Montrose and Montrose

[2016] FamCA 80

FAMILY COURT OF AUSTRALIA

MONTROSE & MONTROSE [2016] FamCA 80

FAMILY LAW – CHILDREN – Best interests of the child – Interim Orders – Issue of a passport for overseas travel - Where mother seeks to take the child to China to meet the maternal grandparents during the June-July school holidays – Where the child is 14 years old – Where country is not a signatory to the Convention on the Civil Aspects of International Child Abduction (Hague Convention 1980) – Whether there is an unacceptable risk of the mother failing to return to Australia – Application granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Montrose

RESPONDENT: Mr Montrose

FILE NUMBER: BRC 11449 of 2010

DATE DELIVERED: 18 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 February 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That paragraph 10 of the orders made by his Honour Justice Forrest on 2 February 2015 is discharged.

2. That the Applicant mother, Ms Montrose, may apply for a passport for the child, B born … 2005, without first obtaining the consent of the child’s father, Mr Montrose.

3. The Applicant mother is permitted to take the said child with her to travel internationally, namely to China.

4. The Court requests that the Australian Federal Police remove the name of the child, B born … 2005 (female), from the Family Law Watch List at all points of international arrivals and departure as from 10 June 2016.

5. The provisions of paragraphs 2 and 3 of the orders made by his Honour Justice Forrest on 2 February 2015 are suspended during the period of the said child’s school holidays from the C School, Suburb D, between the end of Term 2 and the commencement of Term 3, 2016, and the mother is permitted to take the said child with her on a holiday visit to China for the duration of those school holidays, leaving Australia at any time after school has concluded on the last day of Term 2 and returning at any time before school recommences on the first day of Term 3.

6. The mother shall provide to the father, by no less than two calendar months prior to the departure date for her and the said child:

   (i)Copies of air tickets for all flights between Australia and the place of ultimate destination in China and return to Australia for her and the said child, evidencing that such return flights have been booked and fully paid for;

   (ii)Written details of the address or addresses of the places in China at which she and the child will be staying during their visit to China and the names and relationship to the mother of the persons who reside at such places;

   (iii)The telephone number or numbers, if any, of telephones, either landline or mobile, located at the place or places she and the child will be staying at during their visit to China.

7. The mother shall cause the child to telephone and speak with the father on no less than two occasions each week that she is out of Australia during the said June-July holiday period, including forthwith upon her arrival at the place of ultimate destination in China to advise him they have safely arrived there and also immediately prior to their departure from the place of ultimate destination in China to advise him they are about to leave to come home.

8. The mother shall cause the child to telephone and speak with the father immediately upon her arrival back in Region E to advise him that she has safely arrived home.

9. The mother shall, as soon as practicable after arriving back in Australia at the end of the said June-July holiday, deposit the child’s passport with the Registrar of the Brisbane Registry of this Court where it shall be safely stored until further order of this Court or until prior written agreement of the mother and the father authorising its release into either of the parent’s custody is presented to the Registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Montrose & Montrose 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 BRISBANE

FILE NUMBER: BRC 11449 of 2010

Ms Montrose

Applicant

And

Mr Montrose

Respondent

REASONS FOR JUDGMENT

1. On 20 August 2015, the Principal Registrar of this Court dismissed the mother’s Application in a Case in parenting proceedings pending in this Court in which the mother was seeking orders facilitating the issue of an Australian passport for the parties’ child B, born in 2002, now aged 14, and an order that she be permitted to take the child with her to travel out of Australia.

2. By a further Application in a Case filed subsequent to that date the mother seeks a review of the Principal Registrar’s decision. That review was listed before me for hearing and determination on Monday 15 February 2016.  The hearing, of course, is a hearing afresh (de novo) on the merits. There is no requirement to determine that the Principal Registrar erred in any respect in order to make different orders to the ones that she made.

