LENG & PHE - [2014] FamCA 720

FAMILY COURT OF AUSTRALIA

LENG & PHE

[2014] FamCA 720

FAMILY LAW – CHILDREN – Interim hearing – mother asserts that separation of siblings occasioned by duress from the father – father living in Taiwan with eldest child – mother in Australia with youngest child – father and eldest child travel to Australia for purposes of preparation of Child and Parenting Intake Assessment report – mother seeks that eldest child return to reside in Australia – consideration as to the best interests of the children and circumstances that should be in place pending final hearing – where order made that both children pending further order live with the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 61DA, 65DAA, 69E

Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348
Sayer & Radcliffe and Anor [2012] FamCAFC 209
Goode and Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405

APPLICANT:

Mr Leng

RESPONDENT:

Ms Phe

FILE NUMBER:

PAC

5236

2008

DATE DELIVERED:

3 September 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

28 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Goodsell

SOLICITOR FOR THE APPLICANT:

Dennis Wong & Co

SOLICITOR FOR THE RESPONDENT:

Farah Lawyers, Solicitors & Barristers

Orders:

Pending further order:

That the mother have sole parental responsibility for the children M born … 2007 and N born … 2009.
That the said children live with the mother.
That the children spend time with the father and communicate with the father:
(a)       as agreed between the mother and father in writing with such writing to include SMS and email communication and in default of agreement;
(b)       the mother make the children available to communicate with the father by face time, Skype or such other visual electronic communication method or telephone each Monday, Wednesday and Friday between 7:00 pm and 8:00pm Sydney time to commence on the first of such days after the father returns to Taiwan and that during such communication the mother use her best endeavours to afford the children reasonable privacy;
(c)       on occasions when the father may be in Sydney for the purposes of business or otherwise, provided that prior to any such occasion the father provides to the mother not less than 14 days’ notice of his proposed arrival in Australia and details of his proposed accommodation and contact phone numbers whilst in Australia, and further provided that the children’s time with the father shall be not less than each alternate weekend from after-school Friday until before school Monday and mid-week time if during school term, and not less than 5 consecutive nights if during school holidays.
That Orders and 11, 12, 13, 14 and 15 made on 28 August 2014 be discharged to the effect that the father be permitted to leave of the Commonwealth of Australia and that his name be removed from the airport watch list.
That the mother and father are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or any of them and from permitting any other person to do so and the mother and father are further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leng & Phe 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 PARRAMATTA

