Lau and Feizhou and Anor

[2014] FamCA 182

FAMILY COURT OF AUSTRALIA

LAU & FEIZHOU AND ANOR [2014] FamCA 182

FAMILY LAW – CHILDREN – Where the maternal grandmother, who has the primary care of the children, sought an order that she be permitted to travel to China with the children – Where there is a significant risk that they will not return to Australia – Where the court is not satisfied that it is in the best interests of the children to travel to China, at present, for the purpose identified – Where order made that the maternal grandmother’s application be dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Lau

RESPONDENT MOTHER: Ms Feizhou

RESPONDENT FATHER: Mr Lukao

FILE NUMBER: SYC 6622 of 2013

DATE DELIVERED: 24 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 24 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Falloon

SOLICITOR FOR THE APPLICANT: Sunlit Legal

COUNSEL FOR THE RESPONDENT MOTHER: Mr Givney

SOLICITOR FOR THE RESPONDENT MOTHER:	Newnhams Solicitors
COUNSEL FOR THE RESPONDENT FATHER:	Ms Christie

SOLICITOR FOR THE RESPONDENT FATHER: Marks Griffiths & Bova Solicitors

Orders

1. That leave is granted to the legal representatives to inspect subpoena material produced by Business J.

1. That leave is granted to the legal representatives of the parties to inspect DVD material produced under subpoena by Business J.

2. That the maternal grandmother’s application in a case filed 24 January 2014 seeking the children travel to China is hereby dismissed. 

3. That the balance of the outstanding applications are stood over in the duty list at 9.30am on 14 April 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lau & Feizhou and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6622 OF 2013

Ms Lau

Applicant

And

Ms Feizhou

Respondent Mother

And

Mr Lukao

Respondent Father

REASONS FOR JUDGMENT

Introduction

1. This is a hearing of an Application in a Case filed on 24 January 2014 by the maternal grandmother.  The application seeks a variation of orders made on 2 December 2013 so as to enable R and C (‘the children’) to travel to China with their maternal grandmother, Ms Lau leaving Australia on 28 March 2014 and returning to Sydney on or about 9 April 2014.

2. A number of ancillary orders are sought one of which is that prior to the departure, a bond of $50 000 be deposited into the maternal grandmother’s lawyer’s trust account with that sum to be available for use by the father to secure the children’s return to Australia should that become necessary.

3. On 2 December 2013, Rees J made a number of interim parenting orders.  Her Honour ordered that the children live with the maternal grandmother until further order and that the children spend time with the father between 3 pm and 5 pm on each weekday.  The maternal grandmother was to ensure that the children do not leave her home in the sole care of the mother and that in the event the mother became anxious, tearful, unusually distressed or that the grandmother believed that the mother has been drinking alcohol to excess, the grandmother was required to remove the children from their mother’s presence and advise the father by telephone.  Orders were also made preventing any party removing the children from Australia. 

4. The applicant is a citizen of China.  Although she deposes to having a home in Australia, she also has a home in China.  She has been a permanent resident of Australia since 2009.  The mother is her only child. Her husband passed away in October 2012. 

5. The purpose of taking the children to China in March and April 2014 is to attend the Qingming Festival, which is also known as Tomb-Sweeping day.  The applicant says that that is a tradition.  Attending the festival is a tradition followed by her and her late husband that she wishes to keep alive in the family.

6. The children’s mother became an Australian citizen in 2010.  She owns a number of properties in Australia.  She supports the maternal grandmother’s application and points out that the children have spent a lot of their relatively young years in China, that Chinese culture is important to them and they should not be denied the opportunity to embrace and develop their links with that culture.

7. The children, as I said, are relatively young.  R was born in 2010 and is not yet four and C was born in 2012 and is not yet two.  Given their age, they will get less benefit from attendance at the festival than they would if they were older.  That is particularly true of C.  It is difficult to see what particular benefits she will receive from the festival other than possibly spending some time with relatives.

8. The children have spent a significant part of their lives in China.  Indeed, they only returned to Australia in November of last year.  Since the commencement of 2011, their mother has spent six periods out of Australia, spending in excess of 18 months overseas.  Almost all of that time was spent in China, except for a number of occasions when, on extended visits, she temporarily left China to travel to either Hong Kong or Singapore in order to trigger another 90 day stay in China pursuant to her visa.

