Wu and Tsiang

[2018] FamCA 1085

FAMILY COURT OF AUSTRALIA

WU & TSIANG [2018] FamCA 1085

FAMILY LAW – REVIEW OF SENIOR REGISTRAR DECISION – Parenting arrangements – Where the child lives with the father – Where the mother lives primarily in China – Where the mother sought that the child spend all short holidays with her – Where the father and ICL sought that short holidays be alternated – Order for the child to spend alternate short holidays with the mother – Where the mother sought extended time during her weekends with the child – Order for the child to return to the father on Sunday evening.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Wu

RESPONDENT: Mr Tsiang

FILE NUMBER: SYC 1529 of 2016

DATE DELIVERED: 18 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 13 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney SC

SOLICITOR FOR THE APPLICANT: Somerville Legal

COUNSEL FOR THE RESPONDENT: Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT: Mills Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Auslawyers

Orders

IT IS ORDERED

1. That the parties have equal shared parental responsibility for the child, X born … 2005 (‘the child’).

2. That the child shall live with the father.

3. That the child shall spend time with the mother during the school term as follows:

   3.1 On the first two weekends following the commencement of each school term from the conclusion of school on Friday or 3pm if not a school day until Sunday at 6pm.

   3.2 Provided the mother has given not less than 28 days prior notice in writing, including by email,  to the father nominating such weekends, on two other non-consecutive weekends, after the fourth weekend in each school term from the conclusion of school on Friday or 3pm if not a school day until Sunday at 6pm.

4. That the child spend time with each parent during the school holidays, as agreed, but failing agreement, as follows:

   4.1 During the 2018/2019 December/January school holiday period (commencing 3pm on the last day of term 4 and concluding two days prior to the re-commencement of school): With the father for the first half and with the mother during the second half, with changeover to occur at 9am on the mid-point of the period as defined in this order.

   4.2 With the father during the school holiday period commencing after Term 1, 2019.

   4.3 With the mother during the school holiday period commencing after Term 2, 2019.

   4.4      With the mother during the school holiday period commencing after Term

   3, 2019.

   4.5 During the 2019/2020 December/January school holiday period (commencing 3pm on the last day of term 4 and concluding two days prior to the re-commencement of school): With the mother for the first half and with the father during the second half, with changeover to occur at 9am on the mid-point of the period as defined in this order.

   4.6 With the father during the school holiday period commencing after Term 1, 2020.

   4.7 With the mother during the school holiday period commencing after Term 2, 2020.

   4.8 With the father during the school holiday period commencing after Term 3, 2020, provided that, if the father is unavailable to care for the child during any school holiday she spends with him pursuant to these orders, he shall notify the mother and allow the child to live with the mother during that holiday period.

5. That the child spend time with the parties on special occasions as agreed between the parties.

6. That for the purposes of the child’s time with the mother during the short-term school holidays, the child shall be returned to the father two days prior to the re-commencement of school, which will allow the child time to prepare for the re-commencement of the new school term.

7. That each party have liberal telephone/ electronic communication with the child.

8. That in the event that the mother will be unavailable for the child to spend time with her pursuant to these orders, then the mother shall give 28 days’ notice to the father that she will be unavailable.

9. That the party caring for the child from time to time shall ensure that the child is taken to all of her extra-curricular activities.

10.That each party be permitted to attend the child’s school events which parents are invited to including parent/teacher nights.

11.That each party is restrained from denigrating or criticising the other party or members of the other party’s family, in the hearing or presence of the child, and shall use their best endeavours to remove the child from any environment where any third party is denigrating or criticising the other party in the hearing and/or presence of the child.

12.That without admissions, each party is restrained from making negative and/or denigrating comments about the child in the hearing and/or presence of the child.

13.That each party is restrained from discussing or providing details of these Court proceedings, or any other Court proceedings involving the parties with the child, other than by providing a sealed copy of these orders..