FILE NUMBER: PAC 5236 of 2008

Mr Leng

Applicant

And

Ms Phe

Respondent

REASONS FOR JUDGMENT

The present application before the court is as to interim parenting proceedings in relation to the children N born in 2009 and M born in 2007. The children have been separated since the implementation of a purported “agreement” in September 2012 after which the eldest child remained in the care of the father in Taiwan and the youngest child in the care of the mother in Sydney.
The proceedings come before the court in somewhat unusual circumstances where the father and the older child M are present in Australia for the purposes of Children’s and Parenting Intake Assessment interviews and the preparation of a subsequent report. In relation to that report the mother was interviewed in person on 5 June 2014 and the father by telephone on the same day. Subsequently on 20 August 2014 the father and mother attended upon the family consultant with both children.
The father and the eldest child travelled to Australia for the purposes of the interviews on 20 August 2014 and the father now seeks to return to Taiwan with the oldest child, leaving the mother and youngest child again in Australia.
The mother seeks orders in her application in a case filed on 18 July 2014 that in summary provide:
a)that she be permitted to obtain a passport for the child N without the consent of the father; and
b)that the child N live with her.
In her application in a case filed on 20 August 2014 the mother seeks orders that in summary provide:
a)that pending further order the mother and father be restrained from removing the children from the Commonwealth of Australia and for that purpose the children be placed on the airport watch list;
b)that the father surrender to the court the Australian and Taiwanese passports for the child M; and
c)that both children live with the mother.
The father in his amended application in a case filed on 28 August 2014 seeks orders that in summary provide:
a)that the mother cause the return of the child M to the father;
b)that the child M live with the father;
c)that the child M be permitted to leave the Commonwealth of Australia and his name be removed from the airport watch list;
d)that the mother be restrained from placing the child’s name on the airport watch list without leave of the court;
e)that the mother be restrained from removing or attempting to remove the children from the Commonwealth of Australia without leave of the court;
f)that the father have sole parental responsibility for the child M;
g)that the mother have sole parental responsibility for the child N;
h)that each parent keep the other advised of any significant illness or medical treatment and provide appropriate authorities to enable each parent to be fully consulted and advised as to the children’s medical treatment;
i)that when the father and M are in Australia the children shall spend 50 per cent of such time with the father and 50 per cent of such time with the mother and that changeover shall be effected at B Shopping Centre;
j)that when the mother and the child N are in Taiwan the children shall spend 50 per cent of the time with the mother and 50 per cent of the time with the father and that changeovers shall be effected at School C;
k)that the father make the child M available to communicate with the mother and N by Facetime, Skype or telephone each Monday between 5:00pm and 7:00pm Taiwan time and each Thursday between 5:00pm and 7:00pm Taiwan time and that similarly the mother facilitate the father having similar communication with the child N;
l)that the father not be present in the same room when the child M is communicating with the mother;
m)that the mother not be in the same room when the child N is communicating with the father;
n)that each party refrain from making critical or derogatory remarks in relation to the other in the presence of or hearing of the children and each party do all things necessary to ensure that no third party does so in the presence of the children;
o)that each party provide a detailed itinerary to the other party for any overseas travel over 2 months;
p)that when the father is in Australia for business without the child M the child N shall spend time with the father for 50 per cent of the time; and
q)that for the purposes of facilitating time with orders the visiting parent shall send a copy of their proposed itinerary to the other parent not less than one week before the date of their arrival.

Background

Initially proceedings were commenced by the mother in November 2008. Those proceedings were subsequently dismissed in March 2010 by the court for want of prosecution.
In December 2010 an order was made by consent removing the child M’s name from the airport watch list so as to facilitate the child’s overseas travel. The order was made following an application for consent orders filed by the parties.
In the mother’s affidavit in support of those consent orders she deposed that at the time of the application for the watch list order to be removed both children lived with her in Australia, that the father was an Australian citizen but resided in Taiwan and that the father had made available air tickets for the mother and both children to visit him in Taiwan for one month leaving Australia on 18 December 2010. Subsequently the mother enquired of the Australian Federal Police as to whether the child M remained on the airport watch list, that order being made prior to the birth of the younger child in the earlier proceedings. The mother was informed that the child M was still on the watch list and she deferred her travel arrangements until 23 December 2010 so as to make the application for discharge of the order.
The mother commenced the present proceedings by application filed on 15 October 2012. As to parenting the mother in summary seeks the following final orders:
a)that she have sole parental responsibility for the children;
b)that the children live with her;
c)that the father and the children have electronic communication each Tuesday and Thursday and that the father have certain defined time with the children; and
d)that the father be restrained from removing the children from the Commonwealth of Australia and the children’s names be placed on the airport watch list.
The father filed a response to the mother’s initiating application on 2 April 2014. In that response the father in summary sought the following orders:
a)that the mother’s application be dismissed for want of jurisdiction and that in the alternative:
b)the parties have equal shared parental responsibility for the children;
c)that the child M live with the father and that the child N live with the mother; and
d)that the children spend time with the non-resident parent as agreed in the absence of the presence of the resident parent.

