Lukao and Feizhou and Anor

[2013] FamCA 985

FAMILY COURT OF AUSTRALIA

LUKAO & FEIZHOU AND ANOR  [2013] FamCA 985

FAMILY LAW – CHILDREN – Interim Parenting Orders – With whom the children should live – Where the children are very young – Where the children have spent the majority of their lives in the care of the Maternal Grandmother – Where there is no expert evidence as to the relationship between each parent and the children.

APPLICANT: Mr Lukao

RESPONDENT: Ms Feizhou

INTERVENER: Ms Lau

FILE NUMBER: SYC 6622 of 2013

DATE DELIVERED: 2 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 2 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clifford

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENER: Ms Faloon

ORDERS
IT IS ORDERED UNTIL FURTHER ORDER

1. That without prejudice and without admissions and pending further order the wife will give the husband 60 days prior written notice of any intention on her part to interfere with his occupation of the property at I Street, Suburb B.

2. That the children R born … 2010 and C born … 2012 live with the maternal grandmother Ms Lau until further order.

3. That the father spend time with the children between 3 pm and 5 pm on each weekday, he to collect the children from the maternal grandmother at the commencement of that time and to return them to her care at the end of the time.

4. That the maternal grandmother ensure that the children not leave her home in the sole care of the mother.

5. That in the event that the mother becomes anxious, tearful or unusually distressed and/or that the grandmother believes that the mother has been drinking alcohol to excess the grandmother shall remove the children from the mother’s presence and advise the father by telephone that she has done so.

6. That the parties be restrained from removing and/or causing or allowing the children to be removed from the jurisdiction of the Commonwealth of Australia without the written consent of all parties or by order of the Court.

7. That MR LUKAO (“the father”) born … 1984 and MS FEIZHOU (“the mother”) born … 1983 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children R (male) born … 2010 and C (female) born … 2012  (together “the children”) from the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name on the Watch List until further Order of the Court.

8. That the Court notify the Australian Federal Police of these orders.

9. That pursuant to s62G(2) of the Family Law Act 1975 (Cth) (“the Act”) the parties and the said children attend upon Dr A for the purposes of the preparation of a Family Report as a Chapter 15 single expert to be given to the Court and that:

   a.The Family Report address these matters relevant to ss 60CC, 61DA and 65DA of the Act and any other matter that the Family Consultant considers important to the welfare for the best interests of the children including:

   i.The respondent mother’s relevant history (including relevant medical history);

   ii.The respondent mother’ s psychiatric , psychological an emotional health and functioning;

   iii.Any relevant diagnosis for description of their personality, presentation or functioning;

   iv.If appropriate, suggested treatment or management and the likely prognosis; and

   v.Any incidents of the respondent mother functioning that may be relevant to their capacity to parent and meet the needs of their children.

   b.The parties comply with all reasonable directions of Dr A;

   c.That Dr A have leave to inspect the subpoenaed material produced for Court;

   d.That within 7 days the solicitor for each of the parties deliver to the Dr A copies of the following documents:

   i.All relevant applicants, responses and relevant affidavits filed by or on behalf of his/her client in the proceedings; and

   e.In the event it appears that this order is not able to be complied with the parties forthwith notify the Docket Registrar.

10.That each of the parties pay one third of the costs of the preparation of Dr A’s report.

11.That the parties be granted photocopy access to any material produced on subpoena for the purpose of providing that material either to Dr A or to any treating doctor.

12.That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lukao & Feizhou and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:   SYC 6622 of 2013

Mr Lukao

Applicant

And

Ms Feizhou

Respondent

And

Ms Lau

Intervenor

REASONS FOR JUDGMENT

1. Before the Court are parenting proceedings relating to two very small children, R, born in 2010 and now aged three and a half, and C, born in 2012 and now aged seventeen months. Their parents are the applicant, Mr Lukao, to whom I will refer as the father, and the respondent, Ms Feizhou, to whom I will refer as the mother.

2. The maternal grandmother, Ms Lau, is an intervener in these proceedings. All of the parties seek orders that the children live with them. The mother currently lives in the home of the maternal grandmother. 

3. On 18 November 2013, Aldridge J made orders in the absence of the mother that the children live with the father and that the mother have supervised time with the children each Wednesday, Thursday and Friday between 4.00 p.m. and 6.00 p.m. and each Sunday from 10.00 a.m. to 2.00 p.m. Those orders were made in circumstances where the mother had threatened to commit suicide whilst R was in her care. The mother’s suicide threat was made to a general practitioner who is a friend of the father. It was made in writing, that is, by text message, and it concluded with the words:

   When my body is found, please let my family know. Just keep me with my dad in China.

4. The history of these children’s short lives is unusual. They have lived between China and Australia. They have travelled to and lived in China with their maternal grandmother and their maternal grandmother has travelled and lived with them in Australia. 

5. In 2011, R lived in the same residence as his grandmother for almost the whole of the year both in Australia and in China. Neither of the parents spent as much time with R in 2011 as the maternal grandmother did.

6. On 10 January 2012, the grandmother and R travelled to China. On 28 January 2012, R returned to Australia with his mother. And in April 2012, the grandmother came to Australia and lived in the same house as R and the parents. 

7. In May 2012, C was born. In June 2012, the grandmother and R returned to China where they stayed until 11 December 2012 when the grandmother and R returned to Australia.

8. On 28 January 2013, the grandmother and R went to China and on 31 January, both the parents and C travelled to China. The father came back to Australia for two weeks in February and then returned to China and stayed with the family until 23 May 2012. In April 2013, R travelled with his mother in Asia and C remained in the grandmother’s home with her father and her grandmother. 

