XIONG & YOO
[2019] FCCA 1650
•4 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| XIONG & YOO | [2019] FCCA 1650 |
| Catchwords: FAMILY LAW – Parenting – whether the mother is permitted to take the child on an overseas holiday to a non-Hague Convention country – whether there is an unacceptable risk of the child being retained in a non-Hague Convention country – whether the child will maintain a meaningful relationship with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65X, 65Y |
| Cases cited: In the Marriage of Kuebler, P. and Kuebler, J.A. (1978) FLC 90-434 |
| Applicant: | MS XIONG |
| Respondent: | MR YOO |
| File Number: | SYC 7477 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 10 May 2019 |
| Date of Last Submission: | 10 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Hydes of Korn Macdougall Legal |
| Solicitors for the Respondent: | Ms Leung of Accuro Legal (Sydney) |
ORDERS
That the Application in a Case filed by the wife on 30 April 2019 is dismissed.
That the Response to Application in a Case filed by the father on 8 May 2019 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Xiong & Yoo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7477 of 2017
| MS XIONG |
Applicant
And
| MR YOO |
Respondent
REASONS FOR JUDGMENT
Introduction
The issues in this interim hearing are the Application by the mother, Ms Xiong, (‘the mother’) for orders that the parties’ child, [X], born … 2016 (‘the child’), be permitted to travel outside of the Commonwealth of Australia and to China for a period of six weeks, and that the mother be permitted to apply for and obtain a passport for the child without the father’s consent. These orders are opposed by the father.
The Application by the father, Mr Yoo, ("the father") is for further interim orders to increase the time that he spends with the child.
The parties were both born in China. The mother first came to Australia in 2008 to study and returned to China in 2011 following completion of her studies.
The father was in Australia in … 2008 when the parties met at an English language school, though there is no evidence as to when the father first came to Australia, or on what basis.
The parties married in China in … 2015 and sometime between then and 24 September 2016, both moved to Australia.
The parties’ only child, [X], was born on … 2016 in Sydney.
The father commenced the substantive proceedings by filing an Initiating Application on 10 November 2017 seeking final parenting and property settlement orders, and interim parenting orders.
The father filed an Amended Initiating Application on 30 November 2017 still seeking final parenting and property settlement orders and interim parenting orders.
The mother filed her Response on 19 January 2018 seeking final parenting and property settlement orders and interim parenting and property orders, though the interim property orders sought relate only to an order for costs.
On the first return date on 29 January 2018, the parties entered into interim consent orders providing that:
a)The child live with his mother and spend time with his father as agreed between the parents, or in lieu of agreement, as follows:
i)On each Saturday for six hours from 8:00am to 2:00pm;
ii)On each Sunday for two hours from 8:00am to 10:00am;
iii)For time on the father’s birthday from 6:00pm to 8:00pm on a weekday, or for extra hours if on a weekend;
iv)Changeover by agreement or in lieu of agreement, in front of Region [C] Shopping Centre.
An order for a Family Report was made and the matter was adjourned to 5 November 2018 for mention. That mention was administratively adjourned to 7 March 2019 for further mention to allow completion of the Family Report.
By order made 7 January 2019, the Family Report completed by Ms D was released.
On 7 March 2019 the matter was further adjourned for mention to 1 May 2019 to enable the parties to each seek Counsel’s advice in relation to the recommendations contained in the Family Report.
On 30 April 2019, the mother filed an Application in a Case seeking the following orders:
a)That the child be permitted to travel outside the Commonwealth of Australia to China for a period of six weeks on dates to be confirmed and provided to the father one week prior to travel.
b)That the mother be permitted to apply for a passport for the child from the Australian Passport Office and renew that passport as and when it expires without the father’s consent.
c)That the passport remain in the custody of the Court except for when being used for Court-approved overseas travel.
d)That the Mother lodge a surety with the Court in the amount of $10,000 for overseas travel with the child.
On 8 May 2019 the father filed his Response to an Application in a Case seeking the following orders:
a)An order that orders (a), (b), (c), and (d) sought in the Application in a Case, filed 30 April 2019 by the mother, be dismissed.
b)An order that, commencing on the Saturday immediately following the making of these orders, [X], born … 2016, is to spend time with the father at the following time each week until he reaches four years of age:
i)Monday from 5:45pm to 7:45pm; and
ii)Wednesday from 5:45pm to 7:45pm; and
iii)Saturday from 6:00pm to Sunday 6:00pm; and
c)For the purpose of the above sub-paragraphs, the place of picking up and returning [X] at the commencement and conclusion of those times shall be as agreed between the parties and in lieu of agreement, in front of the Region [C] Shopping Centre.
The matter came before me for mention on 1 May 2019 and I was advised by Ms Hydes for the mother that the mother intended to take the overseas trip to China with the child in … 2019. I listed the matter for interim hearing at 10:00am on 10 May 2019 and directed that the father file and serve his Response to Application in a Case and any affidavit material to be relied upon by him at interim hearing by 4:00pm on 8 May 2019.
