Quong and Rush (No.2)

[2019] FCCA 700

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUONG & RUSH (No.2) [2019] FCCA 700

Catchwords:
FAMILY LAW – Parenting – Dispute about where a child aged 13 ½ should live – where the mother wishes the child to live with her in Town A as she is concerned about his education and isolation if he continues to live in the small country town where he is living with the father – where the child has repeatedly expressed a preference to continue to live with the father – where the father is parenting the child well – orders made in accordance with the child’s wishes.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Cases cited:

Mazorski & Albright (2007) 37 FamLR 518

Applicant: MS QUONG

Respondent: MR RUSH

File Number: NCC 2102 of 2017

Judgment of: Judge Terry

Hearing date: 7 March 2019

Date of Last Submission: 7 March 2019

Delivered at: Newcastle

Delivered on: 7 March 2019

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. The father and the mother shall have equal shared parental responsibility for the child [X] born … 2005 (“the child”).

2. The child shall live with the father.

3. The mother shall spend time with the child as agreed between the mother and the father but failing agreement for 4 weeks during the annual Christmas school holidays and 2 weeks each school term holidays.

4. The child shall communicate with the mother as agreed between the mother and the father.

IT IS NOTED that publication of this judgment under the pseudonym Quong & Rush (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2102 of 2017

MS QUONG

Applicant

And

MR RUSH

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter involves parenting arrangements for [X] who is 13 ½.

3. The applicant is [X]’s mother, Ms Quong. Ms Quong filed an application in mid-2017 seeking a recovery order due to the fact that about six months earlier the father had relocated from Town A to Town B with [X]. The mother sought an order that [X] live with her in Town A. She has never been opposed to him spending time with his father.

4. The father filed a response to that application and his position has always been that [X] should continue to live with him.

5. I conducted a hearing into the matter today and the mother’s case remains that it would be in [X]’s best interests to live with her in Town A, or at the very least to come down here and live with her for a year before he dismisses that as an option.

6. The father seeks an order that [X] continue to live with him in Town B and spend regular time with the mother.

7. This is not a case which involves any risk of harm issues. It is also not a case in which there have been any difficulties over the years in [X] spending time with both his parents. He has spent regular time with his mother since he has been living at Town B. He has travelled down to Town A to see her in school holidays and in January of this year he went on a two-week holiday with her to China.

8. The father seeks an order for equal shared parental responsibility. The mother did not really address that issue but even before I do anything else in the matter I am going to make it clear that this is a case in which I will be making an order for equal shared parental responsibility. The presumption in s. 61DA of the Family Law Act 1975 applies. The parties are able to communicate with each other and reach agreement about a lot of things. It is in [X]’s best interests that there be an order for equal shared parental responsibility but the dispute remains about where he lives.

9. If an order is made for equal shared parental responsibility I am required by s.65DAA of the Family Law Act 1975 to consider whether the child spending equal time with each of his parents or substantial and significant time with each of his parents is in the child’s best interest and reasonably practicable and if I find that both are the case, then I am obliged to consider making an order for either equal time or substantial and significant time.

10. However in this particular case the parents live well over 600 kilometres apart. There is no prospect of either of them moving from where they are and living close to the other. It is not reasonably practicable for [X] to spend either equal time or substantial and significant time with each of the parents so I simply have to make a decision about whether he stays with his father in Town B or lives with his mother in Town A.

The evidence

1. The evidence in the case was given by the mother and the father and I also have a Child Inclusive Child Dispute memorandum prepared by a family consultant, Mr C, in November 2017, and a family report, also prepared by Mr C, dated May 2018.

2. I will make some reference to those documents a bit later on. Mr C was not required for cross-examination. That does not mean that I automatically have to do what he recommends in terms of the outcome. All it means is that neither party wanted to challenge what he said about [X]’s views or how [X] related to each of them.

3. The parties both went into the witness box and the mother in particular gave a little bit of updating evidence but neither party wished to cross-examine the other.

Background

1. The father is 58 and the mother 51. They formed a relationship after the mother came to Australia from China in 2002 and their only child, [X], was born on … 2005.

2. The father has five older children from a previous relationship. The mother has no other children, so [X] is her precious only son.

3. The parties lived in Town A during their relationship. They lived in Town D as the mother was very clear to point out.

4. The parties are now separated. Exactly when they separated has always been a point of contention. The father said that they separated in January 2015 when the mother decided to go back to China where she remained for seven months.

5. The mother did not accept that this was a final separation. The implication of her case was that after she came back to Australia she started to live with the father again and the relationship continued until January 2017 when he relocated to Town B.