Some Relevant Background

1. This matter has been before this Court now for several years and it has been before me, on interim applications and being case managed, on many occasions. It was actually listed for a final hearing of competing property adjustment and parenting applications in 2014, when very close to the commencement of that final hearing the father informed the Court that he and his parents, who had also been joined as respondents, had all become bankrupt. That trial was adjourned and the proceedings remain pending and not yet finalised.

2. The father is almost 62 years of age. The mother is almost 48 years of age.

3. The couple commenced their relationship in or around 1997-1998 when the mother, who is Chinese, was still living and working in China. She had played sport at an elite level and was working at a Beijing university. The father was a farmer, working land alongside his parents, in central Queensland. That farming land was owned by him and his parents.

4. The couple married on a holiday in 1998 and the father returned to Australia alone, before being joined later in Australia by the mother once her spousal entry visa had been obtained. The couple lived together at the central Queensland property and in 2002, their only child, B, was born.

5. In 2007, the mother and the child moved to live in Brisbane, with the father travelling between Brisbane and the central Queensland property.  At the beginning of 2008, the mother and the child moved to Region E to live and the child began attending at C School at Suburb D. The father continued to live between Region E and the farming property.

6. In or around April 2010, the mother informed the father that she considered their relationship to be over. She commenced these proceedings in the same year. The mother and the child have continued to live in Region E ever since and the child has continued to attend C School ever since. In addition, the parents have been in disagreement about parenting arrangements and financial matters and before the court ever since.

7. The mother has received no direct financial support from the father for most of the years since their separation, despite orders for spousal maintenance being made early in the proceedings.  She has not been in any paid employment since she came to Australia approximately 17 years ago, and has been in receipt of Commonwealth Government benefits since separation. She does not receive child support from the father either and he has sworn in the past to an absolute determination not to pay her any child support at all.

8. A few years ago, the father and his parents lost their property in central Queensland, when their bank foreclosed on the mortgages it held over the property and at around that same time all three of them went into bankruptcy. The father’s father passed away in 2014 and the father’s mother currently lives in assisted accommodation for the elderly in F Town. The father now also lives in Region E in rental accommodation not far from where the mother and the child live.

9. It is not entirely clear to me how the father is able to afford to financially support himself or, more particularly, how he is able to afford to continue to pay the fees for their daughter, the child, to continue to attend at C School, one of south-east Queensland’s most expensive private schools. He has never explained that to the Court. However he does it, the parties’ daughter continues to attend at that school and is, according to both parents, progressing and achieving very well at that school, enjoying the educational, sporting, and social environment that it offers her. Both parents speak very proudly of their daughter’s capacities and achievements.

10. The mother was previously legally represented by solicitors who withdrew in December 2014, when the payment of their fees could no longer be assured by the mother. The father was also previously represented by solicitors who also withdrew sometime in 2014 for reasons not clear to me.

11. In December 2014, I made certain interim parenting orders requiring the father to return the child to the mother’s care (he was withholding her from the mother) and providing for the preparation of a report by a Family Consultant.

12. On 2 February 2015, with the benefit of that family report, I made interim parenting orders for the child to live with the mother and to spend alternate weekends with the father. One order I made that day, believing that the matter would come to trial and be finalised well before now, was that the mother’s application for the issue of an Australian passport for the child be heard at the same time as the trial of the competing parenting orders applications of the parents.

The Mother’s Application in a Case

1. The mother, clearly unsatisfied about having to wait for a trial of the matter to be listed, applied in July last year for the orders that she now seeks about the issue of a passport and permission to take the child to visit her parents in China.

2. She deposes to having asked the father to join her in obtaining a passport for the child when the child was only three years of age back in or around 2005. She says nothing eventuated from that, despite the father’s apparent agreement. She says that when the child was four years old, they redid a passport application for the child and when she later mentioned to the father that the passport had not arrived, he told her that it had, but that he had put it away. She deposes to saying to him then, “I need the passport to take the child to China to see my parents and family.” She deposes to the husband saying to her in response that he worried about losing the child in China and told her to go herself without the child. She deposes that every year thereafter, in or around July, she asked the father for the passport so that she and the child could travel to China to visit her family but that the father always refused. The mother deposes that she decided to seek orders from the Court after she commenced these proceedings as the father continued to refuse to co-operate in obtaining a passport for the child and to let her travel with the mother to China. 

