LIAO & HANSLEY
[2011] FamCA 348
FAMILY COURT OF AUSTRALIA
| LIAO & HANSLEY | [2011] FamCA 348 |
| FAMILY LAW – CHILDREN – Application for removal of child from Australia – Where mother seeks orders which would enable her and the child to travel to the Peoples Republic of China for one month – Whether there is an unacceptable risk of non-return – Where China not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction – Considerations of best interests including entitlement of child to share in mother’s cultural heritage – Where child is a citizen of Australia – Where risk of non-return is low – Where it is in the best interests of the child to travel with the mother – Where it is appropriate for the mother to provide security $40,000 – Application for travel allowed. |
| Family Law Act 1975 (Cth) ss 60CC, 65Y |
| Johnson & Page (2007) FLC 93-344 Kwon & Lee (2006) FLC 93-287 Line & Line (1997) FLC 92‑729 N and S (1996) FLC 92-655 Quoc & Quoc [2007] FamCA 1126 Thomason & Malhotra [2010] FamCAFC 85 |
| APPLICANT: | Ms Liao |
| RESPONDENT: | Mr Hansley |
| FILE NUMBER: | SYC | 4887 | of | 2009 |
| ORDERS MADE: | 22 August 2011 |
| DATE DELIVERED: | 23 August 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 12 August 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | Anne Day & Assoc |
| COUNSEL FOR THE RESPONDENT: | Mr Wong |
| SOLICITOR FOR THE RESPONDENT: | Armstrong Legal |
Orders made 22 August 2011
The applicant mother is permitted to remove the child, B born … January 2006 from the Commonwealth of Australia for travel to the Peoples Republic of China between 16 September 2011 to 17 October 2011.
During the period the child is in the Peoples Republic of China, the child have telephone communication with the respondent father via mobile phone or Skype daily between the hours of 11.00 am to 12.00 noon Sydney time.
Within 72 hours the father shall deliver to the mother’s solicitor a duly executed Application for an Australian Passport for the child, B born … January 2006.
In the event the father fails to comply with Order 3 the mother is authorised to obtain an Australian passport for the child without the father’s consent.
No later than 10 September 2011 the mother shall deposit the sum of forty thousand dollars ($40,000.00) with her solicitors, which funds are to be held in a controlled monies account pending further order or until 19 October 2011, whichever first occurs.
Upon receipt of the mother’s deposit the mother’s solicitor shall immediately give the father’s solicitors written notice that the funds are held by her.
Provided the child is returned to Australia by 17 October 2011 the funds deposited by the mother pursuant to Order 5 shall be returned to her. In this regard the child’s return shall be evidenced by the mother personally producing the child’s Australian passport to her solicitor in which his return to Australia is recorded.
In the event the child does not return to Australia by 17 October 2011, the father has liberty to apply on eight (8) hours notice to the mother’s solicitor and by arrangement with the Court for the release to him of some or all of the funds held by the mother’s solicitor.
That Order 1 dated 25 August 2009, as well as any other prior order made in relation to the child which would restrict the mother’s capacity to remove the child from the Commonwealth of Australia during the period 15 September 2011 until 18 October 2011 is suspended during that period.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Costs are reserved to the trial.
IT IS NOTED that publication of this judgment under the pseudonym Liao & Hansley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4887 of 2009
| Ms Liao |
Applicant
And
| Mr Hansley |
Respondent
REASONS FOR JUDGMENT
These proceedings concern an application by Ms Liao (“the mother”) that she be permitted to remove B, born in January 2006 (“the child”) from the Commonwealth of Australia to travel to the Peoples Republic of China between 16 September 2011 and 17 October 2011.
The application is opposed by Mr Hansley (“the father”).
Background facts
The father was born in Australia in March 1962. He has a business in Southern Sydney.
The mother was born in China in 1962. She works in a professional occupation.
In 1999, the mother arrived in Australia for one month on a visiting scholarship.
The mother returned to Australia in 2001 on a post graduate scholarship. She graduated in 2003.
The parties met in Sydney in May 2003.
In November 2003, the mother returned to China.
During 2004, the father travelled to China to visit the mother.
The parties were married in China in 2004. After the marriage the father returned to Australia and the mother remained in China until February 2005, at which time she came to Australia to join the father. They resided in a suburb south of Sydney in NSW.
In January 2006, the child was born.
During the marriage the mother travelled with the child to China on three separate occasions, in 2006, 2007 and 2008. On the first two occasions the father accompanied the mother during part of her trip, both of which lasted just over 1 month. The last trip was for a period of three months.
The parties separated and the mother and the child left the family home on 9 August 2009.
