FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Needham & Shao (No 4) [2023] FedCFamC1F 862
File number(s): SYC 5643 of 2020 Judgment of: ALTOBELLI J Date of judgment: 13 October 2023 Catchwords: FAMILY LAW – PARENTING – International relocation – Where the mother seeks to relocate to the United States of America (“USA”) with the child – Where the father opposes the relocation application – Where there are allegations of family violence against the father – Where there are credibility issues with the mother’s evidence – Where the mother must return to the USA upon expiration of her visa – Where the Court finds it is in the best interests of the child to live with the father in Australia.
FAMILY LAW – PROPERTY – Where the mother seeks a lump sum payment from the father – Where the father opposes this application – Where the father seeks for spousal maintenance to be discharged – Where the father made greater financial contributions – Where there is an adjustment in favour of the mother for future needs.
Legislation: Australian Constitution s 92
Family Law Act 1975 (Cth)ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79
Family Law Regulations 1984 (Cth) reg 24
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children which is implemented into Australian family law by the Family Law (Child Protection Convention) Regulations 2003
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Carlson & Fluvium [2012] FamCA 32
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
Chorn v Hopkins (2004) FLC 93 204; [2004] FamCA 633
F v M [2021] EWFC 4
Franklyn & Franklyn [2019] FamCAFC 256
Helbig & Rowe and Ors [2016] FamCAFC 117
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Illgen & Yike [2018] FamCA 17
In the Marriage of Quinn (1979) FLC 90-677; [1979] FamCA 86
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Needham & Shao (No 3) [2023] FedCFamC1F 388
Ramzi & Moussa [2022] FedCFamC2F 1473
Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170
Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Suffolk v Suffolk [2007] FamCA 797
Taylor v Barker (2007) FLC 93-345; [2007] FamCA1246
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Division 1 First Instance Number of paragraphs: 223 Date of last submission/s: 11 October 2023 Date of hearing: 7–11 June 2021; 31 July 2023–3 August 2023 Place: Sydney Counsel for the Applicant: Ms Lewer Solicitor for the Applicant: Jwp Lawyers Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Swifte Law Counsel for the Independent Children's Lawyer: Ms Messner Solicitor for the Independent Children's…
Continue reading Needham & Shao (No 4)
Sign in free to access the full text
- AGLC
- Needham & Shao (No 4) [2023] FedCFamC1F 862
- Case
- [2023] FedCFamC1F 862
- Decision Date
CaseChat Overview and Summary
The Court considered the best interests of the child as the paramount concern in its decision. It noted the mother's insistence on returning to the USA due to the expiration of her visa, but also found her evidence to be unreliable due to the emotional context of the proceedings and the intractable conflict between the parents. The Court concluded that it was in the best interests of the child to remain in Australia with the father, granting him sole parental responsibility. The Court ordered that the child would live with the father, with the mother having specified periods of time with the child in Australia and later in the USA, subject to certain conditions. The Court also addressed the property and spousal maintenance issues, ordering the father to make a lump sum payment to the mother and discharging the spousal maintenance order.
In summary, the Court found that the child's best interests were served by remaining in Australia with the father. It also made specific orders regarding the division of property and the discharge of spousal maintenance. These orders reflect the Court's consideration of the evidence and the specific circumstances of the case.
Orders
Orders of the court
SYC 5643 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR NEEDHAM
Applicant
AND:
MS SHAO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
Parenting
Parental responsibility
1. The Applicant father (“the father”) have sole parental responsibility for the child, X born 2019 (“the child”).
2. Prior to making any decision as to the long-term care, welfare and development of the child:
(a) The father shall advise the Respondent mother (“the mother”) 14 days prior to making such decision including providing any documentation in respect of such decision; and
(b) The mother shall provide her views as to the issue to be decided within seven days of receipt of this information.
Living and time arrangements
3. The child live with the father commencing from 10.00 am on Monday 16 October 2023.
4. The mother will do all things necessary to deliver the child into the father’s care at 10.00 am on Monday 16 October 2023 at B Shop, C Street, Suburb D.
5. A recovery order for the return of the child to the father shall be issued to lie in the Sydney Registry.
6. The Independent Children’s Lawyer shall notify my chambers via email to …@... after 12 noon if the child is not delivered to the father in accordance with Order 4.
7. In the event the child is not delivered in accordance with Order 4 and notification as described in Order 6 is received by my chambers, the recovery order in Order 5 shall be activated.
8. Unless the parents otherwise agree, for the first twelve months following the making of these orders, and upon the mother providing 42 days’ notice in writing to the father of her intention to spend time with the child, the mother will spend time with the child in Australia for two-week blocks on up to four occasions as follows:
(a) For the first five days from 9.00 am to 5.00 pm;
(b) From 9.00 am on the sixth day to 5.00 pm on the seventh day (one night);
(c) From 9.00 am on the eighth day to 5.00 pm on the tenth day (two nights);
(d) From 9.00 am on the eleventh day to 5.00 pm on the fourteenth day (three nights).
