Lorde and Chu
[2014] FCCA 3035
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LORDE & CHU | [2014] FCCA 3035 |
| Catchwords: FAMILY LAW – Mother’s application to travel to her country of birth (China) with the two children of the relationship – application opposed by Father – Father had agreed in 2012 to the Mother and children travelling to China – the Mother and children had returned to Australia from that earlier trip – the Mother now an Australian citizen. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC(2)(a), (3)(b) |
| Gin & Hing [2010] FamCA 617 Kaur & Kaur [2014] FCCA 2843 Kuebler & Kuebler (1978) FLC ¶90-434 Lorde & Chu [2014] FamCAFC 228 Line & Line (1997) FLC ¶92-792 Mazorski v Albright (2008) 37 Fam LR 518 Renton & Stapleton [2014] FCCA 1598 Thomason & Malhotra [2010] FamCAFC 85 Travis & Weaver [2014] FCCA 1279 |
| Applicant: | MR LORDE |
| Respondent: | MS CHU |
| File Number: | CAC 478 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | Determined on submissions |
| Date of Last Submission: | 15 December 2014 |
| Delivered at: | Canberra |
| Delivered on: | 19 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Self represented |
| Solicitor/Advocate for the Independent Children’s Lawyer: | Mrs C Naidu |
| Solicitors for the Independent Children’s Lawyer: | Claire Naidu & Co, Canberra |
ORDERS
The children [X] (DOB [omitted] 2008) and [Y] (DOB [omitted] 2012) (“the children”) are permitted to travel with the Mother to the People’s Republic of China from 17 January 2015 to 17 March 2015.
The Mother pay a security bond to a solicitor’s trust account of $2,500 with the following to occur:
(a)The monies to be returned to the Mother upon her return to Australia on 17 March 2015 and confirmation that the children’s passports have been returned to the Family Law Courts Registry in Canberra; or
(b)If the Mother fails to return on 17 March 2015, the Father may apply to the Court for the monies to be released to the Father.
The Mother ensure that the Father is provided with:
(a)A detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travel, and details of accommodation for the entire period of travel (including, if applicable, the name of the accommodation venue, address and telephone and email contact details);
(b)A copy of the pre-booked tickets for the departure and return flights; and
(c)Details of an email address and telephone number at which the children can be contacted during the trip.
(d)Copies of updated immunisation records for both children showing compliance with immunisations for the children for travel to China as recommended by the children’s General Practitioner.
For the period the mother is away, that the Mother provide to the Father a telephone number for the Father to call the children on Mondays and Thursdays (or other such days as agreed between the Mother and Father.
Within 48 hours of the Mother’s return to Canberra, the Mother shall return the passports to the Canberra Registry of the Federal Circuit Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Lorde & Chu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 478 of 2012
| MR LORDE |
Applicant
And
| MS CHU |
Respondent
REASONS FOR JUDGMENT
Procedural History
The following reasons have been revised from the transcript of the brief oral judgment, which was one of 12 such judgments delivered on 19th December 2014. The revision is essentially to provide relevant context; it is confined to the provision of the more recent procedural history or chronology of the matter, most of which was outlined to the parties (and the independent children’s lawyer – “the ICL”) when the matter was before the Court on 3rd December 2014.[1]
[1] See Transcript (3rd December 2014) pp.3-4.
The Mother filed an Application in a Case on 3rd April 2014 seeking an order that the children ([X], born [omitted] 2008 and [Y], born [omitted] 2012) be removed from the airport watch list.
On 31st July 2014, the Court noted that the parties intended to engage in settlement negotiations; the matter was adjourned to 3rd September 2014.
On 3rd September, with the Mother and the ICL attending but with no appearance by the Father, the Court made orders (a) for the filing of affidavits and written submissions regarding outstanding parenting and property matters, (b) that the Mother be permitted to China with the children, conditional upon her providing copies of the relevant itinerary, return [airline] tickets, and the provision of a bond of $2000, and (c) upon compliance with that order, the children would be removed from the airport watch list.
On 18th September 2014, the Father filed an Application seeking, among other things, that the children remain on the airport watch list.
On 24th September, the procedural orders of 3rd September regarding the filing of affidavits and submissions were vacated and the matter adjourned to a date to be advised, pending the outcome of the appeal that had been filed by the Father.[2]
[2] As something of an aside, as at 24th September, the Father had on foot 9 separate applications.
The Father successfully appealed orders that were made by this Court in his absence, notwithstanding that he was aware of the court date when the impugned orders were made. The Full Court’s reasons and orders are dated 27th November 2014.[3]
[3] See Lorde & Chu [2014] FamCAFC 228.
Following certain disclosures made by one of the children to the ICL regarding the Father, the ICL filed an Application in a Case on 3rd November 2014 by which she sought orders that the Father’s time with the children be suspended, and that he only spend time with them supervised at a nominated “contact centre.”
On 4th November, the Father filed an Application in a Case (plus a contravention application) in which he sought that the ICL be “dismissed” on the grounds which I took to be apprehended bias.
I should also note that in the Father’s material filed on 4th November he included a copy of a “heads of agreement”, entered into with the Mother dated April 2012, by which he permitted the Mother and the children to travel to China.
On 6th November, the Mother filed an Application in a Case in which she sought orders to vary the existing parenting orders, including that the Father’s time with the children be supervised at a nominated “contact centre”.
On 7th November, with both parties and the ICL having made submissions firstly on the recusal application, then in relation to the ICL’s Application to suspend the Father’s time with the child, and that his time with the children be supervised at a contact centre, I made orders (a) dismissing the recusal application, and (b) granting the ICL’s application. On this occasion I also ordered that there be a further report pursuant to s.62G of the Act, which is to include full psychological assessment and psychometric analysis of both of the parents. Finally, I also ordered that written submissions be provided in relation to the costs of the Applications dealt with on that date. Submissions were provided by the ICL on 14th November and by the Father on 18th November 2014.