The matter proceeded to interim hearing before me on 10 May 2019. The mother was present and represented by Ms Hydes as solicitor-advocate. The father was present and represented by Ms Leung as solicitor-advocate.
The Material Relied Upon
On interim hearing the mother relied upon the following:
a)Application in a Case filed 30 April 2019;
b)Affidavit of Ms Xiong sworn and filed 29 April 2019; and
c)Affidavit of Ms Xiong sworn 9 May 2019 and filed in Court at the interim hearing.
On interim hearing the father relied upon the following:
a)Response to an Application in a Case filed 8 May 2019;
b)Affidavit of Mr Yoo sworn and filed 8 May 2019 (‘the father’s May affidavit’);
c)Case summary document prepared by Ms Leung; and
d)Family Report dated 7 January 2019 prepared by Ms D, Family Consultant.
The father proposed in his case summary that on interim hearing he also relied on his affidavits affirmed 7 November 2017 and filed 10 November 2017, (‘the father’s November affidavit’) and affirmed 26 January 2018.
There is no affidavit by the father affirmed 26 January 2018 on the Court file nor does such a document show on the Commonwealth Courts Portal in the matter. Practice Direction No. 2 of 2017[1] provides that any Application for interim orders should be supported by only one affidavit by the moving party by use of the words “an affidavit”,[2] whether the moving party is the Applicant or the Respondent in the substantive proceedings, subject to paragraph 10 of the Practice Direction.
[1] Federal Circuit Court, Practice Direction No 2 of 2017 – Interim Family Law Proceedings, 1 January 2018.
[2] Federal Circuit Court, Practice Direction No 2 of 2017 – Interim Family Law Proceedings, 1 January 2018, [5].
I have had regard to the father’s affidavit affirmed 7 November 2017 so far as it is relevant to the issues in the interim hearing.
The Mother’s Evidence
Ms Leung, on behalf of the father, objected to the admission into evidence of the affidavit of the mother sworn 9 May 2019 and tendered at the interim hearing to be filed in Court on the following bases:
a)That the affidavit had been filed less than 48 hours prior to the interim hearing and was therefore "a late document" under paragraph 13 of Practice Direction No 2 of 2017,[3] requiring the leave of the Court to be relied upon; and
b)That the evidence contained in the affidavit was objected to under section 135 of the Evidence Act 1995 (Cth)[4] on the basis that its probative value was outweighed by its prejudicial effect.
[3] Federal Circuit Court, Practice Direction No 2 of 2017 – Interim Family Law Proceedings, 1 January 2018, [13].
[4] Evidence Act 1995 (Cth), s 135.
I ruled against the objection and allowed the affidavit to be filed in Court, but cautioned that if the evidence contained in the affidavit was of a hearsay or lay opinion nature, then it would be a question of the weight to be given to that evidence.
The evidence relied upon by the mother did not give any detail of a specific proposed trip to China by way of departure and return dates. I was advised by Ms Hydes for the mother that the trip had not yet been booked as the mother was waiting for the Court’s approval.
The mother deposes that all of her immediate family, including "four elderly grandparents" all reside in China. The elderly grandparents cannot travel to Australia due to their age and ill-health. The mother has not made a return visit to China since the birth of [X].
The maternal grandmother, who was present in Australia at the time of [X]’s birth, resides in China and has recently suffered a heart attack and is in hospital.
The mother is employed as a professional for [A], a company incorporated in, and having its head office in, China ("the company").
The mother is the company’s representative in Sydney, Australia. If allowed to travel with the child to China for a six week holiday, the mother will take leave from her job and then resume work immediately upon her return to Australia.
The mother attaches as the Annexure to her affidavit a copy of a one page agreement, dated 13 October 2018, between herself and the company that she describes as "my employment contract".
In her affidavit filed for the interim hearing, the mother deposes that she and Mr E, the Western Australian representative for the company and the mother’s only work colleague in Australia, have organised for the company to be involved in the Work Event 2019 to be held in … 2019 at the [B] Park, and that she will be in attendance throughout the event as part of her role with the company.
The mother also deposes that in addition to her part-time employment with the company, she has taken a part-time role with [O]. She gives no further detail in relation to that organisation or her role, but she annexes to her affidavit a copy of a statement in the following terms:
I, Ms F, the manager in [O] approve that Ms Xiong is working as full-time professional from …. She mentioned her mother’s sickness in two weeks ago. She asked for leave back to China for 6 weeks. After she comes back, she will be work as full-time professional again.
The document is signed and dated 6 May 2019 in handwriting. The mother asserts in her affidavit that she will recommence "this role" upon her return.
The mother and the child reside in a property owned by the maternal grandmother at Suburb G in Sydney. The child attends an early learning day care centre in Suburb G and the mother deposes that his place there will be held for him during the period of the trip to China and that he will resume attending three days a week immediately upon his return.
