Sherwood and Liu

[2017] FCCA 752

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHERWOOD & LIU [2017] FCCA 752

Catchwords:
FAMILY LAW – Application for child to travel overseas with the mother on a study trip to China for a period of two months – proposed travel opposed by father because of concerns the child may not be returned – best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Cases cited:

Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) FLC 92-729

Applicant: MR SHERWOOD

Respondent: MS LIU

File Number: PAC 203 of 2017

Judgment of: Judge Newbrun

Hearing date: 30 March 2017

Date of Last Submission: 30 March 2017

Delivered at: Parramatta

Delivered on: 19 April 2017

REPRESENTATION

Counsel for the Applicant: Mr Maddox

Solicitors for the Applicant: Pars Lawyers

Counsel for the Respondent: Mr Alexander

Solicitors for the Respondent: Zhang Shijing Lawyers

ORDERS

1. The mother shall be permitted to travel with the child, X, born (omitted) 2012 (“the child”) to China from (omitted) 2017 returning with the child to Sydney, Australia by (omitted) 2017.

2. That order 2 of Exhibit A of the Court’s orders of 14 March 2017 be suspended during so much of the period specified in order 1 above that the mother and the child are outside the Commonwealth of Australia.

3. That the Australian Federal Police are requested to remove the name of the child from the Airport Watch List at all points of international arrivals and departure in Australia for the period from (omitted) 2017 until (omitted) 2017.

4. That on or before 30 April 2017, the mother shall deposit with the solicitors for the father an amount of $30,000, with such amount to be available to the father for the purpose of seeking the child’s return to Australia if she has not been returned to Australia on or before 7 July 2017. The solicitor for the father must refund the $30,000 to the mother within seven days from the date of the child’s return to Australia by 7 July 2017.

5. As further security for the purpose of the father seeking the child’s return to Australia if she has not been returned to Australia on or before 7 July 2017, that on or before 30 April 2017, the mother provide the father, through his solicitors, a charge over the mother’s interest in her property at Property S, NSW, to secure a sum of $100,000, and the father shall be entitled to lodge a caveat over such property, pursuant to the said charge. The mother shall be liable for and pay the lodgement fees and any other associated costs in respect of the said charge and caveat.

6. Upon the child’s return to Australia pursuant to the above orders, the father shall forthwith provide a withdrawal of the above caveat in registrable form and all documents completed and executed by him which removes the registration of the caveat.

7. During the child’s time in China, as above, the father shall be permitted to have communication with the child on Mondays, Thursdays and Saturdays through either telephone, Facebook or Skype communication and the mother shall take all reasonable steps to ensure that such communication is facilitated between the father and the child during this period.

8. Liberty to the parties to relist the proceedings to the court’s list on 24 hours’ notice in the event of any difficulty arising in relation to implementation of the above orders.

IT IS NOTED that publication of this judgment under the pseudonym Sherwood & Liu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 203 of 2017

MR SHERWOOD

Applicant

And

MS LIU

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was an interim hearing to determine the Respondent mother’s Application in a Case filed 16 March 2017 seeking orders to enable her to travel with the child X born (omitted) 2012 (‘the child’) to China between (omitted) 2017 and (omitted) 2017 in order for the mother to complete her occupational studies in (studies omitted).

2. On 14 March 2017 interim orders were made by consent, inter alia, that X live with the mother, that X spend daytime time with the father for specified time on Mondays and Thursdays and Saturdays with changeovers to occur at McDonald's Restaurant (omitted), that the father not be affected by illicit substances or be verbally abusive, and that the father ensure that his car is roadworthy.

Parties’ proposals

1. The mother seeks permission to take the child with her to China from (omitted) 2017 to (omitted) 2017. The mother ultimately proposed to provide security by depositing an amount of $30,000 with the father’s solicitors, such amount becoming available to the father for the purpose of seeking X’s return to Australia if she has not been returned on or before 7 July 2017. In addition, the mother ultimately proposed to permit the father to lodge a caveat on her property at Property S, with the caveat supporting a charge of $100,000 over the property.

2. The father opposes the mother’s application regarding the child’s travel to China with the mother.

Material relied on

1. In this hearing of the Application in the Case, the mother relied on:

   a)Application in a Case filed 16 March 2017;

   b)Affidavit of the mother filed 22 March 2017; and

   c)Case outline: Exhibit B.

2. The father relied on:

   a)Father’s Amended Initiating Application filed 6 March 2017, but only proposed interim orders 10-12 which require that X’s name be on the Airport Watch List;

   b)Affidavit of the father filed on 27 March 2017; and

   c)Case outline: Exhibit A.