3. The mother gives evidence that the child, who is now 14 years of age, has been talking with her (the mother’s) parents who live in north-west China for many years, but has never met them in person. The maternal grandparents are now said to be very old and sick and not able to travel to Australia at all to visit and meet their granddaughter in person. The mother says in evidence that her father, who is a retired university professor, is aging quickly and that his brain is “not clear”, sometimes not being able to recognise people, including his own wife and daughter. He is unable to walk and is not expected to live too much longer. The mother says her mother, a retired teacher, has bad back pain and has very limited walking ability.

4. At the hearing before the Court on Monday, 15 February 2016, the mother informed the Court that she had travelled back to China herself in December 2015 to visit her aging, ailing parents and during her absence the child stayed in the care of the father. She informed the Court that she desperately wants to take the child with her to visit her parents in China during the June-July school holiday period this year, so that the child can meet her maternal grandparents and extended maternal family member in person before her grandparents pass away.

5. The mother told the Court that the Court could confidently trust her to return to Australia with the child and she gave several reasons in support of that assertion. She told the Court that she believes the child attends “the best school in the world” and that she was very keen to ensure that the child, who really likes the school, continues to attend there until the completion of her secondary education. She told the Court that although the father does not assist the mother financially, even with the child’s support, she is very grateful for his continued commitment to paying the child’s school fees.

6. I observe that the mother has, throughout these proceedings, continuously sought orders to keep the child attending at C School. This is clearly consistent with her stated commitment to maintaining her daughter’s education at that school.

7. The mother also told the Court that she receives $1,160 in Centrelink benefits each fortnight and that she is also very grateful for receiving that from the Australian Government. In addition, she referred to the fact that Australia has a universal medical insurance system in the form of Medicare that she also values very much. She told the Court that she could not expect the same benefits in China and, therefore, has absolutely no intention of staying there and not returning to Australia, such that she would lose these benefits.

8. In his case in response, the father pointed to the following undisputed facts:

   ·The mother does not have employment and receives Centrelink benefits as her only income;

   ·The mother does not own any real or substantial personal property in Australia;

   ·China is not a signatory country to the Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention) so it would be impossible for the father to cause the child’s return to Australia if she is not returned by her mother.

9. The father also made the following points:

   ·The mother does not hold any ties to any specific individuals or organisations within Australia and does not have any close relationship with anyone in Australia;

   ·The mother had told him that she had purchased a unit in China in 2009 in her brother’s name;

   ·The mother had told him that she had transferred amounts of money between 2000 and 2009 in the amounts of $3,000 per month to China, giving her substantial reserves if she ever travels back to China;

   ·That it is his belief that it is the mother’s intention to permanently reside in China and not return to Australia.

10. When asked by the Court about the father’s assertions that she had sent so much money back to China, the mother accepted that she had sent money to China during the parties’ marriage, but said the father knew about that at the time and that it was nothing like the amount of money the father was now saying it was. She laughed his assertions off as absurd, saying that they were nothing but lies. In response, the father maintained that he had “evidence” to support his claim.   I pointed out to him that no such evidence was put into evidence before the Court at all.  Further, he said nothing in his affidavit that gives any real weight to his asserted belief that it is the mother’s intention to remain permanently in China and not to return to Australia. He does not even say that she has ever made such a threat to him. In this regard, I note that she has now lived in Australia for nearly 18 years and has travelled to China and returned to Australia on several occasions during that time.

