Lam and Zeng

[2015] FCCA 2558

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAM & ZENG [2015] FCCA 2558

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – travel – international travel –  Application to take child out of Australia – where mother seeks to take child to visit family members in China – where father opposes proposal to take the child out of Australia – where mother claims maternal grandmother is terminally ill – best interests of child – passport – Australian passport – issue of Australian passport – where one parent does not consent to issue of passport – permission for child to travel internationally.

Legislation:  

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.60CA, 65Y

Line & Line (1996) 21 Fam LR 259; FLC 92-729
Time & Bailey [2014] FCCA 2094

Applicant: MS LAM

Respondent: MR ZENG

File Number: SYC 2086 of 2014

Judgment of: Judge Scarlett

Hearing date: 16 September 2015

Date of Last Submission: 16 September 2015

Delivered at: Sydney

Delivered on: 17 September 2015

REPRESENTATION

Applicant: In person

Respondent: In person

Solicitor for the Independent Children’s Lawyer: Ms Shea

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. The Applicant mother is permitted to remove the child X born (omitted) 1999 from the Commonwealth of Australia for the purposes of travelling to China from 1 October until 28 October 2015.

2. The mother is authorised to apply for and receive an Australian passport for the said child X born (omitted) 1999 without the need for the consent of the Respondent father.

3. The mother must forthwith provide the father with the following information prior to her departure from Australia:

   (a)A copy of the child X’s travel itinerary showing the dates of departure from Australia and return to Australia and flight details;

   (b)Details as to where X will be staying during his time in China; and

   (c)A contact telephone number for X whilst he is in China.

4. The mother must ensure that X communicates with his father by telephone at least twice per week whilst he is in China and for this purpose the mother must assist X to telephone the father.

5. Order (1) above is conditional upon the mother providing to the Independent Children’s Lawyer and the father prior to her departure written permission from X’s school for X to be absent from 1 October until 28 October 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 2086 of 2014

MS LAM

Applicant

And

MR ZENG

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application by the mother of a boy called X.  X was born on (omitted) 1999.  The mother wishes to take X out of the country on a visit to China.  The mother and the father both come from China, but they now live in Australia. 

2. The father opposes the mother’s application to take X out of Australia. He has filed a Response to the mother’s Application in a Case in which he sets out his disagreement, and he submits that he will be responsible for looking after X during the period of time that the mother will be out of the country.  The father has set out in his Response his belief that the mother’s personality has some problems and he thinks that she has some mental problems.

Evidence and submissions 

1. The mother filed an affidavit on 31 August, in which she set out the reasons why she wishes to take X with her on a trip to China.  She said at paragraph 2 of her affidavit:

   I request court to make an order urgently to permit my son, X, to travel internationally, as my mother is terminally ill and wants to see me and X before she dies.

2. The mother deposes in her affidavit that X’s school has already granted him permission for him to travel with her for the period of time.  The mother goes on to say that the former husband has refused the application for a passport for X.  She says he has done so without any good reason.  The mother also deposes in her affidavit that her sister will pay for her and for X to travel to China to see her mother.

3. It is relevant that X has a disability and requires more care than other children of his age.  Nevertheless, the mother is of the view that she will be able to deal with X’s care during the travelling time and whilst in China.  The father has serious concerns about the mother’s ability to care for X generally, let alone on a trip back to China.

4. There are ongoing proceedings between the parties in this Court relating to the parenting arrangements for X and relating to property proceedings.  To this end, an Independent Children’s Lawyer has been appointed to provide independent representation for this child.  Why, then, does the father oppose the mother taking X out of the country to China to see family members?  He says in his affidavit:

   I know she has a very bad relationship with her family, for sure, she will have big arguments with them (mother, sisters and brothers).

5. He goes on to say that this would be very bad for X to see quarrels between his mother and her brothers and sisters.  The father also casts doubt, in his affidavit, on the benefit to X of spending time with his grandmother.  He says:

   Also, X has no much impression on his grandmother (Ms Lam’s mother), because X stayed with his grandmother only one month (she visited us when X was several months old), if X now sees her and nobody tell him who she is, X can’t recognise her.  Why X has to go?  It is 90% bad and 10% good for X going to China.

6. The father goes on in his affidavit to refer to the mother’s visit to the police station to apply for an apprehended violence order.  He notes that the matter will be mentioned in the Local Court on 15 October, which is a time when the mother will be away, and the hearing on 17 November this year.  The mother will, of course, on her plans, be back in Australia by the time of the hearing on 17 November.

7. The father, however, casts serious doubt in paragraph 2 of his affidavit on the mother’s bona fides in applying for the apprehended violence order.  The father, in paragraph 3 of his affidavit, expresses concerns about X’s education, particularly in the care of his mother.  He says that X’s study ability is getting worse.  He also says that X wants him to teach him, but he can only tell X:

   Dad wants to teach you, but Mum will yell and argue with Dad.  Do you want that? X says “no”. 

8. The father goes on to depose in his affidavit he believes that the mother has some mental problems and he casts doubt on her ability to look after X’s study.  It is fair to say that in his affidavit he expresses a concern that X may suffer psychological harm if he is to travel to China for this period of time with his mother.  He goes on to depose that he wishes to attend to parenting X, not only whilst the mother is away, but on an interim basis until the final hearing.

9. This latter consideration will be dealt with on another occasion, as I am concerned about the urgent application by the mother to take the child away for a period of approximately four weeks to China.  The father’s affidavit also annexes a copy of a letter which he sent on 19 May, through the Independent Children’s Lawyer, expressing concerns about the mother’s behaviour and pointing out reasons why he believes that it would be in X’s best interests to live with him than to continue to reside with his mother.