The mother and the child travelled to Brisbane and stayed with the mother’s sister
On 10 August 2009, the father was charged with assault and served with an Apprehended Domestic Violence Order (“AVDO”).
On 8 September 2009, interim consent orders were made by this Court, which relevantly recorded the mother’s agreement that she return the child to Sydney. Before she returned, the father was required to pay her a lump sum (for housing and set up costs). He remained in occupation of the former matrimonial home.
On 12 and 13 September 2009 and 10 and 11 October 2009, the father spent time with the child in Brisbane.
On 15 October 2009, the mother and the child returned to Sydney.
On 27 October 2009, the assault charge and the ADVO were heard in a local court and the father was found not guilty. The ADVO was dismissed.
On 25 November 2009, interim consent orders were made by this Court which provided, inter alia, that the parties have equal shared parental responsibility, that the that the child live with the mother and spend time with the father, and that the father have telephone contact with the child. The time the father spends with the child was varied by orders made on 28 March 2011.
Between 25 November 2009 and the present, the child has spent time with the father in accordance with the orders.
On 7 October 2010, the parties divorced.
Final parenting and property settlement applications are listed for hearing in February 2012.
The Mother’s Evidence in Chief
In her affidavit filed 25 July 2011, the mother states that her mother, who is 80 years old, is ill suffering from diabetes and coronary heart disease and is thus unable to travel to Australia. The mother and the child have not seen the mother’s mother for three years.
The mother’s brother and one of her sisters and their respective families also live in China and the mother would like the child to spend time with his extended family.
The mother also feels that the child “would benefit from regular visits to China to experience Chinese culture and history”. The child is learning Mandarin at his school and the mother considers his “Chinese heritage to be important to him and his confidence”. She believes there are “many benefits in an awareness of Chinese culture, tradition and lifestyle”.
The mother also believes that the father does not adequately support the child’s Chinese heritage. Although the father has a half sister who is half Chinese, she is not in contact with his family.
The mother has provided details of her itinerary and has made (return) reservations with the airline. She has provided contact details of her mother’s residence in City C where the mother and the child would stay while in China.
The mother has a contractual arrangement for a business opportunity due to be launched in Sydney on 14 November 2011. For the mother to honour her contractual obligations it is necessary that she make the proposed trip to China.
The mother is currently enrolled in a TAFE course which is due to be completed at the end of this year. From the father she receives child support but not spousal maintenance. Her income is modest and other than modest cash at bank according to her she has few assets. There is an issue about whether she has undisclosed assets which will be discussed later.
The Father’s Evidence
The father, in his affidavit filed on 9 August 2011 in support of his response to the mother’s application, deposes that the mother has made unilateral decisions concerning the child. On the day the parties separated the mother took the child to Brisbane to stay with her sister without the father’s knowledge. The father also deposes that the mother did not comply with the first interim consent orders made by the Court on 8 September 2009, requiring the mother and the child to move to the Suburb D area 28 days after the father deposited $20,000.00 into the mother’s bank account, and for the mother to enrol the child into a Suburb D pre-school as agreed. In this regard the mother concedes she was one day late. In my view, nothing turns upon her late return.
It is the father’s evidence that, during the mother and child’s third trip to China in 2008, the mother applied for the child’s visa to be extended by six months without the father’s knowledge or consent. Once the extension was granted the mother advised the father that they would not be returning on the planned date but would be staying in China for a longer period of time.
The father contends that while the mother was in China, she enrolled the child in child care for 5 days a week without the father’s knowledge. She also employed a nanny and on at least two occasions over a weekend left the child in the care of relatives while she attended business trips.
The father deposes that since their separation the mother spoke with him about going to China. It is clear there have been numerous discussions about the mother’s desire to visit China with the child. When all the evidence on this topic is considered, it is not established that the mother sought the father’s permission or indicated she wanted to take the child to live in China.