The mother deposes in her affidavit filed at the interim hearing that she has purchased an apartment off-the-plan which is currently under construction. Annexure ‘X-C’ is a copy of the first page of the contract the sale. The document shows that there are two purchasers of the property, the mother and Ms H.
I am aware that Ms H is the maternal grandmother because the mother also annexes to that affidavit a copy of the first page of the contract for sale whereby the maternal grandmother purchased the property in which the mother and the child live at Suburb G, and she is shown thereon as Ms H.
In the course of submissions, Ms Hydes referred to the mother having purchased the property with the maternal grandmother in joint names. I remarked that the mother does not give any evidence of a contribution she has made, or intends to make good, the purchase of that property. On taking instructions, Ms Hydes informed me that the mother will be applying for a loan to pay for the property, that the deposit on purchase was paid by the maternal grandmother, and that the mother will be taking on the burden of a loan secured by mortgage to make repayments for the property.
Ms Hydes further advised that the property is in "the early stages of construction at the moment", despite the contract to purchase having been dated 3 December 2016.
The Father’s Evidence
The father deposes that since the interim orders for him to spend time with the child were made by the Court on 29 January 2018 he has been able to spend that time with [X] on most occasions.
He refers in his affidavit to parts of the Family Report and in particular to the recommendations made by Ms D. He deposes that he has complied with order 6 of the interim orders by attending and completing the "Keeping Contact” course.
In paragraph 59 of the father’s November affidavit, he details a conversation he asserts he had on 27 January 2017 with the maternal grandmother in Sydney during which the maternal grandmother said:
We are only going to allow you to meet with [X] less than four hours each time before he turns to [sic] three years old while he is in China.
The father replied:
You can never take my son away without my consent.
The father annexes to his May affidavit a copy of a letter dated 9 February 2017 from the wife’s then solicitors, AHL Legal, in which, as part of a proposal for future parenting arrangements, it is proposed:
That in the event our client decides to raise the child in China, your client shall spend time with the child in China for up to four weeks in a year during the summer holidays in China …
[That the] parties register or cause to be registered, these orders as consent orders at the Shanghai or Beijing local registry of the Peoples Supreme Court in China.
The father asserts that the mother’s family has:
Strong ties, both socially and monetarily, with the owner of [P], known to me as Mr J.
The father deposed in paragraph 17 of his May affidavit that the mother is a Chinese citizen.
The Family Report
The interviews for the Family Report took place on 13 December 2018.
There was further telephone contact by the Family Report writer with the father on 18 December 2018, and with the mother on 20 December 2018.
The Family Report notes that in his interview, the father said (paraphrased by the report writer) that:
a)The mother was no longer saying that she wants to take the child to China;
b)That the father had lost his Chinese passport, but that the mother still had one; and
c)If the child visits China, the mother could keep him there and Australian and international law could not assist the father to get the child back to Australia.
In paragraph 26, the Report notes:
Mr Yoo said that, after he and Ms Xiong separated, they talked about [X] being raised in China. He said that, initially he agreed (even though he did not want to) but when Ms Xiong’s mother told him that he would only be allowed to see [X] for four hours per week, he told Ms Xiong that he did not agree with [X] leaving Australia.
In paragraph 27, the Report notes:
…He said that, in about October 2018 he and Ms Xiong argued because she wanted him to agree to [X] living in China. Mr Yoo said that, Ms Xiong sat in his car and threatened to pour water down his gearstick and ruin his car unless he agreed for [X] to leave Australia. He said that he called the police for assistance. During interview Mr Yoo said that incident was the catalyst for change, and since then, he and Ms Xiong have agreed not to discuss [X] living in China and allow the Court to decide.
In paragraph 47 the Report writer notes:
Ms Xiong said that, “if there were no baby, I would go back to China.”
In her evaluation, the Report writer says:
[X] appears comfortable enough to spend more time with Mr Yoo. At the age of two, [X] should be spending time with Mr Yoo at least three times a week so he can get used to Mr Yoo and the different environment.
An important passage in the Family Report is at paragraph 81:
Mr Yoo is concerned that Ms Xiong will take [X] to China if she has sole parental responsibility, and he will not be able to see him or have him returned to Australia. Ms Xiong said that is not her intention. If Ms Xiong were to have sole parental responsibility for [X], she would have the opportunity to take [X] to China without Mr Yoo’s consent. Mr Yoo proposed that [X] not travel to China until he is ten years old. This will impact [X]’s ability to spend time with extended family, and while that is unfortunate, in weighing up the risk of [X] being separated from his father, against his relationships with extended family, his relationship with Mr Yoo is more important.
It is in [X]’s best interests to grow up knowing that both his mother and his father have been actively involved and interested in all aspects of his life.
The Report writer’s assertion, that if the mother had sole parental responsibility for the child she would have the opportunity to take the child to China without Mr Yoo’s consent, is not accurate. Even if the mother were to have an order that she had sole parental responsibility for the child, if there is also a parenting order in favour of the father then the mother would still be prohibited by section 65Y of the Family Law Act 1975 (Cth) (“the Act”) from taking or sending the child outside Australia unless she had the consent of the father, completed in compliance with that section and regulation 13 of the Family Law Regulations 1984, or an order of a Court made under the Act.