The mother’s evidence

The mother was born in 1974 in China. The father was born in 1974 in Taiwan. The father has dual Australian and Taiwanese citizenship.
The subject children are the children of the parties’ marriage. Both children have dual Australian and Taiwanese citizenship and were both born in Australia.
The mother became an Australian resident in July 2000 and Australian citizen in August 2002.
The mother and father married in June 2006 in Taiwan.
Prior to marriage the father had made a number of trips to Australia from 2003 to 2006 to visit the mother and the relationship was on and off as the mother was unwilling to agree to live in Taiwan. The mother says that she agreed to marry the father as a consequence of an agreement with the father that they would live in and raise children in Australia.
Subsequent to marriage the father asked the mother to travel to Taiwan to help his family in their business. The mother has a Master’s Degree in accounting as well as hospitality and management qualifications from an Australian university.
On arriving in Taiwan the mother says that she did not work in the father’s family business as expected and indeed was not allowed to work in Taiwan without a permit.
In July 2006 the father left Taiwan to work in relation to one of his family businesses in Thailand. Shortly after the mother found that she was pregnant with the parties’ first child M and she travelled to Thailand to live with the father following differences between herself and her mother-in-law.
The parties lived in Thailand for about 3 months, returning to Taiwan in September 2006.
The father and mother travelled to Australia in January 2007 and the mother resided in her parent’s home in Sydney. The father returned to Taiwan for business.
The child M was born in March 2007 in Sydney. The father arrived in Sydney from Taiwan on the day of the child’s birth.
The father returned to Taiwan in late April 2007 with the mother and the newborn baby remaining in Australia.
At about the time of the child M’s birth the father represented to the mother that he had purchased a home in City D, Taiwan. The father told the mother that this home was purchased in his brother’s name for financial reasons.
In June 2007 the mother and the child M travelled to Taiwan and stayed in the new property.
In September 2008 the mother and the child M returned to Australia. At this time the mother was pregnant expecting the birth of the parties’ second child.
The father returned to Australia in October 2008. At this time there were arguments between the mother and father as to where the family would live. The mother asserts that an agreement was reached that the parties and the children would live permanently in Australia. However in November 2008 after an argument the father took the child M and his passport. The mother contacted the police and then made urgent application for the father to be put on the airport watch list, only to find that he had already left Australia with the child M. It was these events that triggered the initial application to the court by the mother.
The mother contacted the father in Taiwan and the father and child returned to Australia in February 2009, the day before the birth of the second child N. Thereafter the two children remained with the mother in Australia, living in her parent’s apartment.
The father returned to Taiwan, it is inferred, to attend to his business interests but returned to Australia on occasions to visit the mother and the children. When in Australia the mother and father and the children either stayed at the mother’s parent’s apartment or the father’s parents’ home in Suburb E.
The parties attended family relationships counselling. The father urged the mother to withdraw her court proceedings as he had no intention of ending the marriage.
In January 2010 the father purchased a property off the plan at I Street, Suburb F. He represented to the mother that this was to be their family home. The property is registered in the name of the father and the mother has little knowledge as to the financial circumstances of the purchase. Subsequent to the purchase the father returned to Taiwan.
In December 2010 at the request of the father the mother travelled to Taiwan with the two children to visit the paternal grandparents and the father. To facilitate this visit the parties by consent discharged the watch list order in relation to the child M as referred to above.
In accordance with the parties’ agreement to live in Australia the mother and the children returned to Australia in January 2011.
The father returned to Australia in March 2011 to finalise the settlement of the purchase of the Suburb F property, the construction of which had been finalised. The parties and the children moved into the new Suburb F property following settlement. The father remained living in the Suburb F property with the mother and the children until May 2011.
In May 2011 the father asked the mother if he could take the child M to Taiwan to facilitate the child learning some Chinese before he commenced school in Australia in 2012. The father, asserts the mother, threatened her saying that if she did not agree he would divorce her and seek custody of the child M. The mother agreed to the father’s request. He and the child travelled to Taiwan shortly thereafter.
In November 2011 the mother travelled to Taiwan with the youngest child to visit the father and M.
In February 2012 the mother returned to Australia with both children as the child M was to commence schooling. The mother stayed at the father’s parents’ home at Suburb E as this was convenient to where M was attending school. The parties rented out several of the rooms in the Suburb F home to assist with mortgage payments. The mother would return to the Suburb F property each weekend with the children. The father returned to Australia later in February 2012. He later returned to Taiwan.
In April 2012 the mother’s parents were granted permanent residency in Australia and they moved to Australia in May 2012.
In late June 2012 the child N was diagnosed with a heart defect that required open heart surgery. At about this time the father requested that the mother and the children travel to Taiwan to attend the father’s brother’s funeral. The father’s brother had committed suicide. Consequently surgery for the youngest child N was postponed until the mother and the children returned to Australia.
Whilst in Taiwan the mother discovered that M’s Australian and Taiwanese passports were missing from her luggage. She confronted the father and requested the passports to be returned. He refused. The father informed the mother that he would not permit M to leave Taiwan with her notwithstanding the mother was required to return to Australia to facilitate the open heart surgery for the youngest child and M needed to return to school.
The mother sought assistance from the Australian consulate in Taiwan who informed her they could issue another Australian passport for M. However the child having entered Taiwan on a Taiwanese passport would not be permitted to leave the country on an Australian passport. The mother was unable to apply for a Taiwanese passport for the child as she was not of Taiwanese descent.
The father subsequently threatened the mother that he would keep both children if she did not allow him to keep the child M in Taiwan. As a consequence and to facilitate her return to Australia with the youngest child the mother signed an agreement presented to her by the father. The mother asserts that she signed this agreement against her will and in desperate circumstances so as to return to Australia with the child N to facilitate his surgery. On signing the agreement the father permitted the mother and the child N to return to Australia.
The child N underwent open heart surgery on 11 October 2012. Several days prior to the surgery the father arrived in Australia without the child M.