6. The father agreed that when she returned from China the mother moved back into the house they had previously been sharing but he maintained that they did not live together as a couple and lived separate lives in the same house, and I think he even said that the mother slept in [X]’s room.

7. I cannot determine where the truth lies. It is often impossible for the Court to do that and I do not have to make a decision about that in order to determine where [X] should live now.

8. There was a critical event in January 2017 which was that the father relocated with [X] to Town B which is a considerable distance from Town A.

9. In one of her documents the mother described it as kidnapping. It was certainly her case that it was a unilateral relocation and that she was not consulted about it and that the father just up and took [X].

10. Wherever the truth lies about that though and however aggrieved the mother may feel about it, the fact is that the father and [X] have been living in Town B for over two years now. The father is settled there and whatever the background to the father and [X] going up there it is not relevant to the decision I have to make today in March 2019.

11. After the father and [X] went to Town B [X] was enrolled in a local school and June or July 2017 the mother filed an application seeking a recovery order.

12. In November 2017, following that application coming before the Court, a Child Inclusive Child Dispute Conference was conducted. The family consultant spoke to the father, the mother and [X]. [X] was described as being a big boy and he is an even bigger boy now, and the family consultant said that he was very clear that he wanted to live with his father in Town B. He did not want to come back to Town A and in those circumstances I made an interim order that he remain with the father.

13. The mother did not accept that everything should turn on [X]’s views. It was her position that [X] would have a better life if he lived in Town A, a bigger city. She was not willing to settle the matter based on what [X] had told the family consultant at the child inclusive conference so I ordered a family report.

14. The family report was prepared in May 2018 and [X] said exactly the same thing to the family consultant on that occasion. He said that he got on all right with the mother for parts of the time but on other occasions, they clashed. He made it clear that he was very happy living with his father in Town B and that he did not want to come back to Town A. That resulted in the family consultant recommending, because of [X]’s age and because there were no risk of harm issues in terms of what he perceived to be the care the father was giving [X], that [X] stay with the father.

15. The mother did not accept that recommendation. People are not obliged to accept recommendations in family reports. The mother asked for the matter to be listed for trial. It was listed for trial today and I have heard some evidence and I have to make a decision about what should happen.

The parties current circumstances

1. Just before I do that I will mention that the mother continues to live in Town D. She has historically worked at an employer in Town E. She said that she was currently not working.

2. The father continues to live in Town B with [X] and [X] attends School F.

[X]’s best interests

1. Any orders I make about [X] must be orders determined by treating his best interests as the paramount consideration. That is provided for in s. 60CA of the Family Law Act 1975 and the matters I have to take into account in order to determine his best interests are set out in s. 60CC(2) and (3) of the Family Law Act 1975.

2. There are primary considerations and additional considerations. I am going to deal with the primary considerations first and there are two of those. One is the benefit to the child of having a meaningful relationship with both of his parents, and the other one is the need to protect the child from physical or psychological harm as the result of being subjected to or exposed to abuse, neglect or family violence.

3. A meaningful relationship has been defined in one of the cases as being a relationship which is significant, valuable and important to the child.[1] [X] has that kind of relationship with both his parents at the moment.

   [1] Mazorski & Albright (2007) 37 FamLR 518

4. The father has a very good attitude to the mother and the mother to the father, because she has not tried to pre-emptively remove [X] from his care. The father has willingly consented to [X] spending regular time with the mother in Town A for holidays. He consented to him going to China with the mother for two weeks in January 2019. If [X] continues to live with him, he will not lose a meaningful relationship with his mother and I have no reason to suppose the mother would try to stop [X] having a meaningful relationship with the father.

5. So that consideration does not help me. Whether [X] lives in one place or the other he can have a meaningful relationship with each of his parents.

6. The second consideration does not assist me either. This is not and never has been a risk of harm case. Nobody alleges that there has been family violence. The family consultant noted in the family report that the mother had said in her Notice of Risk that the father was verbally abusive to her during the relationship but he then said:

   The mother asserted in her Notice of Risk that during the relationship the father was verbally abusive to her. At interview on 3 November 2017 however the mother denied that the father had been abusive in any way and volunteered that he is a very quiet man and not a person who yelled or swore at all.[2]

   [2] Paragraph 43 of the Family Report.

7. Neither parent is likely to abuse [X] as an abuse is defined in the Family Law Act 1975, and neither parent is likely to neglect him.

8. The mother raised some issues about the father’s care of [X] and I will mention those in the parenting capacity section of the judgment but there is no suggestion that he would be neglected by either parent. Neglect is something very extreme.

