LI & MENG (No.2)

[2015] FCCA 3281

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI & MENG (No.2) [2015] FCCA 3281

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 mother seeks to travel to China with parties’ three children aged 17, 12 and 8 years – where eldest child will attain the age of 18 years in (omitted) – where mother proposes to travel in January 2016 – where mother has not discussed the proposed travel with either of the two older children – where proposed trip out of Australia expected to last for two weeks – where father submits that the issue of passports should await final hearing.

FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – school holiday arrangements for the parties’ two younger children – benefit to children of having a meaningful relationship with both parents – where youngest child has special needs – where father sought to reopen case when decision was being delivered – orders vacated.

PRACTICE AND PROCEDURE – Transfer to Family Court – estimated length of final hearing likely to exceed four days – protocol between Federal Circuit Court and Family Court considered.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.60CA, 60CC, 62G

Federal Circuit Court of Australia Act 1999 (Cth), s.39

Cases cited:
Gee & Luxford [2015] FCCA 3217
Li & Meng [2015] FCCA 2854

Applicant: MS LI

First Respondent: MR MENG

File Number: SYC 6374 of 2012

Judgment of: Judge Scarlett

Hearing dates: 7 and 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Sydney

Delivered on: 16 December 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

UNTIL FURTHER ORDER

1. Orders (2) and (3) made on 20 October 2015 are discharged;

2. The child X born (omitted) 2003 is to spend time with the mother as follows:

   (a)Each weekend during the school term from 10:00 am on Saturday to 10:00 am on Sunday; and

   (b)During the school holidays, each alternate week from 10:00 am on Saturday until 10:00 am the following Saturday commencing on Saturday 19 December 2015. 

3. For the purposes of Order (2) above the mother is to collect the child X at the commencement of her time with the child and return her to the father at the conclusion of her time with the child.

4. The child Y born (omitted) 2007 is to spend time with the father during the school holidays each Saturday from 10:00 am to 4:00 pm commencing on Saturday 19 December 2015.

5. For the purposes of Order (4) above the father is to make arrangements with the mother as to the way he can spend time with the child Y each Saturday.

6. The mother and father are restrained from removing all or any of the children Z born (omitted) 1998, X born (omitted) 2003 and Y born (omitted) 2007 from the Commonwealth of Australia prior to 16 February 2016 without leave of the Court.

7. The mother is permitted to apply for Australian passports for the children X born (omitted) 2003 and Y born (omitted) 2007 on or after 17 February 2016 without the consent of the father.

8. In the event that either party wishes to travel out of Australia with either or both of the children X born (omitted) 2003 and Y born (omitted) 2007 on any date after 17 February 2016 that party must advise the other party of his or her intention to do so no less than six (6) weeks prior to the intended date of departure and provide to the other party:

   (a)A written notice stating that they intend to travel outside of the Commonwealth of Australia and indicating whether they intend to travel with one or both of the children; and

   (b)A full itinerary of their travel plans, including but not limited to the intended overseas residential address or addresses of the party and the child or children and the overseas contact telephone and facsimile numbers if applicable at that intended address or addresses.

9. The mother and father must attend upon a Family Consultant at a time, date and place specified by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975.

10. The proceedings are transferred to the Family Court of Australia at Sydney under the provisions of section 39 of the Federal Circuit of Australia Act 1999.

IT IS NOTED that publication of this judgment under the pseudonym Li & Meng (No.2) 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. There are three matters to be dealt with in this Application:

   a)The mother’s application for the parties’ younger daughter, X, to spend time with her during the forthcoming school holidays;

   b)The father’s application for the parties’ son Y to spend time with him during the school holidays; and

   c)The mother’s application for the parties’ three children, Z, X and Y, to have Australian passports and to travel to China with her to see extended family members in January 2016.

Background

1. Some of these issues were argued in the earlier interim proceedings (Li & Meng[1]), where the question of the mother’s wish to obtain passports for the children and travel with them to China was put to one side, as an urgent situation had developed where her father had died and she needed to travel to China urgently to spend time with her mother and other extended family members.

   [1] [2015] FCCA 2854

2. However, with the assistance of the Independent Children’s Lawyer, interim orders were made about the parties’ daughter, who lives with the father:

   (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.

Interim Orders about X

1. The mother seeks an order that, during the school holidays, X should spend time with her in alternate weeks, in a week on week off arrangement. The father agreed with that proposal, saying that he thought it was a reasonable arrangement.

