S & D

[2005] FamCA 1035

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA36 of 2005

(No. BRM 4930 of 2004)

BETWEEN:
S
Appellant Mother

AND:
D
Respondent Father

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 27 September 2005

Date of Judgment: 13 October 2005

Appearances: The appellant mother appeared in person
The respondent father appeared in person

S and D        NA36 of 2005 (BRM4930 of 2004)
Heard:  27 September 2005
Delivered:  13 October 2005
APPEAL FROM FEDERAL MAGISTRATES COURT – PARENTING ORDERS – RELOCATION – The mother sought to live with the children, aged 8 and 12, in China for a few years – The father sought that the mother not be permitted to relocate with the children to any country that was not a signatory to the Hague Convention – The Federal Magistrate made orders relating to contact and the preparation of a Family Report and ordered that the trial be adjourned part-heard to a date to be fixed in February 2006 – In deciding on this course of action the trial Magistrate wrongly relied upon the father’s evidence to draw conclusions about the Chinese legal system and in particular the extent to which it did or did not provide redress for the father to enforce contact arrangements – The learned Magistrate failed to address a lack of appropriate evidence about the Chinese legal system at trial – The content of foreign law is a question of fact and to be proved by evidence unless the subject of an arrangement such as a concession – In the absence of proof the court should assume the foreign law to be the same as Australian law
Di Sora v Phillips (1863) 10 H.L.C. 624
Toric & Toric (1981) FLC 91-046
M & DOCS [1998] FamCA 142
That the appeal be allowed. That order (18) of the orders of the Federal Magistrate be set aside.

The lives of the parties to this appeal and of their children have an international context, which has much to do with the dilemma which led to a trial in the Federal Magistrates Court in February 2005, and to the consequent decision in May 2005, to which this appeal relates.
The mother, born in China, and the father met in the United Kingdom where the father was born. The parties married in London in December 1988 and lived there for a while before relocating to China where their older child, D was born in 1993. The younger child, J, was born in Hong Kong in 1997.
However, when the marriage broke down and the parties separated in June 1999 the mother took up residence in Australia with the children. The father returned to the United Kingdom. He had some contact with the children there, but none in Australia until early 2005.
As the matter presented to Federal Magistrate Rimmer at trial, she saw the mother as, at the most broad, seeking permission:
“…to relocate the residence of these children to any country of her choosing, at any unspecified time and without the husband’s consent, to countries that are not signatories to the Hague Convention.”
However, notwithstanding that broad formulation, it seems that the mother’s immediate wish was to live in China with the children for a few years.
As to the father’s position, the learned Magistrate said:
“The father made it perfectly clear in his evidence that he does not wish to restrict the mother’s freedom of movement within reason. He says that the only restriction he seeks from the court is in relation to permitting her to relocate the residence of the children to any country that is not a signatory to the Hague Convention.”
Though the trial began as a final hearing, for reasons that she explained, the learned Magistrate ordered:
“(r) That the matter be adjourned to a date to be fixed in February 2006.”
Her Honour also made orders for contact in the meantime and for the preparation of (a full) Family Report at the conclusion of that contact, the intention apparent from other terms of orders being that that report be available for the resumed hearing.
The mother appeals, seeking that final orders be made now, permitting her to relocate to China.
Both parties were unrepresented in the appeal. The text which the mother has included in her Notice of Appeal under the heading “Grounds of Appeal” is a mixture of narrative, submission and comment, though it is possible, particularly with the assistance of her summaries of argument, to discern matters of complaint which might be regarded as grounds of appeal.
In the end, I have decided that the appeal must be allowed on one ground, so, though I later identify all the grounds raised, only the successful ground is discussed.
Before going to the grounds of appeal, I set out a brief background and outline of the trial Magistrate’s reasons.