9. On 23 May 2013, the father returned to Australia. On 21 June 2013, the husband sent a text message to the wife which read as follows:

   I was thinking that it may be a better idea to have both kiddies staying in China until after October. As once you are back we both will be very, very busy working/catching up on the business.

10. The mother travelled to China on 1 October 2013 and stayed there until 5 November. The father went to China between 14 and 19 October. Otherwise, the children remained living with their maternal grandmother. On 5 November 2013, the mother and R returned to Australia and on 17 November 2013, the grandmother and C returned to Australia. 

11. On any view of the history of these children between the beginning of 2011 and the end of 2013, the most consistently present carer for them was their grandmother, who has lived with them for most of their lives. Neither of the parents has spent as much time with these children as their grandmother has. 

12. The children’s home was either in Australia, at D Street, Suburb E or at the grandmother’s residence in China. 

13. After the orders were made on 18 November 2013, the father moved the children to a house at Suburb B where they had never lived. He enrolled C, who had never been in day care, having previously been cared for in her parent’s home or her grandmother’s home, in long day care between 8.30 a.m. and 5.30 p.m. or 6 p.m. every week day. He enrolled R in day care four days each week. 

14. In my view, the father’s actions, in enrolling the children in day care when he was not working and there is no reason that he could not have cared for them himself, displays a serious lack of understanding on his part for the needs of children removed from their familiar home and their regular carers. 

15. There is a further difficulty in that R speaks mainly Mandarin, although he understands some English. The father speaks English and knows only some commands in Mandarin. There is therefore a considerable difficulty in R having communication with his father. 

16. The Court must determine arrangements that best meet the children’s emotional needs while the vexed question of their future care is determined. The parties have agreed that Dr A will see the family in February 2014 to prepare a report for the assistance of the court. 

17. The father’s application is that the children live with him and see their mother each Wednesday, Thursday and Friday for an hour and a half and each alternate Saturday and Sunday from 10.00 a.m. until 5.00 p.m. but that her time be supervised by a child care centre or by the maternal grandmother. The mother seeks the return of the children to her care. 

18. The grandmother supports the mother in her application, but in the alternate seeks an order that she have the care of the children and that they spend time with their father each weekday for two hours in the afternoon. Counsel for the father has indicated that the father can be available to spend time with the children at any time. 

19. It is not disputed that it is in the best interests of these children to have a meaningful relationship with both of their parents. The issue to be determined is how that relationship can best be maintained. 

20. Turning then to the factors to be considered under section 60CC(3), I make the preliminary observation that this exercise is being performed in the absence of any expert evidence or any assistance from a family consultant about these children. The evidence of the husband and the wife and the grandmother is untested but a decision needs to be made.

21. The children are of an age where any views which they expressed would be given little or no weight and in any event neither party suggests that the children have expressed any views. 

22. The nature of the relationships of the children with their parents and their maternal grandmother is a matter for conjecture in the sense that I have no expert evidence. I am left in the position where I have to make an assumption based upon the time that the children have spent with each of these significant adults. 

23. I come to the conclusion that in circumstances where the children have spent more time in the care of the maternal grandmother than either of their parents, it is likely that the children’s primary attachment is to their grandmother. In any event, there is no suggestion on the part of either the mother or the father that the grandmother is not loving and caring towards the children or that the children do not in turn love their grandmother and are comfortable with her. Of all of their relationships, on the basis only of the evidence about the amount of time the children have spent with their significant adults, it is likely, in my view, that it is the relationship with their grandmother that will most sustain them until such time as the Court is in a position to make a final decision. 

24. Dealing with the extent to which the parents have taken or failed to take the opportunity to participate in the children’s lives, I am conscious of the fact that both the mother and the father have made conscious, and one assumes considered, decisions not to live with the children but to have the children cared for by their grandmother in China when they were in Australia. 

25. Similarly, the likely effect of changes in the children’s circumstances, in my view, require me to consider the most significant change in their circumstances being the fact that they have been removed from the day-to-day presence of their grandmother. 

26. The capacity of each of the parents to provide properly for these children in the short-term is in issue before me. On behalf of the father it is asserted, and I accept, that the mother’s mental health issues are untested and need to be the subject of expert evidence. On behalf of the mother it is asserted that the father’s actions in putting the children in long day care in the circumstances in which they came into his care would give the Court serious concern about the appropriateness of his decision-making and his ability to care for their emotional and psychological needs. 

27. In all of those circumstances, I am of the view that these children should live in the care of their grandmother.

28. If the children are to live with their grandmother, I am advised that they will not be placed in day care but would be cared for in their grandmother’s home. 

29. R is due to start preschool at F School at the commencement of the school term in 2014 for three days each week. That is an arrangement which was made by the agreement of both of his parents and, in my view, it is appropriate that that should proceed. 

30. If the children are cared for in their grandmother’s home, they will have the advantage of seeing their father every weekday, as I propose to make orders as suggested by the maternal grandmother, that the father spend time with the children each weekday between 3.00 p.m. and 5.00 p.m. 

31. The grandmother has consented to orders which I consider to be appropriate in relation to the supervision of the children’s time with their mother and I propose to make those orders. 

32. There is a further financial matter which has been ventilated by the parties in relation to the father’s continued occupation of a property in Suburb B. The parties have not agreed on orders which should be made but Counsel for the wife does not wish to oppose the making of the orders which are proposed by the father and I propose to make those orders.

33. An issue arises about the payment for Dr A’s reports. The father seeks an order that the mother pay for the report. The mother and the maternal grandmother propose that the parties each pay one third of the cost of the report. I note that the father is living rent-free in a property which belongs to the mother. He says that he has some $30,000 available to him and he gives no evidence about why he cannot undertake gainful employment. In those circumstances, I am of the view that the parties should pay equally for the costs of Dr A’s report.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 December 2013.

Associate: 

Date:  2 December 2013