Xieren & Huyen
[2023] FedCFamC1F 292
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Xieren & Huyen [2023] FedCFamC1F 292
File number: PAC 2964 of 2022 Judgment of: BRASCH J Date of judgment: 18 April 2023 Catchwords: FAMILY LAW – CHILDREN – CRITICAL INCIDENT LIST- Where child’s father is terminally ill – Where child’s mother is absent from child’s life – Where mother has not engaged in proceedings – Where applicants seek parental responsibility upon father’s passing, their agreement or the father’s loss of capacity – Where applicants seek relocation of child to United States of America upon father’s passing or, their agreement – Where interim orders had been made for parental responsibility – Final orders made Legislation: Family Law Act1975 (Cth) Part VII ss 60B, 60CC, 60CC(2), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 60CC(3)(m)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 57 Date of hearing: 18 April 2023 Place: Sydney (by web conference) Solicitor for the Applicants: Circle Bridge Legal The Respondent: Litigant in person (did not participate) ORDERS
PAC 2964 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR XIEREN
First Applicant
MS MAI
Second Applicant
MR VUONG
Third Applicant
AND: MS HUYEN
Respondent
order made by:
BRASCH J
DATE OF ORDER:
18 APRIL 2023
THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.The father have sole parental responsibility for all major long term decisions related to the child X born 2012.
3.Upon the father’s passing; or the father losing capacity; or as otherwise agreed between the father and the paternal aunt and uncle, parental responsibility be allocated to the paternal aunt and uncle, for all major long term decision related to the child X born 2012, including:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)Requesting that Medicare issue a card/s for the child and claiming Medicare benefits for the child;
(e)Dealing with the Department of Foreign Affairs and Trade, Passport offices or Visa providers; and
(f)Requesting a copy of the child’s birth certificate.
4.That the father, and then the paternal aunt and uncle upon the father passing; or the father losing capacity; or as otherwise agreed, have responsibility for all day-to-day decisions with respect to the child.
5.That pursuant to s 121 of the Family Law Act 1975 (Cth), the father, and then the paternal aunt and uncle upon the father passing; or the father losing capacity; or as otherwise agreed, be granted leave to publish a copy of these Orders to all service providers for the child, including but not limited to the child’s school, treating medical practitioners, any other doctors, therapists, counsellors, government departments, health insurer, passport and visa providers, or, for securing any financial support for the child.
6.That these Orders are authority for the father, then the paternal aunt and uncle upon the father passing; or the father losing capacity; or as otherwise agreed, to schedule and consent to treatment, therapy, schooling, programs, services and the like for the child, and to give and receive such information from service providers as a parent would ordinarily receive.
7.Pursuant to Section 11 of the Australian Passports Act 2005 (Cth), that the father, and then the paternal aunt and uncle upon the father passing; or the father losing capacity; or as otherwise agreed have authority to cause X born 2012 to be issued with an Australian travel document and the need for the mother’s signature be dispensed with.
8.The child, X born 2012 spend no time with the mother.
9.The father, and then the paternal aunt and uncle upon the father passing; or the father losing capacity; or as otherwise agreed, are at liberty to relocate the child to the United States of America to live with the paternal aunt and uncle.
10.In the event any wording in this Order constrains or otherwise fetters the applicants’ ability to deal with service providers for the child, they have liberty to approach chambers by email (with an affidavit) via (…@...) under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) seeking the relevant amendment/s.
11.The need for the necessity of service on the respondent mother be dispensed with unconditionally.
12.The documents be taken to be served on the respondent mother.
THE COURT NOTES:
A.That pursuant to s 65DA(2) of the Family Law Act 1975 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 “Parenting Orders – obligations, consequences and who can help” 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: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
X was born in 2012. She is 11 years of age.
In the matter that is before me today, the applicant Mr Xieren is X’s father (“the father”). The other applicants, Ms Mai and Mr Vuong are the second and third applicants, the paternal aunt and husband of the paternal aunt, therefore the paternal uncle (“the aunt” and “the uncle”).
The respondent is X’s mother, Ms Huyen (“the mother”).
