Rong & Huan
[2022] FedCFamC2F 117
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rong & Huan [2022] FedCFamC2F 117
File number(s): CAC 958 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 10 February 2022 Catchwords: FAMILY LAW – Parenting and property – Parental status involving parties’ seven year old son who has been living with the paternal grandparents in China since he was two years old while youngest son continues to live with the Mother and spends very limited time with the Father – Mother claims sending the child to China was the unilateral decision of the Father who Mother also claims was financially and emotionally controlling during the relationship seeks that the child be immediately returned to Australia – Father opposes the child returning to Australia – consideration of principle regarding the Court making a “coercive Order” – Orders made for the Father to do all things necessary to ensure that eldest child be returned to Australia and variation of parenting orders in relation to both children – Orders for financial disclosure. Legislation: Family Law Act 1975 (Cth) Cases cited: Adamson & Adamson (2014) FLC 93-622
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Collu & Rinaldo [2010] FamCAFC 53Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Maldera & Orbel (2014) FLC 93-602Moose & Moose (2008) FLC 93-375
Oswald v Karrington (2017) 55 Fam LR 344
Sampson v Hartnett (No.10) (2007) 215 FLR 155; (2008) 38 Fam LR 315
Vontek v Vontek [2017] FamCAFC 28Zanda v Zanda (2015) 51 Fam LR 502
Division: Division 2 Family Law Number of paragraphs: 43 Date of hearing: 11 November 2021 Place: Canberra Solicitor for Applicant: Mazengarb Family Lawyers Counsel for Applicant: Mr G Stagg Solicitor for Respondent: Mark Hanna Lawyers Counsel for Respondent: Dr S Leslie ORDERS
CAC 958 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RONG
ApplicantAND: MS HUAN
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
10 FEBRUARY 2022
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The children X ('X') born in 2017 and Y ('Y') born in 2014 live with the Mother.
2.Within 48 hours of the making of these Orders, the Father shall file a written undertaking, by which (under oath or affirmation) he confirms that he will comply with all the Orders of the Court regarding the return of Y to Australia as soon as possible.
3.Forthwith upon the making of these Orders, the Father shall surrender his passport to the Court until further order.
4.Within 14 days of the date of these Orders, being by 24 February 2022, the Father sign all documents and do all things necessary to effect the return of the child Y to the Commonwealth of Australia by no later than 31 March 2022, subject only to verified public health and/or travel impediment.
5.Within 21 days of the date of these Orders, the Father is to advise the Court via Affidavit (duly filed) what arrangements have been put in place to ensure the return of Y to Australia
6.Upon the return of the child Y to the Commonwealth of Australia he shall forthwith be provided to the Mother to live with the Mother;
7.Any costs referable to the return of Y pursuant to Order 3 shall be met by the Father.
8.Upon the return of Y to the Commonwealth of Australia, each party, their servants and agents be restrained from removing or attempting to remove or causing or committing the removal of the child Y, 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 child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
9.The children spend time with the Father as follows:-
7.1 Each Sunday from 1:00pm to 4:00pm;
7.2 At any time as may be agreed between the parties.
10.Changeover for the purposes of these Orders shall occur at Shell Coles Express B Street, City C ACT.
11.Pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s lawyer is appointed for the children:
a.X ('X') born in 2017; and
b.Y ('Y') born in 2014.
12.Legal Aid ACT is requested to make arrangements as soon as possible for appropriate representation for the children and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
13.Each party make available to the Independent Children’s Lawyer within 7 days of notification or filing of the Notice of Address for Service copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
14.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by a party.
15.The Independent Children’s Lawyer is exempt from paying fees associated with the issuing of subpoena material.
School Enrolment
16.The Mother is hereby authorised to enrol Y at D School at E Street, Suburb D ACT, where his brother is also enrolled, upon his return to the Commonwealth of Australia.
17.The Mother is authorised to enrol Y and X in F Centre’s New Horizons program to assist Y’s adjustment to life in Australia and rebuild his relationship with his family.
18.Within 7 days of the date of these Orders, the Mother shall authorise any school at which the children attend to provide information to the Father including but not limited to copies of school reports and the material usually provided by the school to parents.
Restraints
19.Neither parent will talk unkindly or criticise the other parent, or a member of the other parent’s family to, or in the hearing of, the children, and they will not allow any other person to do so.
