Shi & Tien (No 2)
[2023] FedCFamC1F 1104
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shi & Tien (No 2) [2023] FedCFamC1F 1104
File number(s): MLC 10355 of 2023 Judgment of: STRUM J Date of judgment: 17 November 2023 Catchwords: FAMILY LAW – PARENTING – where one child has been removed from the Commonwealth of Australia to Country B by the paternal grandfather with the tacit consent of the father and without the consent of the mother – where Country B is not a party to the Hague Child Abduction Convention or Child Protection Convention – where the father has done little to procure the return of the child to Australia – Orders made requiring the father to cause or procure the return of the child to Australia, including instituting or joining with the mother in proceedings in Country B against the paternal grandfather and permitting the mother to collect the child from Country B and to accompany him back to Australia Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) Part VII, ss 61C(1), 62G, 69E, 111CD
Hague Convention on the Civil Aspects of International Child Abduction 1980
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 17 November 2023 Place: Melbourne Counsel for the Applicant: Mr Fudim Solicitor for the Applicant: Robinson Gill Counsel for the First Respondent: Ms Wheeler Solicitor for the First Respondent: Lakey Family Law & Mediation Solicitor for the Second Respondent: The Second Respondent did not appear ORDERS
MLC 10355 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHI
Applicant
AND: MR TIEN
First Respondent
MR E TIEN
Second Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The first respondent father being a person with parental responsibility for the child, X born 2016, pursuant to s 61C of the Family Law Act 1975 (Cth), cause and procure the return of the child (together with his Country B passport) to the Commonwealth of Australia forthwith or otherwise as soon as reasonably practicable, including but not limited to signing all documents and doing all acts and things necessary at law in Country B (and including instituting or joining with the applicant mother in proceedings there against the second respondent and or his mother) to cause and procure the return of the child to the Commonwealth of Australia.
2.In the event the child is not returned to the Commonwealth of Australia by the second respondent and/or the paternal grandmother, the applicant mother be and is hereby authorised (insofar as any authorisation may be required) to collect the child from them, or either of them, solely for the purpose of returning the child to the Commonwealth of Australia forthwith and for such purpose solely the child spend time with the applicant mother until the expiration of two business days after the child’s return to the Commonwealth of Australia or further order, whichever first occurs
3.Liberty to apply be reserved to the first respondent father and applicant mother upon short notice in writing to the Associate to Justice Strum.
4.The matter be adjourned for mention before the Honourable Justice Strum on 12 February 2024 at 9.30am.
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 the pseudonym Shi & Tien has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
STRUM J:
Section 69ZL(1) of the Family Law Act 1975 (Cth) (“Act”) provides that a Court may give reasons in short form for a decision it makes in relation to an interim parenting order. These are my reasons.
There are competing applications for interim parenting orders in relation to the children of the parents’ marriage X, born 2016, who is presently seven years of age, and Y, born 2022, who is presently one year of age.
The mother is the applicant in these proceedings, the father is the first respondent, and the paternal grandfather is the second respondent.
Proceedings were urgently instituted on 11 September 2023, when the mother was unable to locate X. Y then was, and remains, in her care. It transpired that on or about that day, X was removed from the Commonwealth of Australia to Country B by the second respondent, without the mother’s consent. The father’s position in relation to the removal is more opaque. He says, through his counsel and on affidavit, that he wants the child returned to Australia and that the child thereupon live with him. However, he also deposes, as well as relies upon an affidavit from the paternal grandfather, to the effect that the grandfather will not return the child to Australia unless the Court makes the order that the grandfather and he want, namely, that the child live with him.
During the course of my exchanges with counsel for the father, I referred to the paternal grandfather attempting to hold a proverbial gun to the Court. That should never be the case and the Court has a dim view of the attitude of the paternal grandfather which is manifest from his affidavit.
The father filed an amended Response to Initiating Application on 15 November 2023 in which he seeks, inter alia, that the grandfather be removed as a party to the proceedings and that if, at any time, X enters the Commonwealth of Australia he live with him (that is the father) and spend unspecified time with the mother, as the parents may agree.
