Thanh & Thanh
[2022] FedCFamC2F 226
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thanh & Thanh [2022] FedCFamC2F 226
File number(s): MLC1350 of 2022 Judgment of: JUDGE MCNAB Date of judgment: 21 February 2022 Catchwords: FAMILY LAW – urgent application – father previously had care of child whilst the mother resided in Country B – no proper arrangements in place to care for the child – orders made for the child to live with the mother and her family in Country B. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3). Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 16 February 2022 Date of hearing: 21 February 2022 Place: Melbourne Counsel for the Applicant: Ms P Villella Solicitor for the Applicant: Lanham Lawyers Pty Ltd Solicitor for the Respondent: TQH Lawyers & Consultants ORDERS
MLC1350 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS THANH
Applicant
AND: MS THANH
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the child X born in 2011 (‘the child’).
2.The child live with the Mother.
3.The child spend time with the Father as agreed between the Mother and the Father in writing.
4.The child communicate with the Father via video conferencing platforms and telephone at times as agreed between the Mother and the Father in writing.
5.The Father be permitted to send the child cards, letters and presents and the Mother to facilitate giving these to the child.
6.Both parties are to keep the other informed of their current residential address, mobile telephone number and email address and notify the other in writing within a reasonable period to any change of residential address and within 48 hours of any change of their mobile telephone number or email address.
7.The Mother to keep the Father informed of any serious injury suffered by the child requiring a hospital admission.
8.The Mother to keep the Father informed of the child’s education including where the child attends school, and the Father is at liberty to contact the child’s school to obtain all information ordinarily provided to parents including in relation to the child’s progress, at the Father’s expense, and the parties or either of them shall provide a copy of this Order to the school as authorisation for same.
9.The Mother is authorised and permitted to relocate the child to Country B on a permanent basis.
THE COURT DECLARES THAT:
10.Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the respondent father to enable the child of the relationship X born in 2011 to obtain an Australian Passport to travel internationally, the Court makes the following orders:
THE COURT ORDERS THAT:
11.The Mother of the child X born in 2011 be permitted to apply for an Australian Passport to enable the child to travel internationally notwithstanding that the Father of the child has not signed the passport application form and furthermore the said child be permitted to leave the Commonwealth of Australia without the permission of the respondent Father.
12.The Father will forthwith do all things necessary to sign the document to enable the child X born in 2011 to obtain a Country B visa.
AND THE COURT NOTES THAT:
A.The Father is currently serving a term of imprisonment with an earliest release date of June 2022. Upon release it is anticipated that the Father’s Permanent Resident Visa will be cancelled and he will face deportation back to Country D.
B.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Thanh & Thanh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)
Judge McNab
INTRODUCTION
This is an application filed on 14 February 2022 that has come before me on an urgent basis involving the child X born in 2011 (“the child”). A decision was required to be delivered in order to determine parenting arrangements for the child.
The Applicant Mother and the Respondent Father both previously resided in Country D and they commenced cohabitation in and around 2009 and they married in 2011.
The parents finally separated in May 2013 and were divorced on 12 May 2014. Following separation, the child lived with the Mother and spent time and communicated with the Father on a less frequent basis.
The matter came before the Court on 17 February 2022 but the matter was adjourned on the basis that the Father did not have access to an interpreter.
On the return of the matter on 21 February 2022, the Father was represented by Mr Nguyen, a solicitor, whose principal submission has been that the Father wish to have the matter adjourned further to put further affidavit material before the Court. It was also urged to the Court by the Father to make an order for a Child Impact Statement to be prepared. That application for an adjournment was refused as there was no submission put forward which would suggest that there was any utility in adjourning the matter. There would be a significant detriment to the Mother and child if the matter was to be further adjourned.
BACKGROUND
The Mother moved from Country D to Country B in early 2016 and the child remained with the Father in Country D and was taken care of by family members. In the period of 2015 to 2016 the Father relocated to Australia and was sponsored by an Australian woman who was a permanent resident in the country.
In 2018, the Father advised the Mother that he was a permanent resident of Australia and proposed that the child live with him in Australia and that he apply for permanent residency for the child. The Father stated that he would be able to provide the child with a better life and more opportunities than if the child were to live with the Mother in Country B.
The Mother says that the Father promised to let her communicate with the child every day and let her see him any time that she travelled to Australia, as well as allowing him to travel to see the Mother in Country B. The Mother agreed to this arrangement on the premise that it was in the best interests for the child at that time.
On 12 November 2018, the child was granted an Australian VISA and in February 2019 the Father travelled to Country D to collect the child and return to Australia. The Mother states that she spoke to the child every day from his arrival in Australia.
Around the time of May and June 2019, the Mother travelled to Australia and visited the child and stayed for two weeks. The child remained in her care for the duration of that time.
In 2019, the Father and his wife separated. During this time the Mother states that there were limitations and restrictions on her communications with the child.
During 2019 the Mother states that the child started asking to come home and live with her. This was during the Covid-19 pandemic and there were, obviously, difficulties in overseas travel. At that time the Mother was pregnant with her third child to her husband, being the second child with her husband in Country B.
In December 2019, the Mother travelled to Australia to visit the child and, again, the child stayed with her for the entire two week period that she was in Australia and then she returned him to the Father’s care.