Provision of Information
20.Each party shall inform the other of any attendance of either child upon a medical professional and shall authorise that professional to provide all information to the other parent and shall advise the other parent of the name and address of any person providing treatment or diagnosis to either of the child. The information to be provided to the other parent pursuant to this Order is to be provided as soon as is practicable.
21.Within 7 days of the date of these Orders each parent will do all things and sign all documents necessary to set up the Our Family Wizard parenting application and the parties shall communicate via this platform in relation to matters concerning the care, welfare, and development of the children in all circumstances excepting in an emergency whereby communication may be by phone.
Notifications to Court
22.Within 21 days of the date of these Orders, the parties are to jointly advise the Court:
(a)whether it is proposed to attend some form of alternative dispute resolution ("ADR") after the release of Dr G’s report;
(b)whether the Father has completed his long-outstanding financial disclosure, which had previously been indicated by his lawyers would be completed by the end of November 2021,
(c)Upon financial disclosure having been completed, what arrangements the parties have made regarding going to private mediation; and
(d)If upon the release of the Report of Dr G, the parties choose to deal with both parenting and property aspects at private meditation.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Rong & Huan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE WJ NEVILLE
Introduction
Although there is a property aspect to this proceeding, albeit a quite faltering one because of the Father’s regularly promised but ongoing default in providing financial disclosure, it is the curious if not quite unusual, parenting aspects that command the Court’s immediate attention on an interim basis. Formally, the parenting contest concerns two young boys, Y (born in 2014) and his younger brother X (born in 2017).
The unusual circumstances are that Y has been living with and has been cared for by his paternal Grandparents in China since he was 2 years old in 2016. The Grandparents financially support Y in every way, including more recently his attendance at boarding school. This latter circumstance obviously adds a further layer to the unusual factual mosaic not least because the day-to-day care of the child no longer rests with the Grandparents. The Father would like X to join his brother and attend school in China. The Mother opposes such a course.
X lives with his Mother in Canberra and spends limited time with his Father. The Father seeks to spend more time with X. There is not much opposition to this; the issues in this respect are questions of degree and progression, especially in the light of a s.11F Memorandum dated 10th August 2021. This Memo became Exhibit A.
The current central issue is that the Respondent Mother seeks that the Father do all things to ensure that Y returns (or be returned) from China and live with her. The Father resists the Mother’s Order in this regard. The parents speak with Y – separately of course – via various electronic means moderately regularly, although there seems to have been quite some reduction in this contact in recent times with Y in boarding school. Y has largely lost his facility with English and essentially only converses now with his parents, and notably with his brother X, in Mandarin.
At different times and on a number of occasions, the Mother and X, and separately the Father, have visited Y in China (on four occasions). Even less frequently, Y has returned briefly to Australia to spend time with his parents and his brother (twice).
For the reasons that follow, the Orders sought by the Mother (with some modest tweaking) should be made, which provide for the Father to ensure that Y is returned to Australia from China, and for that child to live with the Mother (and his brother X) and to spend reasonably regular time with his Father. In my view, these Orders are in Y’ and X’s best interests. There will also be Orders for the Father’s time with X to increase gradually.
Orders sought by the Father
The Father’s Orders sought were as follows:
1.That the parties have shared parental responsibility of the children, Y born in 2014 (“Y”) and X in 2017 (“X”).
2.That Y remain living in China with his paternal grandparents.
3.That X live with the Mother.
4.That X spend time with the Father as follows:
a.Commencing from Sunday 14 November 2021, and each Sunday thereafter, from 11am to 5:00pm;
b.Commencing from Sunday 02 January 2022, and each Sunday thereafter, from 9:00am to 5:00pm; and
c.Commencing from Saturday 5 March 2022, and each Saturday thereafter, from 6:00pm to 5:00pm.
5.That handovers occur at the Shell Petrol station located on B Street, City C.
6.That neither parent will speak unkindly or criticise the other parent or a member of the other parent’s family to, or in the hearing of, the children, and they will not allow any other person to do so.
7.That within 7 days of the date of these Orders the parties shall authorise any school at which the children attend to provide information to the other parent, including but not limited to copies of school reports and the material usually provided by the school to parents.