The paternal grandfather was joined as the second respondent by orders I made on 20 September 2023. He has not filed any material in his capacity as a party to these proceedings, as required by the Federal Circuit and Family Court (Family Law Rules 2021 (Cth). Rather, an affidavit has been filed in support of the father’s case, sworn by the paternal grandfather and filed on 13 November 2023, in which he deposes that he does not intend to participate in these proceedings and that he has told the father that he will not abide by an order of this Court for X to live with the mother, due to allegations of violence by her towards the child, the father and him. He confirms that X lives with him and the paternal grandmother at their current address in Country B.
The paternal grandfather deposes that he removed the child from the Commonwealth of Australia with the child’s agreement. The child is only seven years old. That, in my view, speaks volumes as to the insight or, rather, lack of insight that the grandfather has.
Notwithstanding the father’s denial, on his oath, that he was forewarned of the grandfather’s plan to remove X from the Commonwealth of Australia, that is not what he told the Court on 12 September 2023. His counsel says that he was unrepresented, which is true, and that he did not understand the exchange. That was not my impression on the day nor is it my recollection now or apparent from the transcript of my relevant exchange with him. The questions I asked him were simple and it was apparent that he had no difficulty in understanding them.
At page 13 of the transcript of the hearing on 12 September 2023, when the father appeared in person, there was the following exchange:
HIS HONOUR: Let me ask you, were you aware that your father was proposing to remove [X] from Australia?
[THE FATHER]: No, not until that – that morning, because that morning terrible things happened.
HIS HONOUR: Did you know that your father was going to take [X] out of Australia?
[THE FATHER] Yes. He told me that.
HIS HONOUR: Yes. And did you ask him not to do that?
[THE FATHER]: I think if – this is a better way of protecting him.
HIS HONOUR: What, by removing him from Australia altogether?
[THE FATHER]: Yes. I agree with that because I think at that time my wife has already all of control. So maybe that’s a better way to protect him.
(Transcript 12 September 2023, p.13 lines 19–37)
At no stage did the father indicate to me that he could not understand what I was saying or that he had any difficulty in expressing himself to me in the English language.
Additionally, the father deposes in his affidavit filed 13 November 2023 that the grandfather has told him that he will not comply with orders of this Court if the child is ordered to live with the mother and, further, that the grandfather “may agree” to return X to Australia if the father is successful in his interim application to this Court for X to live with him.
On the first return of these proceedings, on 11 September 2023, I ordered, inter alia, that:
Until further order or 20 September 2023, whichever occurs first, pursuant to s 114(1) of the Act, the respondent be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the respondent, [Mr Tien], born […] 1982, on the airport watch list enforced at all ports of arrival and departure in the Commonwealth of Australia.
The father seeks the discharge of that order today.
When the matter returned before me the following day, on 12 September 2023, I was satisfied of my jurisdiction under s 111CD of the Act to make parenting orders in relation to the children. Further, I ordered that:
The Respondent father do all acts and things necessary and otherwise use his best endeavours to ensure the paternal grandfather returns the child, [X], born […] 2016 to the Commonwealth of Australia forthwith.
On the third return of these proceedings before me, on 20 September 2023, having made an order for the joinder of the grandfather, I ordered him, albeit ex parte, but in urgent circumstances, forthwith and by no later than 22 September 2023, to do all acts and things necessary to return X to the Commonwealth of Australia.
For today’s purposes, I have read, in particular, the father’s affidavits filed on 13 and 14 November 2023. Even on their face, and without cross-examination of him, he has done little, if anything, proactively to secure the return of the child by the grandfather to Australia.
Additionally, in his first affidavit filed on 18 September 2023, the respondent father deposed:
I have spoken to my Father and told him that the Court has ordered that [the child] must return. He has told me he won’t send [the child] back as “He won’t survive there, he can’t stay there for a minute” …
That is a reference to the household of the mother, her parents and the younger child.
There is no suggestion there that the grandfather would return the child to the household of the father.
