Vuu & Manh

[2020] FamCA 1032

FAMILY COURT OF AUSTRALIA

Vuu & Manh [2020] FamCA 1032

File number(s):	ROC 235 of 2019
Judgment of:	BAUMANN J
Date of judgment:	23 November 2020
Catchwords:	FAMILY LAW – CHILDREN – international relocation application – where orders were made by consent for the father to be permitted to relocate with the child and for the child to spend time with the mother
Legislation:	Family Law Act 1975 (Cth) s 102NA
Number of paragraphs:	20
Date of hearing:	23 November 2020
Place:	Brisbane
Counsel for the Applicant:	Mr J Bunning
Solicitor for the Applicant:	Legal Aid Queensland
Counsel for the Respondent:	Mr M Drysdale
Solicitor for the Respondent:	HopgoodGanim Lawyers
Counsel for the Independent Children's Lawyer:	Mr N McGregor
Independent Children's Lawyer:	Ms V Khushal

ORDERS

ROC 235 of 2019

BETWEEN:

Ms Vuu

Applicant

AND:

Mr Manh

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	23 NOVEMBER 2020

THE COURT ORDERS BY CONSENT ON A FINAL BASIS:

Definitions

1.That in this Order:

(a)‘child’ means X born … 2016 (“the child”);

(b)‘school holidays’ means any day that is not during a school term; and

(c)‘school term’ means the period commencing on the first day of the school term as published by the child’s school and concluding on the final day of the school term as published by the child’s school, including any public holidays and pupil free days.

2.That all previous parenting Orders be discharged.

Parental responsibility

3.That the parents have equal shared parental responsibility for the child, and that the parents make a genuine attempt to come to a joint decision in respect of major long-term issues in relation to the child, which include but are not limited to:

(a)hospitalisation, surgery, medical, dental, optometry, counselling or any other major health issue concerning the child that requires specialist medical treatment; and

(b)attendance by the child at childcare, kindergarten and schooling of the child including decisions about the type of childcare, kindergarten and schooling, and the childcare centre(s), kindergarten(s) and school(s) at which the child will attend; and

(c)The child’s citizenship.

Relocation of the child to the Republic of Singapore

4.That the father be permitted to relocate with the child to the Republic of Singapore and, for this purpose, IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the name of X born in 2016, from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

5.That any Orders that restrain the child from leaving the Commonwealth of Australia be discharged.

6.That prior to the father’s relocation with the child to the Republic of Singapore, the child live with the father and spend time with the mother at all times as agreed in writing between the parents and, failing agreement, for five (5) nights a fortnight as follows:

(a)From 4.00pm Friday in the first week to 8.00am Monday in the second week; and

(b)From 6.45am Wednesday to 8.00am Friday in the second week,

with changeover to occur at the boundary of the mother’s residence at the commencement of the child’s time with the mother, and at the boundary of the father’s residence at the conclusion of the child’s time with the mother.

7.That on and from the father’s relocation with the child to the Republic of Singapore, the child live with the father and Orders 10 to 45 herein apply.

Time if the mother permanently relocates to the Republic of Singapore

8.That should the mother permanently relocate to the Republic of Singapore then, subject to Order 9, Orders 10 to 16 apply, provided that the mother:

(a)obtains accommodation in the Republic of Singapore which the mother owns or for which she has a lease in her name of no less than six (6) months in duration;

(b)ensures that the mother and the child have separate bedrooms;

(c)provides to the father evidence of the matters set out in Orders 8(a) and 8(b);

(d)provides to the father in writing the full name, date of birth and occupation of any person who regularly lives at the residence,

and, in the interim, the child will spend time with the mother in the Republic of Singapore at all times as agreed in writing between the parents.

9.That for a period of up to eighteen (18) months from the date of these Orders, the father will make available to the mother:

(a)a bedroom in the property owned by him at C Area Singapore , rent-free; or

(b)in the event that the father sells such property, alternative suitable accommodation for the mother and child in a property owned or leased by him rent-free for a period of up to eighteen (18) months.