X’s father is in poor health. His condition tragically is terminal. He seeks orders to provide for X when either his health is too poorly and ultimately on his passing. Since at least 2016 the father has been the sole carer for the child and, since April 2018, the material before me indicates the mother has had no contact with the child at all (Affidavit of Mr Xieren filed 3 June 2022, paragraph 73).
On 3 June 2022, the applicant father filed an Initiating Application seeking that upon his death, parental responsibility for the child be given to the second and third applicants, being the paternal aunt and uncle, to whom I have already referred to.
The father in this matter was born in 1970.
The paternal aunt was born in 1974 and the paternal uncle was born in 1972.
The mother was born in 1986, but as said, has had very little to do with X for a considerable period of time.
The paternal aunt and uncle are professionals ordinarily residing in B Region.
The father, paternal aunt and paternal uncle are in agreement that X continue to live with the father until the time of his passing, after which she would live with the paternal aunt and uncle in the United States of America.
The matter first came before me as part of Critical Incident List on 24 October 2022. As part of the Order, I made an information order.
The mother has not been located. Extensive steps have been made to try and do so.
SERVICE
On 9 August 2022, an Application in a Proceeding was filed seeking that service be dispensed with in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The applicants in these proceedings have made significant attempts to serve the documents on the mother. It is submitted that regard must be had to the difficulty in serving the documents, in circumstances where the respondent mother has not been in contact with the applicant [father] since April 2018.
Personal Service was initially attempted by hand without success on 13 July 2022 (Affidavit of Service of Mr C filed 3 August 2022, p.2).
After a subpoena from the Department of Home Affairs identified a mailing address for the respondent (Affidavit of Andrea Verteouris filed 4 August 2022, paragraph 9), personal service was attempted and it was identified that the respondent was not living at this address at the time.
Subsequently an electoral role search was conducted (Affidavit of Andrea Verteouris filed 9 August 2022, paragraph 1) which identified some individuals of the same name. Letters on letterhead were sent to the addresses of these individuals in August 2022, to which no reply was received by any individual identifying themselves as the respondent mother in these proceedings (Affidavit of Andrea Verteouris filed 9 August 2022, paragraphs 4-8).
Further, from subpoena material in the Department of Home Affairs, the contact details of the solicitor who the respondent used to obtain a visa was identified, and that individual was contacted. Such contact was unable to identify an address for which the mother could be contacted, by way of e-mail or physical mailing address. (Affidavit of Andrea Verteouris filed 9 August 2022, paragraphs 11-14).
Again, in an attempt to identify the location of the respondent mother, material was subpoenaed from the Department of Communities and Justice and from New South Wales Police. An inspection of this material failed to locate any address for the Respondent (Affidavit of Andrea Verteouris filed 9 August 2022, paragraph 15).
Further, Google searches were conducted in an attempt to either identify an email address for the respondent, or a social media page or site which the respondent belonged, but to no avail (Affidavit of Andrea Verteouris filed 9 August 2022, paragraph 16).
Further, a Facebook search was conducted which was non-productive (Affidavit of Andrea Verteouris filed 9 August 2022, paragraph 17).
On 24 October 2022, I made a location order seeking the address of the respondent and such address was provided. After the address was provided, service was attempted personally at the address, during February 2023 and March 2023. Indeed I am told and have no reason to doubt service was attempted no less than five times. The service provider providing the calling card seeking a call back, but that never occurred.
Importantly from the affidavit of the process server it was identified that a calling card was left on the vehicle at the premises but the calling card had been removed from where it was left (Affidavit of Service of Ms D filed 27 March 2023, paragraphs 6-7).
It is submitted and I accept that it is clear that whoever was living at that address had received the card and chosen not to engage in the process of service (Written submissions dated 10 April 2023, paragraph 11).
It is submitted the above methods of attempted service completely exhausts the resources which were available to the applicant [father] to effect service. I accept that submission. I accept all the steps that the applicant, no doubt well guided by his solicitors, has taken to try to bring this matter to the mother’s attention.
In April 2018, the applicant was advised by the respondent she was moving back to Country E and that may well have been the case (Affidavit of Mr Xieren filed 3 June 2022, paragraph 73).