Submissions
Ms Hydes made submissions on behalf of the mother stressing that the mother had not been back to China since 2015 and that, apart from a visit to Australia by her mother about the time that the child was born, she had not seen the members of her family since that time.
She acknowledged that China is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the Hague Convention”), but she submitted that her client had strong ties to Australia and intends to reside in Australia, that she is a permanent resident of Australia and intends to remain so.
In relation to the mother’s ties to Australia Ms Hydes referred to:
a)The property in the course of construction co-owned by the mother and the maternal grandmother;
b)The child’s place at the childcare centre to which he can return after the trip to China;
c)That the mother is the sole owner of a Motor Vehicle Q motor vehicle; and
d)To the mother’s employment with the company and with [O].
Ms Hydes referred to the mother’s proposed order that she provide a surety in the sum of $10,000, a large sum of money for the mother, which, Ms Hydes asserted, showed the mother’s commitment to returning to Australia.
Ms Hydes submitted that the mother has full ties in Australia, that she has friends, a job, a house, and that Ms Xiong’s child is an Australian citizen and will be raised as such.
It is not the case that the mother currently has “a house” in Australia. Ms Xiong is the co-owner of a unit said to be in the course of construction, but the actual amount or nature of her equity in that property remains in question. There is no evidence presented by the mother as to her having friends in Australia.
As to the mother having “a job”, the evidence presented by the mother in relation to her employment with the company is as to part-time employment only. It would appear that she is the company’s only employee of any nature in Sydney, with the only other employee of the company being Mr E in Western Australia.
The mother provides no detail whatsoever in relation to her full-time asserted employment with [O], whatever that organisation may be.
In relation to the mother’s ownership of the of the Q motor vehicle, I suggested to Ms Hydes that the vehicle did not present a very strong tie to Australia on the mother’s part as it could be sold by her prior to leaving on the proposed trip, or it could be sold on her behalf by a third party after she had left on the proposed trip.
I questioned Ms Hydes on there being no evidence from the mother as to where the sum of $10,000, proposed as a surety, would be coming from. I pointed out that in her Financial Statement sworn 9 January 2018 she asserted that she had a sum of $2,500 in the bank and that her only other assets were the Q motor vehicle with an estimated value of $40,000, and household contents with an estimated value of $10,000.
On obtaining instructions, Ms Hydes indicated that the $10,000 would be coming from the mother’s personal savings and that the sum is the entirety of her personal savings.
I referred Ms Hydes to paragraph 47 of the Family Report where the mother said:
If there were no baby, I would go back to China.
This statement was made by the mother in December 2018 in full knowledge that she had entered into the contract to purchase the off-the-plan unit jointly with her mother in late 2016.
Ms Hydes submitted that the mother’s previous statements in relation to wanting to return to China or wanting to raise the child in China were made during a period of time when she was suffering from ill health and wanted the support of her family members back in China.
Ms Leung made written submissions on behalf of the father in her case summary document, and also made verbal submissions at the interim hearing.
The written submissions asserted that the wife’s Application in a Case amounted to an application for disposal by summary judgment of the final orders sought by her in her Response, relating to the issuing of a passport for overseas travel for the child.
I indicated to Ms Leung during her verbal submissions that I did not think that was an accurate analysis of the Application, but that the real point of the case was neatly summarised in paragraph 6 of the written submissions: that there is an unacceptable risk that if [X] is allowed to travel to China, he will not be returned.
The written submissions refer to the fact that the People’s Republic of China (‘China’) is not a signatory to the Hague Convention and that no evidence is offered to the Court by the mother of what steps would be open to the father through the legal system in China to have the child returned to Australia if he is retained by the mother, or by the mother’s extended family on her behalf.
Ms Leung referred me to Cape & Cape[5] in which the Full Court only allowed a mother to relocate with the child to Germany pending the outcome of the father’s appeal once she had provided proof that relevant orders of the Full Court had been recognised in, and were enforceable by, a Court of relevant jurisdiction in Germany.
[5]Cape & Cape [2013] FamCAFC 114.
Ms Leung referred to the mother’s lack of substantial ties to Australia, the mother’s Chinese citizenship (as asserted by the father), the lack of any evidence of the mother having any significant real property ties to Australia, and the ease with which the child’s childcare centre arrangements could be permanently terminated.
Ms Leung submitted that the mother’s Application for final orders that she have sole parental responsibility for the child demonstrated “an admitted final purpose … to terminate the father’s involvement in any meaningful decision-making as a parent.”
In verbal submissions, Ms Leung referred to the evidence presented by the mother in relation to her employment in Australia as being wholly unsatisfactory to enable the Court to draw a conclusion that it represented any form of tie, let alone a strong tie, to Australia. She noted that just as the mother asserted that she had employment with the company in Australia, she may just as well be able to obtain employment, perhaps better employment, with that company in China where the company has its head office.