Ordinary time

10.That prior to the child commencing primary school in 2023, the child spend time with the mother in the Republic of Singapore at all times as agreed in writing between the parents and, failing agreement, with the mother for five (5) nights a fortnight as follows:

(a)From after kindergarten (or 4.00pm on a non-kindergarten day) on Friday in the first week to before kindergarten (or 8.00am on a non-kindergarten day) on Monday in the second week; and

(b)From after kindergarten (or 4.00pm on a non-kindergarten day) on Wednesday to before kindergarten (or 8.00am on a non-kindergarten day) on Friday in the second week.

11.That upon the child commencing primary school in 2023, the child spend time with the mother in the Republic of Singapore during school terms at all times as agreed between the parents and, failing agreement, with the mother for six (6) nights a fortnight from after school (or 4.00pm on a non-school day) on Tuesday in the first week to before school (or 8.00am on a non-school day) on Monday in the second week. For clarity, time in accordance with this paragraph will resume after school holidays as though it was not interrupted.

School holidays

12.That upon the child commencing primary school in 2023, the child spend time with the mother in the Republic of Singapore during school holidays at all times as agreed between the parents and failing agreement as follows:

(a)In respect of school holidays which are no longer than ten (10) days in duration, the child will spend time with the mother for the first half and the father for the second half;

(b)In respect of all other school holidays:

(i)During school holidays which commence in 2023 and 2024, the child will spend time with the mother in a week about arrangement from after school (or 4.00pm if it is a non-school day) on the last day of the previous school term to 4.00pm on the day that is seven (7) days thereafter or, if the school holidays conclude during the week, to before school (or 8.00am if it is a non-school day) on the first day of the following school term;

(ii)During school holidays which commence in 2025, the child will spend time with the mother in a fortnightly rotation from after school (or 4.00pm if it is a non-school day) on the last day of the previous school term to 4.00pm on the day that is fourteen (14) days thereafter or, if the school holidays conclude during the fortnight, to before school (or 8.00am if it is a non-school day) on the first day of the following school term; and

(iii)During school holidays which commence in 2026 onwards, the child will spend time with the mother for the first half and the father for the second half.

13.That for the purposes of Order 12 hereof:

(a)the first half of school holidays is from after school (or 4.00pm if it is a non-school day) on the last day of the previous school term to 4.00pm on the day that is the half way point of the school holidays or the last day of the first half of the school holidays, as the case may be; and

(b)the second half of school holidays is from 4.00pm on the day that is the half way point of the school holidays or the last day of the first half of the school holidays, as the case may be, to before school (or 8.00am if it is a non-school day) on the first day of the following school term.

Special occasions

14.That on special occasions the child will spend time with the parents as agreed between the parents in writing and, in the case of the mother, in the Republic of Singapore and, failing agreement, as follows:

(a)In respect of the child’s birthday, with the parent with whom the child is not spending time from after school (or 4.00pm if it is a non-school day) on the child’s birthday to before school (or 8.00am if it is a non-school day) on the day following the child’s birthday;

(b)In respect of each parent’s birthday, the child will spend time with that parent from after school (or 4.00pm if it is a non-school day) on that parent’s birthday to before school (or 8.00am if it is a non-school day) on the day following that parent’s birthday;

(c)In respect of Mother’s Day, the child will spend time with the mother from after school (or 4.00pm if it is a non-school day) on the Friday prior to Mother’s Day to before school (or 8.00am if it is a non-school day) on the Monday following Mother’s Day;

(d)In respect of Father’s Day, the child will spend time with the father from after school (or 4.00pm if it is a non-school day) on the Friday prior to Father’s Day to before school (or 8.00am if it is a non-school day) on the Monday following Father’s Day;

(e)In respect of Chinese New Year, the child will spend time with the mother from after school (or 4.00pm if it is a non-school day) on the day prior to Chinese New Year to before school (or 8.00am if it is a non-school day) on the day following Chinese New Year; and

(f)In respect of Christmas, the child will spend time with the father from 4.00pm on the day that is three (3) days prior to Christmas Day to 4.00pm on the day that is three (3) days after Christmas Day.