The father’s evidence

The father says that he had lived in Taiwan since 2004 and presently the child M lives with him in Taiwan.
The father and the child M came to Australia on 16 August 2014 to attend interviews with the family consultant which were to be held on 20 August 2014.
The father became aware on 20 August 2014 that the mother had made application to place the children’s names on the airport watch list.
The father had purchased tickets for the return of himself and M to Taiwan on Thursday, 28 August 2014.
The child M is presently studying at School G in Taiwan and is presently on holidays with school term due to commence on 29 August 2014.
On 21 August the father agreed that the child M could spend time with the mother and his brother N for a period of 3 hours. The father complains that at the end of that time the mother has refused to return the child M to him.
The father says that there is a written legal agreement signed between him and the mother in Taiwan dated 26 September 2012 which allowed him to have custody and maintenance rights for the child M. Since that time the child M has been with him in Taiwan.
The father denies that should the child be permitted to return to Taiwan with him that he will prevent the child from returning to Australia.

The father says that M has formed a strong bond with his paternal grandparents, his brother and sister as well as his sister’s 3 children and his brother’s 2 children. The father it appears has re-partnered and the child M has a relationship with his new partner and his partner’s son. The father and his partner live in the father’s brother’s three-bedroom apartment in City D, Taiwan.

The Court proceedings

On the father returning to Australia for the youngest child’s heart surgery the mother made urgent application to the court for the father to be placed on the watch list to prevent his return to Taiwan.
On 12 October 2012 Collier J made ex parte orders that until 5:00pm on 16 October the father be restrained from leaving the Commonwealth of Australia and his name be placed on the airport watch list.
On 16 October Collier J extended that order until 5:00pm on Monday, 22 October 2012. On 22 October 2012 the mother appeared unrepresented before Collier J as her barrister failed to attend. The court dissolved the injunction restraining the father from leaving the Commonwealth of Australia and ordered that his name be removed from the airport watch list.
The matter was again before Collier J on 30 October 2012 on which date the court was informed that the father had indeed returned to Taiwan. The mother was granted leave to file an amended application returnable on 11 December 2012. Subsequently on 11 December 2012 proceedings were adjourned generally pending the outcome of the mother’s appeal against the refusal of legal aid.
For reasons unexplained the proceedings were not again before the court until 30 January 2014. On that date they were listed for case management directions. Orders were made in summary as follows:
a)proceedings be adjourned to the docket registrar on 11 February 2014 for consideration as to future procedural directions in particular whether it is appropriate to order a children’s and parenting intake assessment;
b)the applicant mother to file and serve by Friday, 7 February 2014 any amended application to be relied upon by her together with an updated financial statement; and
c)the respondent father file and serve an amended response together with an updated financial statement by no later than Friday, 7 February 2014.
The mother filed a further amended initiating application on 10 February 2014 seeking interim orders facilitating communication with the child M.
Proceedings were before the registrar on 11 February 2014 and adjourned to 17 March 2014 before the registrar.
The mother filed an affidavit in support of the interim orders sought by her on 14 March 2014.
On 17 March 2014 the parties by consent and pending further order agreed to orders:
a)facilitating electronic communication between each of the children and the non-resident parent; and
b)that the mother file any further documents to be relied upon and the father file a response to the mother’s further amended initiating application and affidavit by 31 March 2014.