Relevant legal principles

1. In Kuebler & Kuebler (1978) FLC 90-434, the Full Court of the Family Court (Ashe S. J, Gun and Yuill JJ concurring) stated:

   … the considerations that should be given to an application which involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, would be these: 

   (a) The length of the proposed stay out of the jurisdiction; 

   (b) The bona fides of the application;  

   (c) The effect on the child of any deprivation of access; 

   (d) Any threats to the welfare of the child by the circumstances of the proposed environment; 

   (e) The degree of satisfaction in which the Court bases its assessment of the parties that a promise of a return to the jurisdiction would be honoured.

2. The Full Court of the Family Court of Australia considered the overseas travel issue further in Line & Line (1997) FLC 92-729. Murray, Lindenmayer & Kay JJ stated:

   4.47  The fixing of an appropriate level of security in circumstances such as these is always a delicate matter, and one very much for the discretion of the trial Judge.  However, in exercising that discretion we consider that a trial Judge should have regard to a number of relevant matters.  Some of the matters we will now identify have been already highlighted by Asche SJ in Kuebler v Kuebler (1978) FLC 90-434. We think it timely that we again draw attention to those matters and others we believe to be appropriate.

   4.48  The first of those matters to which the trial Judge should have regard is the purpose of such security, in respect of which we adopt, with respect, the two-fold purpose referred to in the submissions of counsel for the husband and set out in paragraph 4.42 above namely:

   (a) to provide a sum which will realistically entice the person removing the children to return;  and

   (b) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.

   4.49  The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return.  In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there). 

   4.50  We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on the 25 October, 1980 (“the Convention”).  However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country. 

   4.51  Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level.  In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration. 

3. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

4. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

5. To determine what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Firstly, the Court must consider the primary considerations, being:

   (2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (2)(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. In applying these considerations, as per section 60CC(2A), greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with the parents.

7. The Court must also consider the ‘additional considerations’ specified in section 60CC subsection (3).

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. See below.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Not applicable, however the court refers to its discussion below relating to the relevance of the mother travelling to China with the child recently, and then returning to Australia, the mother having alleged family violence perpetrated by the father towards her prior to that travel to China.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child is four years of age.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. See below. The child would also appear to have a relationship with the maternal grandmother and aunt.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The father alleges that the mother has deprived him of spending time with the child in recent times. The mother, for her part, alleges that the father has perpetrated serious family violence against her (see below).

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The father asserts that rather than paying small amounts of child support weekly for the child, he used to pay the mother lump sums every few months towards the child’s expenses; he estimates he has paid about $12,000 in cash to the mother for child support until late 2015. He then did not pay child support, however he states that he continued to pay for child expenses and education whilst the child was in his care during the day.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. See below.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Should the mother travel to China with the child and the child remain in China, the father would likely have significant practical difficulties and expenses in spending time and communicating with the child.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. Both parents would appear to have such capacities.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The child is said to be in good health and content.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. According to the mother, there has been significant disputation between the parties since late 2016. The mother travelled to China with the child in December 2016 without informing the father.

(j) Any family violence involving the child or a member of the child's family.

1. See below, as to the mother’s allegations, in particular relating to asserted family violence perpetrated against her by the father.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. Should the mother be permitted to travel to China with the child and the child remain in China, and the father wish to secure the child’s legal return from China to Australia, he may have to commence legal proceedings in China and further proceedings in Australia. The court refers to its discussion below in relation to the mother providing security to the father in relation to her proposed travel to China with the child.

m) Any other fact or circumstance that the court thinks is relevant.

1. The Court now turns to the above referred case law.

2. Length of proposed stay in China: about 8 weeks.

3. Bona fides of application: the mother describes herself as a (occupation omitted); attached to her affidavit is a certification from the (omitted) Association for the period (omitted) 2016 to (omitted) 2017, certifying that the mother is a registered (occupation omitted), with general registration for “(occupation omitted)”.

4. She states that she holds (qualifications omitted) from two universities in China, and that she is currently studying for her (omitted) degree at the (omitted) campus of the (omitted) University. She states that the (omitted) degree course comes about as a result of a cooperative relationship between the (omitted) Association and the (omitted) University. The course requires three years of part-time study. The mother states that she has completed two years, and she has paid for all three years of study at a total cost of $21,000. The mother states that it is a condition of the “award”, which the court assumes is a reference to the award of the (omitted) degree that she spend time in China, including to work as an (occupation omitted) at the (employer omitted) attached to the (omitted).

5. The mothers’ application appears to be bona fide.

6. The effect on the child of any deprivation of access: the child was born on (omitted) 2012. Since the child’s birth, the mother states that there may have been about 20 nights when the child has slept in the same house as the father. The father confirms that the parties never cohabited together as de facto partners.

7. The father states that since the child’s birth, he has been a daily part of the child’s life. As he worked from home, the child was dropped off by the mother at his home almost every day at 9AM and picked up at 5:30PM as the mother worked full-time. He asserts that he was the child’s primary carer during the day almost every day of the week. He states the mother was caring for the child mainly at night time. The father states that he is able to care for the child on nights as well as during the day.