14.That each party is restrained from discussing or providing details of these Court proceedings with any staff member of the child’s school.

15.That pursuant to Part 15.5 of the Family Law Rules an order that Dr AA (‘the Expert’) is appointed as the Single Expert to prepare a report in relation to:

a.   Ms Wu born … 1970.

b.   Mr Tsiang born … 1971.

and the child:

c.   X born … 2005.

16. That the parties shall:

a.   Attend appointments with at the first available opportunity and at such times as requested by the Expert.    

b.   Ensure the attendance of the child upon the Expert on such dates and at such times as requested by the Expert.

c.   Comply with all reasonable directions and requests made by the Expert to assist in the preparation of his report. 

17. That in preparing his report, the Expert be requested to consider the following matters:

a.   The relationship between the child and each parent.

b.   Each parent’s understanding of the physical, developmental, psychological, emotional and intellectual needs of the child.

c.   Each parent’s capacity to meet the physical, developmental, psychological, emotional and intellectual needs of the child.

d.   The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.

e.   The state of each party’s mental health and, if any problem is identified:

i.The nature, intensity and impact of the problem and in particular the impact, if any upon the party’s parenting capacity.

ii.What treatment or services are recommended to address any problem.

iii.The willingness of the party to address any problem.

f.   Each party’s insight into and understanding of the impact of exposing the children to domestic violence and each party’s capacity to protect the children from exposure to domestic violence.

g.   The benefit of the child of having a meaningful relationship with each of the parents.

h.   Whether the child is at risk of any abuse or harm in the care of either parent.

i.    Any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views.

j.    The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

k.   The current and future capacity of each party to communicate with each other and resolve parenting difficulties that might arise.

l.    The likely effect of any change in the child’s circumstances, including the likely impact on the child of any separation from either party.

m.    The mental health and/or special needs of the child.

n. The matters set out in section 60CC of the Family Law Act 1975 (Cth).

o.   Any other matter considered relevant.

18.That leave be granted to the Independent Children’s Lawyer to have photocopy access to any material that may be produced under subpoena for the purpose of providing that material to the Expert. 

19.That leave be granted for the parties to provide copies of all Applications, Responses and Affidavits filed by the parties to the Expert as well as Orders made with respect to parenting matters and any Memorandum from a Family Consultant.

20.Save for order 19, each party is restrained from providing any material to the Expert without the written consent of the other party and Independent Children’s Lawyer.

21.That in the course of preparation of his report, the Expert be authorised to seek to obtain information as he sees necessary from:

a.   The general practitioner of the parties and child any other health professional who has assessed or treated the parties and/or child including but not limited to psychiatrist, psychologist, counsellor or therapist.

22.That the costs of Dr AA being appointed as the Single Expert to conduct interviews and subsequently prepare a Single Expert report, and any fees for Dr AA’s attendance at Court to give evidence shall be met by the mother and father equally and paid forthwith upon Dr AA requesting such payment.

23.For the purposes of order 22, the parties shall each within seven (7) days deposit one half of Dr AA’s estimated fees for the preparation of the report into their solicitor’s trust account, namely $8,250.00 including GST.

24.The Independent Children’s Lawyer has liberty to re-list the proceedings on 72 hours’ notice in respect of the implementation and compliance with these orders.

25.The parties have leave to issue more than 5 subpoenas.

IT IS NOTED

(A) The mother has indicated that she no longer resides in Suburb J, and resides in Suburb Z close to the child’s school.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1529 of 2016

Ms Wu

Applicant

And

Mr Tsiang

Respondent

REASONS FOR JUDGMENT

1. Ms Wu (“the mother”) and Mr Tsiang (“the father”) are the parents of the child born in 2005 and now 13 years old. The child lives with her father in Sydney.

2. The mother lives primarily in China.

3. The parents separated in 2015.

4. In 2016 final orders were made by consent which provided that the parents have equal shared parental responsibility for the child; that she live with the father and spend time with the mother on weekends and special occasions.