In my view, it cannot be said, even on the evidence of the father himself, that he has done what he was ordered to do on 12 September 2023, namely, all acts and things to ensure that the paternal grandfather returns the child to the Commonwealth of Australia, nor that he otherwise has used his best endeavours to procure the child’s return. There is no evidence, for example, that he has sought advice in Country B in relation to his rights against his father who lives there. I do not accept that his father is at arm’s length from him. It is clear the grandfather is supportive of the father in his case in this Court. It is also clear that the father has a close relationship with his parents.
As I have indicated earlier, the paternal grandfather, who is the second respondent, has filed nothing in his own case but has sworn an affidavit that has been filed by the father in support of his case. Although the grandfather deposes that he does not intend to participate in the Australian proceedings, he is presently a party and, ordinarily, it would be for him to seek to be removed; however, he does not do so. His son, the first respondent father, does so instead.
I am concerned, albeit only at this juncture in the proceedings, that the father may be talking with a forked tongue. He says that he wants the child returned to Australia but has done very little to procure this. For reasons which are not clear, the mother has instituted proceedings against the father in Country B for parenting and property orders. She is not presently restrained from travelling to Country B, but the father presently is, and the younger child, Y is also on the airport watchlist.
The father seeks for the restraint upon his travel from Australia to be lifted so that he may travel to Country B to defend those proceedings. That will await another day. Other than for the proceedings in Country B, he does not disclose any urgent need to travel out of Australia. Even in relation to the proceedings in Country B between the mother and him, there is no conclusive evidence before me today that he must be present there. At its highest, he deposes that a family lawyer in Country B, in respect of whom it is not even entirely clear whether the father has retained him or her, has told him that the court in Country B can give permission for a person overseas to attend proceedings there online, albeit that it is highly unusual and, it is said, will be detrimental to his case.
Further, the father has deposed that his lawyer in Country B, if indeed that lawyer has been formally retained, was preparing a statement for this Court regarding those matters, which would be available today. His counsel today sought to tender such a statement. Counsel for the mother objected and I did not allow the tender, because, amongst other reasons, the supposed lawyer is not on affidavit. There is no evidence of the purported lawyer’s qualifications. The instructions upon which his or her opinion was prepared are not in evidence. The person who translated that statement into English is not on affidavit. There is no evidence that the translator is appropriately qualified.
It is entirely unclear why the mother has instituted proceedings against the father and not the grandfather in Country B, given that the child is in his custody.
At this stage, I propose only to make orders in a further endeavour to secure the return of X to Australia. I do not propose to make any parenting orders, as defined under part VII of the Act, and although the father seeks orders to spend time with Y, the younger child, that was not pressed by his counsel today.
I am very concerned by the circumstances in which the elder child was removed from Australia by his grandfather, who has no parental responsibility for him whatsoever and no rights in relation to him, such as an order that he live with or spend time with him. No orders have been made displacing s 61C(1) of the Act which provides that:
Each of the parents of a child who is not 18 has parental responsibility for the child.
It is manifestly clear the mother did not consent to the removal of X from the Commonwealth of Australia and was even unaware of the grandfather’s intention to remove him. Without conflating these proceedings under Part VII of the Act with proceedings under the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 and the Family Law (Child Abduction Convention) Regulations 1986 made to implement that Convention into Australian law, I am satisfied that the child was removed wrongfully (as opposed to “wrongfully removed”, so as not to use the language of the Convention and the Regulations), in breach of the mother’s parental responsibility for the child.
Insofar as the father is concerned, the position is far less clear. Notwithstanding his sworn evidence, I am entitled to and do take into account what he told me on 12 September 2023, being that he knew his father was going to take X out of Australia, at least on the morning of the day that the grandfather did so, and that he did not disagree with him doing so.
On 20 September 2023, when the father was represented by Ms Wheeler of counsel, who appears for him again today, an order was made by consent that, subject to the return of X to the Commonwealth of Australia, the parents and the children attend upon Mr F on 20 October 2023, as a single expert, for the preparation of a short form Family Report at the parents’ joint expense.
