LUKAO & FEIZHOU

[2013] FamCA 1058

FAMILY COURT OF AUSTRALIA

LUKAO & FEIZHOU [2013] FamCA 1058

FAMILY LAW - INTERIM CHILDREN & PROPERTY – Where the husband made an application for a number of orders concerning the children and property orders – Where the matter commenced on an undefended basis but where the wife later appeared in court – Where there are concerns about the wife’s mental health and a consequent risk to the children – Where the court made orders that the children live with the father pending further order – Where the wife’s solicitor asked the court to reconsider the orders made earlier – Where the court  declined to vary the orders made except in relation to the time the children spend with the mother and maternal grandmother during the brief adjournment before the matter is next before the court.

Family Law Act 1975 (Cth)

APPLICANT: Mr Lukao

RESPONDENT: Ms Feizhou

FILE NUMBER: SYC 6622 of 2013

DATE DELIVERED: 18 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 18 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Marks Griffiths & Bova Solicitors

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

1. That leave is granted for this matter to proceed today on an ex parte basis.

1. That, pending further order, orders are made in accordance with paragraphs 1-5 inclusive and 7 and 8 of the Minute of Order initialled by me and dated today, as set out herein:

   1.That the children R born on … 2010 and C born on … 2012 live with the Applicant husband until further order. 

   2.That the children R and C spend supervised time with the Respondent mother until further order of the Court.

   3.That the Respondent wife 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 the Applicant husband or by order of the Court.

   4.That the Australian Federal Police place and retain the name of R on the Airport Watch List in force at all points of arrival and departure of the Commonwealth of Australia and maintain his name on the Watch List until 31 December 2015.

   5.That the Australian Federal Police place and retain the name of C on the Airport Watch List in force at all points of arrival and departure of the Commonwealth of Australia and maintain her name on the Watch List until 31 December 2015.

   7.Until further order that the Applicant husband be granted exclusive occupation of the property situate at I Street, Suburb B registered in the wife’s name being the whole of the land contained in Folio Identifier … and the Respondent wife pay all outgoings and running costs of the property as they arise.

8.That the wife forthwith do all acts and things and sign all documents necessary to remove the property at I Street, Suburb B from the market for sale and thereafter not deal with the property pending further order.

1. That I stand this application over, before a Registrar in the Duty List, at 9.30 am on Monday 2 December 2013. 

2. That the Applicant’s solicitor shall serve a copy of these orders upon the wife within forty-eight (48) hours. 

3. That, in the event of any difficulty, leave is granted to each of the parties to relist the matter upon giving forty-eight (48) hours’ notice, by arrangement with my Associate.

Later

1. That I decline to rescind the orders I have made earlier today.

SECOND SET OF ORDERS MADE 18 November 2013 after mother attended Court:

1. That, pending further order, the mother shall spend supervised time with the children R born on … 2010 and C born on … 2012 as follows:

   (a)    Each Wednesday, Thursday and Friday from 4pm until 6pm; and

   (b)    Each Sunday from 10am until 2pm

2. That the mother’s time with the children shall be supervised by the child care centre if available, the father or a family friend Dr H or his wife.

3. That the maternal grandmother may attend with the mother at times spent with the children pursuant to these orders if she so chooses.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lukao & Feizhou 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

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is an application by the husband for a number of orders concerning the children of the parties, R and C, and also some orders in relation to property.

3. The husband sets out in his affidavit a significant history of the children spending time with their mother in China.  R is presently three years and three months old, and C one year and four months.  The wife has been in China because the wife’s father was ill and it was her desire that the children remain in China during his illness.  Therefore, on 23 May 2013 the husband returned to Australia.  He again travelled to China in October 2013, and he wished to bring the children home to Australia with him.  He observed that the children were being cared for by nannies and their aunties and not by the wife’s mother which had been the arrangement between him and the wife.  The wife resisted the children being returned at that stage, saying that there had to be the reading of her father’s will and that it was tradition for the grandchildren to be present.  She promised to return to Australia and bring both children back within the next two weeks.  The husband returned to Australia on 5 November 2013.  The wife returned from China with R, C remaining with the wife’s family in China.  I am informed that C arrived in Australia yesterday.