15.That, for clarity, the special occasions set out in Order 14 prevail over Orders 10 to 13 (ordinary time and school holiday time).

Changeovers

16.That unless otherwise agreed between the parents in writing, changeovers occur in the following locations and manner:

(a)Where possible, changeover occur at the child’s kindergarten, school or extra-curricular activities; and

(b)If not possible, the parent with whom the child’s time is concluding will deliver the child to the residence of the parent with whom the child’s time is commencing, provided that the parent delivering the child will not enter the property of the other parent and will remain on the boundary of the property.

Time if the mother does not permanently relocate to the Republic of Singapore

17.That should the mother live outside of the Republic of Singapore, Orders 18 to 30 apply.

Mother at liberty

18.That the mother be at liberty (however, not obligated) to spend any time with the child set out in Orders 19 to 23 provided that she provides notice to the father in accordance with Order 29(d).

Ordinary time

19.That the child spend time with the mother in the Republic of Singapore at all times as agreed between the parents and, failing agreement, with the mother for up to one (1) week at a time no more frequently than one (1) month from the commencement of time, provided that the mother is to cause the child to attend kindergarten/school during this time.

20.That upon the child commencing primary school in 2023, Order 19 applies only during school terms.

School holidays

21.That upon the child commencing primary school in 2023, the child spend time with the mother in the Republic of Singapore during school holidays at all times as agreed between the parents and, failing agreement, as follows:

(a)During school holidays which commence in 2023 and 2024:

(i)in respect of school holidays which are no longer than ten (10) days in duration, the child will spend time with the mother for the first half and the father for the second half; and

(ii)in respect of all other school holidays, the child will spend time with the mother in a week about arrangement from 4.00pm on the first day of the school holidays to 4.00pm on the day that is seven (7) days thereafter or, if the school holidays conclude during the mother’s week, 8.00am on the final day of the school holidays;

(b)During school holidays which commence in 2025 onwards:

(i)in respect of school holidays which are no longer than ten (10) days in duration, the child will spend time with the mother from 4.00pm on the first day of the school holidays to 8.00am on the final day of the school holidays;

(ii)in respect of all other school holidays:

A.During school holidays which commence in 2025, the child will spend time with the mother in a fortnightly rotation from 4.00pm on the first day of the school holidays to 4.00pm fourteen (14) days thereafter or, if the school holidays conclude during the mother’s fortnight, 8.00am on the final day of the school holidays; and

B.During school holidays which commence in 2026 onwards, the child will spend time with the mother for the first half and the father for the second half.

22.That for the purposes of Order 20:

(a)the first half of school holidays is from 4.00pm on the first day of the school holidays until 4.00pm on the day that is the half way point of the school holidays or the last day of the first half of the school holidays, as the case may be; and

(b)the second half of school holidays is from 4.00pm on the day that is the half way point of the school holidays or the last day of the first half of the school holidays, as the case may be, until 8.00am on the final day of the school holidays.

Special occasions

23.That on special occasions, the child will spend time with the parents as agreed between the parents in writing and, in the case of the mother, in the Republic of Singapore, and, failing agreement, as follows:

(a)In respect of the child’s birthday, with the parent with whom she is not spending time from 4.00pm on the child’s birthday to 8.00am on the day following the child’s birthday;

(b)In respect of each parent’s birthday, with that parent from 4.00pm on that parent’s birthday to 8.00am on the day following that parent’s birthday;

(c)In respect of Mother’s Day, with the mother from 4.00pm on the day prior to Mother’s Day to 8.00am on the day following Mother’s Day;

(d)In respect of Father’s Day, with the father from 4.00pm on the day prior to Father’s Day to 8.00am on the day following Father’s Day;

(e)In respect of Chinese New Year, with the mother from 4.00pm on the day prior to Chinese New Year to 8.00am on the day following Chinese New Year; and

(f)In respect of Christmas, with the father from 4.00pm on the day prior to Christmas Eve to 4.00pm on the day following Boxing Day.