9. Thus, the children have been well exposed to Chinese culture already.  In some ways, that is a two-edged sword.  They are familiar with Chinese culture and there is a value, of course, in maintaining their contact with it but it also means that missing the festival this year would not seem to be of critical importance for them.

10. The children’s English is not anywhere near as strong as their Mandarin.  The eldest child is now in his third week of a preschool program which, of course, will no doubt be attempting to improve his English.  Whilst the proposed trip is not extensive, it would still mark a significant break of about a fortnight.  Thus, whilst one can see that, all other things being equal, it would not be undesirable for the children to visit China as is proposed, having regard to their age it would not appear to be essential or necessary at this stage in order to maintain their links with their family in China and their cultural heritage.

11. The real issue is whether or not the children will be returned.  

12. I have already referred to the bond that is proposed by the maternal grandmother.  In the course of submissions, it was also indicated that a property, I Street, Suburb B could be made available in support of the application.  It is apparently worth about 1.5 million dollars and is unencumbered.  It was said that the husband could lodge a caveat on that property and that if the children were not returned, then he could make an application to the court in relation to that property.  That is not quite the same as forfeiting a bond if the children are not returned.

13. The maternal grandmother has not adduced any evidence of her financial position.  There is evidence of a number of properties owned by the mother in Australia and the maternal grandmother seems to have at least a property here and a property in China.  According to the mother, when she stays in China the maternal grandmother usually has two nannies available to assist with the care of the children as well as the assistance of a driver.  The mother’s aunt supervises the children with the assistance of the two nannies.

14. The husband’s evidence is that, from his observations, the maternal grandmother is very wealthy and has considerable property and business interests in China.  The nature and extent of the maternal grandmother’s wealth has not been disclosed by her.  The value of providing a bond, which if forfeited, hinges upon the relationship between the amount of the bond and the amount of the person’s property. 

15. Very wealthy people may well be prepared to lose significant sums of money if it enables them to achieve a particular end that they seek.  Thus, the value of a bond is directly dependent upon the amount of wealth available to the person providing the bond.  In this case, there is no way to judge the value of the proposed bond because there is no evidence provided by the maternal grandmother as to her wealth.

16. Having regard to the evidence to which I have just referred, a bond of $50 000 would not seem, in those circumstances, to be adequate. Given the vague nature of proposition in relation to the property at Suburb B that proposition adds little to it.

Conclusion

1. It would not be in the interests of the children to remain in China.  They have a bond with their father and, in any event, the orders of this Court require the children to see their father each weekday and the non-return of the children from China would frustrate those orders. 

2. Further, those orders require that the children not be left in the sole care of their mother and require the maternal grandmother to have certain obligations in relation to the condition of the mother.  It would be impossible to enforce those obligations if the children remained in China.

3. The mother has given evidence, as I have said, that visas can be extended by relatively simple expedient of leaving China for a short time.  The maternal grandmother submits that the children are likely to be returned because they are not Chinese citizens and could not lawfully remain in China once their visa had expired.  It is true that their visa might expire if it was not extended by other means to which I have just referred.

4. However, the mere fact that their visa would expire does not mean that they would be promptly returned to Australia. 

5. It is true that the children are entitled to the benefits from their own culture but, as I have said, I am not satisfied that having regard to their age and the particular nature of this proposed trip, that they need such a trip to enable the links to their own culture to be maintained.  There are already sufficient strong cultural links available.

6. Taking all these matters into account and, particularly, taking into account that the orders that are presently extant are interim orders that have been made for a limited time and on a limited basis.  I am not satisfied that there should be any significant change.  I am not satisfied that it is in the interests of the children to travel to China, at present, for the purpose identified.  There is a significant risk that they will not return and the benefit of attending the festival seemed to me to be outweighed by the disruption with the preschool and the regular time they spend with the father.

7. Accordingly, the Application in a Case filed 24 January 2014 is dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 February 2014.

Legal Associate: 

Date:  21 March 2014