It is clear that the report was contingent upon X’s return, which has not occurred, but a report has nevertheless been prepared and the point was not taken by counsel for either of the parents. X was interviewed by video, as were the parents.
The report is of considerable assistance, but also of considerable concern, to the Court. As is so often the case in this Court, I have diametrically opposed accounts by the father and the mother, and allegations one against the other, including of violence. It is trite to state that a family report and the recommendations therein are in no way binding upon the Court; however, especially at an interlocutory stage, when the parties’ allegations cannot be the subject of testing and findings and there is little common ground between them, a family report may be an important, and sometimes a large, piece of the puzzle that the Court is required to assemble. Unlike parties to litigation, who each present the case, at best, from his or her own subjective perspective and interest, a family report writer, as a single expert witness, is presumed to be independent and objective.
At paragraph 13 of his Family Report, Mr F observed in relation to the mother that:
…Her mood and affect were anxious and labile, and she was tearful at times when discussing the recent removal of [X]. There was a tendency to minimise her role in the parental conflict and she was somewhat vague and unclear about the decision-making processes for the children during the relationship.
At paragraph 21, Mr F reports, in relation to the father, that:
His mood and affect were restricted in range, and there were elements of impression management in his presentation and account.
It is fair to say that the Court, at this stage, has some concerns arising from Mr F’s report of his observations of each of the parents. However, importantly, at paragraph 29, Mr F reports as follows in relation to X:
[X’s] mood was labile and tearful, some pressure of speech was apparent, and his affect was anxious and distressed. He was difficult to engage in general conversation and he appeared intent on delivering a litany of complaints against his mother from the outset. Despite the agreement for [X] to be interviewed alone, it became apparent there was someone in the room. By way of example, when the writer asked a question, [X] would look off-screen, a muffled voice could be heard, and then he would return to the interview and answer. [X] understood that the meeting was occurring because his mother was a “bad guy” who lied to the police about his father and was rude to him.
Although the paternal grandfather denies that he was present in the room, I take his evidence with a considerable degree of caution, given his surreptitious removal of the child from the Commonwealth of Australia and his clear intent to retain the child in Country B unless and until his and the father’s demands are met by the Court. He should be under no misapprehension; he will not tell the Court what the Court is to do.
I am also troubled that X, at the age of only seven years, said to Mr F that his mother had lied to the police about his father. I pose the question rhetorically: how would a child of that age possibly know what his mother told the police? There is no suggestion that X was present when the mother had a conversation with the police.
At paragraph 30, Mr F reports that X’s narrative was “a litany of repetitive complaints about his mother” and he sets out the general themes:
a) His mother is a liar who was rude and who had grabbed him by the arm.
b) His mother does not treat him well and tells lies to the police.
c) His mother does not care for him and hurts him.
d) His father is good and his mother is bad.
e) He wants to live with his father; his father is the one that cares for him.
f) He refused to meet with his mother under any circumstances.
At paragraph 31 Mr F continued:
As the interview progressed, [X] disclosed that his mother had hit his father. However, he acknowledged he had not witnessed this incident and was unsure how he came by the information. He became distracted and pressured by the presence of someone offscreen talking to him. [X] turned to the writer and asked to continue the interview in [Country B language]. The writer explained that he was not familiar with [Country B] language. There was more muffled whispering, and [X’s] face was averted from the screen, and, in an exasperated manner, he waved his arms and shouted, “No, no, get out” to whoever was in the room. It is clear from what [Mr F] observed, namely, the child looking away, waving and saying: “No, no, get out”, that someone else was in the room, but for how long that person was in the room, I do not know. Insofar as [X] asked to continue the interview in [Country B language], there is no suggestion in [Mr F’s] report that [X] is not fluent in the English language; therefore, the Court is left to wonder why [X] asked to continue the interview in [Country B language]. It may be – and I do not presently know, but I anticipate it will be clarified if and when the paternal grandfather is made available for cross-examination – that the paternal grandfather does not understand English properly and wished to understand what was being asked.
Of greatest concern, and corroborative of the matters referred to in paragraph 29 and paragraph 30(b), insofar as X disclosed that his mother tells lies to the police, he acknowledged to Mr F that he had not witnessed this incident and was unsure how he came by the information.