Ms Leung referred to the recommendations made by Ms D in the Family Report and noted that “four months later, the Report is yet to be implemented.”
Family Reports are not “implemented” upon their release, but are released on completion, subject to discretionary matters, for the assistance of the parties in approaching negotiated settlements and so that the parties are aware in good time of the case they will be required to meet on final hearing.
Family Reports are expressions of expert opinion, together with the material upon which that expert opinion is based, and an explanation of the process by which that expert opinion has been derived from those materials.
Prior to a final hearing, the expert opinion is untested by cross-examination and it may ultimately be that when all of the evidence is presented and tested in a final hearing, some of the factual matters upon which the opinion is based collapse with a consequent effect upon the validity of the expert opinion. The recommendations in a Family Report are part of that expert opinion.
There seems to be a growing trend that upon release of a Family Report that makes recommendations favourable to one party, particularly where there are recommendations for an increase in the amount of time the non live-with parent spends with the child or children, an Application for interim or further interim orders is made on behalf of that party in an expectation that the recommendations in the Family Report should be “implemented” as soon as possible and prior to a final hearing. That is not the purpose of a Family Report and to proceed in that matter in reliance on an untested Family Report is, in almost all cases, inappropriate.
In making those remarks I must say also that I understand the frustrations that in some cases would lead to those interim applications consequent upon the unfortunately long delays current between release of a Family Report and commencement of a final hearing.
The Law
In Goode & Goode[6] the Full Court suggested that in an interim Application relating to parenting issues, the Court should follow the framework set out in paragraphs 81 and 82 of the judgment:
[81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[6] Goode & Goode [2006] FamCA 1346.
[82] In an interim case that would involve the following:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute in the interim hearing;
(c) Identifying any agreed or uncontested relevant facts;
(d)Considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)Deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f)If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)Even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Section 60B sets out the objects of and principles underlying part VII of the Act. In considering each of the Primary and Additional considerations in section 60CC I have been guided by those objects and principles.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to children, the Court must regard the best interests of the children as the paramount consideration.
Section 60CC of the Act provides that in determining what is in the children's best interests the Court must consider the matters set out in subsections (2) and (3) and must note the weighting requirement in subsection (2A).
The Full Court said in Banks & Banks,[7] at paragraphs 47 to 50:
[47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
[48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
[49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
[50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[7] Banks & Banks [2015] FamCAFC 36.
I will consider the relevant section 60CC considerations, then give attention to the requirements of section 61DA in relation to parental responsibility and what may flow from that on the legislative pathway. Finally, I will consider the issue of the child travelling to China and the issue of the father’s application for an increase in the time he spends with the child pending final orders, both in the light of my considerations of section 60CC.
Primary Considerations
Sub-section 60CC(2) sets out the primary considerations the Court must consider when determining what is in a child’s best interests.
The first is the benefit to the child of having a meaningful relationship with both of the child’s parents, and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) mandates that in applying the primary considerations the Court is to give greater weight to the need to protect the child over the benefit of the child of having a meaningful relationship with both of the child’s parents.
The benefit to the child of having a meaningful relationship with both of the child’s parents
What is meant by a “meaningful relationship” in section 60CC(2)(a) has been the subject of a number of leading cases.
In Mazorski & Albright[8] Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[8] Mazorski & Albright [2007] FamCA 520.
Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders[9] (an appeal involving an application by a mother to relocate) agreed with Dessau J in M & S (formerly E),[10] and said at paragraph 33:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
[9] Godfrey & Sanders [2007] FamCA 102.
[10] M & S (formerly E) (2007) FLC 93-313.
Later, at paragraph 36 Kay J said:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
In Tait & Densmore,[11] Cronin J considered the distinction made by Kay J in Godfrey & Sanders between an ‘optimal relationship’ and a ‘meaningful relationship’ and said at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that the children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
[11] Tait & Densmore [2007] FamCA 1383.
In McCall & Clark,[12] after referring to the matters quoted above from Kay J in Godfrey & Sanders, the Court said:
[12] McCall & Clark [2009] FamCAFC 92.
[118] It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
[119]We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120]We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[120]In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
In this matter, on the evidence available on interim hearing, it is beyond doubt that [X] has a meaningful relationship with both of his parents. There is nothing in the evidence to indicate otherwise than that it is to the benefit of [X] to have, to continue to have and continue to develop that meaningful relationship with each of his parents.
In paragraph 57 of the Family Report of 7 January 2019, the Family Consultant notes:
[X] appeared comfortable with both parents. His mother has been his primary carer since birth and is likely to feel most comfortable in her care as he will be more used to her parenting approach.
In paragraph 58:
[X] will need to spend more time with Mr Yoo in order to develop and strengthen their relationship.
In paragraph 77:
In order to ensure that [X] is as comfortable as possible, there should be an increase in time with Mr Yoo before [X] begins to spend time with Mr Yoo overnight.
