LI & MENG

[2015] FCCA 2854

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI & MENG [2015] FCCA 2854

Catchwords:
FAMILY LAW – Children – overseas travel – Australian passport – where one parent does not consent to issue of Australian passports – travel – international travel – permission for children to travel internationally – where applicant seeks to travel to China with parties’ three children aged 17, 12 and 8 years – where circumstances have changed – where applicant now intends to travel to China without the children – parenting arrangements while applicant is out of Australia.

FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – benefit to child of having a meaningful relationship with both parents – one child with special needs.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.60CA, 60CC, 65Z, 68L

Applicant: MS LI

Respondent: MR MENG

File Number: SYC 6374 of 2012

Judgment of: Judge Scarlett

Hearing date: 20 October 2015

Date of Last Submission: 20 October 2015

Delivered at: Sydney

Delivered on: 20 October 2015

REPRESENTATION

Applicant: In person

Respondent: In person

Independent Children's Lawyer: Mr Wilkins

Solicitors for the Independent Children's Lawyer: Phillip A. Wilkins & Associates

ORDERS

BY CONSENT UNTIL FURTHER ORDER

1. The child X born (omitted) 2003 is to live with the father.

2. Commencing Saturday 7 November 2015, X spend time with the mother each weekend from 10:00 am Saturday to 10:00 am Sunday.

3. For the purpose of Order (2), the mother shall collect X at the commencement and return her at the conclusion of the time from and to the father respectively.

AND IT IS FURTHER ORDERED THAT

1. The Application in a Case filed by the Respondent on 7 September 2015 is discontinued.

2. The Application is otherwise adjourned to Monday 7 December 2015 for further mention at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6374 of 2012

MS LI

Applicant

And

MR MENG

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application filed on 31 August 2015 by the mother of the parties’ three children, Y, X and Z, for orders that:

   a)The father should sign applications for Australian passports for the three children;

   b)If the father does not sign the applications, his signature may be dispensed with by the Court;

   c)The mother should have permission to take the three children out of Australia to visit her parents in China; and

   d)Interim parenting orders in respect of the two younger children, X and Z.

2. Unhelpfully, the mother has also sought another seven interim property orders relating to the parties’ two unsuccessful Conciliation Conferences, which will not be dealt with at this stage. As the mother is not legally represented, she may not appreciate the complexity of all the matters that she wishes the Court to do. The matters relating to the mother’s proposed travel plans are of a degree of urgency, although the mother does not wish to travel until “after January 2016”.

3. The Respondent father, who also does not have the benefit of legal representation, opposes this application. Rather than filing a Response to an Application in a Case, he has chosen to file two separate Applications in a Case of his own, one on 7 September and the other on 24 September 2015. His intentions, however, are quite clear.

4. In his Application in a Case filed on 7 September, the father seeks orders that the names of the three children are all placed on the Family Law Watch List maintained by the Australian Federal Police to prevent the mother from taking them on an overseas trip.

5. In his second Application in a Case, filed on 24 September, the father is more specific and comprehensive in the orders that he seeks. It would appear that this second Application is intended to replace the earlier Application, which will be discontinued.

6. The orders sought by the father in his Application of 24 September are:

   1. THAT UNTIL FURTHER ORDER each party, MR MENG, date of birth (omitted) 1960 and MS LI, date of birth (omitted) 1969, their servants and/or agents be and are HEREBY restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children Z, date of birth: (omitted) 2007, X, date of birth: (omitted), 2003 and Y, date of birth: (omitted) 1998 from the Commonwealth of Australia for a period of 12 months.

   2.  AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its[1] removal.

   [1] sic

7. There are no parenting orders currently in force.

8. The children’s interests are represented by an Independent Children’s Lawyer, Mr Wilkins.

Background

1. The parties were married on (omitted) 1997 and separated under one roof on 3 August 2012. They were divorced by order of this Court on 16 November 2013.

2. There are three children of the marriage:

   a)Y, who was born on (omitted) 1998;

   b)X, who was born on (omitted) 2003; and

   c)Z, who was born on (omitted) 2007.

3. When the parties separated the mother left the home with Y and Z. The child X remained living with the father.

4. The child Z is disabled. The mother deposed in her affidavit of 13 November 2014 that:

   15.    Unfortunately Z was born with brain damage due to not having sufficient oxygen during the birth…

   16.    Essentially Z is brain damaged. He can’t swallow or walk unaided. He suffers from Sleep Apnoea. His legs and arms don’t work properly. He has muscle contractions in his arms and legs which he cannot control. These spasms are painful.

   17.    Because of Z’s disabilities he required 24 hour care after birth which meant that both Mr Meng[2] and I had to give him that assistance. Mr Meng stopped working then and I don’t believe he has ever worked since.[3]

   [2] i.e. the father

   [3] Affidavit of Ms Li 13.11.2014 at paragraphs [15]-[17]

5. The mother commenced proceedings for property and parenting Orders on 13 November 2014. An order was made on 13 May 2015 that the children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth).