9. The second primary consideration, the need to protect the child from harm, does not help me either because [X] does not need to be protected from harm perpetrated by either of his parents.

10. I then have to consider the additional considerations in s. 60CC (3). There are quite a few of those and I am going to dispose of some which do not help me and then come back to the ones that do.

11. One of the things I have to consider is the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child or to be involved in decision-making about the child.

12. That does not assist me in this particular case. Both parents have always been very interested in [X]. The mother went back to China for seven months in 2015 leaving him with the father but I do not consider that this was due to her not caring about [X]. The mother has been back to China many times since she first came to Australia. She obviously feels a strong connection with China and I do not look on her actions in 2015 as indicating a lack of interest in [X].

13. I must consider the extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child. Nobody made an issue of that. Nobody suggested that child support considerations were motivating applications to the Court.

14. I must consider any family violence involving the child or a member of his family. That is not an issue in this case and I have to consider whether there have been any family violence orders and there have not been.

15. I am going to mention another consideration which is relevant but which really does not assist me to make a decision in this matter. I must have to have regard if the child is an Aboriginal child to his right to enjoy his Aboriginal culture, including his right to enjoy that with other people who share that culture, and the likely impact that any proposed parenting order will have on this right.

16. Through his father [X] is an Aboriginal child, just as through the mother he is Chinese and through the father he has other European heritage.

17. [X] has Aboriginal heritage through the father so as far as the Act is concerned he is an Aboriginal child and the father mentioned in his material that he did some things with [X] which were due to that connection. However if the child lives with the mother he can still do those things with the father when he is on holidays with the father. The mother does not disrespect Aboriginal people and that consideration does not help me to make a decision about where [X] should live.

18. I also have to consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.

19. Each of the parents, in their own way, love and are committed to [X], and that consideration does not assist me.

20. I will now go back to the additional considerations which assist me and talk about those.

21. The first additional consideration, and one that is highly relevant in this matter, is any views expressed by the child and any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views.

22. [X] has strongly and consistently expressed a view that he wants to live in Town B with the father. He has been consistent in that view over a couple of years. The highest the mother put it in the witness box this morning was that when she raised the issue with [X] in January he said that he would think about whether he might like to come and live in Town A, and as the father rightly suggested in submissions, that is something people sometimes say when they want to deflect a bit of pressure.

23. There is nothing in the mother’s evidence and nothing in the father’s and nothing in any of the expert evidence to suggest anything other than that [X] wants to remain in Town B.

24. [X] is thirteen and a half years old. He is not a baby. He is not an adult either so he cannot necessarily see everything that might be good or bad for him and view it in the same mature way that an adult might, but he is not a baby, and one of the issues when a child like [X] expresses a strong view is that if they are not listened to they can do what they want without consulting with people.

25. [X] said to the family report writer or to the mother – I cannot remember which it was – that if he was not permitted to stay with the father he might run away and he is certainly big enough to do that if he chooses.

26. Given that I have to place some weight on his views.

27. [X] has experienced life in Town B for two years. He has not changed his view that this is where he wants to be, and it is not as if he does not know what life in Town A would be like. He certainly does not know what life in high school in Town A would be like but he lived in Town A until he went up to Town B two years ago. He knows Town A. He knows both places. He is able to make a comparison and he wants to stay in Town B.

28. A child’s views do not determine a matter; they are only one thing I have to take into account, but when I have a child of [X]’s age, a child who has consistently expressed a view for a lengthy period of time, I have to give that considerable weight, and indeed that is something the family consultant said that I agree with.

29. However I do have to take into account the other s. 60CC (2) and (3) matters and the next relevant one is the nature of the child’s relationship with each of his parents.

30. [X] has a good relationship with each of his parents. He happily accompanied the mother to China in January. He spends holiday time in Town B with her, weeks and weeks of holiday time.

31. [X] mentioned in both interviews with the family consultant that he and the mother sometimes clashed. The mother said that this might be because she was a bit more insistent than the father about certain issues to do with hygiene, but [X] does not seem to clash with the father.

32. [X] has a good relationship with each of his parents but there have historically been some issues with he and the mother clashing and that might cause problems. If I made an order that [X] live down here when he did not want to and there were also some difficulties in his relationship with the mother that could increase the likelihood that that whole scenario would not work for [X].

33. It is only one consideration but I have to take it into account because the next relevant additional consideration is the likely effect of any change in the child’s circumstances.

34. If [X] did not want to be in Town A and he had a history of sometimes clashing with his mother it might mean that a change did not work for him.