The father claims the mother has substantial undisclosed financial interest in China. In support of this claim he provides copies of numerous documents including:
a)what is alleged to be a copy of a lease agreement between the mother and another person which has not been translated into English;
b)business cards not translated into English;
c)a rental contract for a flat which is largely untranslated and allegedly signed by the mother;
d)an email from what is alleged to be the mother’s email address to another person dated 28 January 2009 regarding arrangements for a business deal;
e)a chain of emails between the father and the mother dated 26 - 29 December 2003 in which the mother states that when the father joins her in Beijing “we stay our own apartment”;
f)a Citibank statement for the period 1 October 2004 – 29 October 2004 in the name of Ms Liao detailing accounts in Australian and US dollars with a total (equivalent) balance of $311,709.00;
g)a HSBC statement for the period 12 November 2007 to 12 December 2007 in the name of Ms Liao detailing accounts in Australian and US dollars with a total (equivalent) balance of $23,963.00;
h)11 handwritten pieces of paper dated in 2003 with the words (or similar) “$280.00 Rent Payment for 2 weeks [Liao] from [date] to [date] Payee Signature: [signature]”;
i)a Citibank statement for the period 1 February 2006 – 28 February 2006 in the name of Ms Liao detailing accounts in Australian and US dollars with a total (equivalent) balance of $308,880.00;
j)a Citibank statement for the period 3 July 2005 – 31 August 2005 in the name of Ms Liao detailing accounts in Australian and US dollars with a total (equivalent) balance of $300,708.00;
k)a Citibank statement for the period 01 July 2006 – 31 July 2006 in the name of Ms Liao detailing accounts in Australian and US dollars with a total (equivalent) balance of $40,263.00;
l)a chain of emails allegedly between the mother and Mr E regarding a commercial property near F Town that had been purchased by the mother that could be converted into an exhibition space;
m)photographs the father claims the mother said are of the property located in F Town;
n)a document/letter from the mother to a Mr G detailing bank account and rental information;
o)a handwritten piece of paper dated 12/7/2008 that appears to be a receipt for three months rental for July, August and September 2008 with what appears to be the mother’s signature;
p)a typed note to “Ms H” from the mother detailing the rental due and the account details the rent is to be paid into; and
q)photographs of what the father claims to be a unit in City C that the mother has or had an interest in.
Relevant Law
Section 65Y of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1)If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).
(2)Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
(b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).
It is an offence punishable by a maximum of up to three years imprisonment under the Act for a parent to remove a child to any place outside Australia without the consent of the other parent pursuant to an order.
An order made under s 65Y(2) is a not parenting order. An order to permit overseas travel involves an aspect of parental responsibility and is a parenting order. Thus, the child’s best interests are the paramount consideration.
Section 60CC sets out the mandatory factors for determining what is in a particular child’s best interests. The primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect him or her from physical or psychological harm, abuse, neglect or family violence (s 60CC(2)). Section 60CC(3) lists 13 additional considerations. The most relevant of these for present purposes are: the nature of the child’s relationship with each parent and others including grandparents and relatives (s 60CC(3)(b)); the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship with the other and the child (s 60CC(3)(c)); the likely effect on the child of any separation from either parent (s 60CC(3)(d)); the background of the child and of the child’s parents, including culture and traditions (s 60CC(3)(g)); the attitude to the child and parental responsibilities demonstrated by each parent (s 60CC(3)(i)) and the preferability of making an order least likely to lead to further litigation (s 60CC(3)(l)). Section 60CC(4), which requires the court to consider, inter alia, the extent to which the child’s parent has facilitated the other parent spending time with the child, is also relevant.
In cases such as this, when the Court is exercising it supervisory jurisdiction with respect to parenting orders and overseas travel, the Court must weigh, inter alia, the benefit of overseas travel with a parent against the relative risks involved, in particular the risk of non-return of the child.
The factors to be considered in assessing the risk of non-return from overseas travel were discussed by the Full Court in Line & Line (1997) FLC 92‑729:
4.47 The fixing of an appropriate level of security in circumstances such as these is always a delicate matter, and one very much for the discretion of the trial Judge. However, in exercising that discretion we consider that a trial Judge should have regard to a number of relevant matters. Some of the matters we will now identify have been already highlighted by Asche SJ in Kuebler v Kuebler (1978) FLC 90-434. We think it timely that we again draw attention to those matters and others we believe to be appropriate.
4.48The first of those matters to which the trial Judge should have regard is the purpose of such security, in respect of which we adopt, with respect, the two-fold purpose referred to in the submissions of counsel for the husband and set out in paragraph 4.42 above namely:
(a) to provide a sum which will realistically entice the person removing the children to return; and
(b) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
4.49The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
4.50We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”). However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.
4.51Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.
It is not necessary, however, to refer to and discuss each and every one of the “factors” systematically as if they were provisions contained in a statute (Thomason & Malhotra [2010] FamCAFC 85 at paragraph 50).
Application of the law to the facts
The child has Chinese and Australian heritage. Culture and cultural identity are important best interest considerations. Although the child will experience his Chinese heritage and culture though the time he spends with his mother, it is also important that he experience his mother’s home county and its culture and to spend time with his extended family. With his maternal grandmother’s ailing health this can only realistically be achieved through the child travelling to China.
