SUN and KIAO

[2017] FCWA 34

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SUN and KIAO [2017] FCWA 34

CORAM: MONCRIEFF J

HEARD: 20, 21 & 22 FEBRUARY 2017

DELIVERED : 22 FEBRUARY 2017

FILE NO/S: PTW 28 of 2014

BETWEEN: MR SUN

Applicant

AND

MS KIAO
Respondent

Catchwords:

CHILD-RELATED PROCEEDINGS – Parental responsibility – overseas travel – turns on own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Ms L Tudori

Solicitors:

Applicant: Self Represented Litigant

Respondent: Leach Legal

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The Court is in the position of having to determine the few remaining issues outstanding between Mr Sun (“the father”) and Ms Kiao (“the mother”) relating to the child, [K], born [in] 2012. K is now four and a half years of age.

2The parties were married [in] 2011, and commenced cohabitation at that time. Their marriage was to survive only for a short period and they separated 7 May 2013.

3The position between the parties was originally highly acrimonious. At the commencement of these proceedings there were outstanding contravention applications. The father’s application against the mother alleged some 15 contraventions of previous parenting orders, and the parties appeared, on the face of their respective pleadings, to be a significant distance apart.

4During the course of the proceedings the parties have significantly narrowed the dispute, with the great assistance of counsel appearing for the mother, Ms Tudori, her instructor, and the good will of the father.

5I am now left to determine a very narrow compass of issues. The parties have agreed K is to live primarily with the mother and all arrangements for the time K is to spend with the father.

6The outstanding issues relate to parental responsibility in a limited degree and as to whether or not the mother is at liberty to travel to the [East Asian Country A] between 27 December 2017 and 28 January 2018. I will turn to consider travel later in these reasons.

7By way of background, each of the parties have historical and familial connections with East Asian Country A, notwithstanding the fact that each are now Australian citizens. Their respective families have strong connections with East Asian Country A, although in each case their respective parents have permanent resident status in Australia.

8In the case of the mother, her parents have effectively resided between East Asian Country A and Australia since 2008. In the case of the father, he gave evidence that his mother visits Australia frequently and his parents intend to reside in Australia with effect from early 2018. The mother’s family have accumulated significant assets in Australia, although it is said that they retain significant assets in East Asian Country A.

9I turn to the question of parental responsibility. The father seeks I make an order that the parties equally share parental responsibility. The mother seeks an order that she have sole parental responsibility limited to the issues of education and the obtaining of a passport for K, but that otherwise the parties have equal shared parental responsibility for the child.

10The position insofar as education is concerned suffers from a lack of evidence. There is no doubt that during the subsistence of the parties’ short marriage, whilst K was but an infant, they agreed he should be enrolled, that is, added to the list of potential students for [Private School A] at a cost of $100.

11It is the case for the father that, subsequent to their separation, the mother placed K on the list of potential students for [Private School B]. The father indicates he does not recall that being done and that he did not sign an enrolment application.

12The mother is clearly motivated towards K having a private education. The father’s position is perhaps, to state the obvious, that although K was enrolled at Private School A at that time, this was in the hope and expectation that at the stage he might be offered enrolment the parties would be in a financial position to afford his school fees.

13On the evidence of each of the parties, neither of them would be in a position of affording the school fees payable at either Private School A or Private School B. I am in a position where I can take judicial notice of the level of fees charged the respective schools, given the frequency with which I have to consider it. As such, I am well acquainted with the fees levied by equivalent private schools in Perth. Indeed, given the level of fees, one needs to be in a fairly comfortable financial position to afford them.

14It is common sense that whilst parties may have the best will in the world and want to offer their children the best education available, having taken steps to secure that opportunity in the future, ultimately it is always a question as to whether or not they can afford it. The rather pragmatic approach taken by the father is not such, in my view, to warrant the disposition of sole parental responsibility for K’s education upon the mother.

15He indicates that if he was in a financial position to do so, then he would contribute to K’s private school fees. I note he indicates that he would contribute to the minor cost of K’s school uniforms, if indeed the child attended said private school institutions. In essence he maintains – not unreasonably, in my view – the implied position, if not expressed, at the time that K’s name was added to the potential students list for Private School A.