2. The mother then suggested that the week about arrangement could become permanent, but the father did not agree.

3. In my view, the proposed orders for X to spend a week at a time with her mother during the school holidays would be in the child’s best interests. Section 60CA of the Family Law Act 1975 (Cth) requires the Court to regard the best interests of the child as the paramount consideration.

4. One matter to be considered is the requirement in s. 60CC(2)(a) to consider the benefit to the child of having a meaningful relationship with each of her parents. This arrangement over the school holidays should promote this relationship.

5. I am not satisfied that an order should be made for the child to go into this week-about arrangement on a permanent basis at this stage. This would appear to be more properly a subject for final orders.

Interim Orders about Y

1. The parties are more at odds about their son Y, who lives with the mother. Y is eight years old and severely disabled. At present, the only parenting arrangement in force is that the father calls at the child’s school each day and spends time with the child there. Obviously, this arrangement will not be able to be pursued over the school holidays, which would have the effect that Y would not see his father for about six weeks, which would not be in his best interests.

2. The Independent Children’s Lawyer told the Court that Y needs a considerable amount of equipment for his support, which is apparently not readily transportable.

3. The father said that he really wants to spend more time with Y, especially during the school holidays, as do Y’s sisters. Z, the elder sister, now lives with the father, although X will be able to spend time with her brother when she is at her mother’s house.

4. The mother suggested that the father could spend from 10:00 am to 4:00 pm with Y each Saturday. The father accepted this proposal but also said that he was available to spend time with the child on week days, as he is not in employment.

5. In my view, there is scope for the father to spend more time with Y during the school holidays. If the child is used to spending time with his father every school day, he will most probably be disappointed if he only sees him once a week, or not at all, during the school holidays.

6. Clearly, the mother had no qualms about Y being in the father’s care for six hours at a time, from 10:00 am to 4:00 pm on a Saturday. It appeared to me to be likely, therefore, that the father could cope with Y for that same length of time on another day of the week, such as each Wednesday during the school holidays. Thus, the child would be seeing his father for six hours every three or four days, which would appear to be conducive to developing a meaningful relationship with his father.

7. However, when I attempted to hand down Orders to this effect on Wednesday 9 December, the father sought to reopen the case, claiming that he would not be able to care for Y when the child was in his care without the necessary equipment. He insisted that he had made that submission on the previous occasion, although my notes and my recollection do not support that view at all.

8. Eventually, the father said that he had had a discussion with the Independent Children’s Lawyer outside the Court about those matters on the previous occasion. The Independent Children’s Lawyer was unable to attend Court on 9 December and so could not verify this information. How the father could imagine that the substance of this conversation would somehow filter through to the Court has not been explained.

9. The father then made the staggering suggestion that there should be interim orders made that Y should spend six months with him followed by six months with the mother.

10. That does not appear to be a child-focused submission at all. Y is a child, not a commodity to be passed between the parents every half year.

Passports and Overseas Travel

1. The parties appear to be very far apart on the question of the issue of passports to the children and the mother’s wish to take them to China with her for a fortnight during the school holidays, commencing on about 6 January 2016.

2. The father opposes the issue of passports to any of the children, saying that this is a matter that should be left to a final hearing. He has also expressed opposition to the mother taking the children to China with her in January, saying that:

   a)It is not necessarily safe to travel to China at present; and

   b)There is a possibility that the mother may decide not to return to Australia.

3. The father’s argument is not particularly convincing and is not supported by any evidence. If China is not a safe place to travel, why would the mother wish to stay there with the children, when she could return to the safety and comfort of Australia? The father has not presented any convincing evidence that China is an unsafe travel destination, and I note that the mother has only recently travelled to China and has returned apparently unscathed.

4. One might ask why these children should not have Australian passports. If they are Australian citizens, then they have a prima facie right to an Australian passport.

5. Again, it should not be overlooked that the parties’ elder daughter, Z, will reach the age of 18 years on (omitted) next year. From that time on, she will be able to apply for a passport in her right, and she will be free to travel wherever she wishes to go.

6. That said, the mother’s proposal to take all three children to see their maternal grandmother and other extended family in early January 2016 has not been formed in any detail. The mother said that she has spoken about the intended trip to Y, who is very excited about the idea, but she has not at this stage even mentioned the idea to either of her daughters. This hardly seems practical in the light of a proposed departure date less than a month away.