9. Upon the expiration of Order 8, the mother is to spend block time with the child for:
(a) Each of the July school holidays, from the day after students are required to attend school to the day before children are required to return to school;
(b) Either of the April or September school holidays from the day after students are required to attend school to the day before children are required to return to school, with the mother to nominate on 1 January in each year which of either the April or September school holidays she will spend time with the child; and
(c) The first half of the Christmas holiday period in even-numbered years commencing at the end of 2024, and for the second half of the Christmas holiday period in odd-numbered years commencing at the end of 2025.
10. Upon the expiration of Order 8 and until the child reaches six years of age, one occasion per calendar year referred to in Order 9 can occur in the United States of America (“the USA”) or another country who is signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
11. Upon the child reaching six years of age, two occasions per calendar year referred to in Order 9 can occur in the USA or another country who is signatory to the Hague Convention.
12. Upon the child reaching eight years of age, any of the occasions referred to in Order 9 can occur in the USA or another country who is signatory to the Hague Convention.
13. Upon the expiration of Order 8 and after providing the father with 42 days’ notice, the mother may spend time with the child for up to two periods of 14 days per year in Sydney during school terms, with no more than 14 days during one school term, provided that the child continues with his normal daycare or schooling routine.
Changeover
14. Where changeover is to occur in Australia:
(a) If it is a school/day care day it will occur at school or day care; and
(b) If it is a non-school/day care day it will occur at a location agreed between the parties, or otherwise inside the premises of B Shop, C Street, Suburb D save for days when the premises are closed and in that event, changeovers are to occur inside McDonald’s, C Street, Suburb F.
15. Where changeover is to occur outside of Australia:
(a) It shall occur at City BB Airport, or another agreed airport;
(b) Until the child reaches the age of 13, he is to be accompanied by a parent or their nominee; and
(c) After the child reaches the age of 13 he may travel using an unaccompanied minor’s service.
16. Provided that a parent has given 24 hour’s prior notice to the other parent, a third party may accompany that parent, or attend changeover alone if known to the child, for the purposes of facilitating changeover.
Travel costs
17. Within 28 days of these orders and thereafter on 1 March each year until the child reaches the age of 13, the father is to deposit $5,000 into a bank account nominated by the mother for the sole purpose of enabling her to use such funds towards the costs of the child or the mother’s travel which shall include reasonable airfares and accommodation.
18. Upon the child reaching the age of 13 each party shall be solely responsible for their own travel costs and shall be equally responsible for the child’s travel costs.
Airport Watchlist order and passports
19. Once the child has come into the care of the father pursuant to these orders, the Child, X DOB 2019, be permitted to travel overseas, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the said Child from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
20. Both parties shall sign all documents and applications necessary for the child to obtain or renew an Australian passport.
21. Both parties are restrained from applying for any other passport in the name of the child.
22. The father shall ensure that the child’s passport is always valid and up to date.
23. The father shall retain the child’s passport unless the child is travelling to spend time with the mother, but shall produce the same to the mother within seven days of intended travel.
24. The mother is to retain the passport whilst in the USA but return it with the child within seven days of return to Australia.
Communication, authorities and restraints
25. The parents will do all things necessary to enable and facilitate the non-live with parent to communicate with the child each Monday, Wednesday and Saturday at a time agreed between the parties or failing agreement between 8.00 am and 8.30 am in the country the child is residing in.
26. The above communication is to occur via FaceTime, telephone or such other “app” as utilised by the parties.
27. The parents will do all things necessary to enable and facilitate the child to have additional communication with the non-live with parent on special occasions as agreed between the parties or otherwise between 8:00 am and 8.30 am in the country the child is residing in including the child’s birthday, the non-live with parent’s birthday, any sibling’s birthdays, Christmas day, Easter Sunday, and Mother’s and Father’s Day.
28. Each party is to advise the other of their current contact details, including phone number, email address and address, and advise of any change to these details within 24 hours of this occurring.
29. The parties shall communicate with each other about the child by WhatsApp or another agreed mobile phone application, except in emergencies when communication shall be via telephone.
30. Each parent is to use their best endeavours to keep the other informed of the following while the child is in either of their care:
(a) Any medical problems or illnesses suffered by the child;
(b) Any medical appointments attended with the General Practitioner whilst in their care and within four hours of such appointment;
(c) Any specialist appointments scheduled for the child by either party within four hours of scheduling such appointment, including the name of the specialist, their area of speciality, the time, date and address of the professional rooms where the appointment will occur;
(d) Any medication that has been prescribed for the child including the regime for the provision of the medication;
(e) Any special dietary requirements of the child as recommended by a treating medical professional;
(f) Any enrolment at any preschool or day care; and
(g) Any social, school, or religious functions which the child may attend from time to time.
31. In the event of the child suffering a medical emergency requiring medical attention whilst in the care of either parent:
(a) The other parent is to be notified as soon as practicable and within one hour of the medical emergency occurring;
(b) The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable and within one hour of the medical emergency occurring; and
(c) The medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them upon request.
32. Each parent is authorised to contact and speak to the child’s treating medical professional or school to obtain information and reports.