In paragraph 75:
Ms Xiong appeared to understand what [X] said, always. She appeared more relaxed and more confident than Mr Yoo was when interacting with [X]. As noted above, this relationship has evolved as a result of daily interaction. [X] will need to spend more time with Mr Yoo so that their relationship can become just as strong.
This opinion by the Family Consultant has a bearing on the father’s application for an increase in the amount of time that he spends with [X].
Of particular relevance to the issue of the mother’s desire to travel to China with [X] for what she asserts would be a 6 week holiday, and the effect that an absence may have on the relationship between [X] and his father, is paragraph 81:
Mr Yoo is concerned that Ms Xiong will take [X] to China if she has sole parental responsibility, and he will not be able to see him or have him return to Australia. Ms Xiong said that is not her intention. If Ms Xiong were to have sole parental responsibility for [X], she would have the opportunity to take [X] to China without Mr Yoo’s consent. Mr Yoo proposed that [X] not travel to China until he is ten years old. This will impact [X]’s ability to spend time with extended family, and while that is unfortunate, in weighing up the risk of [X] being separated from his father, against his relationships with extended family, his relationship with Mr Yoo is more important.
Whilst paragraph 81 of the Family Report does not address, individually, the effect on the relationship between [X] and his father if he is absent in China on a trip for 6 weeks, and the effect on the relationship if he resides in China. The main meaning of paragraph 81 of the Family Report seems to refer to the effect on the relationship if [X] lives in China.
The thrust of the father’s case is that the mother should not be allowed to take [X] to China, for what she asserts is a holiday, out of concern that she will not return [X] to Australia, but will have him live and grow up in China either permanently or for some considerable time.
In that event, it would be almost impossible for [X] and his father to continue a meaningful relationship on even at least the same basis as current, let alone develop and deepen that relationship.
In its plainest terms, the issue in this interim hearing so far as it relates to [X] travelling to China or not, is on the one hand the mother’s assertion that the travel is purely for the purpose of a holiday and that the meaningful relationship between father and child will continue despite that holiday and that following the holiday, the relationship can be further developed by their spending further time together.
On the other hand, the father’s asserts that there is an unacceptable risk of [X] being retained in China by his mother for either a long-term or a permanent basis during [X]’s childhood. This would have the consequent virtual ending of the meaningful relationship between father and child subject to any time that the father can manage to spend with [X] by travelling to China, and even then, subject to him being able to spend time with [X] by the mother’s leave or pursuant to domestic Chinese Court orders.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Turning to the second primary consideration in section 60CC(2), the need to protect [X] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, I note that by the wording of the subsection the “physical or psychological harm” referred to is not open and general but, rather, is confined to such harm “from being subjected to, or exposed to, abuse, neglect or family violence.”
“Abuse” and “family violence” are both defined in the Act, with “abuse” being defined in section 4 and “family violence” being defined in section 4AB. “Neglect” is not defined in the Act.
Above I referred to what the father asserts is an “unacceptable risk” of [X] being retained in China. As to whether or not [X] being so retained would amount to “serious psychological harm” within the definition of “abuse” in the Act is something I cannot answer on the material available on this interim hearing.
It can be said, based upon the material in the Family Report and in particular paragraph 81 as quoted above, the retaining of [X] in China so that he is unable to pursue and further develop his meaningful relationship with his father would be a psychological harm to [X] in that he would lose the benefit of having a relationship with each of his parents, consequently affecting [X] in his development and particularly in his ability to form relationships and maintain relationships in the future.
The Family Report notes at paragraph 82:
It is in [X]’s best interests to grow up knowing that both his mother and his father had been actively involved and interested in all aspects of his life.
Accordingly, in considering the primary considerations in section 60CC(2) I must weigh carefully the benefit to [X] of having a meaningful relationship with both his parents against the risk to [X] of psychological harm if he is retained in China and cannot have either as meaningful or any meaningful relationship with his father. I will go further into the assessment of that risk later in these reasons in discussing the issue of the proposed trip to China.
Additional Considerations
Any views expressed by [X]
[X] was born on … 2016 and at interim hearing [X] was 2 years and 7 months of age. [X] cannot express a view.
The nature of the relationship of [X] with each of his parents and any other persons (including any grandparent or other relative)
[X]’s relationship with his mother is necessarily a close and loving relationship and this is borne out in the Family Report.
The mother has been [X]’s primary caregiver since the time of his birth. Since the parties separated in 2017 [X] has lived with his mother full-time and spent limited amounts of time with his father.
As stated above, it is patent from the Family Report that [X] has a meaningful relationship with his father. He is comfortable with his father, as indicated in paragraph 57.
As noted at various places throughout the Report, including paragraphs 75-77, [X] needs the opportunity to spend some more time with his father so as to strengthen, deepen and further develop that meaningful relationship.
[X]’s maternal grandmother was present for the first part of [X]’s life from about the time of his birth in … 2016 until her return to China in about … 2017. It cannot be known if [X] retains any memory of his maternal grandmother.