35. The mother said that the effect of a change would be a beneficial one in that [X] would get a much better education, and I will refer to that again when I come to the parenting capacity section of the judgment.

36. The next relevant matter is the practical difficulty and expense of a child spending time with and communicating with a parent.

37. The parents live close to 700 kilometres apart, so there is a considerable distance between them but I think I probably should almost have crossed this one off the list as not highly relevant in terms of what I now have to decide because despite the distance the parents are making sure that [X] comes down to spend time with the mother in Town A and the mother has been up to Town B to see him and to have a look around that area on more than one occasion.

38. There is a practical difficulty and expense but it is not impacting adversely on [X]. The parents are managing that.

1. I must consider the capacity of each of the child’s parents to provide for the needs of the child, including his emotional and intellectual needs.

2. One of the central points of the mother’s case was that she alleged that she had been [X]’s primary carer. She had given birth to him. She looked after him when he was younger. She was strongly focused on the importance of him getting a good education. She asserted that there would so many benefits to him in living in Town A. She would be able to care for him and she submitted she would care for him very well and she raised some concerns about the father’s care of him.

3. The mother said that she would arrange for [X] to attend School G, which she said would provide him with a very good education and a lot of opportunities and it was the mother’s case that she had a better capacity to provide for [X]’s needs because she lived in a large regional city. Besides the better high school there were more opportunities to do things, go places and learn things in a big regional city compared to a small rural area and she also alleged that she was better able than the father to provide for his physical needs.

4. The father did not concede that there were any difficulties with him being able to care for [X], either on a physical level, on a day-to-day basis or in terms of his education.

5. The father disputed that the mother was [X]’s primary carer when he was younger. He put forward some evidence to suggest that he was the one who had a lot of involvement with that. I cannot make any findings about that but there is simply no evidence to suggest that the father is failing to properly care for [X] in terms of feeding him, looking after him and attending to his hygiene.

6. [X] is a very tall boy. He is a well-grown boy. The family consultant commented on that in both his reports. He did not make any adverse comments about the way [X] was dressed or about his hygiene or anything like that and I have seen many reports in which those kind of comments have been made. [X] has not complained to anyone, such as the family consultant, that there are any issues with him being fed or clothed or looked after. There is no suggestion that the school has any concerns about [X]’s day-to-day care.

7. I do not accept that there is any evidence that the father is failing to properly care for [X] on a day-to-day basis. He has enrolled [X] at a very small central school near where he lives. [X] is doing very well at that school. He was dux of year 7 last year but it is a very small school. However I do not have any information before me about whether [X] would achieve considerably better if he came down to Town A and lived with the mother. He would certainly go to a bigger high school. He would have probably a greater range of subject choices. But on the other hand if he was unhappy here it might actually be a backwards step in terms of his education, instead of a forward step.

8. People make a lot of assumptions about education. It is very important to the mother and to a lot of parents that children get a very good education but there are many high-achieving people who did not go to big schools. One of the High Court judges went to a small country primary school. Abraham Lincoln grew up in a backwoods cabin. Not everyone starts off their life getting a particular kind of education and the people who do not get it are not necessarily underachievers in life. Sometimes people go to big high schools and they do not do very well at all.

9. I cannot simply make an assumption that [X] is going to be a more successful human being because he goes to a bigger high school with more subject choices. There are a lot of other things that come into it, including [X] being happy and comfortable with where he is living.

10. The father said, and I have no reason to doubt it because the family consultant did not suggest otherwise, that [X] was happy in the rural environment where he was living.

11. I do not know where the mother grew up, I did not inquire into this, but the evidence is that the father grew up on a farm in rural New South Wales. He no doubt feels more comfortable in a place like Town B so it is not as if he has gone up there just to put a distance between him and the mother.

12. The other issue with him being in Town B, and this is something the mother may need to focus on a little more, is that while Town B is a long way from Town A, it is only a short distance from some larger centres like Town H and Town J. [X] can and does travel to those places with the father. I think the father mentioned Town K as well.

13. [X] can travel to those places with the father. They can be in a bigger centre. They can go to a big shopping centre and then come back to the small rural area which offers its own advantages in life. Not everyone enjoys living in a city. [X], in some ways, has the best of both worlds at the moment. He is able to come down and spend holiday time with the mother in the city, weeks at a time. He is able to live with the father in a rural area.

14. I have no reason to believe that [X] would receive better care if he lived with the mother. He would certainly receive a different education but I cannot automatically assume that it would be a better education. The father is working with the high school to make sure that [X] is challenged and has every opportunity that he is able to have and as the father pointed out, [X] may well later on come down to Town A to go to university, although there is always Brisbane as well so who knows what will happen. It depends I suppose on what courses he is interested in and what he gets accepted into.