On 31 March 2014 the mother filed a contravention application alleging failure by the father to facilitate communication as provided for in orders made on 17 March 2014. The mother’s contravention application was listed before the registrar on 12 May 2014 and was stood over until completion of the children’s and parenting intake assessment report.
On 2 April 2014 the father filed his response.
On 18 July 2014 the mother filed an application in a case seeking orders that would facilitate her obtaining a passport for the child N without the consent of the father and that the child N live with the mother.
Subsequently on 20 August 2014 the mother filed a further application in a case seeking orders that in summary provided:
a)that the mother and father be restrained from removing the children M and N from the Commonwealth of Australia and that the children’s names be placed on the airport watch list;
b)that the father surrender to the court the Australian and Taiwanese passports for the child M; and
c)that the children live with the mother.
It appears that the mother’s further application in a case was precipitated by her knowledge that the child M had arrived in Australia for the purposes of the preparation of the children’s and parenting intake assessment report by the family consultant.
The father on 25 August 2014 filed an interim application in a case seeking the following orders:
a)that the mother forthwith cause the return of the child M to the father;
b)that the child M live with the father;
c)that the child M be permitted to leave the Commonwealth of Australia and his name be removed from the airport watch list;
d)that the mother be restrained from applying to place the name of the father and the child M on the airport watch list without leave of the court;
e)that the mother be restrained from removing or attempting to remove the children M and N from the Commonwealth of Australia;
f)that the father have sole parental responsibility for the child M pending further order;
g)that the mother have sole parental responsibility for the child N pending further order;
h)that each parent keep the other advised of any illness or medical treatment relating to the children;
i)that when the father and M are in Australia the children spend 50 per cent of the time with the father and 50 per cent of the time with the mother;
j)that changeovers be facilitated at B shopping centre;
k)that when the mother and the child N are in Taiwan the children spend 50 per cent of the time with the mother and 50 per cent of time with the father;
l)that changeovers be effected at School C;
m)that the father make the child M available for electronic communication with the mother and the child N by Facetime, Skype or telephone each Monday and Thursday between 5:00pm and 7:00pm Taiwan time; and
n)that when the father is in Australia for business without M the child N shall spend 50 per cent of the time with the father.
The various applications came before the court on 27 August 2014. All applications were listed for hearing on 28 August 2014 with both parties directed to file and serve any further affidavit material to be relied upon by 11:30am that day.

Discussion

The interim applications were heard on the basis of submissions in support of the evidence filed. Proceedings were adjourned for delivery of reserved judgment at 2:15pm on 3 September 2014 and pending judgment orders were made in summary as follows:
a)that the children live with the mother;
b)that the children spend time with the father on Sunday, 31 August 2014 from 9:00am to 5:00pm and at such other times as the mother and father may agree in writing;
c)that the mother and father be restrained from removing or attempting to remove the children from the Commonwealth of Australia and the names of the children be placed on the airport watch list;
d)that the father be restrained from leaving the Commonwealth of Australia and his name be placed on the airport watch list;
e)that the father be restrained from attending at any point of international departure from Australia;
f)that the parties be restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or any of them and from permitting any other person to do so and the parties be further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.

