TRUONG & LAM

[2014] FCCA 455

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRUONG & LAM [2014] FCCA 455

Catchwords:
FAMILY LAW – Children – parenting orders – parental responsibility – best interests of the child – child aged – best interests of the child – child aged three  years living with applicant mother – where father resides in Vietnam – mother to have sole parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MS TRUONG

Respondent: MR LAM

File Number: SYC 6525 of 2013

Judgment of: Judge Scarlett

Hearing date: 3 March 2014

Date of Last Submission: 3 March 2014

Delivered at: Sydney

Delivered on: 3 March 2014

REPRESENTATION

Solicitor for the Applicant: Ms Pham

Solicitors for the Applicant: Vietaust Lawyers

The Respondent: No appearance

ORDERS

1. Leave to proceed ex parte.

2. The child of the marriage [X] born [in] 2010 is to live with the Applicant Mother.

3. The Applicant Mother is to have sole parental responsibility for the child [X].

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6525 of 2013

MS TRUONG

Applicant

And

MR LAM

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Mother of a little boy called [X] for orders that he should live with her and she should have sole parental responsibility for him. [X] was born [in] 2010 and is now three years and nine months old.

2. The Father has not attended Court. He is living in Vietnam. I am satisfied that he has been served by electronic means and is aware of the proceedings.

Background

1. The Applicant Mother was born in Vietnam [in] 1982. She arrived in Australia as a child of 13, on 16^th November 1995. She is an Australian citizen.

2. The Father was born [in] 1980. He and the Mother were married on [date omitted] 2005. He was studying in Australia and the Mother sponsored him to remain in Australia.

3. The parties remained living in Australia until 2008, when they both returned to Vietnam to live.

4. The Mother became pregnant in late 2009 and returned to Australia to have the baby. The Father remained living in Vietnam.

5. The child [X] was born in Australia on [omitted] 2010.

6. The Mother deposed that the Father travelled to Australia on two occasions to visit her and the child, first in July 2010 and again in June 2011. He remained in Australia for about ten days on each occasion. In December 2012 the Mother flew to Singapore and met the Father whilst he was on a business trip. She remained with him for about a week.

7. The Mother also travelled to Vietnam with the child and spent a month there with the Father. She then returned to Australia.

8. The Mother deposed that after she returned to Australia she found out that the Father had formed a new relationship and had a child by that relationship.

9. The parties were divorced in Ho Chi Minh City, Vietnam on 25^th April 2013.    

Evidence and Submission

1. The Mother relied on the following documents:

   a)Her affidavit of 18^th October 2013; and

   b)The affidavit of her solicitor, Kim Uyen Pham.

2. The Mother gave oral evidence.

Parenting Applications

1. Part VII of the Family Law Act 1975 (Cth) deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the act, providing for children’s best interests to be met by:

   a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

   b)Protecting children from physical or psychological harm;

   c)Ensuring that they receive adequate and proper parenting; and

   d)Ensuring that parents fulfil their duties and meet their responsibilities.

2. The principles underlying those objects are set out in s.60B(2) and include (except when it is or would be contrary to a child’s best interests):

   a)Children’s right to know and be cared for by both of their parents;

   b)Children’s right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development; and

   d)Parents should agree about the future parenting of their children.

3. Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary considerations in subsection (2) and the additional considerations in subsection (3).

4. The Court is required by s.61DA of the Act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.

5. Where the Court does make an order providing for a child’s parents to have equal shared parental responsibility for the child, the Court is then required by s.65DAA to consider whether it would be both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, in the alternative, to spend substantial and significant time with each parent.

6. All of the above matters have been considered, where relevant.

Conclusions

1. The Mother has annexed to her affidavit a copy of her Divorce Decision from the People’s Court in Ho Chi Minh City, together with an English translation. The application was heard by a Magistrate.

2. It is clear from the Decision that the parties consented to the child living with the mother. The Order states:

   Common children: Both parties agree that Mrs Truong be the main carer for the child [X] born on [in] 2010. Mrs Truong has sufficient means to care so she did not request Mr Lam to provide Child Support. Mr Lam is able to visit and care for the child. For the child’s best interest, one or both parties can request a change of carer or the amount for child support.

3. The parties’ divorce appears to have been amicable. The Father has visited the child in Australia on two occasions and the Mother has taken the child to Singapore and Vietnam to spend time with his father.

4. The Mother deposed that she had attempted to persuade the Father to sign consent parenting orders but, despite his statements that he would co-operate, he did not do so.

5. In my view, noting that the Father remains living in Vietnam and has formed a new relationship whilst the Mother remains living in Australia with the child, it is not in the child’s best interests for the parents to have equal shared parental responsibility for him. The Mother should have sole parental responsibility.

6. It is already the parties’ mutual position that the child will remain living with his mother and I consider that it is in his best interests to make an order to that effect.     

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 10 March 2014