4. The husband sets out material which gives rise to a concern about the well-being of the wife.  He says that on 6 November 2013 the wife said to him words to the effect, ‘Before they find my body I want to know the truth!’.  He said that statement was said to him in a high-pitched agitated voice.  After breakfast the wife left.  Since that time R has remained in his care as he will not leave him with the wife as he is concerned for his safety. 

5. The day before the wife had sent a text to a friend of the husband who happens to be a doctor.  He forwarded a redacted version of that text to the husband.  The covering note says:

   This puts me in an awkward situation wanting to protect [the wife’s] health and to help you.  I need to send this to you so you can take appropriate action.  But I think she might have sent that info in confidence – hence the xxxxxxxs.

   In the text then forwarded the wife refers to her lawyers and his contact number and continues:

   My will is with him.  I have 2 safy.  One is at [G] Street xxx and one is in china town xxxxxxx.  When my body found please let my family know just keep me with my dad in China.  Thank you.

   (As per original)

6. Of course, the reference to her dad in China is a reference to her deceased father.  If this evidence is accepted at a final hearing, it would indicate that the wife presently has some significant issues such that it would be an unacceptable risk to the children that they would not be cared for correctly because their mother is at some significant risk of self-harm.

7. The evidence is that the parties have two properties between them.  The husband and the children need, obviously, to live somewhere.  The wife presently resides in one of the properties at Suburb E.  The property was purchased, according to the husband, because it was better for the children to grow up there.  The Suburb B property is presently untenanted and is accordingly the appropriate place for the husband and the children to reside.

Conclusion

1. The orders that will be made today will be made as interim orders pending further order of the Court, and the matter will be brought back before the court in a fortnight’s time.  This is because the matter is proceeding without the wife being present.  I am satisfied that on 11 November she was served with a copy of the husband’s Initiating Application and affidavit in support.  I should also add that the husband sought today an order for a payment of $100 000 by way of interim property settlement or such other interim order.  It is more appropriate to do that, it seems to me, on the next occasion when the wife may, in fact, attend.

the wife’s arrival at court

1. I dealt with the matter of Lukao earlier this afternoon.  At that time there was no appearance by or on behalf of Ms Feizhou, the respondent and the mother of the children.  Sometime after that matter had concluded the respondent and her solicitor arrived at court.  It is not particularly significant as to why they arrived when they did for present purposes.  It is said that the way the application looked to them the interim application was returnable on 16 December 2013.  It was a text message from the husband at 12.30 pm today that alerted them to the fact that the matter was, in fact, before court today. 

2. Mr Dowdle who appeared for the respondent has submitted that the orders that the children live with the applicant husband until further order should be reconsidered because the respondent has been the primary caregiver of the children.  They speak substantially Mandarin and little English, the husband speaks little Mandarin and the other person with whom they have spent most of the time is the respondent’s mother.  She also asserts that the applicant and the respondent have been living together since she returned from China and reconciliation was proposed.  Indeed, she will assert that this morning the husband said he was proposing to withdraw the application.  The evidence that I have which is only the affidavit of the husband would seem to suggest that the mother and the maternal grandmother have been the primary caregivers.  However, the evidence remains that there have been significant suicide threats by the mother.  Mr Dowdle described those as being, not genuine attempts, but rather cries for help.  That may be so.  The evidence does not enable me to say on this interim hearing.

Conclusion

1. I remain of the view that there is an unacceptable risk to the children at least at the present if they are cared for by their mother for the next fortnight, and the matter is before the court again in 14 days, and the matter can be reconsidered then when there is evidence from both sides.

2. It would, however, be desirable that the children spend as much time as they can with their mother pending the further hearing of the court.  It seems to me that it is appropriate in the circumstances that that be supervised by a responsible adult, and the parties have asked for some time to see if they can come to an agreement with that.  So I will presently decline to vary the orders I made except for the order in relation to the time the children spend with the parties the opportunity to see if they can come to an agreement in relation to it. 

3. I think, for reasons that are obvious from the discussion that has just occurred, I make the following order in relation to the time the children are to spend with their mother and, if she chooses, the maternal grandmother for the next two weeks pending further determination of this matter.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 18 November 2013.

Legal Associate: 

Date:  20 January 2014