7. In my view, the mother’s plan to travel to China with the children is unrealistic. She should wait until Z reaches the age of 18 years, when Z will be able to apply for her own passport and decide whether she wants to go to China with her mother or not.

8. However, once Z has a passport, it is hard to see why the other two children should not have passports as well. The father will not agree, so I propose to order that the mother may apply for passports for the two younger children on or after 17 February 2016 without needing the consent of the father.

9. After that time, if either parent wishes to travel out of Australia with one or both of the children, that parent must give the other parent six weeks’ notice in writing and provide details of an itinerary and addresses and contact telephone numbers.

The future progress of the matter

1. As the parties are at odds about parenting arrangements they will be directed to attend interviews with a Family Consultant for the purpose of preparation of a Family Report under s.62G of the Family Law Act 1975.

2. I do not propose to deal further with this matter. Not only do I have no hearing dates available in my docket, but I have formed such a negative impression of the father’s views on parenting that I believe that another Judge, who has not dealt with these parties before, should hear the matter on a final basis.

Transfer to the Family Court

1. It appears to me that this matter should be transferred to the Family Court.

2. The parties are not represented, although the wife had solicitors acting for her at one stage. There are both property and parenting proceedings in contention. The parties have attended two Conciliation conferences with Registrars of this Court, without any success.

3. On 13 August 2015, the date of the second conference, Registrar George reported:

   3. I note that the matter was listed for a Conciliation Conference before Registrar McNamara on 11 May 2015 and that conference did not proceed due to outstanding valuation and disclosure issues. None of those issues was resolved in the intervening period.

   4. I note that both parties intend to issue subpoenas but have not yet done so.

   5. I note that Registrar McNamara directed that the parties appoint a single expert to provide an appraisal as to the current market value of the property in China, the cost to be paid by the parties equally. That appraisal was not done.

4. It appears likely that the proceedings will take a week to hear, once the parties manage to get the case ready for hearing. The property proceedings appear to have stalled and there would be little point in sending the parties back to another Conciliation Conference when they have not been able to comply with the directions of the Registrar. The fact that one asset is a property in China is a complicating factor.

5. On the parenting side, Y’s disabilities would appear to require some specialist medical or other evidence. The Independent Children’s Lawyer may be able to assist in this regard. It is interesting, though, that the father sees Y’s disabilities as so great that he cannot cope with having the child in his care for six hours on a Wednesday, as I proposed, whereas the mother did not seem at all concerned that Y should spend time with his father for six hours on a Saturday, which she offered.

6. It is noteworthy, too, that the mother proposes to take Y to China for a holiday with her, although the father claimed that she could not cope with such an enterprise. The mother should have a reasonable idea about what is involved in traveling by air from Sydney to China and back, as she has only recently travelled to China and back by herself, as recently as late October.

7. It is also significant that not only are parties unrepresented, they require the services of an interpreter in the Cantonese language to assist them in Court.

8. As it appears likely that the proceedings will take a week to hear, this matter falls within the protocol between the Federal Circuit Court and the Family Court, which requires that the more complex matters, particularly those that are likely to take more than four days to hear, should more properly be dealt with by the Family Court.

9. I have considered the matters set out in s.39(4) of the Federal Circuit Court of Australia Act 1999 (Cth), including whether the resources of this Court are sufficient to hear and determine the proceeding and, also, the interests of the administration of justice. I have also considered the matters in Rule 8.02 at sub-rule (4).

10. I consider that it is likely that the proceeding will be heard and determined at less cost and more convenience to the parties than if it were not transferred.

11. I commented recently in Gee & Luxford[2] that it is a significant matter that the resources of the Federal Circuit Court, especially in Sydney, are over-stretched at present, with one judicial vacancy in the Sydney Registry remaining unfilled for over two months. Two more judges from this Registry are scheduled to retire in 2016. The Government has not announced the appointment of any new judges to hear family law cases in this Registry. Final hearing dates are extending well into 2017 and the Court does not have the resources to deal with cases that will take more than four days to hear.

    [2] [2015] FCCA 3217

12. I propose to transfer this matter to the Sydney Registry of the Family Court of Australia under the provisions of s.39 of the Federal Circuit Court of Australia Act 1999.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 December 2015