8.That each party shall inform the other of any attendance of either child upon a medical professional and shall authorise that professional to provide all information to the other parent and shall advise the other parent of the name and address of any person providing treatment or diagnosis to either of the child. The information to be provided to the other parent pursuant to this Order is to be provided as soon as is practicable.
Orders sought by the Mother
The Mother’s Orders sought were as follows:
Living Arrangements
1.That the children X (‘X’) born in 2017 and Y (‘Y’) born in 2014 live with the mother.
Arrangements for the Return of Y from China
2.That forthwith upon the making of these Orders the father shall surrender his passport to the Court until further order.
3.That within 72 hours of the date of these Orders the father sign all documents and do all things necessary to affect the return of the child Y born in 2014 to the Commonwealth of Australia.
4.That upon the return of the child Y to the Commonwealth of Australia he shall forthwith be provided to the mother to live with the mother;
5.That any costs referable to the return of Y pursuant to Order 3 shall be met by the father.
6.That upon the return of Y to the Commonwealth of Australia, each party, , their servants and agents be restrained from removing or attempting to remove or causing or committing the removal of the child Y born in 2014, 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 child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
Arrangements for Time
7. That the children spend time with the father as follows:-
7.1 Each Sunday from 1:00pm to 4:00pm;
7.2 At any time as may be agreed between the parties.
8. That changeover for the purposes of these Orders shall occur at Shell Coles Express B Street, City C ACT.
School Enrolment
9.That the mother is hereby authorised to enrol Y at D School at E Street, Suburb D, ACT, where his brother is also enrolled, upon his return to the Commonwealth of Australia.
10.That the mother is authorised to enrol Y and X in F Centre’s New Horizons program to assist Y’s adjustment to life in Australia and rebuild his relationship with his family.
Restraints
11. That neither parent will talk unkindly or criticise the other parent or a member of the other parent’s family to, or in the hearing of, the children, and they will not allow any other person to do so.
Provision of Information
12.That within 7 days of the date of these Orders the mother shall authorise any school at which the children attend to provide information to the father including but not limited to copies of school reports and the material usually provided by the school to parents.
13.That each party shall inform the other of any attendance of either child upon a medical professional and shall authorise that professional to provide all information to the other parent and shall advise the other parent of the name and address of any person providing treatment or diagnosis to either of the child. The information to be provided to the other parent pursuant to this Order is to be provided as soon as is practicable.
14.That within 7 days of the date of these Orders each parent will do all things and sign all documents necessary to set up the Our Family Wizard parenting application and the parties shall communicate via this platform in relation to matters concerning the care, welfare, and development of the children in all circumstances excepting in an emergency whereby communication may be by phone.
Procedural Directions
15. That the matter be set down for a 3 day final hearing.
The Mother’s Tender Bundle
The Mother’s Tender Bundle, filed 10th November 2021 contained a significant list of correspondence between the parties’ lawyers, between 16th June and 10th November 2021. While parenting issues were the primary focus at the hearing, there was relatively frequent discussion, notably from the Wife’s lawyer, seeking financial disclosure from the Husband. The list of that correspondence was as follows:
Item Date Page Letter from father’s solicitor to Mother’s solicitor re Y 16.6.21 1-2 Letter from mother’s solicitor to father’s solicitor re inability to speak to son Y and his enrolment at Boarding School in China without mother’s permission 3.9.21 3-4 Message from father to mother 5.9.21 5 Letter from father’s solicitor to mother’s solicitor in response to letter of 3 September 2021 8.9.21 6-7 Letter dated 22 September 2021 from mother to father re lack of disclosure re Y 22.9.21 8-9 Email from father’s solicitor to mother’s solicitor re financial disclosure 30.9.21 10-11 Email from mother to father 4 November 3.50pm requesting submissions and orders of applicant 4.11.21 12 Email from mother to father requesting a response re submissions and proposed orders 5.11.21 12 Email from father to mother dated 5 Nov (3.33pm) seeking adjournment 5.11.21 13 Email from mother to father dated 5 Nov 21 (5.37pm) not consenting to adjournment 5.11.21 14 Email from father to mother 8 Nov 21 (at 11.13am) querying mother’s response 8.11.21 14-15 Letter in response from mother to father regarding importance of dealing with issues of children, lack of progress of case and need to move matters forward 8.11.21 16-17 Email mother to father requesting update on the financial disclosure father promised 8.11.21 10.11.21 18 Email father to mother with submissions and proposed orders. No further disclosure from father 10.11.21 18 Mark Hanna
Solicitor for the Mother
The Father’s submissions
The Father’s submissions, filed 10th November 2021, were as follows:
Issue in dispute
1.There are three substantive issues to be considered by the court in these interim proceedings”
a.whether orders should be made requiring the child, Y born in 2014 (“Y”) be moved from China to Australia;
b.the time the child X born in 2017 (“X”) spends with the Applicant father; and ,
c.progression of the property proceedings, including and financial disclosure by the Applicant.
