Laxton and Laxton & Anor

[2016] FamCA 733

FAMILY COURT OF AUSTRALIA

LAXTON & LAXTON AND ANOR [2016] FamCA 733

FAMILY LAW – JURISDICTION – Not a Hague Convention country – China – Current orders from the High Court in the United Kingdom
FAMILY LAW – CHILDREN - Child related proceedings – Best interests
FAMILY LAW – PROCEDURE – Summary hearing

Family Law Act 1975 (Cth) s 60CC

SPS & PLS [2008] FamCAFC 16

ZP v PS (1994) 181 CLR 639

APPLICANT: Mr Laxton

1^st and 2^nd RESPONDENTS: Ms Laxton and Mr Schein

FILE NUMBER: SYC 1007 of 2016

DATE DELIVERED: 18 August 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 17 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE 1^ST AND 2^ND

RESPONDENTS:

Self-representing

Orders

I make parenting orders as follows in relation to the child B, born … 2007

1. The father shall cause the child to travel to Beijing, China forthwith in order to return her to her mother to arrive in Beijing no later than 22 August 2016.

2. The father shall send the child’s British passport with the child to return the passport to the mother.

3. As the child must depart Australia on her Australian passport the mother will return the Australian passport to the father forthwith. 

4. The father is responsible for the costs of travel for the child in relation to Order 1.

5. All pending applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 1007 of 2016

Mr Laxton

Applicant

And

Ms Laxton and Mr Schein

1^st and 2^nd Respondents

REASONS FOR JUDGMENT

1. B has the benefit of parents who clearly care about her immensely.  The child is currently in Australia. She normally lives in China with her mother and step-father.  She is in Australia pursuant to orders that were made in 2013 by the High Court of the United Kingdom (the UK).  I understand that she is due to be returned, following the summer holiday break period, this coming Saturday. 

2. The father has made an Application to this Court while the child has been with him.  The father seeks orders that the child live with him as set out in the Amended Application that he has filed, and that the child spend time with her mother.  He seeks orders that the child live with him on both an interim and a final basis. 

3. The mother and step-father, who are both parties to these proceedings at least by virtue of the fact that the father has sought orders in respect of the step-father, seek the prompt return of the child to China.  The mother expresses that there ought to be compliance with the orders that were made in the UK in 2013, and further that there ought to be an end to these proceedings. 

4. There are at least three potential outcomes today for the proceedings that are before me.  One is that the child would remain in Australia pending a finalisation of these proceedings. The second is that the child would return to China pending a finalisation in Australia for proceedings being conducted in the usual fashion. The third is that the child would return to China promptly and the proceedings would be finalised immediately. 

5. Each of the parties relied upon material in this case. The father relied upon three affidavits filed on 16 August 2016 in addition to his primary affidavit, which constituted two lever arch files of material.  Although the three affidavits filed on 16 August 2016 were filed the day before the proceedings before me, the mother agreed that she had received them by e-mail.  In particular, reference is made to annexures A and D of the father’s first affidavit.  He has noted for the Court that annexure A is a full setting out of the matters that he relies upon as to justifying the Court making orders as he seeks in this case.  Annexure D requires assessment according to him only in so far as it is necessary to establish the matters that are set out in annexure A.  That is to say annexure A is comprehensive and annexure D sets out matters in support of annexure A. 

6. The mother and step-father filed jointly an affidavit of 3 August 2016.

Issues

1. The father sets out the reasons for the applications that he makes, in particular at 4.1 and 4.2 of annexure A.  In summary, the matters that he raises are that he asserts that there have been breaches to the UK orders as are set out at 4.1. He pursues arrangements that he says will better promote his involvement in the child’s life and development.  I note that the father lives in Australia and the mother and step-father live in China and until now the child has lived in China.  The father seeks orders to foster the use of English language and Australian heritage for the child and seeks a mechanism for ensuring that there is compliance with orders.  He asserts that there has been a degree of obstruction by the mother and the step-father. 