In about August 2020, the Mother received a telephone call from a woman, Ms C, who told her that the child was in the care of the police as the Father had been arrested in the child’s presence and had taken him, and the child to the police station.
The Father had been arrested in relation to drug matters. He was sentenced to a prison term of three years and four months with a non-parole period of 22 months. The minimum sentence is due to expire in 2022.
Upon his arrest, the Father has remained in prison since that time. The child was collected from the police station by the woman, Ms C, and stayed with her until the Mother was able to travel to Australia on 13 November 2021. The child has been in the care of the Mother since that time.
The Mother states that between August 2020 and November 2021 she spoke to the child every day and sent money every month to Ms C to help support and care for the child. Ms C and the Mother remain in contact and she continues to have a relationship with the child.
The child has had no communication with the Father since he was arrested and the Mother alleges that the child refuses to speak with the Father on the telephone and have any communications with him.
CONSIDERATION
Giving evidence of her circumstances in Country B, the Mother states that she lives in a three bedroom house with her husband and two other children, who are now aged five and one respectively. The Mother states she is in a position to send the child to an international school where he will continue to be educated in the English language as well as Country B and Country Dese. She deposes that the child will have access to medical treatment and counselling services, should he require the same.
The Mother states that she intends to encourage and facilitate the child remaining in contact with his friends in Australia via email and video calls. The Mother also wishes that the child communicate with his Father, where she will facilitate telephone video conferencing and, if possible, visits in person. She hopes to maintain the types of arrangements that were in place prior to the Father’s incarceration.
The Mother states that the Father has no family or financial resources in Australia to assist with the child’s care. The child was left to live with Ms C, a female friend of the Father upon his incarceration. The Father did not provide financial assistance to Ms C whilst the child was in her care. The Father was purportedly caring for the child when he was arrested on drug charges.
The Mother is not a permanent resident of Australia and cannot remain here indefinitely and has no ability to generate income. She requires the financial support of her husband and family while she remains in Australia. The Mother contends that this situation is placing a significant financial strain on the family. She also has responsibility for her two younger children who she has not spent face-to-face time with since November 2021 and I note that the youngest child is only one year old.
The child has indicated to the Mother that he no longer wants to stay in Australia or be subject to the care of the Father. The child wishes to return to Country B and live with the Mother and with his siblings and Step-Father. The Mother states that prior to the Father’s arrest and incarceration, the child would often raise that he wished to travel to Country B and live with the Mother.
The Father opposes the orders that are sought by the Mother, for the Mother to have sole parental responsibility and for the child to live with the Mother in Country B.
In general terms, the Father stated that he wished to be part of the child’s life and was concerned that the orders that were proposed by the Mother would prevent him from doing so. He was also concerned that an order for sole parental responsibility in respect of the Mother might undermine his capacity to communicate with the child.
Statutory Consideration
By operation of s60CA of the Family Law Act 1975 (Cth) (“the Act”), the Court is required to have regard to the best interests of the child as the paramount consideration when making parenting orders. To determine what is in the best interests of the child in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
s60CC(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.
The Court is to give greater weight to the consideration set out in s60CC(2)(b). I must give greater consideration to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence.
The child is only 10 years old. He was in a situation where he is, effectively, in the care of a non-family member whilst his Father was incarcerated. His Mother is not in a position to remain in Australia indefinitely to look after him, and arrangements must be made in order to protect the child. The Father has not made any reference to his capacity to care for the child and I note that he remains incarcerated until 2022.
Further, upon his release, it is likely that steps will be taken to deport the Father from Australia due to the serious drug related matters that he was convicted and jailed for.
Secondary Considerations
In terms of dealing with the matters that I must have regard to under s60CC(3), to the extent that I have not already done so. I have regard to the relevant considerations, in particularly under s60CC(3)(d) and (f). The Father presently does not have the capacity to look after the child because he is incarcerated and there are no formal arrangements in place to look after the child in the absence of the Mother. This would be a practical difficulty in the child spending time with the Father due to his incarceration and likely deportation. This child will have the means to communicate with the Father.
In my view, there must be a change of circumstances in this matter because the Mother cannot remain indefinitely in Australia. If she does not stay in Australia there is, effectively, no person to come forward to look after the child in any formal capacity. Ms Villella, on behalf of the mother, pointed out to the Court that the Father is effectively, urging that the child be placed into foster care because in the absence of the Mother there are no arrangements in place for the care of the child. The current arrangements are not in the best interests of the child, particularly given that he has a Mother who is competent and able to look after him.
CONCLUSION
For those reasons the Court will make orders in the terms of the minute of orders proposed by the Mother. I will not make an order that the Australian Federal Police be directed to remove the name of the child from the airport watch list because I am told that he is not on that watch list.
The concerns that the Father has raised about orders being made giving sole parental responsibility to the Mother are met by the orders that the Father communicate with the child via video conferencing platforms and telephone at times agreed between the Mother and Father in writing.
I note that arrangements of that kind had been maintained prior to the Father’s incarceration and I assume that the parties will be able to facilitate that and, hopefully, there will be some ability to do that whilst the Father remains incarcerated until at least 2022.
Otherwise, the orders are in the best interests of the child and for that reason the Court will make orders in those terms.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 21 February 2022
0
0
0