The Child Responsive Program Memorandum

The child responsive program memorandum is dated 27 August 2014 and was prepared following interviews with the mother in person and the father by telephone on 5 June 2014 and thereafter interviews on 20 August 2014 with the mother and father and the two children.
The history of the relationship given to the family consultant by the parties substantially accords with the history given by the mother as set out above.
In terms of the parties’ proposals the family consultant noted that the mother sought that both children live with her in Australia whilst the father sought that the children be separated with M living with him in Taiwan and N living with the mother in Australia.
The mother told the family consultant that M had expressed his wish to her that he not remain in Taiwan and that he live in Australia. The mother also expressed concerns as to the child M being “pressured” by the father, with M informing the mother that if he was to have contact with her she was to withdraw her court application. The father similarly had concerns about the mother pressuring M.
Presumably as a consequence of remaining in Taiwan since September 2012 M was reported to speak Chinese Mandarin as his first language and spoke and understood very little English.
On interview M presented as reserved and somewhat guarded and very reluctant to engage in the interview process. The child was interviewed with the assistance of a Chinese Mandarin interpreter.
The child was reluctant to engage in conversation in regard to his life and activities in Taiwan. He identified that he had contact with his mother every Monday and Tuesday by electronic means. Somewhat strangely M identified his father’s partner’s son as “his older brother” and initially denied that he had a younger brother. When pressed he confirmed that he had a brother, N who lived with the mother.
Prior to the observation session M became very animated and enthusiastic when told that he would be participating in play sessions with the mother and N and the father and N. M identified that he was excited to see N and that he was also excited to see his mother. When returning to childcare M hugged his younger brother who reciprocated the affection. M and N sat together on a small child sofa to watch a movie.
The children appeared reluctant to separate in order for N to accompany the family consultant to the observation room but did so with encouragement and reassurance that M would shortly join them. In observation with the mother N appeared to enjoy the play, laughing and smiling, throughout.
When M joined the observation session the mother hugged him for an extended period, M reciprocated the affection and N also joined them, hugging M from behind. M sat on his mother’s lap.
The children were observed in play together and appeared relaxed and comfortable together and focused on their play. The mother appropriately joined in with the children in play. The children, observed the family consultant, M particularly, appeared animated in their play and were reluctant to conclude their play when told that their time was up.
Prior to observations of the children with the father the family consultant observed that the children again appeared reluctant to separate in order for M to join the father in the observation room but he complied when informed that N would be joining them shortly. The father seemed conscious that people were watching the play session. When joined in the observation room by N the father on request received a hug from N.
Once the children were together they moved between a number of different activities although the father did not engage in play with them or interact with the children regarding their play except for some drawing. The children continued to appear very animated and laughed loudly throughout their play together.
M at one stage suggested to the father that “[N] had forgotten about him”. Once again the children were reluctant to cease their play and return to child care.
The mother reported to the family consultant her concerns that the father was “careless” regarding the children particularly in relation to injuries sustained by the child M. The mother referred to one instance of domestic violence when the father hit her prior to the birth of the children. The mother complains that the father had been controlling towards her particularly in relation to their financial situation during their relationship. The father denied there had been violence in their relationship but later conceded that he had slapped the mother on one occasion prior to the marriage and reported that she had slapped him.
The family consultant reported that the parties had poor communication. The mother communicating with the father via his legal representative.
In evaluation the family consultant reported that both children appear to have established and positive relationships with the mother and father and with each other:
Both children appeared excited to spend time together on the day of the MCF and relaxed and comfortable in their interactions with both parents. The children’s observed relationships are of particular note given the length of time that has elapsed since the children spent face-to-face time with each other and with the parent they do not reside with and the allegations made by both parents regarding the other not consistently facilitating contact…
The family reporter noted that the primary areas of dispute between the mother and father include the circumstances under which the child M came to reside with the father and financial matters.
Both children, the consultant observed, appear to have been exposed to information regarding the court proceedings and/or disputes between their parents.