However those considerations must be weighed against the child’s need for a meaningful relationship with both parents. Presently this is reflected in interim parenting orders that provide for equal shared parental responsibility and for him to regularly spend time with his father on the available evidence. It would not be in the child’s best interest for him to remain in China indefinitely, if the mother decided not to return. He would not only loose contact with his Australian identity but more importantly he would loose contact and not be able to maintain a meaningful relationship with his father – see Family Report dated 20 June 2011. This risk would be avoided if the mother travelled alone to China or she remained with the child in Australia.
Whether there is an unacceptable risk of the mother remaining with the child in China longer than the proposed five weeks is a pivotal issue. The Full Court in Johnson & Page (2007) FLC 93-344 quoted with approval the following extract from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 on the question of how the Court is to determine an unacceptable risk:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. China is not a common law jurisdiction and therefore any assumption that a child recovery dispute will be dealt with in the country in which the child was habitually resident before abduction does not apply (see discussion in Quoc & Quoc [2007] FamCA 1126 paragraphs 90-97).
Neither party provided evidence in relation to private family law in China. The operative presumption, therefore, is that in China the law in relation to failure to comply with foreign parenting orders and the non-return of a child to his or her country of origin in accordance with orders (where that country is a non-Convention country), is the same as the law in Australia. In relation to the applicable law in Australia, the issue would be decided in accordance with the child’s best interests (see Kwon & Lee (2006) FLC 93-287) which I must infer would be the ultimate determinant in China.
The presumption does not require that I must proceed upon the basis that the litigation process is the same as it is in Australia. I, accordingly, accept that a person who is neither a Chinese national nor resident would encounter greater difficulty managing the litigation process in China than someone who was present in China and fluent in the language.
The father has another child by a former partner. After he and the child’s mother separated, the child lived with her. She is an American citizen as a consequence of which their child held Australian and American citizenship. When she sought that he sign an application for an Australian passport for their child so that they could visit her parents at Easter 2001, he refused and it was necessary for his former partner to apply to the I Town Local Court for an order that the passport be issued notwithstanding the father refused to sign. An order was granted and the child and his mother visited and returned from America as planned.
The significance of this evidence as I understand it, is that the mother says that the father was unnecessarily concerned and controlling about the issue of overseas travel with his former partner and child and is similarly controlling and misjudges her intentions about the subject child.
In her affidavit filed 11 August 2011, the mother answered and put into a clear context virtually all matters raised by the father as being indicative of an unacceptable risk she may not return with the child. It is her evidence that in relation to her December 2008 visit with the child to China, because of the Beijing Olympics, that visas for non-Chinese citizens were harder to obtain. The child is an Australian citizen and was granted a 60 day visa. While the mother was in China the parties discussed that the father join them. He decided against this and suggested that the family visit China in 2009. Thus, as an extension on the child’s visa was required in any event, and rather than apply twice, the mother obtained a longer visa which would have covered another visit to China in the first half of 2009. In the event the 2009 visit to China did not occur.
Prior to the parties’ separation and in order to maintain her book publishing connection with China, it was necessary for the mother to return to China annually. Thus, with the father’s knowledge, she purchased two tickets for her and the child to visit China in September 2009. In the context of their failing marriage, the father withheld his consent and, to ensure that the mother could not leave with the child, took the child’s Australian passport. Without success, the mother sought the father’s parents’ assistance to persuade him to permit the 2009 visit.
It is the mother’s unchallenged evidence that China does not accept dual citizenship. According to her, it has been open to her to obtain a Chinese passport for the child but she has not done so. She says she is unwilling to relinquish the child’s Australian citizenship. I accept her evidence.
Perhaps the most troubling aspect of the father’s evidence in relation to the risk the child may not return, is evidence he gives about a conversation with his cousin, Mr J, a few days before the parties separated. Although the mother filed an affidavit in reply to the father’s affidavit, she did not deny or explain this conversation. According to her counsel, it was unnecessary for her to respond to hearsay evidence. I do not agree and I infer that in this regard, put simply, the father recounts a conversation in which his cousin informed him that in the preceding week the mother asked him to witness her signature on an application for a lost or stolen passport for the child. He obliged and later informed the father. I infer the trip to China the mother discussed with the father’s cousin is the 2009 annual work trip about which the father was aware and in relation to which the mother asked his parents to intervene. The mother was poorly advised. It does not follow that she planned to remove the child from Australia, or to retain him in China. It signifies no more than she contemplated taking the planned trip even if the father maintained his obligation. This is consistent with the information the father obtained from the child’s kindergarten in 2009 that the mother informed them “… she is planning to go on a holiday with him in September”.