11. The father was asked if he could take the Court to any evidence that showed that the mother could not be trusted. In response, he asserted that she did not let him have the alternate weekend time with his daughter ordered by me in February 2015. Again, the wife laughed that off as an absurd lie, referring to the undisputed fact that she had left the child in the father’s care for around four to five weeks when she had travelled to China in December, 2015. She also quickly asserted, quite credibly I thought, that the child had spent the last two weekends with the father also. Significantly, the father did not dispute that at all, even though he had the opportunity to.

12. In the end, and after careful thought, I was left with the view that, despite the father asserting that the mother could not be trusted to return the child to Australia, there was something particularly hollow about that assertion. I do not consider that he produced any evidence at all that is actually supportive in any cogent sense of that assertion.  Furthermore, I do not accept his bald assertion, without more, that she transferred $3,000 per month to China between 2000 and 2009, giving her “substantial reserves” over in China.  

My Determination

1. It is a parenting order I am being asked to make, albeit on an interim basis. Accordingly, I am to make such order as I consider proper and, in doing so, I am to regard the best interests of the child as the paramount consideration. In determining what is in the best interests of the child I must consider all of the matters set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth).

2. I am quite satisfied that it is in the interests of 14 year old the child, who has never visited the country of birth of her mother, but who speaks Mandarin and knows her extended maternal family, to travel to China for a short holiday with her mother to meet her maternal grandparents in person before they pass away. The mother’s proposal that it be for a three week period encompassing the coming June – July school holiday period this year is, in my view, a sensitive one having regard to the child’s schooling as well as the mother’s desire to have her daughter meet her parents and other family members before they get any older or pass away. I am satisfied that 14 year old the child could readily cope with three weeks away from her father whilst in her mother’s care in China.  

3. The mother says that she will get the financial assistance of her parents to pay for the airfares, and her parents can afford to assist her as they are in receipt of reasonable pensions having retired from their teaching posts earlier in their lives. I accept that as correct.

4. I do accept as undisputed facts that the mother does not have employment, real property or family ties in Australia and that China is not a signatory to the 1980 Hague Convention. Of course, these are significant matters of fact when assessing the risk of the mother not returning the child to Australia at the end of the proposed travel. They are not, however, in themselves, determinative disqualifying factors in what is a discretionary exercise of determining whether or not the parenting order to be made is a proper one in the child’s best interests. Those factual matters are but matters to be considered in the process.

5. In this particular case, having seen and heard the mother and the father many times in my Court over the last few years, I have formed certain impressions of them. I have most certainly not formed the view that the mother cannot be trusted or that she does not depose to the truth in the evidence she gives to the Court. On balance, I am satisfied that she is being truthful when she asserts that she and the child will return to Region E at the end of holiday visit to China. The mother has travelled to China and returned on a number of occasions since she and the father separated. I am satisfied that the mother can be trusted when she tells the Court that she considers the child’s school to be such a high quality school that she would not want to remove her from that school before she finishes her high school education.  After all, she has been fighting to keep the child at that school since separation. The mother has lived for a long time in Australia now. I accept her evidence that she is very happy living here and wants to continue to do so.

1. The child is 14 and will be almost 14 and a half years of age at the time of the proposed travel. I expect that she will, herself, have something to say about whether she goes to China or not with her mother if she is in any way fearful of the prospect of her mother not returning her to Australia.

2. It would, I accept, be naïve of me not to acknowledge that there will be a risk of the mother not returning the child to Australia if she is permitted to take her for the proposed visit. However, I do not consider, in all the circumstances of this case, that the risk is an unacceptable one. I have determined that it is in the child’s best interests to be permitted to travel with her mother to China for three weeks in and around the June-July school holidays this year and I will make orders that I consider proper to facilitate that travel. My orders will require the mother to provide the father with certain information about the travel arrangements designed to assuage his expressed concerns. Those orders will also require the mother to have the child communicate regularly with the father during the time she is in China.

3. I make the orders set out at the commencement of these written reasons.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 February 2016.

Associate: 

Date:  18 February 2016