Issues

1. The mother originally sought to take all three children to China with her for a holiday to see her parents, who lived in (omitted). Her plan was to travel “maybe for 2 weeks after January 2016”.[4] The mother also deposed that both of her parents were 85 years old and very sick.

   [4] Affidavit of Ms Li 26.8.2015 at paragraph [2]

2. Further, the mother stated that:

   Y, X and Z have not seen my parents for 7 years (from 2008) to 2015).[5]

   [5] Mother’s affidavit 26.8.2015 at [1]

3. The father opposed these plans, giving these reasons in his affidavit of 7 September 2015:

   I am deeply concerned that there is a distinct possibility that she may not allow any or all my children to return to Australia as she knows too well that all three of them, especially my son, wish to stay with their father on the long term basis instead of mother. In addition, it is apparent that the planned travel would be beyond her capacity to handle as I will not be accompanying them, and since she has never taken either my son or the three children on an overseas trip on her own (all former overseas travels were accompanied by me with myself as the main carer for the children especially my son when he was much younger), it is apparent that the planned travel would be beyond her capacity to handle without my presence.[6]

   [6] Affidavit of Mr Meng 7.9.2015 at paragraph [4]

A Change in Circumstances

1. When the matter came before the Court, the Independent Children’s Lawyer told the Court that the mother’s father had recently died and she was planning to go to China by herself to be with her mother. She told the Court that her mother was in hospital and was not aware that her father had died. She is to have the melancholy task of informing her mother that her father has died.

2. Mr Wilkins told the Court that he had some reservations about the mother’s proposed trip with the children, which will now need to be postponed for a little while. He said that he was concerned about the state of Z’s health, which would be a factor in his undergoing overseas travel. In addition, he submitted, China is not a party to the “Hague Convention”, the Convention on the Civil Aspects of International Child Abduction, adopted on 25 October 1980.

3. Mr Wilkins also told the Court that the child Y was currently living with the father whilst undertaking the Higher School Certificate examinations. She would obviously remain living with him whilst the mother was away.

4. Similarly, the parties’ younger daughter, X, has been living with the father since the parties separated. She wishes to remain living with him.

5. The mother had arranged respite care at a place in (omitted) for Z from (omitted), to cover the period when the mother is away in China. She said that she had spoken to Centrelink who advised her that they had no problem with her travelling overseas for that period of time.

Submissions

1. The father submitted that Z could stay with him whilst the mother was away rather than go into respite care. The mother did not agree with this proposal, as arrangements had already been made and the child, she said, was looking forward to going into respite care. The father disagreed, saying that the child did not want to go.

2. The Independent Children’s Lawyer raised the question of arrangements being made for the younger daughter, X, spending time with her mother on a regular basis. There are no parenting orders currently in force. He was also of the view that as the eldest child, Y, will attain the age of 18 years on 16 February next, there was little point in making any parenting order for her. She would shortly be of an age where she could apply for her own passport.

Conclusions

1. I intend to ask the Independent Children’s lawyer to prepare a Minute of Order that will cover X spending one day with the mother each week from the beginning of November, once the mother returns from China. I am not prepared to make an order at this stage that Z spends the next ten days with his father whilst the mother is in China.

2. I know the father says that Z does not want to go, but the mother says he is happy to go and she has made the arrangements. However, it is important that when the mother comes back from China after visiting her family, proper arrangements should be made for Z to spend time with his father on a regular basis until a final decision can be made. There are good reasons for this and I will set them out.

3. Even though Z’s mother and father do not get along, Z should have a meaningful relationship with his father (see Family Law Act 1975 (Cth), s.60CC(2)). I know that Z has special needs, but he needs to spend a regular time with his father and not just an hour or two at school. He needs to spend time at his father’s home so that he can develop his relationship with his father. He also needs to spend time with his sisters, Y and X. X is living with her father but will be spending one day each week with her mother.

4. Y is presently living with her father during her exams. Y will be an adult on (omitted). She will be able to decide with which of her parents she wants to live. She will be able to decide whether she wants an Australian passport or not. She will be able to decide whether she wishes to travel to China with her mother or with anyone else to see her family in China, but it is important that once the mother is back from her sad journey to China, proper arrangements should be made for Z to spend time with his father until this matter can be properly resolved by the Court.

5. I am going to ask the Independent Children’s Lawyer to prepare a set of orders about X’s time with the mother. I will also be looking at this matter early in December, probably on 7 December, once the mother is back from China, because arrangements do need to be made for Z on a regular basis. Between now and the end of the month Z will spend the time ion the respite care that has been arranged.

6. Once the mother is back from China, Z needs to spend time with his father and his sister.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  22 October 2015