Parenting relating to Y
2.In October 2016, Y (at the age of 2) moved to China to reside with his paternal grandparents. There is considerable disagreement about the circumstances of the move but it not in dispute that the initial move to China occurred by agreement of the both parents.1 Since this time, the paternal grandparents have been the day-to-day decision makers and financial providers for Y. The parties have had a limited role in Y’s upbringing. There have been no assertions by either party, that Y is not adequately cared for by the paternal grandparents or that their parenting abilities of are inadequate.
3.There is again considerable disagreement between the parents about the level of co-operation between the parents concerning Y’s arrangements. However, it is not in dispute that:
a.Both parents regularly speak to Y by way of telephone calls and/or video calls:
b.Y has travelled to Australia for time with his parents on at lease 2 occasions and his mother and X have travelled to China on 4 occasions between April 2017 and March 2020.
c.The ability of Y to travel to Australia, and for his parents and X to travel to China has stopped since the end of 2019 because of COVID 19.
4.Y has adapted to the Chinese culture, has a close relationship and support with his extended family in China and has a strong relationship with his paternal grandparents.
5.Y is reported to be excelling above his age group at school. As a result, Y was accepted into boarding school in September 2021 which is offered by his school he always has been attending. This is a normal progression for a child at this school in China.
6.The Applicant is concerned that Y’s immediate return to Australia will impact his social wellbeing and his education He is concerned that Y will have learning difficulties due to the language barrier, will not receive the same standard of education he receives in China and will experience difficulties adjusting in circumstances where Y has spent majority of this life in China. There is also concern that about the effect of being removed from his paternal grandparents to whom he has the closest attachment of any adult.
7.There is no evidence that suggests any specific concerns for Y in China requiring any urgent relocation to Australia other than the understandable desire of the mother to see him. Certainly, there is nothing raised by the mother at the Child Dispute Conference dated 10 August 2021 (“CDC report”).
8.The Respondent alleges that Y was sent to China without her consent2. The Respondent has remained supine in the face of the decision. The Applicant asserts it was a consensual decision.
9.On 12 May 2021, the Respondent attempted to unilaterally change Y school in China from the school he has attended to another Chinese school. This issue was raised with the Respondent in correspondence on 16 June 20213. The Applicant did not receive a response. The actions of the Respondent suggest that notwithstanding her pervious claims of being powerless to do anything she was perfectly willing to take her own actions concerning Y after separation. This strongly suggests she at worst acquiesced to Y residing in China.
Parenting relating to X
10.The Applicant asserts he historically has had a meaningful relationship with X throughout the relationship. Notwithstanding the recent efforts of the Respondent to frustrate the relationship when separated under one roof, the Applicant ensured to spend time with X when home from work and assisted the Respondent with the day-to-day care of X.
11.Since June 2020, the Respondent has unilaterally ceased time with X or limited the Applicant’s interaction by:
a.Keeping X awake until 11:00pm watching videos on YouTube.
b.Interrupt the interaction between the Applicant and X by saying words to the effect of, “X, let’s go watch YouTube” or “let’s go play a game”. She then takes X into her bedroom.
c.The Respondent would restrict X from coming near the Applicant.
d.Upon the Applicant’s return home from work, the Respondent would take X into her bedroom and close her door. She would not allow him to greet each other.
12.On occasions, the Applicant heard the Respondent tell X, “Dad is dead” and “Dad is a monster.” X repeated these words to the Applicant.
13.In or around October 2020, the Applicant initiated negotiations with the Respondent for care arrangements for X. Mediation was unsuccessful. He obtained a section 60I certificate.