At paragraph 32 and, again, of considerable concern to the Court, Mr F reports that:
As the interview progressed, [X] became increasingly upset and labile. During a conversation about his mother’s interview, he began to cry silently, with tears running down his cheeks. [X] was offered the opportunity to talk with his mother with the writer present, but he declined and appeared overwhelmed with emotion and could not continue.
It may be that it is because X has suffered the abuse at the hands of the mother that the father alleges. However, it may also be that X is in an impossibly difficult position, having been removed from the care of both his mother and his father and being in the care of his paternal grandparents, away from his parents and younger sibling, in another country.
In respect of his evaluation, Mr F reports at paragraph 36:
Given [X’s] history of multiple separations from both parties and the involvement of both sets of grandparents in his care, his attachment profile and relationships will need careful analysis when determining the appropriate live-with and spending time arrangements. This type of assessment and analysis cannot be completed while he remains in [Country B] and is removed from the care of both parents. The writer supports the return of [X] to Australia as per the Orders dated 11 and 12 September 2023
Mr F continues at paragraph 37:
[X’s] presentation during his Zoom interview is a cause for some concern. He was clearly under stress, agitated and emotional. It is the writer's view that [X] was not alone in the room when being interviewed, and there were attempts to coach him during the assessment by a person or persons unknown. As a result, it is likely that [X’s] interview was contaminated and is an unreliable guide to his best interest in the matter…
Mr F concludes that paragraph by reporting that he “holds significant concerns for the long‑term psychological and emotional welfare of [X] in the current circumstances, and he is identified as a child at risk”.
The Family Report was the subject of some attempted criticism by counsel for the father, which I do not accept. There is nothing to impugn Mr F’s expertise and, indeed, Mr F was the expert jointly appointed by the father and the mother on 20 September 2023 to prepare the report. The fact that the father may be dissatisfied with the report does not detract from it howsoever.
Mr F, as a jointly appointed single expert, is clearly entitled to express his opinion, based upon what he heard and observed. Mr F recommends that a period of uninterrupted reintegration with the mother will be required on his return from Country B and that the child be returned to the mother’s care with a period of no contact with the father and the extended paternal family for three weeks. I express no view in this regard; I will consider with whom the children should live and spend time when X is returned to Australia.
True it is that Mr F has also made recommendations that extend beyond that. I am not in a position at the moment, on the evidence, to make any orders that would extend much beyond a short period after the child’s return to Australia.
As I have said, counsel for the father was critical of the family report writer; however, it is what her client, for whom she acted on the day, and the mother consented to on 20 September 2023. It was required to be, pursuant to the order, and it is expressed on its face to be, a short form report and, indeed, it is subject to a full s 62G Family Report, as acknowledged or recommended by Mr F.
Although I have jurisdiction over the mother and the father in personam, as they are presently in the Commonwealth of Australia, I am not asked to interfere with the proceedings between them in Country B. If either of them seeks an anti-suit injunction in relation to the Country B proceedings or to argue forum non conveniens in relation to these proceedings, they can make an application properly.
In the circumstances, I only propose to order today that the father, being a person with parental responsibility for X pursuant to s 61C of the Act, cause and procure his return (together with his Country B passport) to the Commonwealth of Australia forthwith or otherwise as soon as reasonably practicable, including but not limited to signing all documents and doing all acts and things necessary at law in Country B (and including instituting or joining with the applicant mother in proceedings there against the paternal grandfather and/or grandmother mother) to cause and procure his return to the Commonwealth of Australia.
Further, I shall order that, in the event the child is not returned to the Commonwealth of Australia by the paternal grandfather and/or grandmother, the mother be authorised (insofar as any authorisation may be required) to collect the child from them, or either of them, solely for the purpose of returning his to the Commonwealth of Australia forthwith and, for such purpose solely, the child spend time with the mother until the expiration of two business days after the child’s return to the Commonwealth of Australia or further order, whichever first occurs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 18 December 2023
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