10. The Independent Children’s Lawyer has considered the application, and Ms Shea, who appears for the Independent Children’s Lawyer, has indicated to the Court that the Independent Children’s Lawyer has no objection to the mother taking X out of the country for this period of time for a visit to China.  What Ms Shea has done, which is very helpful, is that she has prepared a minute of proposed orders in relation to overseas travel.

11. The orders proposed are somewhat more comprehensive than the orders that the mother seeks in her Application in a Case.  As an example, Ms Shea has included orders relating to the mother’s applying for and receiving an Australian passport for X, and has proposed that the mother should provide the father with information about the proposed trip, including a copy of the travel itinerary, with the dates of departure and return and flight details, details where X will be staying during his time in China and a contact telephone number.

12. The Independent Children’s Lawyer suggests that the Court should order that the mother is to ensure that X speaks to his father by telephone at least twice a week while he is in China and that the mother will assist X to telephone the father. 

13. Importantly, the Independent Children’s Lawyer has added a further condition which I discussed with the parties yesterday. That condition, which affects the order permitting the mother to remove the child from the Commonwealth of Australia for the purpose of travelling to China, is a condition that the mother should provide both to the Independent Children’s Lawyer and the father, written permission from X’s school for him to be absent from 1 October until 28 October 2015.  I note that the period of time proposed would be in school time and it would mean that X would miss several weeks of school.

Consideration

1. I have considered the facts of this case.  It is relevant that X suffers from a disability and requires a greater deal of care than most children of his age.  The mother, however, is confident of her ability to care for X, as for that matter is the father.  I must consider whether it is in X’s best interests to, in fact, travel to China.  The father is strongly of the view that he is not.  As he stated, “90 per cent bad” and only “10 per cent good for X”.

2. However, it would appear that, as X has a Chinese heritage and Chinese parents, on the face of it, there would appear to be some benefit in his visiting the country where his parents come from and seeing members of his extended family, including his grandmother.  True it is that he may have very little memory of her, as he has not seen her for a number of years.  But that does not mean that it would not be of benefit for him to see a grandparent.

3. As the evidence tendered by the mother suggests, the grandmother is suffering from a terminal illness and there may not be many opportunities in the future, if any, for X or the mother to spend time with the maternal grandmother.  It is certainly the case that the mother is free to travel to China to visit family members.  The Court would not make an order, even if it had the power to do so, preventing her from going.  What is sought is that the child should be permitted to go, and that the child should be able to obtain an Australian passport.

The Law to be applied

1. I have considered the factors that the authorities require the court to consider.  I look, in particular, at the well known decision of the Full Court of the Family Court in Line & Line[1], dealing with the considerations that the Court must apply, and I am also assisted by a more recent decision of her Honour Judge Baker in a matter of Time & Bailey[2], which was handed down in 2014.

   [1] (1996) 21 Fam LR 259; FLC 92-729

   [2] [2014] FCCA 2094

2. It is material, of course, that the proposed destination is The People’s Republic of China.  It is a factor to be considered that China is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.  But that is only one factor to be considered.  Ultimately, it is a question of fact.  In my view, with respect, her Honour Judge Baker succinctly summed up considerations in the decision of Time & Bailey to which I have previously referred.  The considerations include:

   …(a) the length of the proposed stay out of the jurisdiction;  (b) the bona fides of the application;  (c) the effect on the child of any deprivation of access;  (d) any threats to the welfare of the child by the circumstances of the proposed environment;  and (e) the degree of satisfaction in which the court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.

Conclusions

1. In this case, the mother proposes staying out of the jurisdiction for a period of approximately four weeks, from 1 to 28 October.  That is not, to my mind, an unreasonably long period of time out of the country.  It is the mother’s evidence that her sister is providing the funds for the mother and X to visit China, as it would appear that the mother may not have access to the funds otherwise.  The evidence is that the mother has not visited China for a number of years, and, in fact, she told the Court she had not seen her mother for approximately eight years.

2. One matter that the Court must consider is whether the application is bona fide, and there is no evidence, in my view, to suggest that this is anything other than a bona fide application.  There is nothing to suggest that the mother is planning to leave the country with the child permanently, and, in fairness to the father, he has not at any time suggested that this is the case.

3. It certainly seems to be the case that the proposed trip to China is purely a trip to visit family, including and especially visiting X’s maternal grandmother.  There is no evidence before the Court that the mother would wish to leave Australia permanently.  She appears to have settled permanently in Australia.  She has some facility in English, although she has needed to rely on an interpreter when dealing with the Court.  But that is not uncommon.

4. It is a consideration that X would not see his father for a period of four weeks, but, if I were to follow the orders proposed by the Independent Children’s Lawyer, X could speak to his father by telephone at least twice a week whilst he is away.  Four weeks, as I have said, is not an inordinately lengthy time for X to be away from his father.  There is no evidence that the parts of China to which the mother proposes to travel to see her family poses any unacceptable threat to the child’s welfare.

5. The mother’s travel plans are that she would fly with (omitted) Airlines from Sydney to Melbourne to Shanghai and, in due course, return the same way.  I am of the view that the mother’s application is genuine and that she wishes to travel to China for the reasons that she has stated.  I have considered the matters set out in Line & Line about concerns that the mother would not return the child to Australia.  I have no concerns.

6. In my view, the mother has established that her application is bona fide and, on balance, I am of the view that it is in this child’s best interests that he should spend some time with his extended family in China.  I am not satisfied there is any evidence that the mother would not return him to Australia, nor am I satisfied that there is any evidence that she would be unable to have sufficient concern and ability to care for his welfare whilst he is out of Australia.  It is for those reasons that I propose to grant the application, and I make the following orders.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  18 September 2015