14.The Applicant asserts he is a victim of domestic violence perpetrated by the Respondent. There were several incidents that occurred during the relationship and post separation while the parties were residing under the same roof.4
15.The Child Dispute Conference memo states that “the mother did not report any concerns regarding the arrangements for X’s time with the father”. Nor has she raised any historical concerns between the father and Y. To take a position of wanting both boys to only have 3 hours a week is quite extraordinary.5 The seeking of such limited time between the father and the children suggests a motive other than best interest of the children.
16.On 5 September 2021, the Respondent unilaterally ceased time between the Applicant and X. On 10 September 2021 the Applicant proposed make up time. On 24 September 2021, the Respondent declined the offer for makeup time and instead asserted “the child X is settling into a routine. Unfortunately, in the interests of routine, our client does not propose to provide make-up time”. On 30 September 2021, the Applicant again pressed for makeup time. On 15 October 2021, the Respondent eventually agreed for makeup time. By virtue of this, it is evident the Respondent is putting the routine of X ahead of building a relationship between X and the Applicant. There is no identifiable detriment to X, if his time is increased with the Applicant.
17.The orders sought by the father in these interim proceedings are accordance with the recommendations of the Family Consultant but with a gradual increase over time.6
18.The Respondent alleges that she “fears” that X will be sent to China to live with the paternal grandparents.7 The Respondent’s fears are unfounded in circumstances where the Respondent holds the passport for X and the Applicant has agreed for X to be placed on an Airport Watch list on 31 August 2021.
Issues relating to financial disclosure
19.Orders dated 5 October 2021 require the Applicant to produce documents as outlined in Orders 2 to 5. Production of the documents are in the hands of the Applicant’s accountant. It appears from the communication received from the accountant, that the requested document should be ready “At this stage, due to the lack of resourcing in terms of staffing and sickness, I reckon a good estimate will be end of November.”
20.The Applicant has 1% interest in the company known as Rong Pty Ltd. This is a company which has a history of insolvency with extensive director’s penalties. The liabilities of the company exceed its assets. An administrator was appointed on 1 November 2019. This information has already been relayed to the Respondent on 1 October 2021 by way of correspondence.
21.On 29 September 2021, the Respondent agreed to a joint valuer to value the business. The valuer has been selected.
The Mother’s submissions
The Mother’s submissions, filed 5th November 2021, were as follows:
1. The current matters between the parties relate substantively to arrangements in relation to parenting matters. There are procedural issues in relation to property which have also been referred to this listing by Judicial Registrar Hiles.
Parenting Matters
2.The dispute in relation to parenting matters has two aspects to it. They are (1) the arrangements for X and (2) the arrangements for Y.
3.X currently lives with the mother and spends time with the father by agreement. There was a significant period where the father did not spend time with X whilst claiming the mother was withholding the child from him. As was pointed out to the father and his legal representative on the first return of the matter, that was plainly a nonsense and the mother had sought interim orders providing for time. Tellingly, the father has only elected to spend that time after the first return. In relation to X, the mother’s Orders provide a reasoned and measured increase in time between X and the father. The mother’s case is that this caution is warranted given the father’s lack of involvement with the child and failure to recognise deficiencies in his parenting style.
4.The situation in relation to Y has somewhat greater complexity. Y currently attends a boarding school in China. The parties are apart in their evidence as to whether there was an agreement for Y to be educated in China. The mother’s evidence is that she objected, the father effectively facilitated the travel to China at the behest of the paternal grandmother in any event, and did so a second time over the objections of the mother. Notably, the father fails entirely to give any form of detailed evidence at any point of conversations or documents that he says forms the basis of any ‘agreement’ by the mother that Y be educated in China. Tellingly, it is not in dispute that the suggestion by the father that X attend school in China was the catalyst for the separation.