Background and judgment of the trial Magistrate

The content of this section is derived from the reasons for judgment.
The learned Magistrate set out that when the mother filed her application in June 2004, she was proposing to take the children to live in China for a sabbatical year. She had stated that her business interests were expanding into China. However, in her affidavit of evidence-in-chief filed for the purpose of the hearing in 2005, the mother stated that one of her current plans was to investigate the opportunity of relocating the children to China for a couple of years to improve their Chinese language and spend time with relatives.
The Federal Magistrate then recorded that in her application, however, the mother sought permission to take the children from Australia at any time and relocate the children’s primary place of residence, either temporarily or permanently, to China, Hong Kong or the United States of America. In addition, as earlier indicated, the learned Magistrate described the mother as wishing to relocate to any country of her choosing at any unspecified time.
A feature of the case that loomed large in the conclusions to which the learned Magistrate ultimately came was:
“…that the arrangements for contact to occur have been fraught with conflict between the parties and that ongoing telephone contact and email contact has not always occurred well and with precise regularity.”
After so saying, her Honour turned to discuss arrangements that had been made for contact to occur when the father arrived in Australia for the hearing and said of that contact that it was “…clear that this did not happen without quite considerable disharmony…” Her Honour then recounted the difficulties for, and the anxiety and frustration of, one or both of the parents, resulting from events surrounding that contact and that the father had brought an urgent application for contact orders. Her Honour recorded:
“As a result of all of these matters and other evidence before me, I ordered that an urgent oral report be prepared by a counsellor to assist my determination in the children’s best interests.”
The Director of Court Counselling interviewed the family and delivered an oral report. He concluded that the children required a relationship with the father. However, the counsellor acknowledged that the period of time he had to interview the parties and the children was less than if he was doing a full family assessment. He stated that he could assess the children and their needs, but did not feel that he could comment to any great length or detail on the parents, their personalities and parenting skills.
The counsellor opined that the children had been exposed by the parents to the conflict between the parents and that that had had an effect on D in particular.
Her Honour recorded the counsellor’s evidence that he had taken the opportunity to give both the parents “feedback” at the end of the interview process and that:
“…there was one aspect of the mother’s reaction to that feedback that he was concerned about and it had to do with her expressed concern to him that the father might, in some way, be a paedophile or have a sexual interest in his daughter.”
Of particular concern to the counsellor was that “there appears to have been interaction between herself [the mother] and [D] about this…”
The counsellor stated that he saw absolutely nothing in the child J’s presentation or behaviour or in what she told him to indicate that anything of that nature had happened. the counsellor assessed that at that moment J was not overly influenced by adult views, but she was likely to react more as she got older.
As to the counsellor’s evidence and, of particular pertinence to what she ultimately decided to do, the Federal Magistrate said:
“48. While he was qualified in his assessments of these parties, he was able to state clearly that from what he had been told both from the children themselves and from each of the parties, that each of them had serious problems in the manner in which they permitted these children to be exposed to and involved in their adult conflict. He remained of the view that there was some possibility that the father, who was open to his feedback, would adapt his behaviour in this regard. He had real concerns that the mother, who was rejecting and blaming during his feedback, would be able to achieve this.
…
52. I had the opportunity of observing each of these parties and some of their witnesses in giving their evidence at the hearing. Having done so, I am of the view that this is a matter which is very fluid and far from stable in its nature.”
Her Honour then repeated the evidence about the behaviour of the parties in relation to the exposure of their children to the conflict and said:
“55. For [D], I find this has significant consequences which, if not addressed urgently, is at real risk of losing his relationship with his father, because of a combination of his age, his particular personality and behavioural responses as a result of his Aspergers, his very close and understandable attachment with his mother and the fact that this cannot be balanced and tempered by the reality of frequent exposure to his father and who he really is.