So far as I am aware, there has been no challenge to the orders made on 7th November 2014. This is so notwithstanding that the Father contended that the hearing and orders made on 7th November was, he said in his written submissions, “harsh”, “unfair” and was based on “misleading information”; he said that he planned to appeal the orders.
On 27th November, the Father filed a Form 4, Notice of Child Abuse, Family Violence or Risk of Family Violence.
On 1st December, the Father filed a further Application in a Case in which he sought orders to have the Mother’s Application to have the children removed from the airport watch list dismissed.
On 2nd December, the Mother filed an affidavit in which she set out the reasons why she sought to travel with the children to China. This brief affidavit effectively constituted the Mother’s submissions for her travel application with the children. For ease of reference, and as confirmed in Court on 19th December, it should be taken to be incorporated into these reasons. The easiest means by which this can occur is to have it scanned and formally appended to these reasons (Appendix A).
The Remitted Hearing of the Mother’s Travel Application
One of the Full Court’s orders of 27th November was that the Mother’s Application in a Case be remitted to this Court “for rehearing … with all possible expedition.” This occurred on 3rd December 2014.
On that occasion, orders were made for the filing of written submissions, and in relation to the Mother being permitted to apply for passports for the children without first obtaining the Father’s consent for so doing. This order arose from the Father disclosing for the first time that he had cancelled the children’s passports in 2012.[4] It is convenient to set out in full the orders made on 3rd December 2014:
[4] See the discussion at Transcript (3rd December 2014) pp.9 – 11.
1) The Applicant Mother, Ms Chu, may apply for passports for [X] (DOB [omitted] 2008) and [Y] (DOB [omitted] 2012) (“the children”) without first obtaining the consent of the children’s father, Mr Lorde.
2) In the absence of the Father’s signature on the passport applications for the children, and to the degree that it is necessary, the Registrar of this Court is immediately authorised to sign the passport application for each of the children in place of the Father pursuant to s106A of the Family Law Act 1975.
3) The Court requests that the children’s passports issue at the earliest date possible.
4) In accordance with s 67ZD of the Family Law Act 1975, upon issue, the children’s passports are to be released to and held by the Federal Circuit Court Canberra Registry and will not be released unless:
a) The Court Orders the release of the passports; or
b) Written and signed consent by both parents is provided to the Court.
5) The parties and the Independent Children’s Lawyer are to file no more than 3 pages of written submissions regarding:
a) The children’s names being removed from the Airport Watchlist; and
b) The application by the mother to travel overseas with the children between the dates of 17 January 2015 and 17 March 2015.
6) The written submissions in accordance with Order 5 above are to be filed with the Registry by midday 12:00pm on Friday 12 December 2014 and are to be served on all other parties.
7) Parties are not to file any additional affidavit material between the date of these Orders and a future date to be advised, unless they have sought and received the leave of the Court.
8) The Mother be at liberty to apply for the Certificate of Citizenship, without the Father’s consent, for [X] (DOB [omitted] 2008) and the Court requests this to issue at the earliest date possible.
AND THE COURT NOTES THAT:
A. The Respondent Father, Mr Lorde, cannot and will not agree to sign the passport applications for the children, or to provide a copy of [X]’s Certificate of Citizenship.
In the light of recent events, for more abundant caution, I confirmed with Mr Lorde that he understood what was required in relation to the provision of written submissions regarding “the travel issue”, which necessarily included dealing with the children remaining – or not – on the airport watch list. He confirmed that he understood the Court’s proposed course of action to proceed by way of written submissions.[5]
[5] See T 8.
The Reasons of 19th December 2014
The matter was called twice; only the legal representative of the ICL attended.
In view of the limited issues for determination, and because of the provision of written submissions, the Court can be even more abbreviated with its reasons.
Firstly, that I incorporate the submissions of the Father and the ICL. For ease of reference, they will be Appendix B and C respectively to these reasons.
Secondly, I note that in her recent email correspondence with the Court, the Mother simply confirmed that she had really nothing more to say. I take this to be confirmation of the matters set out in her affidavit, filed on 2nd December 2014.
Formally, subject to some very brief further comment noted shortly, I accept and adopt the submissions of the ICL as the reasons of the Court. In addition to those submissions, I would only note and adopt also the comments of Judge Brown in Kaur & Kaur [2014] FCCA 2843 at paragraph 78 to 84, where his Honour refers, in particular, to the benefits to children of being able to travel to the cultures of their parents.
The Father does not acknowledge or deal with his written agreement, in which he allowed the mother to travel to China with the children in 2012. Unfortunately, because his submissions are (a) so generalised in relation to the risks of children travelling overseas, and (b) replete with reference to many matters which date from 2007 and earlier, I do not see how such matters relevantly assist the Court. One example among many from the Father’s submissions will suffice.
At the seventh dot point on page 2 of Mr Lorde’s submissions, he said: “Since 2009, on many occasions, Ms Chu has been verbally threatening to me, kill my children or kill herself. How then, I guarantee the safety, health and safe return of my children this time?”
In relation to this and similar comments, I simply note that (a) notwithstanding his grave concerns about his welfare and the welfare of the Mother and the children, the parties had another child in 2012, and (b) the Mother and the child (or children) have travelled to China twice (most recently in 2012) and have returned on each occasion.
As already noted, I accept and adopt the orders of the ICL, very slightly amended: the amount to be paid by way of security will be $2500.00, not the amount of $3000.00 as sought by the ICL.
The Court so orders.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 9th January 2015
0
2
2