5. In addition to weekend time, the child has had holiday time with her mother in 2016 and 2017.

6. The matter came before Senior Registrar Campbell on 19 July 2018. Before the Senior Registrar, the mother’s application was that the child live with her. Orders were made following a hearing which provided, inter alia, for the child to spend time with the mother each alternate weekend from Friday after school until 6pm Sunday.

7. The mother sought to review those orders and the matter thus came before me by way of hearing de novo.

8. Some discussions took place between the parties and the Independent Children’s Lawyer who had been appointed for the child and, by the commencement of the hearing before me, agreement had been reached in relation to a number of matters, including that:

   ·    The child live with the father.

   ·    The child spend time with the mother on the first two consecutive weekends of each school term from after school on Friday.

   ·    In each school term, and upon appropriate notice, the child spend two other non-consecutive weekends with the mother.

   ·    The end of year school holidays are to be shared.

   ·    A single expert is to be appointed to prepare a report. In relation to that report, the parties are aware that it is unlikely that final hearing dates will be available in a reasonable period after the issue of the report and that the report will have to be updated for the purpose of a final haring. However, the parties are anxious for guidance in deciding how their dispute can be resolved.

9. The ambit of the dispute had been reduced to two issues.

10. In relation to weekend time for the child with the mother, the ICL and the father proposed that the time end at 6pm on Sunday and the mother wanted the child to stay with her until Monday morning.

11. In relation to the short school holidays, the father and the ICL proposed that the holidays be shared on the basis that each parent had the whole of each alternate holiday. The mother wanted the child to spend all of the short holidays with her.

WEEKEND TIME

1. Senior counsel for the mother submitted that the mother should have the opportunity to engage with the school and the child’s teachers not only when she collects the child on Friday afternoons but also on Monday mornings. It was submitted that the mother had always ensured that the child attended extracurricular activities and school activities.

2. The mother deposed that she has purchased accommodation in Suburb Z so that she is closer to the child’s school at Suburb Y. She deposed “the child will be able to catch the same bus home from school to my Suburb Z property as she does to get home to the [father’s home].”

3. The father does not accept the evidence of the mother that she has purchased in Suburb Z or her evidence that the child can travel to school by bus. Those issues cannot be resolved here.

4. Senior counsel for the father submitted that, because the weekends that the child will spend time with the mother are not certain and will change according to the mother’s schedule, there will be no consistency for the child in knowing from which home she will leave for school on Mondays and that this will create anxiety for the child.

5. At the present time, the child walks to school from her father’s home. There is no evidence that she has experience travelling either to or from school by bus. Senior counsel for the mother told the Court that the trip from the mother’s home to school would take about 30 minutes but there is no evidence in support of that proposition.

6. The ICL placed emphasis on the need for the child to have certainty in relation to preparation for school on Monday mornings.

7. I am not persuaded that any benefit to the child of spending Sunday night with the mother outweighs the detriment of the uncertainty created by the lack of established routine. This is particularly so having regard to the mother’s evidence that the child can travel by bus, and the attendant uncertainties of that evidence.

8. The weekend time will end at 6pm on Sunday.

HOLIDAYS

1. The mother’s proposal that the child spend all of her short school holidays with her would deprive the child of the opportunity to spend more than about three weeks each year (half the end of year holidays) with her paternal family.

2. Senior counsel for the mother submitted that her proposal was appropriate because, he submitted, the father was often in China during the child’s holidays.

3. The father denied that assertion. Again, that dispute cannot be resolved in the absence of evidence but, in any event, senior counsel for the father indicated that the father would consent to an order that he be present in Sydney when the child is to spend holidays with him.

4. The orders will provide that, if the father is not able to care for the child during any holiday she is to spend with him, he will give notice to the mother that the child can live with her for any period when he is not available.       

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 December 2018.

Associate: 

Date:  18/12/2018