The mother deposes that the maternal grandmother would have returned to Australia for a visit in August 2018 or shortly thereafter but that due to her ill-health she was unable to make the visit.
The mother deposes that the maternal grandmother has a visa permitting her to visit Australia that is valid up to August 2021. Depending on the maternal grandmother’s health, she may be able to spend time with [X] in Australia during a visit.
On the evidence available on interim hearing, it would seem that the only opportunity for [X] to establish a relationship with any extended family, including grandparents, is by a visit to China. If, as the father asserts is the risk, the visit becomes a long-term stay then, as stated by the Family Consultant at paragraph 81 of the Family Report, the risk of [X] being separated from his father must be weighed against [X]’s ability to spend time with extended family, and in that way the exercise of [X]’s relationship with his father is more important.
The extent to which each of [X]’s parents has taken, or failed to take, the opportunity to participate in decisions about major long-term issues for [X] and to spend time with and communicate with [X].
This consideration has not been traversed in any detail in the evidence, nor to date has there been opportunity or necessity for long-term decision-making given [X]’s age.
No interim order relating to parental responsibility has been made and therefore section 61C of the Act continues to apply and the parents each have parental responsibility for [X].
As the Full Court said in Goode & Goode,[13] this is a different concept to having shared parental responsibility:
[39] We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
[13]Goode & Goode [2006] FamCA 1346.
The issue of parental responsibility will be addressed below, as it must under section 61DA.
In paragraph 29 of the Family Report, the Family Consultant reports that the father told her that the mother did not consult him when she enrolled [X] in childcare, but rather told him that she had enrolled [X].
The father also told the Family Consultant that the mother had not discussed with him what school [X] would attend in the future, but I note that at two and a half years of age it is perhaps a bit premature to begin discussing [X]’s school, unless there is an intention on the part of either parent to book him into a private school where several years prior booking is needed to ensure a place.
There is nothing in the evidence on this interim hearing to suggest that the father does not take full advantage of his opportunities to spend time with and communicate with [X].
The extent to which each of [X]’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain [X]
In the mother’s Financial Statement sworn 9 January 2018, Item 13 indicates that the father was then paying to her $120.50 per week by way of child support for [X].
In the father’s Financial Statement sworn to November 2017, Item 31 indicates that he paid then a sum of $122.08 per week by way of child support for [X] under an assessment.
In the Family Report at paragraph 31, the father asserts that he, at time of interview in December 2018, paid child support of $800 per month, and pays for “blood storage” for [X]. He asserted that he pays for half of [X]’s medical and childcare bills.
In paragraph 33 the father asserts that he gives the mother a “red envelope” at Chinese New year with $3000 for [X].
Self-evidently, the mother meets all of [X]’s financial needs through a combination of the financial assistance provided by the father and her own financial resources.
On the evidence available on interim hearing I cannot take this consideration any further.
The likely effect of any changes in [X]’s circumstances, including the likely effect on [X] of any separation from either of his parents
[X] has been living with his mother and spending time, being daytime only, with his father. The only other person with whom he has lived was his maternal grandmother from the time of his birth until about … 2017.
[X] has been separated from his maternal grandmother since she returned to China in about … 2017 and it is not known if he has any memory of her.
In the event that [X] is allowed by orders to travel to China with his mother for, as the mother asserts, a six-week holiday, then the effect on [X] of separation for that period of time from his father will be of some detriment to his meaningful relationship with his father, given his tender years. He may miss the occasions spending time with his father, but he will have the advantage of being able to spend time during a visit with at least the mother’s extended family in China. The relationship between father and child can be resumed on his return from China and it need have no long-term effect on [X] at all.
In the event that the unacceptable risk posited by the father of [X] being retained in China on a long-term basis eventuates, then [X] would be separated from his father for extended periods of time, possibly throughout his childhood, dependent upon the father’s ability to travel to China to spend time with him.
The father’s evidence is silent on his financial ability to travel to and spend time in China. Inevitably, the likely effect on [X] of such a separation from his father, even if his father is able to travel on occasions to China to spend time with him, will be diminution of his meaningful relationship with his father.
As made plain in the Family Report, that relationship is in the building and development stage and a long separation between father and son may do irreparable long-term damage to the relationship.
The practical difficulty and expense of [X] spending time with and communicating with his father and whether the difficulty or expense will substantially affect [X]’s right to maintain personal relations and direct contact with both parents on a regular basis
At the present time with both parents residing in fairly close proximity to each other, the father at Suburb R and the mother at Suburb G, there is no particular practical difficulty or expense in [X] spending time with his father.
In the event that [X] is allowed by order to travel to China with his mother and is thereafter retained in China rather than being returned to Australia at the end of 6 weeks, then there would be significant practical difficulties and expense involved in [X] spending time with his father.
Spending such time would necessarily involve the father travelling to China, to wherever in China the mother and [X] are then residing, and sustaining himself throughout his stay while he spends time with [X], presuming that spending time with [X] would be achieved without any difficulties being placed in the way by the mother.
