noted that, in the meantime, the child would be deprived of time with his extended family if they are unable to travel to Australia. Ultimately, she submitted that the security offered by the husband, being $85,000, was at a level which did not seriously prejudice the husband but which was sufficiently high to be an incentive for his return and adequate to enable the wife to take proceedings in China if the need eventuated.
It is impossible for me to properly assess the adequacy of the sum suggested by the husband as security in the absence of information about the wealth of his parents. The wife said in her affidavit filed on 24 September 2014 that the husband’s parents gave the parties cash sums of approximately $300,000 during the marriage and that in 2012 her father in law offered the husband $400,000 for the purpose of making investments. These statements were not explored in the hearing before me. The husband volunteered that his parents have provided him with $173,000 for legal fees. One might think that if they were as wealthy as asserted by the wife, they would continue to fund their son for this part of the proceedings but there may be other explanations for the husband being unrepresented.
Having considered all of the available evidence, I am not persuaded that it would be in the child’s best interest to allow the husband to travel internationally with him until he is older and better able to be self-protective. I am mindful of the child’s right to experience his culture with other people who share that culture. Importantly, that includes members of the extended family of both of his parents and in particular his grandparents with whom he has a close and loving relationship. In my view, however, the detriment to the child of not being able to travel to China is significantly reduced by the fact that both of his parents are Chinese and will continue to provide him with access to that culture within Australia.
I have to weigh the risks to the child of being denied the opportunity to travel against the risks of him not being returned to Australia. In the latter scenario the child would potentially be denied the benefit of a meaningful relationship with his mother for a significant period. That is a more serious risk than the alternative. I do not regard the wife’s concerns as fanciful and am persuaded there is an unacceptable risk to the child which cannot adequately be addressed by a security deposit.
An appropriate age for the child to be able to travel internationally seems to me to be 13 years as by then the child should be able to make contact with his mother in the event he was over-held. The wife did not take issue with that assessment.
The child will be seven in less than two months. If my assessment is wrong and there was in fact no unacceptable risk to the child in travelling to China, the child will have missed the opportunity over a period of six years to spend time with his extended family and to experience his cultural heritage in a deeper and more meaningful way. He will almost certainly miss the opportunity to spend time with his paternal great-grandmother and may miss the opportunity to spend time with his maternal and paternal grandparents. On the other hand, if I allow the child to travel internationally and the mother’s fears are borne out, the child will suffer a far greater risk to his welfare.
Both parties are responsible for the dysfunctional relationship and the lack of trust between them. Both will suffer the consequences by being restricted in their travel with the child. Both very much wish to travel to China and spend time with their extended family. The wife made it clear in her evidence that she hopes the parties can find a way to improve their relationship and build the trust between them so that they can each travel to China with the child before the age set by the Court as a result of these proceedings. That is a matter for them but offers an alternative course.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date: 18 July 2016

[7] Section 60B(1)(a) Family Law Act 1975

[2016] FCCA 1795

18 July 2016

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

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