24.That, for clarity, the special occasions set out in Order 23 prevail over Orders 19 to 22 (ordinary time and school holiday time).

Changeovers

25.That unless otherwise agreed between the parents in writing, the parent with whom the child’s time is concluding will deliver the child to the residence of the parent with whom the child’s time is commencing, provided that the parent delivering the child will not enter the property of the other parent and will remain on the boundary of the property.

Communication

26.That prior to the child having a phone of her own, the child will communicate with the parent with whom she is not spending time by phone or video at all times as may be agreed in writing and, failing agreement, on the following days:

(a)Each Tuesday, Thursday and Saturday; and

(b)the special occasions set out in Order 22 if the other parent is not spending time with the child for such special occasion,

with the parent with whom the child is spending time to facilitate such communication, between 6.30pm and 7.00pm in the time zone in which the child is living.

27.That for the purposes of Order 26, the parent with whom the child is spending time will:

(a)ensure that the child is available to receive the call;

(b)arrange for the child to call the other parent at a later time that night if, for any reason, the child misses the call from the other parent; and

(c)ensure that the child has privacy during the conversation.

28.That upon the child having a phone of her own, each parent be at liberty to contact the child directly at all reasonable times and the parent with whom the child is spending time will encourage the child to communicate with the other parent regularly.

Mother’s flights and accommodation

29.That the father is to use his best endeavours to make accommodation in a real property owned or leased by him available to the mother and the child for the purposes of the mother spending time with the child in the Republic of Singapore in accordance with these Orders and the following applies:

(a)Initially, the father will make available a bedroom in the property owned by him at C Area Singapore ;

(b)If the father sells or otherwise disposes of the above property, the father will use his best endeavours to provide alternate accommodation to the mother in a property owned or leased by him;

(c)The father will not reside at any such property at times that the mother lives there;

(d)The mother will give no less than fourteen (14) days’ written notice of her date of arrival and the intended duration of her stay in the Republic of Singapore for the purposes of spending time with the child; and

(e)The father will provide keys to the property to the mother for her to permanently retain, provided that, should the father request that the mother return the keys on the basis that he intends to sell or otherwise dispose of his interest in the property, the mother will do so as soon as practicable.

30.That the mother and father be responsible for the cost of the mother’s economy return flights between her country of residence and the Republic of Singapore in order to spend time with the child on each alternate occasion (commencing with the mother) and, when the father is responsible for the costs of the mother’s economy return flight, the following applies:

(a)No less than fourteen (14) days prior to the proposed departure date, the mother will provide to the father in writing:

(i)the details of the economy return flights that she wishes the father to book; and

(ii)a receipt from the relevant airline evidencing the amount that the mother paid for her economy return flights in respect of her travel from her country of residence to the Republic of Singapore to spend time with the child on the occasion immediately preceding the proposed flights.

(b)The father is to book and pay for the flights directly with the airline, provided that the maximum cost that the father is responsible for is equal to the cost of the mother’s previous economy return flight and the father is not obliged to make a flight booking until the mother pays an amount to the father, to an account nominated in writing by the father, in respect of any additional cost.

Communication

31.That each parent facilitate any reasonable request of the child to contact the other parent.

32.That unless otherwise agreed in writing between the parents, communication between the parents in respect of the child occur in writing via text message or email, except in the case of emergencies (including if a child is injured or otherwise requires medical or hospital treatment), where communication shall occur as soon as practicable by phone.

33.That each parent is to keep the other informed as to any illness, accident, hospitalisation or medical condition with respect to the child while she is in that parent's care (including providing the name of the child’s treating specialist).

34.That each parent is to keep the other informed as to any medication to be taken by the child and, if it is prescription medication, cream, ointment or the like, provide such treatment to the other parent at changeover.

35.That if either parent:

(a)changes their contact numbers, home address or email address; or

(b)has any person commence permanently living at their residence,

they will notify the other parent in writing as soon as practicable and no less than twenty four (24) hours prior to such change and, in the case of a person commencing living at their residence, the parent will provide the full name, date of birth and occupation of such person.