5. Specifically in relation to Y, the mother submits: -
a.Currently Y is a resident of a foreign country and can have no meaningful relationship of any kind with either of his parents. Allowing such a situation to remain, regardless of whether there was prior agreement to its genesis, denies Y the benefit of a meaningful relationship with either parent. Such a position is fundamentally inimical to Y’s best interests;
b.The mother’s evidence is that she was Y’s primary carer. This does not appear to be contested by the father. To allow the current situation to continue where it seems that the mother will be deprived of even basic information in relation to Y does not serve Y’s best interests;
c.Whatever the cultural or other expectations that applied during the relationship, those expectations have been fundamentally undermined by the parties separating. It is not contested that the mother and the father will remain living in Australia and as such Y will become completely isolated from his parents’ primary cultural influences and language influence whilst living in China, potentially forming a significant obstacle in his ability to have a relationship with the mother and with his brother.
d.Y will essentially be completely deprived of any sibling relationship with X whilst living in China.
6. The mother’s case in relation to the risk posed to both children in the care of the father remains that essentially his inexperience in parenting poses a significant risk. In her submission it is in the interests of both children that they live with her, and that injunctive Orders are placed upon the father to undertake all measures to cause the return of Y to the Commonwealth of Australia and in those circumstances orders for limited time with the father represent the best interests of both children.
Property Matters
7. The property aspects of this case are complex. The current complications are that the father has persistently refused to comply with Court Orders for financial disclosure. Two conciliation conferences have had to be adjourned because of the father’s non-disclosure and bewildering positions such as asserting that his 1% legal ownership of a company should not be valued when he discloses no details about the company or its value. The Wife has tried to overcome these difficulties and has had to suggest remedies to problems the father raises. The father has taken no operative step at all to substantively pursue or follow up on pending disclosure and has no real interest in obtaining same. The father has had some difficulties with accountants yet has clearly done nothing at all in any active way to explain in depth what those difficulties are or taken any active steps to resolve them. In those circumstances, the mother submits that the father should not be permitted to endlessly delay the matter and the matter simply be listed for final hearing where the appropriate Black & Kellner and Chang & Su inferences will be sought against him.
Outline of principle
The principal touchstone for the conduct of interim proceedings remains, of course, the Full Court decision in Goode v Goode.[1] The basic principles from that judgment were, in effect, summarised in Mazorski v Albright, in which, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[2]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[1] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 especially at [74], and [81] – [82].
[2] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term "meaningful", as used in Part VII of the Act, in the context of what is comprehended by a "meaningful relationship." At [20] - [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J's observations::[3]
[3] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
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[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Because of the particular issues involved in the current matter, there are a number of other authorities that warrant attention. These authorities fall into two but necessarily related categories: (a) those that deal with the Court's exercise of injunctive power (either as restraint or as coercive), and (b) those that deal with parenting matters more specifically involving non-parents (here the paternal Grandparents) and the return of a child from a non-Hague Convention country. Regrettably no relevant authorities on any aspect of the parenting matter were cited or referred to. That task now falls to the Court.
Regarding relevant injunctive power - which was discussed at the hearing by both Counsel but only by reference to the statutory bases for such power in s.68B and s.114 of the Act - such discussion commences for current purposes with the Full Court's discussion in the seminal decision in Sampson v Hartnett (No.10) ("Sampson").[4] Accepting that the focus there was "relocation", the basal principles have wider application regarding the making of a “coercive Order.”
[4] Sampson v Hartnett (No.10) (2007) 215 FLR 155; (2008) 38 Fam LR 315.
After discussing the terms of ss.64B, 68B and 114 of the Act, at [34] - [40], in the joint judgment (Bryant CJ and Warnick J) the Court said at [43] and [45] - [47] (emphasis in original):
[43] As to the court’s power to make coercive orders and the propriety of making such orders, section 65D provides:
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and section 65DAB (parenting plans) and this division, make such parenting orders as it thinks proper. (emphasis added)
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[45] As seen, the sections are replete with references to parental obligations and duties. The first object of s 60B is to ensure “...that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child...”.
[46] These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents “fulfil their duties, and meet their responsibilities...”. It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them.
[47] As indicated earlier, the purpose of a “coercive” order is more to create a situation, rather than choose between situations that already exist. This distinction raises the basic question of the extent to which orders need to be connected to the evidence in a case…
Then at [57] - [58], the plurality said (emphasis added):
[57] If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person's freedom.
[58] However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent's choosing.
At [75], again essentially in the context of relocation but noting the basal principles relevant to the present matter before the Court, the plurality said:[5]
[75] To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party's capacity and/or the other parties' capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
[5] At [83] in Sampson, the Court said (emphasis) that the “orders that her Honour made were in effect at the extreme end of the discretionary range. Strong and well-defined support for them was necessary.”