2. The mother asserts that she has been compliant with the UK orders and asserts that the father has not been compliant.  She expresses in her affidavit, and the affidavit material is supportive of this, that she has been the primary carer since 2009 and the step-father has been involved in the child’s life since 2012.  The mother says there has been compliance with orders since about 2012 (I note that the orders seem to have been made in early 2013). The circumstances speak to a settled nature in the Chinese living arrangements, that there has been a disturbance of that settled arrangement by the father’s Application, and she asserts, the appropriateness of the continuation of the arrangements set out in the UK orders. 

3. Before moving to a consideration of the issues in the case it is necessary to consider the nature of the jurisdiction that I am to exercise. 

4. B is habitually resident in China.  China is not a Hague Convention country.  The father is ordinarily resident in Australia, he is a parent of the child’s and he was present in Australia when the Application was made to this Court.  He has made a regular call upon the jurisdiction of this Court.  The jurisdiction of this Court is not constrained by the operation of Part XIIIAA.  I note that the exercise of jurisdiction is not a discretionary decision.  That is set out in the case of ZP v PS per Mason CJ and Toohey and McHugh JJ. [1]  In this case jurisdiction has been regularly called upon and the question arises as to how I am to exercise that jurisdiction.  In the same case Brennan and Dawson JJ noted that both a determination that there should be a speedy return and a decision to conduct full proceedings are exercises of the jurisdiction of this Court. 

   [1]ZP v PS  (1994) 181 CLR 639

5. The central question to be asked in determining how to exercise jurisdiction is: ‘What does the welfare of the child require?’  As I noted earlier, there are a range of options in relation to the exercise of jurisdiction.  In ZP v PS the question was whether there would be an exercise of jurisdiction to summarily return the child to Greece so that the courts in that jurisdiction might determine the matter. [2]  Nobody in this case expresses this to be an outcome, that is, nobody asserts that the Chinese courts will be approached for orders. In fact, the father asserts that court access is not available to the parties in China.  The remaining options as I see them are as follows:

   a)A refusal to return the child to China so that the Family Court of Australia might determine on a final basis following a full hearing. 

   b)An immediate return of the child but with further consideration of ultimate orders by the Family Court in a knowledge that consideration of that matter might be frustrated by any failure to participate on the part of the mother.  There is no evidence in place at present to indicate whether such participation would or would not take place. 

   c)A summary determination of the matter to return the child, finalising proceedings in Australia without any expectation of further proceedings in the country of return, being China.  Under those circumstances, the child’s welfare would be governed by the unenforceable orders, at least unenforceable under the present circumstances, that were made by the High Court of the UK. 

   [2] 181 CLR 639

6. It is these three options that were identified to the parties. The father seeks the first of these options; the mother seeks the third of these options.

7. I am at liberty to do any of the three, dependent upon what it is that the child’s welfare dictates.  Again in the High Court case of ZP v PS, Brennan and Dawson JJ accepted that it may be entirely appropriate to order the speedy return of a child to its country of origin without making the full enquiry that would ordinarily be made in child related proceedings. [3]  This is to occur where it is the appropriate order in the unique circumstances of the case, that is, such an order for such an approach is dictated by the welfare of the child, in this case the welfare of the child.  In determining whether to deal with the matter in such a manner Brennan and Dawson JJ noted that

   the Court must balance the need for a speedy determination against the desirability of an adequate inquiry into welfare generally.[4]

   [3] 181 CLR 639

   [4] 181 CLR 639 at [664].

8. In assessing this matter, it can involve no presumption that either to return or to retain the child will be in her best interests, and I accept that it requires the examination of circumstances with an acknowledgement of the limitations upon such an assessment at this stage of the case.  To that end, it was acknowledged by the High Court again in ZP v PS,[5] this time by Deane and Gaudron JJ, that there may be cases that are answerable simply by having regard to the earlier custodial arrangement and circumstances of the child being brought to Australia. In other cases it is not so clear cut, and that requires a determination of matters going to the ultimate welfare of the child. 

   [5] 181 CLR 639

9. In this case, in answering the question of best interests, the father has presented an affidavit comprising two folders and three additional affidavits.  He has carefully catalogued the issues that he says arises.  The care with which he has done so marks out the care that he has for his daughter.  He seeks further but delayed investigation of any view that might be held by the almost nine year old the child, delayed as I understand it in order to allow her to settle in Australia in his care.  The father has very carefully listed the issues that he relies upon at annexure A. 