36.That neither parent shall denigrate the other parent or the other parent’s partner, family or friends to the child or within the child’s presence or hearing, or to any childcare or school provider for the child, and the parents will ensure that no other person denigrates the other parent or the other parent’s partner, family or friends to the child or within the child’s presence or hearing, or to any childcare or school provider for the child, and will remove the child from the environment immediately if necessary.

37.That these Orders serve as any necessary authority to the child’s treating doctors, schools, extra-curricular activities and the like to the effect that either parent be able to communicate with same and be advised of the child’s treatment and/or progress and obtain reports, newsletters, school photographs and the like.

Schooling

38.That the child attend kindergarten at D Child Care upon relocating to the Republic of Singapore and the parents will do all things and sign all documents necessary to enrol the child in D Child Care, if any.

39.That as soon as practicable after the child relocates to the Republic of Singapore, the parents do all things and sign all documents to enrol the child in kindergarten at H Kindergarten, located at K School.

40.That the child attend K School commencing in 2023 for her primary schooling.

International travel

41.That subject to Order 44, the mother, her servants and/or agents be and hereby are restrained by injunction from removing or attempting to remove the child from the Republic of Singapore.

42.That the father be at liberty to travel internationally with the child provided as follows:

(a)That the travel occur only:

(i)during the child’s time with the father; or

(ii)if the mother lives outside of the Republic of Singapore, during any other period, provided that the mother has not provided written notice to the father under Order 29(d) of her intention to spend time with the child during that period.

(b)That the father provide at least fourteen (14) days’ written notice to the mother of his intention to travel overseas with the child, including:

(i)the approximate departure and return dates;

(ii)the name of the persons who will be accompanying the child; and

(iii)the country or countries the child will be travelling to.

(c)That at least seven (7) days prior to the departure date, the father must provide to the mother:

(i)a copy of the child’s itinerary which must include return airfare ticketing;

(ii)the dates on which the child will arrive and depart each country; and

(iii)a telephone number and address at which the child can be contacted in each country.

(d)That the child will only travel to countries which have acceded to the Hague Convention on the Civil Aspects of International Child Abduction and are a convention country.

43.That the father be at liberty to travel internationally with the child in the event of an emergency, including but not limited to a significant health event or death of a family member or friend of that parent or his partner, provided the father provides the information referred to in Order 42(b) and 42(c) as soon as practicable to the mother and no less than twenty four (24) hours prior to travel. For clarity, this paragraph prevails over any other Order, provided that the period of travel be no more than two (2) weeks.

44.That in the event that Country M accedes to the Hague Convention on the Civil Aspects of International Child Abduction and is a convention country, and the Republic of Singapore ratifies Country M’s accession to the Hague Convention such that the Hague Convention is in force between the two countries, then the mother be permitted to travel internationally with the child in accordance with Orders 42 and 43 and, in such paragraphs, any references to “mother” are to be read as “father” and any references to “father” are to be read as “mother” as required.

Passports

45.The child’s passport(s) are to be held by the father.

46.That the parents do all acts and take all steps necessary to ensure the child’s passport(s) remain valid with an expiry date no less than six (6) months validity at all times with any renewal costs to be shared equally between the parents.

Other matters

47.That neither parent will use physical discipline in respect of the child.

48.That as soon as reasonably practicable the parents do all acts and things and sign all documents to have these Orders, with any necessary modifications, mirrored by an Order of a Court of competent jurisdiction in the Republic of Singapore such that these Orders (or a mirror thereof) are binding and enforceable in the Republic of Singapore.

49.That for the purposes of Order 48, each parent will accept service of an application for mirror orders by electronic mail at the following addresses:

(a)In the case of the father: ...; or

(b)In the case of the mother: ...