Noting that the plurality agreed with the primary Judge's Orders, writing separately, Kay J said, at [121]:
[121] Whilst we have not been directly asked to determine the issue of the power of the court to make an order requiring a parent to move from a well-established place of residence to a different location so as to place the children in closer proximity to the other parent, I have severe doubts that there is power to make such an order or, if the power exists, it would not be exercised other than in the most exceptional circumstances.
The principles outlined in Sampson v Hartnett (No.10) have been endorsed (unsurprisingly) by a number of later decisions of the Full Court. For example, in Adamson & Adamson, at [33] - [41], the Full Court set out at length from Sampson most the passages set out above under the heading "power to make the coercive order." [6]
[6] Adamson & Adamson (2014) FLC 93-622.
Likewise in Zanda v Zanda, the Full Court, at [132] - [135], confirmed the significance and obvious authority of Sampson. [7]
[7] Zanda v Zanda (2015) 51 Fam LR 502. See also, to similar effect, the later Full Court decision in Oswald v Karrington (2017) 55 Fam LR 344 particularly at [15] – [17].
Moving to other areas of relevance to the current matter before the Court, I note briefly the following.
There is no issue that there are currently no parenting Orders between the parties in relation to Y and X. It follows from this that there are also no Orders in place regarding Y living with his Grandparents in China, or in relation to his education at boarding school in China. [8]
[8] Generally, in very different circumstances to the present, for consideration of a matter where a child was placed with a Grandparent who had Orders in place in her favour regarding her care of the child, see Maldera & Orbel (2014) FLC 93-602.
Finally, it is very important to record some comments by the High Court in Bondelmonte v Bondelmonte, which involved two children who went to stay with their Father in New York but upon arriving there, the Father retained the children. [9] The Mother sought to have the children returned to Australia so that, among other things, their relationship with their younger sister in Australia could continue to be nurtured, and likewise regarding their relationship with the Mother.
[9] Bondelmonte v Bondelmonte (2017) 259 CLR 662.
First, at [32], the High Court noted (internal citations omitted):
A parenting order made under s.65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s.60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s.60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
Secondly, at [35] - [36], the Court went on to say (emphasis added):
[35] The terms of s.60CC(3)(a) itself may be taken to recognise that, whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child's siblings. Section 60CC requires that attention be given by the court to these matters.
[36] It is not suggested by the father that the primary judge failed to consider the boys' views as to their return to Australia; nor could it be. His Honour accepted that they had expressed a desire to remain in New York, but considered that there were other matters about which the boys did not appear to have given any thought. Principal amongst them was the effect of their separation from their mother and their sister. The Court was also required to consider the maintenance of the relationship between the father and the daughter. His Honour considered that these matters were best dealt with through the intervention of the family consultant, via the mechanism which had already been established by the 2015 orders. The completion of that process meant that the boys should return to Australia.
Finally, at [46], the Court noted that the obtaining of a report from a family consultant "would be important for the purposes of future, more permanent, parenting orders."
In the light of these principles and the facts of the matter, such as they are at the moment, I can consider the principal issues.
Consideration & disposition
Regarding Y
As already noted, given the nature of the proceeding at the present time, I cannot and do not make any formal findings. I can, however, record that the Father acknowledges that he was the one who initiated and facilitated Y's move to China and that the Mother opposed it. The Mother said that the Father and his family were (and perhaps in some ways, still are) financially and psychologically controlling.
The Father also acknowledged that the Mother desires to have a meaningful relationship with both of her children and to care for them. The Father acknowledged that Y and X do not have a "normal" sibling relationship.
In oral submissions, the Father said that Y is excelling at boarding school. Unfortunately there is no evidence about how Y is doing on any front in China. There is no Affidavit from either of his Grandparents in China. Nor is there anything from the boarding school in China. The Court was asked to draw various inferences from these omissions. The omissions are indeed significant. So too is the fact that there is nothing before the Court regarding the terms and conditions (if any) of Y's visa to remain, and to go to school, in China.
Other than in oral submissions, there was, and is, nothing before the Court to indicate what might happen to Y if anything were to happen to his Grandparents in China that would preclude or impede such care as they might currently provide to the child, notwithstanding that he is currently in boarding school. In my view, this is quite a significant consideration regarding the care and welfare of Y.