…
61. …However, I have very real concerns that whatever orders this court makes, they will not mean that the children actually have the contact with their father.…”
Later, the Federal Magistrate recorded the position of the father as follows:
“84. In effect, the father says that this is not a case where he is trying to control the mother’s right to live where she chooses. Rather, it is his case that because of the fact that this court should find that the mother will not have the necessary skills to ensure that contact will occur, that the best interests of the children require that they live in a country where the laws and support services available will mean that he can access the legal system and those support services to address this failure on her part.
85. …It is his submission that this simply will not happen if the mother is permitted to relocate the children to live in China.”
Her Honour then turned to consider the section 68F(2) factors, recording that both of the children wished to have an ongoing relationship with the father but that D did not want contact unless the father stopped criticising his mother and other members of his household to him.
Moving to other factors, her Honour found that:
“…the mother lacked the capacity to look honestly at her contribution to this conflict and how she involves her children in it, against the father.…
but said that:
112. However, I have taken into account that [the counsellor] did not have the time or the opportunity to make a full and complete assessment of these parties and their backgrounds.
113. I am concerned that this is not properly addressed in the evidence before me as it is in the proper evaluation of the mother’s proposal to relocate with the children to China, a significant consideration as to whether I can be confident that she will in reality, support and encourage and facilitate the children’s relationship with their father. I accept that if she and the children live in China, than (sic) this will largely stand or fall on whether the mother has the capacity to do this. It is true that she says that she will promote contact.…
114. This issue could not be addressed by [the counsellor] because of the time constraints placed upon him. However, the matters [the counsellor] has been able to assess have raised some significant indicators that this may be a real lack in the mother’s capacity. I will address this later in these reasons, as it goes to the heart of my determination of the children’s best interests in the mother’s relocation proposal.”
…
“127.…As I have already said, because of the unique circumstances of this matter, the situation between the parties and their children were (sic) very fluid at the time of the hearing.…
128. …This leaves me with considerable concern that if the court moves to determine these matters on a final basis, it will be doing so without the benefit of the proper evidence and that is highly likely to lead to further proceedings between these parties and with all of the resulting difficulties of having a final hearing without the benefit of a proper conclusion.
129. On the available evidence I would not be in a position to find with confidence that the mother has the capacity to promote the relationship between [D] and his father in the way that would be necessary in the event that the child were to live in China. …In China, as the father rightly points out, he will not have a situation where he can quickly get before a court, register his orders and get the supports necessary from the entire family law system, which includes not only courts but mediation and counselling services.
…
133. I have had the benefit of a limited oral family report which for me raises a number of very significant considerations about whether in the long term the mother and the father are able to address serious and long standing issues in their relationship to create an environment whereby these children will have a positive and ongoing relationship with their father without considerable assistance and support, both legally and through other interventions, with no evidence that those things likely to be necessary to support the children’s ongoing and important relationship with their father are available to the parties and children in China.
…
135. I have considered all of these issues very carefully and I have come to the conclusion that the court is not in a position to make final orders about the children’s contact or the proposed relocation of the children to China.
…
140. …The matter should then be considered further by the court after the release of that report so a final determination can be made on all of these issues, including the mother’s proposed relocation to China.
141. I accept that this is an unusual step, however my overriding obligation is to make orders that will promote the best interests of these two children both in the short-term and the longer term. To do so in this matter, I am more than satisfied, requires further expert evidence of the matters I have addressed in these reasons.”