Discussion

In Marvel & Marvel (No. 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court discussed the difficulties associated with making findings on contested evidence as follows:
120.    As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
122.    In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123.    Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
This matter has of course an element of “relocation” in that that there is an issue that would see the children either returned to reside in Sydney or one returning to Taiwan. As the Full Court said in Sayer & Radcliffe and Anor [2012] FamCAFC 209:
47. It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
48. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
The proposals of each of the parties are considered in the discussion above.
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286, MRR v GRR (2010) 240 CLR 461.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the children.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply where:
a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2)); or
b)in interim proceedings, where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)); or
c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).
If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the children’s best interests and reasonably practicable.

Best Interests of the children

Firstly, the additional considerations s 60CC(3): the Court has had regard to each of the additional considerations set out in section 60CC(3) of the Act. The relevant considerations are as follows:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
There is no objective evidence as to this factor. In any event the children are of an age where little weight in the circumstances of this matter could be placed on any expressed wishes.
b)the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);
Notwithstanding the conflictual and mistrustful attitude between the parents, the children are reported to have established and positive relationships with both the mother and father. More importantly the nature of the children’s relationships with each other is revealed in the family consultant’s report.
Notwithstanding initial reticence on the part of the older child M, he responded to the presence of his little brother in a very warm, loving and engaging way. On occasions throughout the course of the interviews on 20 August 2014 the family reporter notes difficulties in having the children separate from each other in circumstances where it took assurances that they would be together again to facilitate an appropriate separation.
The nature of the children’s relationship with each other is important.
The father’s proposal that the children again be separated for some indeterminate time pending final hearing is not supported by the observation of the children’s relationship.
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child;
The background assertions of each of the parties in this regard are set out above. A proper assessment of this consideration awaits a final hearing.
Concern arises from the circumstances in which the father procured what he perceived to be an “agreement” with the mother that facilitated the long-term separation of these two little boys.
No logical reason for the outcome procured by the father in Taiwan is propounded by him.
The mother’s explanation as to the circumstances leading up to this “agreement” is the only evidence before the court.
Both parties have since September 2012 made significant decisions in relation to each of the children in their care and they have each afforded the other little opportunity to be engaged in the life of the child in their respective care.
ca)…
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child M has spent significant time in the primary care of the mother up until September 2012. It is clear that he is comfortable in the presence of the mother particularly in circumstances where his younger brother is present. The inference arises that a return to his previous primary residence with his mother would cause him little adjustive difficulty as he would be returning to familiar surroundings and to the school he was attending.
The prospective separation of M from his younger brother N, if the father’s proposal is acceded to is of concern.
It is clear that these children have a close and affectionate bond with each other. The sibling bond would once again be put under stress by M returning to Taiwan with the prospects of his return to Australia and a reuniting with his brother to await a final determination some time into the New Year.
The father seeks orders that facilitate a permanent separation of these two children whereas the mother’s orders propose that the children be together.
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affected the child’s rights to maintain personal relations and direct contact with both parents on a regular basis;
Perhaps it is some credit to the parents that the relationship between the children upon them being reunited during the family consultant interviews was demonstrated as being strong and warm.
However apart from electronic communication the ability of each of the parents to provide the children with face-to-face contact with the other parent and sibling if the children were to remain separated is problematic.
The father it appears has travelled to Australia on occasions between September 2012 and August 2014 alone in circumstances where it would have been anticipated he would have brought the child M to spend time with the mother and his brother.
The mother it appears has no capacity absent financial provision from the father to travel to Taiwan with the youngest child. The father does not seek to have both children in his care, the mother does and the mother’s proposal will reunite the children pending final hearing.
f)the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
If the mother’s assertions as to the circumstances giving rise to the “alleged” agreement of September 2012 are borne out then that circumstances raises serious doubts as to the father’s capacity to provide for the emotional needs of the child M and his brother in that the father has caused a significant and unnecessary separation of siblings.
However a final determination will await final trial.
The mother has demonstrated an appropriate capacity in that she has consistently sought orders from shortly after the purported agreement in September 2012 that would facilitate a reuniting of her children.
g)…
h)…
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Whilst the final relevance of this factor will await final trial, the evidence before the court thus far is indicative of the father having a less than satisfactory attitude to his children and to his responsibilities of parenthood. It appears that he has procured a separation of these two children for reasons that are not readily apparent.
No doubt evidence at final hearing will reveal the true circumstances of the “agreement”.
j)any family violence involving the child or a member of the child's family;
There are allegations made by the parents one against the other. However neither makes any allegations of recent instances of violence that are relevant to the present issue.
k)…
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These are interim proceedings brought in urgent circumstances set out above. Final orders in relation to the subject children will await final hearing.
m)any other fact or circumstance that the court thinks is relevant;
The father on a preliminary basis has contended in his response that this court has no jurisdiction to determine parenting arrangements for the subject children.
It is clear that the court has jurisdiction by reason of the provisions of section 69E of the Family Law Act 1975.
The efficacy or otherwise of the “agreement” entered into by the parties in Taiwan is of no relevance. Taiwan is not a signatory to the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children nor is Taiwan a prescribed country for the purpose of Regulation 23 of the Family Law Regulations, 1984 facilitating the registration of overseas child orders.