10. The mother and step-father have filed limited affidavit material. In terms of the assessment of best interests, the key issues that are activated pursuant to s 60CC of the Family Law Act 1975, at least as I appreciate them on the cases presented by each of the parties, relates to the meaningfulness of the relationship between the child and her parents and the benefits that she might derive from that.  The protection of the child from abuse is not a matter that the parties have put in issue.  There is limited material about the child’s view. As I stated earlier, the father seeks a delayed assessment of those views.  The mother expresses in her affidavit that the child is missing her home.  The further considerations are:

    i)The nature of the relationship between the child and her father, the child and her mother, and the child and her step-father;

    ii)The effect upon the child of a change in circumstances; and

    iii)The practical difficulties of spending time with the child.

    These I take to be the matters which arise prominently on the cases as presented by each of the parties.  The case presents a choice between not returning the child, or returning her and returning her to the primary caring parent. By this I do not mean the parent that cares for her most – I mean the parent that has undertaken the role of caring for her day to day welfare the most prominently. As she has been living with the mother, this is her mother.  The choice includes returning or not returning her to her step-father.  I note that she has been settled in her mother’s care since 2009, with the care of her step-father added to that since 2012.  A return would be a return to the familiar for her, a return to a familiar school, a return to a familiar home.  In China she attends a German speaking school, there is no suggestion of such here.  In China, she is exposed to the English language, the German language and the Chinese language.  To remain in Australia involves a serious change in circumstances of the child and involves a significant restriction and change of the relationship that she enjoys with her mother.  However, a return to China involves a return to a relationship with her father that is limited.  Whatever orders are made have significant practical consequences for the enjoyment of relationships by the child due in large part to the geographical distance between China and Australia. 

11. In examining the arrangements that have been in place prior to the Application made by the father, I note that these arrangements were put in place by orders of the High Court of the UK in the family division by Justice Hogg on 5 December 2013.  In noting this, I further note that there is no starting point of presuming that these current orders are in her best interests.  It is a matter for this Court to determine best interests.  However, as I understand it, the father does not contend firstly, that he does not have a meaningful relationship with the child and secondly, that the child does not find benefit from that relationship.  I understand the father does argue that the current arrangements under the UK orders are a suboptimal regime for parental involvement and that they are flawed in particular by a lack of catering for him being intimately involved in the child’s life.  He expresses fears for his future relationship with the child. 

12. Going then specifically to the father’s critique of those current arrangements I understand his critique as follows:

    a)He says that there is no bond that ensures the mother’s compliance with the orders made in the UK.  He has conceded, however, that the mother has been compliant with the orders in relation to the international travel component, that is, there is no instance of non-compliance regarding travel even though the father has not always been able to exercise the time himself.

    b)The father complains that the mother did not provide the extra as agreed time.  I note that this represented no failure in respect of compliance with the orders, as I understand there was no agreement reached by the parties prior to the father travelling to China.   

    c)There is a complaint about the provision of Skype time.  Again, as I understand the father’s case he recounts a single example of it not occurring.  That is, it appears that the mother is compliant with orders that provide for weekly Skype time.  The father complains that the timing of the Skype calls and the circumstances in which they are made are not the best. 

    d)The father complains of non-compliance with the orders regarding Skype interaction between the child and the father’s relatives.  This is not a matter that was made out on the father’s own account.  His concession was that the issue was that the time was too late for his relatives, who were in bed by the time the Skype call occurred.  Again, there is no deficiency identified there in respect of the mother or of the orders.

    e)The father complains that there is non-compliance with the telephone provisions.  On his case it appears to be the case that the telephone provisions are not being complied with, although the weekly Skype calls are being complied with.  The fact that the weekly Skype calls are complied with gives a lower significance to the non-compliance with the telephone calls, particularly noting the father’s concession that in the long breaks in 2014 and 2015 when the child spent significant time with him he did not see fit to provide her with contact for her mother during those extended periods.  This calls into question the significance of the telephone time on top of the Skype time.

    f)The father complains of over involvement on the part of the step-father, particularly by the assertion that the step-father has exercised parental responsibility regarding the child’s schooling.  Again this is not made out on the father’s evidence at its best, neither regarding the step-father’s involvement as the German speaker in the household having contact with the German language teacher, nor in his involvement as a class representative.  Neither of those matters appears to me to involve an exercise of parental responsibility on the part of the step-father. 