Grounds of appeal

I identify the points of appeal raised by the mother as follows:

That the learned trial Magistrate failed to have proper regard to the mother’s right to freedom of movement, particularly in circumstances where the father chose to live in the United Kingdom while his children lived in Australia
The learned Magistrate showed bias toward the British respondent and against the Chinese appellant.
The learned Magistrate gave no recognition of the psychological consequences for the mother, the children and maternal relatives, nor to the financial consequences on the mother and children resulting from the interim orders.
The trial Magistrate wrongly relied upon the views of the father to draw conclusions about the Chinese legal system and in particular the extent to which it did or did not provide redress for the father to enforce contact arrangements.
That the learned Magistrate erred in finding that the mother had initiated the separation of the parties and had abducted the children to Australia at that time.

The successful ground

The ground in which I find merit is that:

The trial Magistrate wrongly relied upon the views of the father to draw conclusions about the Chinese legal system and in particular the extent to which it did or did not provide redress for the father to enforce contact arrangements.

Though initially when dealing with the question of Chinese law, the learned Magistrate merely recounted the father’s statements on the point, as also seen, ultimately she accepted his assertions. The relevant passages are:
“22.         The issues in this matter are identified as follows:
· …
· …
· The evaluation of the risk assessment of the children living in China, a country which is not a signatory to the Hague Convention, and as the husband contends, not a country with the same objects and rights for children’s ongoing relationship with both parents as are the countries of Australia, the United States of America and the United Kingdom;
…
84.    In effect, the father says that this is not a case where he is trying to control the mother’s right to live where she chooses. Rather, it is his case that because of the fact that this court should find that the mother will not have the necessary skills to ensure that contact will occur, that the best interests of the children require that they live in a country where the laws and support services available will mean that he can access the legal system and those support services to address this failure on her part.
85.    He submits that he has no difficulty in her choosing to live and pursue her business interests in any country which is a country who will recognise his children’s rights and needs to have a relationship with him and has in place the framework for him to be assisted in achieving this. It is his submission that this simply will not happen if the mother is permitted to relocate the children to live in China.
…
129. On the available evidence I would not be in a position to find with confidence that the mother has the capacity to promote the relationship between [D] and his father in the way that would be necessary in the event that the child were to live in China. The reasons for this are not because I find that the mother will deliberately and wilfully disobey a court order but more because she has not demonstrated the necessary understanding and personal skills to manage the separation nor appreciate the unconscious or conscious contribution she makes to [D’s] difficulties in this regard. In China, as the father rightly points out, he will not have a situation where he can quickly get before a court, register his orders and get the supports necessary from the entire family law system, which includes not only courts but mediation and counselling services.” [emphasis added]
It can be seen that the opinions put forward and accepted, about China are about the family law system broadly regarded, but undoubtedly include perceptions of the law.
In addressing this ground, it is appropriate to consider how the issue of Chinese law was handled at the trial. From a reading of the reasons alone, it seemed possible, indeed likely, that the learned Magistrate had been left in the position in having before her some opinions about the topic expressed by the father, who had had some experience of Chinese society, without any other assistance. Indeed, at one part of her “SUMMARY OF ARGUMENT (Reasons for Appeal)”, the mother says, in relation to the question of the father’s views about his capacity to enforce in China his rights to contact “…nor were these issues debated or evidence supplied at trial as to how these viewpoints could be established.…”. However, in the end I am satisfied that issue was raised about the lack of appropriate evidence about the Chinese legal system and that the learned Magistrate has failed to address that issue. Rather, she accepted the father’s statements which, on their face, ought not have been accepted.
In his oral evidence, but only in re-examination, the father said:
“…The only reason I want to prevent her to going to China which may be a requirement in her mind for economic need or intellectual needs is because there are no laws in China that don’t subscribe to the Hague Convention. It would be totally unenforceable for a British passport holder to get any justice if parenting orders are breached.…If she goes to China as far as I’m concerned I will lose all contact with my children not because I choose to but I will not have any means of enforcement. There must be some structure to my relationship being protected. There must be some law.…”

At the end of the trial, the parties made submissions in writing. In initial submissions for the mother, it was said:
“29. …He leads no evidence that he would be unable to have contact with his children in China (just as he would in Australia) and there is no basis for any assumption that [the wife] would not provide the children for the contact that she has proposed in her application.…”
In his submissions in reply, the father submitted:
“14. …The Wife is well aware that it would be impossible for the Husband to enforce his parental rights in China as it is not party to the Hague Convention, and does not recognize any orders made by non-Chinese courts. Additionally, there is no effective legal system in China with the courts renowned for being both ineffective and corrupt. On the 24^th Feb 2005 evening, immediately after the court case, the Wife visited the Husband’s hotel and made it clear to him that “if he did not do want she wanted that she would just take the kids to China and make sure he never sees them again”, making it very clear she knows she would be under no obligation to respect the Husbands parental rights whilst living in China.”
Finally, in submissions in reply on behalf of the mother, it was said:
“14. As has been submitted, there is no reason to suppose that the Husband would not be able to have contact with his children in China. For him to claim that he will not be able to secure such contact he would need to demonstrate (and he does not) that:
(1)He would not be entitled to travel to China; and
(2)That the Wife would not be willing to send the children from China for contact; and
(3)that he would have no ability under Chinese law to have contact with his children in any event.
Again, the Husband’s lamentable racism emerges. Not only does it do him little credit and reveal much of his motivations, but it obscures what relevant matters he may have to submit. The paragraph also contains assertions about the legal system in China that are unsupportable by evidence or by common knowledge.
Lastly, objection has to be taken to the giving of evidence in these submissions which is unsworn, untrue and inflammatory.” [emphasis added]
Therefore, the issue of the inadmissibility of the claims of the father, in re-examination and in his submissions, about the Chinese legal system, was squarely raised and required determination by the learned Magistrate. In my view, that determination would have resulted in the rejection of the father’s claims about Chinese law.
The content of foreign law is a question of fact and to be proved by evidence unless the subject of an arrangement such as a concession. In the normal course such evidence would require proof of an expertise, see Di Sora v Phillips (1863) 10 H.L.C. 624 at 640, Toric & Toric (1981) FLC 91-046. Indeed, in the absence of proof to the contrary, the general rule is that the court should assume the foreign law to be the same as Australian law and the onus to establish otherwise lies on the party asserting the content of the foreign law, see also M & DOCS [1998] FamCA 142 at [48].
As can be seen from the discussion of the judgment of the trial Magistrate, the view which she accepted of the Chinese legal system as deficient for ensuring that proper contact occur between the children and the father threw into focus the attitude of the mother to contact, as the lynch pin upon which contact would succeed or fail. This focus in turn led to the adjournment of the trial for further assessment, in particular, of the mother and her attitude. In other words the erroneous approach to the question of Chinese law directly affected the result. That result being that the mother’s wishes and plans to move to China were at least temporarily frustrated.
Accordingly, in my view, the appeal must succeed.