15. I do not accept that the mother is better able than the father to provide for [X]’s day-to-day or intellectual needs.

16. I must consider the child’s maturity, sex, lifestyle and background, and the only thing I would mention there is what I have already mentioned in relation to views.

17. [X] is thirteen and a half. At that age children do not always know what is best for them but they are starting to have very firm, fixed views about what they want, and it can be quite difficult to make them do something a parent wants them to do if it is not something they want to do and [X] does have a very strong view about where he wants to live.

18. I must consider whether it is preferable to make the order that would be least likely to lead to further proceedings.

19. It is preferable to make that order because nobody wants to keep coming back to court. The order least likely to lead to further proceedings is that [X] remain where he is because everything suggests that the father is very flexible with him, that if he wants to spend time with the mother he can, and I rather suspect that if he strongly wanted to live with the mother he could do that as well.

20. I must consider any other relevant fact or circumstance but there are none.

Conclusion

1. I must take into account all of the s.60CC (2) and (3) matters in deciding what I should do for [X] and I just want to point out one thing that I mentioned during submissions.

2. I am a judge in Australia. I have to apply Australian law to make a decision, and informing Australian law are certain Australian beliefs about what is good for children. The mother is Chinese and I accept that the legal system in China is different. The beliefs of Chinese people about the importance of various family members and the priority given to decisions made by various family members may be very different to the situation in Australia, and I have some sympathy for the mother in that regard because it must be very hard for her having to submit to the jurisdiction of what, despite the length of time she has been in Australia, is essentially a foreign court for her.

3. However I have to apply Australian law.

4. The mother seemed to be quite firmly of the view that her wishes in relation to the child should prevail because she was the child’s mother. She mentioned having a 51 per cent right to decide as opposed to the father having a 49 per cent right. That is just not how it works in Australia. Neither parent has a greater right than the other to make a decision about their children.

5. People are expected to try and reach agreement about what should happen for their children. However if they cannot reach agreement they have to come to court and someone like me has to decide, which is always regrettable, but I have to make a decision by applying Australian law to the situation and Australian law does not give any primacy or priority to the fact that somebody is a child’s mother

6. I have to take into account all the matters in s.60CC (2) and (3).

7. [X]’s views are a very strong consideration. If the father was taking very poor care of [X], if [X] was not being properly educated at all, if the father was letting him go out pig-hunting instead of going to school or if he was abusing the child, then the fact that the child had a certain view would not prevail. But [X] is being educated in the father’s care. The father is taking proper care of him. The father is ensuring, without any argument, without any cavil, without any quibble, that [X] spends regular time with his mother, and in those circumstances I would not be prepared to override this child’s views and make an order that he live with the mother.

8. I accept that this is a disappointing outcome for the mother and that she will probably never let go of her view that [X] is being denied educational opportunities because of living in Town B. I cannot persuade the mother otherwise but I am not satisfied that it is necessarily the case.

9. [X]’s views are strong. They are consistent. They are made against a background of having experience of both options that are open to him. The father is taking good care of him. I cannot find that he is being educationally neglected and the only order I can make is that [X] continue to live with the father, disappointing though that will be for the mother.

10. One of the orders proposed by the father was that [X] spend time with the mother by agreement and he included this: “but, failing agreement, four weeks during the annual Christmas school holidays and two weeks each term holiday” which effectively means that [X] will be spending all but two weeks of the school holidays every year with his mother and that is very generous. It ensures that [X] will have a very good relationship with his mother and an experience of Town A and a bigger centre for an extended period of time.

11. In one of the court reports [X] said that he had been trying to talk to the mother about having FaceTime or some sort of video call but the mother did not quite seem to be able to get that organised. He would be quite happy to have that kind of communication if the mother wants to have it in the future.

12. The father sought an order that the parents not discuss the matter with [X] unless in the context of counselling. I am not prepared to make that order but the mother needs to consider that even on her own evidence [X] is pretty sick of being pestered about where he should live and if the mother does not stop pestering him it could undermine their relationship. It could mean that [X] says one school holidays, “Well, look, I’ll get pestered the whole time about staying there, about where I want to live, so I’m just not going to go.”

13. I have made final orders in this matter. That is the end of the legal proceedings in this Court. If [X] expresses a wish in a year or two to go to Town A to go to school there the father will need to respect that just as at the moment the mother is going to have to respect his wish to live in Town B, but I would not want the parties to be coming back to court again. It should not happen because [X], their son, is sick of it.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  25 March 2019