50.That the father sign all documents reasonably required to enable the mother to obtain permanent residence in Singapore or such visa as she elects and in that regard:

(a)each of the parents shall sign all such documents as requested by the mother to enable her to obtain permanent residence or any visa she wishes, prior to the parties’ relocation from Australia;

(b)within fourteen (14) days of the date these Orders the father shall provide to the mother certified copies of the parties’ marriage certificate, their divorce certificate/papers, birth certificate for the child, citizenship certificate for the child in Singapore and a copy of the child’s passport;

(c)such documents to be signed by the parties in relation to the mother’s Singapore visa/permanent residency shall include that the child will spend time with the mother pursuant to these Orders in Singapore and that the mother and, during the child’s time with the mother, the child, has accommodation rent free provided by the father for a period of up to eighteen (18) months.

51.That neither parent shall relocate the residence of the child from the Republic of Singapore unless they agree in writing or as ordered by a Court.

52.That within fourteen (14) days of the date of each of the parents arriving in the Republic of Singapore they shall do all acts as may be required by each of them and sign all documents required to file and obtain approval of mirror orders in the Court having jurisdiction to make family law orders.

53.That the father provide no less than seven (7) days’ written notice to the mother of the child’s relocation to the Republic of Singapore.

THE COURT ORDERS ON A FINAL BASIS:

54.That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That the parents intend that Singapore will be the child’s habitual country of residence.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vuu & Manh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)

BAUMANN J:

1. X was born in 2016 and will soon turn five.  She is the only child of a relationship between the Applicant mother, Ms Vuu (currently aged 34 years) and the Respondent father, Mr Manh (currently aged 41 years).

2. The mother was born in Country M and the father in Singapore, although the parties met in Singapore in August 2014, married in that country in 2015 and shortly thereafter came to Australia to live, initially in Perth.  They initially lived with the father’s aunt, Ms G.  After the father completed training at a college in or about February 2017, the mother having earlier returned to some form of employment in Perth, he found employment as a tradesperson in the L Town area.  This seemed to have been associated with “Project P”.

3. Having moved to L Town in early 2017, there was an opportunity for the mother to return to Perth in mid-2017, she says, after there had been a quarrel between her and the father.  Nonetheless, she returned after that brief trip, with the parties finally separating in L Town in December 2017.

4. The mother shortly thereafter, it seems, returned to Perth where she had either employment or some form of support (it is unclear on the evidence), and although she visited L Town on a couple of occasions, and even went to the extent of filing proceedings in the Family Court of Western Australia, the mother continued to live in Perth and the child continued to live primarily with the father for some 18 months post-separation until May 2019 when the mother then returned to L Town.  At that stage, the child was about three years and four months of age.

5. By the time the mother returned to L Town it is apparent that the father had commenced a relationship with a Ms J, a New Zealander employed as a health technician in L Town and currently approximately 28 years of age.  The father and Ms J were cohabitating and therefore X became part of a household that included Ms J and the father from July 2019.  After proceedings were commenced in the Federal Circuit Court of Australia, consent Orders were made in July 2019 that provide for the current arrangements which were in place as of today, namely that the child lives with the father and spends Friday to Monday and Wednesday to Friday alternate weeks with the mother.

6. Although not fully tested as the parties reached a resolution, there is some evidence to suggest that, at times, the mother’s work commitments impacted on her ability to be available for X. 

7. On or about 10 June 2020, the father’s employer wrote to the father and to the Government Department of Home Affairs (“the Department”) indicating that because of changes in “Project P” he did not have employment after 1 July 2020.

8. As the evidence of the immigration expert Mr L makes clear, the nature of the father’s visa was such that his right to remain in Australia and therefore the child and the mother’s rights (who were connected to the visa) were likely to come to an end.  I have been informed today from the bar table that, as recently as last Friday, the Department has forwarded the usual letters to the visa holders, the father and the mother, indicating that they have 35 days to leave Australia of their own volition.  That notice expires on 26 December 2020.

9. It is, of course, this timetable that has hastened the management of this case, to a final hearing scheduled for today.

10. It seems that the father’s intention to return to Singapore was confirmed when his current employer offered him employment in Singapore in a similar role to that which he currently undertakes.  The fact that he had spent 12 years working for the public service in Singapore may have made him a suitable person to work on the project.  Nonetheless, Ms J, who the father married in 2020, has applied for and received some form of long-term visa permission from Singapore authorities that was initially conditional upon their marriage.