16As I have indicated, his position, whilst perhaps rather callously expressed, in seeking an undertaking from the mother that she would be responsible for the fees if K were to attend Private School A or Private School B, and cognisant that in any event she would be dependent upon the largess of her parents, in any event, is a statement of reality. However, I accept that that could be tempered in the event the financial fortunes of each party improve, as no doubt they hope they will, being separately involved in respective businesses of their own and also engaged in their parents’ financial affairs.

17The second issue is that of the passport. There is no cogent evidence placed before me as to why the mother should have sole parental responsibility for determining whether or not K (a) has a passport, or (b) has the right to travel on that passport. Such a position would be inconsistent with the orders agreed between the parties and further with provisions of the Family Law Act 1975 (Cth) (“the Act”) restricting overseas travel for children the subject of orders, such as K, in the absence of agreement or a court order.

18I see no reason why a passport could not be issued for K in contemplation of international travel by either of the parties.

19The said passport is to be held at the registry of the Family Court of Western Australia, to be released only upon the signed agreement of the parties or pursuant to an order of this Court.

20This arrangement does not necessarily involve the parties entering further litigation in the event they are able to agree any future overseas travel. It simply restricts the unilateral act of either party in taking K overseas without the proper consent, and I would remind the parties that were they to do so, they would render themselves liable to significant criminal prosecution.

21Accordingly, I am not satisfied that I should depose parental responsibility on the mother to the exclusion of the father over the issue of the passport. That being said, I make an order that within the next three months the parties do and execute all such documents required by the Department of Foreign Affairs and Trade for the issue of a valid passport for the child K.

22I am then left to consider whether or not K should be permitted to travel overseas with the mother at the end of this year. The father suggests that if I permit travel overseas there is a real risk that the mother would not return K.

23Her evidence is that she has lived in Australia for 15 years. She attended school in Australia, at least in part, during those 15 years. She currently resides in a property owned by her parents at [Suburb A]. Furthermore, she is now running her own business and engaged in enterprises with her parents.

24There is no doubt that the mother’s parents have invested a significant amount of money in Australia, including the acquisition of the said property for a sum approximated to be $2.7 million in addition to other properties within Australia. I am not in the position to make any findings as to their wealth held in East Asian Country A.

25As I have already observed, her parents have the right to reside permanently in Australia and exercise that right. This is particularly so in the case of the mother’s mother, who the mother says spends 80 per cent of her time in Australia and 20 per cent of the time overseas in East Asian Country A. Comparatively her father, in pursuit of his business interests, spends more time in East Asian Country A than her mother. The parties each have family remaining in East Asian Country A.

26In the case of the mother, of particular significance are her grandparents, K’s great-grandparents, one of whom is in their 80s and the other their late 70s. She seeks to have the opportunity for K to meet his elderly relatives. Having regard to the factors prescribed in s 60CC(3) of the Act, one of the matters the Court must consider in making orders directed to the best interests of children are relationships they have within their families, including grandparents or other significant relatives.

27As canvassed during the course of these proceedings, it is equally open to the father to arrange to spend time in East Asian Country A with K. Indeed, the mother has offered that when she proposes travel, if it is convenient for the father to travel, then arrangements could be made for K to also meet his paternal relatives in East Asian Country A.

28The travel to East Asian Country A is unlikely to have any significant impact on K’s relationship with the father. Indeed, the father himself travels overseas regularly and has spent equivalent times to those sought by the mother away from K, where there has been no contact. I might add that this was to the disappointment of the mother in terms of her focus upon the child’s relationship with the father.

29I pause to observe at this point that the relationship between the parties has been very poor. It has improved significantly in recent times. A product of that improvement is reflected in the orders made during the course of these proceedings, to be pronounced by consent.

30I am not satisfied that there is any evidence before me that would suggest the mother is intending to remove K from Australia on a permanent basis nor beyond that which she has advanced as a holiday.

31Nor am I satisfied that there is any evidence before me that her proposed travel is contrary to K’s interests. Indeed, particularly having regard to the age of his maternal great-grandparents, it is important in the life of a child that they have the opportunity to at least meet and to some extent know all of their living relatives. The opportunity in the circumstances is appropriately taken. For these reasons, I accordingly order that the parties equally share parental responsibility for the child K, and that the mother be given leave to take the child to [East Asian Country A] between 27 December 2017 and 28 January 2018.

I certify that the preceding [31] paragraphs are a true copy of the reasons for
judgment of the Honourable Justice Moncrieff delivered on 22 February 2017, edited to correct grammatical errors and some infelicity of expression

Associate
7 March 2017