The primary considerations - s 60CC(2) are:
a)the benefit to the child of having a meaningful relationship with 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.
In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The mother’s contention is that the father’s conduct in procuring what he purports to be an “agreement” in Taiwan in September 2012 has fractured the relationship between the subject children and each parent. The father has propounded no reasonable explanation as to why these children have been separated. The court is mindful of the observations of the family reporter as to the relationship between the brothers. It is clear that the nature of the children’s relationship with each of the parents is at present superficial at best. The mother’s proposal is for the children to be reunited, reside with her and for the father to be able to spend time with the children on occasions when he travels to Australia either for business or otherwise.
The father’s proposal is that the children remain separated and substantially into the future have electronic communication with each other and the non-resident parent. Such an arrangement cannot be a meaningful and valuable relationship for the children with their parents.
The second primary consideration is the “need to protect”. There are suggestions in the family consultant’s report that the children are exposed to the conflict between their respective parents particularly on occasions during electronic communication. A significant factor for the court is the psychological problems if any that will be occasioned to the children if they remain separated into the future, as proposed by the father. The realities of that risk will be explored at a final hearing but this interim determination provides the opportunity for any such risk to be alleviated by the children being reunited.

Parental responsibility

The mother on a final basis seeks an order that she have sole parental responsibility for the children in circumstances where on her proposal the children will be reunited in her care. The court is required in circumstances where there are parenting proceedings to consider the application of a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. Circumstances where that presumption does not apply are referred to above.
In circumstances where the court proposes to make an order that would mean that the children reside with one parent in Australia and the other parent is permanently overseas, where both parents demonstrate little ability to communicate with the other and where a final hearing is at worst about 6 months away in this Registry it is not appropriate for the presumption to be applied.
It is appropriate in such circumstances for the parent with whom the children reside to exercise parental responsibility pending final hearing.
In the absence of the presumption as to equal shared parental responsibility applying the court is not required to consider the provisions of section 65 DAA that requires a consideration of equal time or substantial and significant time for the children with each of the parents where such indicated by the best interests of the children and are reasonably practicable. Clearly in circumstances where one parent is overseas a consideration of a reasonable practicality would in any event prevent a consideration of such time arrangements.
Having regard to the best interest considerations referred to above and the principles and objects of Part VII of the Act it is appropriate that orders be made that facilitate the children pending further order living with the mother and for the father to spend time with the children when he is in Australia and for the continuation of electronic communication between the father and the children.
Orders will be made as set out at the forefront of these reasons for judgement.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 September 2014

Associate:

Date: 3 September 2014