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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LIAO & HANSLEY [2011] FamCA 348
Case: [2011] FamCA 348
Decision Date

CaseChat Overview and Summary

In *Liao & Hansley*, the Family Court of Australia considered an application by the mother, Ms Liao, for orders permitting her and the child, B, to travel to the People's Republic of China for one month. The father, Mr Hansley, opposed this application. The core of the dispute revolved around the potential risk of the child not returning to Australia, particularly given that China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

The court was required to determine whether there was an unacceptable risk of the child not being returned to Australia. In making this determination, the court had to consider the best interests of the child, as mandated by section 60CC of the *Family Law Act 1975* (Cth). This included assessing the child's entitlement to share in the mother's cultural heritage and the fact that the child is an Australian citizen.

Justice Ryan found that the risk of non-return was low. The court considered the mother's established ties to Australia, including her ongoing TAFE course and a business opportunity scheduled for mid-November. Furthermore, the court acknowledged the benefits for the child in experiencing his Chinese cultural heritage and spending time with his maternal grandmother, who was too ill to travel. To mitigate any residual risk, the court ordered the mother to deposit $40,000 with her solicitors, to be held in a controlled monies account pending the child's return to Australia.

The court ultimately allowed the application for travel, ordering that the child could travel to China between 16 September 2011 and 17 October 2011. The orders also stipulated daily telephone communication between the child and the father, and required the father to provide consent for the child's Australian passport. The deposited funds were to be returned to the mother upon the child's return by the specified date, with provisions for the father to apply for release of the funds should the child not return.

Orders