In almost every respect, the High Court decision in Bondelmonte guides and governs the interim resolution of this matter. Just as the Court there expressed concern about the dislocation in the relationship between siblings, and similarly between the children overseas and the "left behind" parent (the Mother), those same matters - and as considerations under s.60CC(3) - are crucial here.
The relationships between the two boys, and between the Mother and Y, are crucial. They are not capable of improving in any relevant respect while-ever Y remains in China, even more so now that he is in boarding school. The Child Dispute Conference Memorandum (“the CDC Memo”), to a limited degree, noted similar concerns. [10]
[10] See, for example, par.25 of that Memo.
Also as with Bondelmonte, there is some urgency here too. Obviously, the longer Y stays physically so distant in China and removed from his family in Australia, which obviously also includes his Father who seems to take a somewhat "hands-off" approach to many aspects of parenting at the moment, the more difficult it is going to be to maintain let alone develop a meaningful relationship with them in accordance with s.60CC(2).
Notwithstanding the Father's evidence and submission that he simply wants the best for Y's life, and that being educated in China will achieve if not ensure this, in my view according to principle and the statutory considerations in Part VII of the Act, the meaningful relationship between Y and his parents, and the relationship with his brother, are even more central.
Further, because these are interim proceedings, the High Court's additional comments in Bondelmonte regarding the utility of a report before making any interim decision, and the importance of obtaining one for the more substantial, longer-term if not permanent Orders, are also relevant, indeed directly applicable, to the current proceeding. A report will be obtained and details are now known when and how that will occur in April 2022. That report will be of even greater moment and utility because the interviews with all members of the family will now be able to take place in Australia as a result of the Court's Orders today.
As earlier indicated, the Mother's Orders are in Y' best interests. They will be slightly amended as follows:
(a)There shall be a new Order 2, which will lead to amending all subsequent Orders. The new Orders 2 shall read: "Within 48 hours of the making of these Orders, the Father shall file a [written] undertaking, by which (under oath or affirmation) he confirms that he will comply with all the Orders of the Court regarding the return of Y to Australia as soon as possible;"
(b)The period specified in [current] proposed Order 3 of 72 hours shall be altered to read " 5 days";
(c)Further, the same Order is to be amended to ensure that Y is to be returned to Australia no later than 31st March 2022, subject only to verified public health and/or travel impediments.
Regarding X [and Y]
Regarding X, the CDC Memorandum recommended (at par.26) that his time with the Father be 5 hours each Sunday. The Mother's proposal is that the "children's time" with the Father be each Sunday between 1pm and 4pm, plus such other time as may be agreed between the parents.
Given the significant number of current uncertainties, in my view, the time-with arrangement should be that (a) initially and until Y returns to Australia, the Father spend time with X every Sunday for four hours (in the absence of agreement, between 1pm and 5pm), and (b) for such other time as may be agreed.
The same time-with arrangements will continue to apply to both children upon Y' return to Australia, subject to any other agreement between the parties and subject to what is in the Report to be prepared by Dr G. And further, for more abundant caution, given what might transpire, one way or the other not least being the international context, in my view it is entirely appropriate to appoint an Independent Children’s Lawyer for both children.
Conclusion
In addition to the Orders already indicated, the following further Orders, which are primarily procedural, will be made:
Within 21 days of the date of these Orders, the Father is to advise the Court via Affidavit (duly filed) what arrangements have been put in place to ensure the return of Y to Australia;
(i)Also within 21 days of the date of these Orders, the parties are to advise the Court whether it is proposed to attend some form of alternative dispute resolution ("ADR") after the release of Dr G's report;
(ii)In the update to the Court within 21 days regarding ADR, the parties are also directed to advise the Court (if they have not already done so) (a) whether the Husband has completed his long-outstanding financial disclosure, which had previously been indicated by his lawyers would be completed by the end of November 2021, and (b) upon financial disclosure having been completed, what arrangements the parties have made regarding going to private mediation;
(iii)The parties may, of course, upon the release of the Report of Dr G, choose to deal with both parenting and property aspects at private mediation, with the Court being so advised within the time prescribed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 10 February 2022
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