8. The father states that since 1 December 2016 he was not allowed to visit or contact the child. The court notes the interim orders of 14 March 2017 that the child spend daytime time with the father on a weekly basis.

9. It would appear that the child has a meaningful relationship with both parents. There is no evidence presently before the court that the child’s relationship with the father has deteriorated to any significant extent by reason of the child not spending time with the father since 1 December 2016 to mid-March 2017. The court is of the view that if the child is absent from Australia for about 8 weeks, then her relationship with the father should not be detrimentally affected, particularly if the father is able to communicate with the child during that period.

10. Any threats to the welfare of the child by the circumstances of the proposed environment: the mother states that during her proposed time in China with the child, that she and the child will be staying on the (omitted). She states that the maternal grandmother and aunt live close to the (omitted) and will stay there whilst the mother is in residence. She states that they will be available to care for the child whilst the mother is undertaking her (occupation omitted). There is no evidence before the court that the child’s proposed living conditions at the (employer omitted) nor the capacity of the maternal grandmother and aunt to care for the child are likely to be inadequate.

11. Degree of risk that the mother, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return with the child: the mother came to Australia with her first daughter (A, now deceased) in March 2005. Her then husband (Mr J) was already in Australia. On arrival in Australia they separated under the one roof.

1. In about October 2006, the maternal grandmother came to Australia to help in the care of A for 8 months. In June 2007 the mother took A to China. The mother left A in the care of the maternal grandmother for almost 2 months whilst the mother returned to Australia to attend work commitments. A died in (omitted) 2007 of natural causes. The mother states that it was always her intention to return to China in October 2007, it was never her intention to leave A in China on a permanent basis, and it was always her intention that A would be educated in Australia.

2. Since the death of A in 2007, the mother has been to China on about 6 occasions. Three of those trips preceded the child’s birth, and three post-dated the child’s birth. The mother and child went to China from Australia in September 2014 and the father consented to the trip. The mother went with the child to China in September 2015, however the parties are in dispute as to whether this trip was with the father’s consent; the father contends that he did not consent to this trip. The mother and the child went to China from (omitted) 2016 to (omitted) 2017, and it is common ground that the mother did not seek the father’s consent to this trip, the mother stating that the parties had just had a fight before this (omitted) 2016 trip.

3. In the mother’s police statement dated 1 December 2016 she states that the parties have been in an on/off relationship for about eight years. In this police statement the mother alleges that the father assaulted (inter-alia, she alleges the father punched her in the face) and verbally abused her at the father’s home on 1 December 2016. The mother asserts that she is scared of the father, and makes allegations that the father stalks her, and has previously threatened to kill her. The mother asserts that the father is a very jealous person, and she fears for the child’s safety. She states that she does not know what the father will do to her. The mother asserts that the father always wants to have the child overnight by himself, but that the mother refuses to allow this to occur. The mother states that she does not trust the father with the child.

4. Accordingly, the present state of the relationship between the parents, from the mother’s allegations is arguably poor, and the court refers to the mother’s assertions in her police statement of 1 December 2016.

5. The mother has previously travelled to China from Australia with the child A and did not return with that child to Australia (stating that she had left that child in the care of the maternal grandmother in China while she returned to Australia to attend to work commitments), albeit that the mother asserts that it was always her intention to return to China to collect A and bring her back to Australia.

6. The mother’s extended family are all living in China. The mother is close to her mother and sister.

7. The mother owns a modest apartment in (omitted) China, according to the father, stating that he spent a few weeks in that apartment in about 2007.

8. The mother’s (business omitted) ceased operating from the mother’s residence at (omitted) following that property being sold by the mother in November 2016. The mother’s income, according to the child support statements attached to the father’s affidavit, has dropped significantly in recent times from some $23,000 (1.1.16-31.10.16) to $937 (1.11.16-31.1.18).

9. On the other hand, the mother states that she is currently working as well as a (occupation omitted) for a company (employer omitted), but that she intends to recommence her (business omitted) in a different location in the future (which the court infers to be a location in Australia).

10. The mother has travelled to China with the child on three occasions and has returned with the child to Australia. In particular, following what the mother alleges as serious family violence perpetrated against her by the father in early December 2016, the mother travelled with the child to China and returned to Australia.

11. The mother has lived in Australia since March 2005, and is an Australian citizen.

12. The mother lived with the child at (omitted) for about five years.

13. The mother owns a property at Property S. The mother states that the property is worth about $1.2 million and has a mortgage of $470,000; thus equity is held of $730,000. This is the property in relation to which the mother states that she will consent to a caveat to support a charge being placed over the property during the period that she is away in China with the child. According to the father, in about January 2017 she gave notice to the tenant to vacate this property so that she can sell it, but little factual particularity is given as to these assertions (which, in oral submissions by the mother, was disputed by her).