11. The evidence of the Republic of Singapore immigration expert suggests that the father being a Singapore citizen; X being a Singapore citizen by birth and Ms J being the married partner of the father, the prospects of them all remaining in Singapore permanently as a family unit are good.

12. This has been a very confronting situation for the mother.  She has had to grapple with the reality that her time in Australia is coming to an end and with the fact that the father, who has been the primary carer of the child at least since separation in December 2017, wished to return to Singapore, a country where she has lived but is not her country of origin.

13. I made directions for the parties to obtain expert evidence as to how orders made by this Court in Australia might be able to be given effect in either Singapore and/or Country M, as well as further evidence as to rights of residence in those countries.

14. The father, who seems to have been able to obtain legal advice of high quality here in Brisbane, was able to comply with that Order.  I am not in any way critical of the mother’s inability to do so.  I know from the case management of this matter, which has been progressed quickly because of the pending effective deportation of this family from our shores, that the solicitors previously on the record acting for the mother, if not totally, at least, primarily on a pro bono basis, did everything they could to assist the mother and gather the evidence.  In fact, they prepared her trial affidavit.

15. In circumstances where I was not satisfied that s 102NA of the Family Law Act 1975 (Cth) applied in this case, the mother was without legal representation when her former solicitors could not continue to act for her. I pay tribute to Legal Aid Queensland who not only, at the initiation of the Court, in a most expeditious fashion arranged for an Independent Children’s Lawyer to be appointed by Order made 2 November 2020 (experienced Independent Children’s Lawyer Ms Khushal who retained experienced Counsel Mr McGregor) but then, it seems, within the last week, experienced practitioner Mr Rundle was engaged. No doubt he and Counsel Mr Bunning, who appears for the mother today, have had to work assiduously hard over the last few days to be able to represent the mother adequately as they have.

16. I do not ignore, of course, the advocacy of Mr Drysdale for the father, who may have had slightly more time to prepare for the case.  In all the circumstances, with this hastened preparation, the Court has had to look very carefully at the evidence before it makes the orders which are offered to me.  I am, independent of the parties’ consent, satisfied they are in the best interests of X. 

17. The Orders are consistent with the updated family report of Psychologist Dr N, in a sense where she identified that the child is primarily attached to the father, and that if that attachment was broken at this stage, where the father was, for example, to go to Singapore without the child, that would be very difficult for the child.

18. That is not to say, however, that the child’s growing relationship with the mother, which has certainly developed since she returned to L Town in May 2019, is not equally important; it is.  In the short period of time that I saw the mother in the witness box, and based on her affidavit, it is clear that she loves her daughter very much and wants to develop her relationship with her.  I give her enormous credit with the assistance of her solicitors and her barrister today for agreeing to an order which is in the child’s best interests, but which would have been a difficult exercise for her to both understand and agree to.  Her understanding was improved by a Court-funded Country M interpreter and I appreciate the interpreter’s assistance today.

19. The Orders, if put into effect in the way intended by the parties and intended by the Court today, would provide a level of stability for this little girl.  It is a stability that will come from being in the primary care of her father and provide for regular time between the child and the mother in Singapore and, seemingly, if Country M becomes a signatory to the international treaties, the prospect of her being able to spend some time in Country M with the mother increases.

20. It seems likely, however, for the foreseeable future, the child will grow and develop in Singapore in the primary care of the father, and hopefully with regular time with her mother.  That is in her best interests.  I congratulate the parties on preparing and agreeing to a suite of orders which are, in such a difficult matter, well-constructed and thoughtful.  They are in my view consistent with the obligations of Australian law that puts the child’s best interests as the paramount consideration, and these Orders are in X’s best interests and I make them.  I ask for those these Reasons to be published as it seems likely that when seeking to invoke the jurisdiction of the Family Justice Court of Singapore to create “mirror” Orders, being satisfied that another Court has determined the Orders are in X’s best interests is helpful.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       7 December 2020