Counsel for the father emphasised the reasonably significant sums of money which moved through accounts in the mother’s name in 2002-2005. Essentially, the mother explained that these funds belonged to her mother (albeit some accounts which the mother cannot recall. Some funds were deposited pending the mother being granted permanent residence in Australia, at which time the money was returned to the mother’s mother. The mother agreed she and the father discussed the idea that they purchase a property in Australia with the mother’s mother. Other than the identification of a possible property the transaction did not proceed and the putative $1 million which the mother said would be advanced by her mother did not materialise. This failed idea is an insufficient evidential foundation for a finding that the mother’s mother has at least $1 million available. However, the sums involved in these transactions involved a considerable amount of money and persuade me that the mother’s mother has not inconsiderable assets.
With her brother the mother acquired a half interest in an apartment which she says, she transferred to her brother as reimbursement for expenses he incurred from a failed business venture with the father. Although she says she relinquished her interest in 2008, she was clearly in correspondence with the tenant in 2009 to whom she gave directions about payment of rent. In a similar vein, it is her evidence that in relation to a property at K Town she signed a tenancy agreement on her mother’s behalf.
Some of the transactions referred to in the father’s Notice to Admit Facts occurred when the mother was in China and thus her explanation she attended to these property matters on her mother’s behalf is plausible. I treat with greater caution her evidence in relation to the 2009 email correspondence with the tenant of the unit she acquired with her brother and proceed on the basis she may have a legal (not necessarily an equitable) interest in that unit. In short, I am not satisfied this is a valuable asset.
There is another unit referred to in the father’s evidence. As a consequence of the mother’s work she had an employee based right to the company’s “work-unit”. Because she was unable to return to China in 2009, the mother resigned. As a consequence, the company explained “the work unit reserves its right to repossess the property at any time in order to distribute the right of the usage to the employee with urgent needs”. I infer that the effect of this is the mother is no longer entitled to use that unit.
Notwithstanding the father’s concerns, I am satisfied the mother has strong ties to Australia which she does not intend to relinquish. She has permanent residence which she also does not intend to relinquish. She regards highly the child’s Australian citizenship which the evidence indicates she is highly unlikely to compromise. She has not applied for him to obtain citizenship of the Peoples Republic of China and almost certainly will not.
The mother’s connection to Australia was established before she met the father and the failure of their relationship does not suggest she would abandon the life she has made for herself and the child in Australia.
Although the mother’s mother and two of her siblings and their families live in China, the mother also has a sister who resides in Brisbane who she visits annually and who visits her in Sydney. Thus, while I accept she has strong family ties to China, she also has strong family ties in Australia that the evidence indicates she is unlikely to relinquish.
The mother has skills which enabled her, from 1984, to work with the Chinese company already mentioned. In order to maintain her relationship with that company the mother was required to return to China annually. Whilst she lived in Australia, through that company, the mother marketed a product that was produced in China for sale in Australia. As was already mentioned, because the mother was unable to return to China in 2009 she resigned. She has, however, worked on marketing another product. I accept that unless the mother is able to make the proposed forthcoming trip to China, she will be unable to fulfil her contractual obligations for the products release. Thus, in addition to being able to spend time with her ailing mother, there is a pressing contractual and professional necessity for the mother to make this trip and to return by 14 November 2011.
Based on the evidence before me I am satisfied that the risk that the mother might not return with the child from China is low.
Conclusion
I am not satisfied it is in the child’s best interest for the mother to travel to China on this occasion without him. He is not used to prolonged separation from her and may well be worried about the possible significance of her travelling to China without him. In addition, it is important for his cultural identity that he is given the opportunity to immerse himself in the Chinese culture and replenish his relationship with his maternal relatives resident in China.
Although I am satisfied the risk the mother might not return the child to Australia is low, it is appropriate that she provides security for the child’s return. The mother said the Court would accept that she is motivated to return for the reasons already discussed, as well as to secure a property settlement. In this regard, on the information presently available the mother has reasonable grounds to anticipate that a property settlement order may well be made in her favour. If she failed to return with the child the impediments to her securing an advantageous property settlement would, I accept, be very low. Nonetheless, a fund should be established which provides additional motivation for the mother’s return and, in the event she fails to return the child, could be immediately released to the father. While the father is the sole registered proprietor of the former matrimonial home and operates his own business, he may find it difficult to immediately access funds for legal costs and to travel to China to secure the child’s return. The $40,000.00 security conceded by the mother is, in the circumstances, an appropriate and adequate sum. In relation to the provisions for security, the orders are self-explanatory.
To avoid logistical problems with the PACE alert system, provision is made for its suspension one day either side of the planned travel.
These orders I am satisfied are in the child’s best interests.
I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 August 2011.
Associate:
Date: 23 August 2011
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