33. The live-with parent will ensure that the non-live with parent is listed as an emergency contact and next of kin at the child’s day care or school and all health care providers.
34. The child shall be known as “X” and both parties are restrained from taking any steps to formally change his name or any part of with the NSW Registrar of Births, Deaths and Marriages, or the equivalent body in any state of the USA.
Overseas enforcement
35. Within 21 days of the mother requesting the father to do so, or within 21 days of an entity in the USA advising the mother that it is necessary that she do so in order to effect these orders, the parties shall do all acts and things, sign all documents, and commence such process as may be necessary to:
(a) Submit to the jurisdiction of State CC, USA; and
(b) Obtain from a court of competent jurisdiction in State CC, USA recognition of these parenting orders in the USA; or
(c) Obtain from a court of competent jurisdiction in State CC, USA a declaration of the enforceability of these parenting orders in the USA; or
(d) Register and/or record a copy of these parenting orders in a court of competent jurisdiction in State CC, USA; or
(e) Obtain reciprocal parenting orders from a court of competent jurisdiction in State CC, USA.
Costs of the Independent Children’s Lawyer
36. Within 60 days of the date of these orders, unless a waiver has been granted by the Legal Aid Commission of New South Wales (“Legal Aid NSW”), each party shall pay the sum of $12,342 to Legal Aid NSW.
Property
37. The father will pay the sum of $42,000 to the mother, which is to be paid to the mother into a bank account nominated by her in the following manner:
(a) $10,000 to be paid on 13 January 2024; and
(b) $10,000 to be paid three calendar months thereafter; and
(c) $10,000 to be paid three calendar months thereafter; and
(d) $12,000 to be paid three calendar months thereafter.
Failing which interest will accrue on the said sum in accordance with the Family Law Act 1975 (Cth), its Rules and Regulations, calculated from 28 days from the date of the late payment.
38. The order for spousal maintenance in Order 3 made on 19 May 2023 will stand discharged as at the date the child comes into the care of the father pursuant to these orders.
39. As between the parties and subject to the above order herein, the father and the mother will each respectively retain all interest in and entitlements to all of their property and entitlements in their possession, power or control, including their superannuation, as at the date of these orders.
40. All previous orders are hereby discharged, excluding the Family Law Watchlist order in Order 10 of the orders made on 1 September 2021, which is not to be discharged until the child is in the father’s care.
41. Any future application that may be filed by either party in relation to the child is to first be listed before Justice Altobelli if he is reasonably available and subject to the right of each party to seek his Honour’s recusal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The Court recognises and makes allowance for the fact that both parents gave evidence in a highly emotional context about an issue critically important to them. The Court also recognises that both parents were engaged in an intractable conflict and the probability that this may have distorted their perception of events and issues. The unreliability of the mother’s evidence is still the inevitable result of this analysis.The mother’s immigration status As already outlined above, the mother is presently on a temporary visa which is valid until late 2023, on which date she contends she must return to the USA. The mother was previously on a Partner visa which would have provided her with a path to permanent residency in Australia. At paragraph 7 of her affidavit filed 27 May 2021, the mother states that in late 2020 she informed the Department of Home Affairs (“the DHA”) about the breakdown of her relationship with the father, which she was obliged to do pursuant to the terms of the visa application. At paragraph 81 of her affidavit filed 21 July 2023 the mother states that the following month she withdrew her application for permanent residence which she had submitted in mid-2019. After that, she remained in Australia on her student visa, which expired in early 2021, at which point she applied for a “Temporary Activity visa”, which is currently still valid. In her affidavit filed 21 July 2023, the mother describes a number of avenues which may allow her to remain in Australia, but which she believes are unsuitable. Firstly, she could obtain a Bridging E Visa, although this would require her to become an unlawful non-citizen for a short period of time, and if she departs Australia on this visa the DFA could impose a three-year ban on her return to Australia, which may or may not be able to be appealed on compassionate grounds. Secondly, she could apply for a tourist visa, although this application may not be successful because she might not be seen as a genuine tourist given the length of time she has been in Australia, and in any event this visa may require her to leave the country every three months. Lastly, she does not wish to undertake any further study which may entitle her to obtain another student visa, as this would require her to take out another student loan which she cannot afford. She states that she has no viable legal avenue to apply for permanent residence or any class of visa which would permit her to stay permanently or work in Australia. The mother relies on the affidavit of the single joint immigration expert, Mr H filed 1 June 2021. Mr H’s advice and opinion echoes the above. He also discussed the possibility of the mother obtaining a class of visa which would allow the holder to remain in Australia for two years and which provides the holder the option of making an application for another class of visa, being a permanent residence visa. However, he found this to be unsuitable as the mother did not have the means to pay the applications fees (which are tens of thousands of dollars), the processing times for these visas are approximately five years, and the mother would not be entitled to a bridging visa which would enable her to remain in Australia lawfully pending the outcome of these visa applications. It was his opinion that while the mother could have applied for a number of different visas, they were not all suitable to her circumstances, and the most appropriate visa option for the mother is the Temporary Activity visa. This is the visa the mother presently holds.