14. The mother is registered as a (occupation omitted) with the (omitted) Association until the end of November 2017.

15. The mother asserts that the child has been enrolled in a (omitted) school to commence kindergarten in 2018 in Australia.

16. She states that with the proceeds of sale of her former residence at (omitted) (it was sold in about November 2016), she has purchased an interest in two further properties in Sydney, and that she has entered into a contract and provided 10% deposit in both purchases. She states that these purchases are due to complete in 2018.

17. On balancing the above factual issues as to the risks or non-risks of the mother travelling to China with the child and the child not returning to Australia as promised by the mother (in early July 2017), the court would presently assess the risk of the child not being returned to Australia from China as being a low risk.

18. Whether the country to which the departing parent intends to travel with the child is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 (the Convention): China is not such a signatory.

19. The financial circumstances of both parties: on the evidence presently before the court, the mother, according to the father, apparently owns a modest apartment in China, she has travelled annually to China with the child from Australia in the last three years, she has managed to pay $21,000 for the (omitted) degree course at the (omitted) University, she asserts that she has equity of about $730,000 in the Property S property, and she has purchased an interest in two properties in the Sydney metropolitan area.

20. As to the father, he states his occupation as retired (occupation omitted) working from home, at least prior to 1 December 2016, but little evidence is adduced as to his present financial circumstances. In paragraph 64 of his affidavit he refers to his “(omitted) business interests” in the context of the parties’ trip to China in 2007.

21. The mother asserts that she “If I am not permitted to travel to China with (the child), I would forfeit the money that I have paid”, which the court infers is a reference to the $21,000 that the mother has paid for all three years of study for the (omitted) degree course.

22. Mother’s proposed security: the mother formally proposes to put up a $30,000 cash bond. Further, she proposes an order that the father be permitted to lodge a caveat on the Property S property supporting a charge over that property for $100,000.

23. By reference to the level of risk that the child will not be returned to Australia if permitted to travel to China, discussed above, noting that China is not a party to the Convention, and in all the circumstances, discussed above, the Court regards the mother’s formally proposed cash bond of $30,000 and further charge against her property of $100,000, supportable by a caveat, to be an appropriate level of security, consistent with relevant legal principle.

24. The mother states that the child has spent virtually every night of the child’s life with her. On the evidence presently before the Court relating to the child’s attachment to the mother, and the extent of her time spent with the father to date, the Court would not regard it as being in the best interests of the child to be cared for by the father for some 8 weeks whilst the mother travels to China for her (omitted) studies.

25. It is common ground between the parties that the mother’s work for the (employer omitted) is conducted in its offices in Sydney.

Summary

1. Evaluating the above considerations under section 60CC of the Act, including consideration of relevant case law factors applicable to the mother’s proposed trip to China with the child, the Court is of the view, on the evidence presently before the court, that it will be in the best interests of the child to make orders permitting the mother to travel to China with the child on the following basis:

   1. The mother shall be permitted to travel with the child, X, born (omitted) 2012 (“the child”) to China from (omitted) 2017 returning with the child to Sydney, Australia by (omitted) 2017.

   2. That order 2 of Exhibit A of the Court’s orders of 14 March 2017 be suspended during so much of the period specified in order 1 above that the mother and the child are outside the Commonwealth of Australia.

   3. That the Australian Federal Police are requested to remove the name of the child from the Airport Watch List at all points of international arrivals and departure in Australia for the period from (omitted) 2017 until (omitted) 2017.

   4. That on or before 30 April 2017, the mother shall deposit with the solicitors for the father an amount of $30,000, with such amount to be available to the father for the purpose of seeking the child’s return to Australia if she has not been returned to Australia on or before (omitted) 2017. The solicitor for the father must refund the $30,000 to the mother within seven days from the date of the child’s return to Australia by (omitted) 2017.

   5. As further security for the purpose of the father seeking the child’s return to Australia if she has not been returned to Australia on or before (omitted) 2017, that on or before 30 April 2017, the mother provide the father, through his solicitors, a charge over the mother’s interest in her property at Property S, NSW, to secure a sum of $100,000, and the father shall be entitled to lodge a caveat over such property, pursuant to the said charge. The mother shall be liable for and pay the lodgement fees and any other associated costs in respect of the said charge and caveat.

   6. Upon the child’s return to Australia pursuant to the above orders, the father shall forthwith provide a withdrawal of the above caveat in registrable form and all documents completed and executed by him which removes the registration of the caveat.

   7. During the child’s time in China, as above, the father shall be permitted to have communication with the child on Mondays, Thursdays and Saturdays through either telephone, Facebook or Skype communication, and the mother shall take all reasonable steps to ensure that such communication is facilitated between the father and the child during this period.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  19 April 2017