Remission or re-exercise of discretion

In support of her grounds of appeal, the mother sought to place before the court by way of further evidence (among other material) a report by a professor of jurisprudence at the School of International Law at the China University of Political Science and Law, in Beijing. This report dealt with the Chinese law relating to what we would call parenting issues and in particular, contact.
Though I declined to receive the report as further evidence in support of the grounds of appeal, I expressed the view that the subject matter of the report was both relevant and important to the issues raised in the trial.
The mother did not seek that, in any re-exercise of discretion (which she urged upon me) I receive the report of the professor, perhaps because I had indicated, when giving my reasons for rejecting it in support of the grounds of appeal, that I thought also that it was incomplete and contentious and that in those circumstances I would be unlikely to receive it in respect of any re-exercise of discretion.
The absence of evidence before me abut Chinese law is a telling one in relation to whether I should, or can, re-exercise the discretion.
Moreover, the question of Chinese law remains only one aspect of a number of matters requiring consideration and comparison in determining what orders in respect of the issues raised are in the best interests of the children. As seen, a very significant aspect is the capacity of the mother to support contact, the very matter as to which the learned Magistrate perceived the need for further evidence. While the extent that Chinese law is shown to be supportive of contact to parents in the father’s position, the attitudes of the mother may decrease in significance, the need for further evidence may well persist. Indeed, the mother herself, in her grounds of appeal and submissions, requests the prompt completion of a full Family Report.
Further still, on the face of the reasons of the learned Magistrate as asserted in one of the other points of appeal identified, there is in an absence of discussion of detriment which even the temporary adjournment may have caused to the mother and children, insofar as it prevented their move to China.
In these circumstances, I consider remission of the matter, in a form which I will shortly discuss, to be the appropriate course.
I have pointed out to the mother however, that in practical terms, remission may result in a course little or no different from that already determined by the learned Magistrate, if there is perceived a continuing need for a further Family Report. Regard must also be had to the availability of the learned Magistrate, who it seems to me is part-heard in the matter.
As to the form of remission, the mother appealed all of the orders made, though she made it clear that her real issue was with the consequent restriction on her capacity to move forthwith to China. It seems to me that, in effect, it is the adjournment of the trial with which the mother really takes issue and that what is required is a fresh consideration by the learned Magistrate of the appropriate course of the hearing, in light of my determination about the absence before her at trial of any admissible evidence about the law in China, perhaps in the light of such evidence about that law as might be put before her and, of course, in the light of all the other evidence relevant to a decision at any given time as to what is in the best interest of the children.
I repeat my suggestion to the mother that a possible result of that reconsideration may be the same as that ordered in May of 2005.

ORDERS

That the appeal be allowed.
That order (18) of the orders of Federal Magistrate Rimmer made 25 May 2005 be set aside.
I certify that the preceding 50 paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Warnick.
………………………………….
Associate
Date: 13 October 2005

[2005] FamCA 1035

13 October 2005

Key Legal Topics

Areas of Law

Family Law

Evidence

Civil Procedure

Legal Concepts

Appeal

Expert Evidence

Jurisdiction

Procedural Fairness