13. The criticism therefore carefully and apparently comprehensively made by the father as to the lack of enforceability is in the face of what on his case is a general and substantial compliance on the part of the mother. 

14. He complains that better arrangements could be made regarding the block time across summer, Easter and Christmas, specifically because of the sequencing of Easter and Christmas time for the child with him.  As the orders currently stand, in one year the child will see him for Christmas, then Easter, then summer and await the next summer before she sees him again.  He notes that better time could be made regarding Skype as far as he is concerned.  He complains that the child’s school will not involve him and that he is not allowed to, or cannot be involved in the homework.  The criticisms that he has made barely touch upon the issue of meaningfulness of relationship and the benefits derived therefore, and barely touch upon welfare considerations for the child.  The criticisms or the effect of the criticisms are marginal in relation to the interests of the child in the particular context of this case, where geography unfortunately means a limited relationship with one parent, in this case it has been the father, and a primary relationship with the other, in this case the mother.

15. That the current regime represents, in a general sense, proper arrangements for the welfare of the child can be taken from the nature of the criticisms made by the father in his carefully prepared material.  The criticisms that he has made call for perhaps a fine tuning of the orders or a tinkering with the current arrangements to provide improvement.  That is, taking the criticisms that he has made at their highest, and accepting the criticisms at their highest, there is little revealed to be wrong with the current regime in catering for the child’s best interests other than those matters which are necessary limitations on a relationship caused by the fact that the mother lives in China and the father lives in Australia.  In the face of that, retention of the child in Australia is not in her best interests, given displacement of the primary care relationship and other matters that I have previously identified. 

16. The father seeks final orders. The question arises as to whether the child’s best interests require allowance for a hearing and proceedings to be conducted in the usual, or even in an expedited manner, should that be requested.  Although in a different context, being a factual situation that involved a pre-existing Australian order, the case of SPS v PLS[6] identifies an approach derived from a paramount consideration of the child’s welfare that I consider has an application to this question.  That is as set out in paragraphs 79-81 of that judgment, which allow that a preliminary assessment on the merits, assuming the evidence of the applicant is accepted, that there are insufficient [grounds] shown to justify embarking on a hearing, then a court may decline to hear the matter further as a preliminary matter. 

    [6] [2008] FamCAFC 16

1. While in that case the focus was on the question of a change of circumstances, the underlying question is equally applicable to the circumstances of this case.  In SPS,[7] the underlying question was identified as whether the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.  I note that the father has expressed his concern that the matter has descended to litigation. 

   [7] [2008] FamCAFC 16

2. I find that it is the case here that the interests of the child in not being the subject of further litigation is more powerfully in her welfare then to allow the application to continue.  Despite the father seeking a reversal, the criticisms raised at best deal with the fine tuning of the current regime.  The nature of the criticisms, that is the nature of the potential deficiencies, are not such to mean that it is in the child’s interests to proceed through to a final hearing because the benefits gained by virtue of such litigation appear to be slight at best.  That is, her welfare, considering the father’s case at its highest, is best met by not allowing the litigation to continue further.  This is particularly so, as finalisation of the proceedings at this stage can give the mother some sense of security that if the child is returned for future visits, in accordance with the UK orders, to Australia, she is unlikely to be retained as a function of ongoing litigation.  That is, bringing the litigation to an end enhances the prospects of the child continuing to return to Australia.  Accordingly, I will order the prompt return of the child and the dismissal of the father’s Applications, both interim and final. 

3. The father has indicated that he requires until the end of the week to facilitate the child’s return, I will now hear from the parties in relation to the terms of the orders. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 August 2016.

Associate: 

Date:   1 September 2016