It is submitted that the attempts of service which have been made, but especially the service on the last address that was given by way of the location order, allows the reasonable conclusion that in all the circumstances, the respondent is aware of the existence of the matter and if she wished to take part, has had the ability to communicate with service providers and accept service of documents. I accept that submission.
It is also submitted in all circumstances that the applicant [father] has exhausted all possibilities, which one could reasonably undertake to serve the documents on the respondent in relation to these proceedings, and, an order should be made for the necessity of service to be dispensed with unconditionally and the documents taken to be served.
In light of the above and considering the nature of the proceedings and the dwindling health of the applicant father, the applicants asked today, that I hear the matter on an undefended basis and make final orders.
As said, the father is currently diagnosed with a terminal illness. I am told he is undergoing palliative treatment. It is unknown when the applicant father will pass, and it is very sadly suspected that will be in the near future.
I consider it in the best interests of X that I give her certainty as to what will happen to her when her father passes, or, when he loses capacity, or, of course, where the father, paternal aunt and uncle otherwise agree. It is important X knows what her future is going to be.
I am benefited by having a Child Impact Report from 25 August 2022. In that document no risk issues were identified with the father, the aunt or the uncle. Indeed, it said this:
This assessment has not identified any issues of family violence relating to [Mr Xieren], [Ms Mai], or [Mr Vuong].
…
Given that the applicants are not in dispute about the arrangements that are in [X’s] best interests, and [Ms Huyen] has thus far not participated in these proceedings, it does not appear that further assessment would be of assistance to the Court.
(Child Impact Report of [Ms F] dated 25 August 2022, paragraphs 18 and 33)
That Child Impact Report was August last year and the mother still has not participated.
In looking at whether I should make final orders today, that Child Impact Report does give me considerable comfort.
MATERIAL
The material that is before me today is as follows:
·Amended Initiating Application filed 8 June 2022;
·Affidavit of Mr Xieren filed 3 June 2022;
·Parenting Questionnaire filed on 3 June 2022;
·Genuine Steps Certificate filed on 3 June 2022;
·Notice of Child Abuse, Family Violence or Risk filed on 3 June 2022;
·Application in a Proceeding filed on 3 June 2022;
·Cover Letter for Urgency filed on 3 June 2022;
·Affidavit of Ms Mai filed on 3 June 2022;
·Affidavit of Mr Vuong filed on 3 June 2022;
·Affidavit - Non-Filing of Family Dispute Resolution Certificate filed 8 June 2022;
·Affidavit of Service of Mr C filed on 3 August 2022;
·Affidavit of Andrea Verteouris filed on 4 August 2022;
·Application in a Proceeding filed on 9 August 2022;
·Affidavit of Andrea Verteouris filed on 9 August 2022;
·Affidavit of Andrea Verteouris filed on 29 August 2022;
·Child Impact Report of Ms F dated 25 August 2022;
·Affidavit of Service of Ms D filed on 27 March 2023; and
·Three Page Submissions by Applicant’s solicitor dated 10 April 2023.
LEGISLATIVE PRINCIPLES
The legislation in the Family Law Act 1975 (Cth) relevant to children is, of course, in Part VII, where the paramount consideration is the child’s best interests. Section 60B of the Act sets out the objects of Part VII and the principles underlying it. Of course, a lot of that refers to parents and, sadly, X’s father is terminally ill and the mother has been absent from her life for a considerable period of time.
However, the principles also refer to protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. I have already referred to the Child Impact Report and am satisfied that there are no concerns that any of the three applicants pose any kind of threat, risk or harm to the child as referred to in the Act.
Section 60CC of the Act tells me how I am to work out X’s best interests. It has two primary considerations, the first of which directs my attention to ensuring X has a meaningful relationship with both of her parents, which obviously cannot occur. Section 60CC(2)(b) again requires me to ensure the child is protected from harm. I have already referred to that factor and safely have made the findings I do on the strengths of the Child Impact Report.
I then turn to the additional considerations under s 60CC(3).
Section 60CC(3)(a) concerns X’s views. This is not really a views matter where a child may express a view about wanting to live between the mother and the father. However, I do note there will be much for X to comprehend when her father passes. The Child Impact Report made some recommendations about helping X understand what is happening. I have no doubt that the father, paternal aunt and paternal uncle will do all they can to ensure what must be a difficult time for X is supported as much as possible.
Section 60CC(3)(b) is the nature of the child’s relationships. Undoubtedly, X is close with her father. She has no experiential relationship with her mother. Of her aunt, this was said in the Child Impact Report:
…[Ms Mai], with whom [X] appears to have a positive and established relationship, presents as having insight into the impact of [X’s] life experiences on her, which increases confidence that she would be able to identify, and adequately respond to, any difficulties experienced by [X] associated with the loss of [Mr Xieren] or relocating to the USA.
(Child Impact Report of [Ms F] dated 25 August 2022, paragraph 23)
The paternal aunt and uncle are known to the child and have been spending considerable time with the child in recent years anticipating the passing of the father. Indeed, I accept the paternal aunt and the paternal uncle have the means to care financially and emotionally for the child, in circumstances where they have their own children in their teen years who are the cousins to X.
The second and third applicant are successful professionals. They are both on affidavit attesting that they are willing, ready and able to care for X and ensuring she has a meaningful relationship with her relatives, both in Australia and in America.
Section 60CC(3)(c) is about taking opportunities to make decisions for the child, or spend time with the child. The father has been the sole parent for X for many years. The mother has not taken the opportunities that may have otherwise been available to her.
Section 60CC(3)(d) is the effect of change. It is accepted that these orders mean it would be necessary for the X to relocate to B Region, upon her father’s passing (or to where the parties may otherwise agree) where she will live with the second and third applicant. However in the circumstances where there is no individual available with the means to care for the X in Australia, I form the view it is in the best interest of the child to travel to B Region and live with the paternal aunt and the paternal uncle.
X will have enough trauma and grief around her. She will need the supports of what the father describes “her closest blood relatives,” the applicant paternal aunt and uncle.
I am told there is wider family supports too in B Region, and that whilst it might all be a little overwhelming for X initially, this can only be of comfort to her.
The move to the United States of America will be a big change for X, but so will the passing of the father. I am really left with few options, but in saying that, I am very satisfied that the paternal aunt and uncle will do all within their power to support X.
Section 60CC(3)(e) is the practical difficulties, expense and time. That is not really relevant in this matter.
Section 60CC(3)(f) is the capacity of parents to parent. I know nothing about the mother. The father plainly has capacity to parent, and this section is about parents. The application the father has brought itself demonstrates he has foresight and insight, as do the paternal aunt and uncle.
Section 60CC(3)(g) concerns X’s characteristics. X has the benefit of a rich range of characteristics; Country E heritage and she has lived in Australia both in Melbourne and Sydney. I have no doubt that her culture and characteristics will be continued when she lives with the paternal aunt and uncle in the United States of America. That will also be another wonderful opportunity for X to learn of a different culture when she lives in the United States of America.
Section 60CC(3)(h) concerns Aboriginal and Torres Strait Islander children.
Section 60CC(3)(i) concerns the attitude to parenting. I repeat what I said under capacity to parent with respect to the father here.
Section 60CC(3)(j) and Section 60CC(3)(k) concern family violence and are not relevant.
Section 60CC(3)(l) asks me to make orders that are least likely to lead to further proceedings. I am making final orders, yet as all orders have been made in the mother’s absence, that means she can apply to set aside the orders. The Act and particularly the rules allow her to do so. So be it if she does. I am comfortably satisfied the matter has been brought to her attention. I am comfortably satisfied the orders I will make on a final basis today are in X’s best interests.
Section 60CC(3)(m) is any other consideration. It is important for the father, and therefore for X, in his failing health to have certainty as to X’s future and that X will be cared for. That is just as important for X as it is for her Father. It is important that X has her father as available to her as she can, that he be able to concentrate on his health, and that he concentrate on his relationship with his daughter whilst he can. The last thing I want for him to do is to have to come to court again. He has higher and deeper priorities.
For those reasons, I propose to make the orders I outlined at the beginning of my discussion with the father on a final basis.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 21 April 2023
0
0
0