There is no evidence as to the quantum of that expense, though it is necessarily considerable, and the practical difficulties involved speak for themselves. These include the father absenting himself from the accountancy practice at which he is employed for sufficient time to travel to China, spend time with [X] and then travel back to Australia. The main practical difficulty is the amount of such time that can be achieved in any calendar year.
The capacity of each of [X]’s parents to provide for [X]’s needs, including emotional and intellectual needs
There is nothing in the material on interim hearing to show that the mother is other than capable of providing for all [X]’s needs, including his emotional and intellectual needs.
The Family Report shows that the father is in the course of the learning process in relation to providing for [X]’s needs, per paragraph 75 of the Report.
The evidence does not throw doubt on the father’s capacity to arrive at a position where he is able to provide adequately for all of [X]’s needs through the development of his parenting skills by spending time with [X].
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of [X] and of either of [X]’s parents, and any other characteristics of [X] that the court thinks are relevant
[X] is 2 years and 7 months of age and is of Chinese ethnic and cultural background from both of his parents. It is possible for [X] to learn about and appreciate those elements of lifestyle, culture and tradition that relate to his Chinese heritage from his parents in Australia, but his opportunity to learn about and appreciate those matters would be far greater if he had opportunity to spend time in China.
Accompanying his mother on a six-week trip to China at 2 years and 7 months of age would be an experience he is not likely to recall in later life, as it would be occurring when he is under 3 years of age.
It is to be hoped that opportunities will arise for [X], in the future, to travel with either or both of his parents to China when both parents feel secure in accepting that [X] will be returned to Australia.
The attitude to [X] and the responsibilities of parenthood demonstrated by each of [X]’s parents
I do not consider that this additional consideration assists much in the resolution of the interim issues as to whether or not [X] should be allowed to travel to China for a six-week holiday with his mother, and as to whether or not [X] should spend increased time with his father.
Any family violence involving [X] or a member of [X]’s family
Both parents complained of family violence perpetrated by the other parent.
In the Family Report, both parents referred to an incident occurring on their wedding night and it is not in dispute that on that occasion Mr Yoo hit Ms Xiong in the face causing bruising (per Mr Yoo’s version), or bleeding (per Ms Xiong’s version), though their versions of how this occurred differ.
Mr Yoo asserts that it occurred as a reflex action as he awoke as a result of Ms Xiong hitting him. Ms Xiong asserts that it occurred as a result of an argument that arose between them during which Ms Xiong “touch him I think” or put her hands around Mr Yoo’s neck.
Mr Yoo asserts that Ms Xiong used to pinch and punch him when they argued. He said that he has pushed Ms Xiong and she has pushed him. He asserts that during an argument, Ms Xiong attempted to hit him, that he deflected her arm, and she hit her own mother. He refers to an occasion following separation, in about October 2018, when, during an argument, Ms Xiong threatened to pour water down his gearstick and ruin his car unless she agreed for [X] to leave Australia.
Ms Xiong asserted that she and the father pushed each other during arguments. She described Mr Yoo being silent and so she pushed him and “maybe hit him with fists.” She referred to the parents shouting at each other during arguments and Mr Yoo making derogatory comments about her parents.
On the basis of the admissions made by each of the parents to the Family Consultant during interviews for preparation of the Family Report, I can find that there has been family violence between the parties within the definition of family violence in section 4AB of the Act.
All family violence is to be deplored and all and any family violence can have a serious negative effect on the welfare of a child.
The family violence related by the parties against each other is not such as to make family violence a risk issue on the part of either parent in this matter.
Any other fact or circumstance that the court thinks is relevant
Matters to be considered as relevant in this interim hearing must include previous indications given by the mother that she would prefer herself to return to live in China and that she would like to raise [X] in China.
In this regard, I again note paragraph 47 of the Family Report:
Ms Xiong said that, “if there were no baby, I would go back to China. She said that, [X] is an Australian citizen and she is a permanent resident.
In paragraph 26 of the Family Report, the Family Consultant notes:
Mr Yoo said that, after he and Ms Xiong separated, they talked about [X] being raised in China. He said that, initially he agreed (even though he did not want to) but when Ms Xiong’s mother told him that he would only be allowed to see [X] for four hours per week, he told Ms Xiong that he did not agree with [X] leaving Australia.
The father attaches to his affidavit, affirmed 8 May 2019, a letter from the solicitors then acting for the mother to the father’s solicitors, setting out proposals for settlement in relation to property matters, and also in relation to parenting arrangements. The evidence was not objected to by the mother despite section 131 of the Evidence Act 1995 (Cth), which provides that such evidence “is not to be adduced.” I will take that as an implied consent to the evidence been disclosed, pursuant to section 131(2)(b).
In the parenting arrangements proposal the following is put:
In the event our client [the mother] decides to raise the child in China, your client shall spend time with the child in China for up to 4 weeks in a year during the summer holidays in China ...
The mother’s ties to Australia are not strong. The evidence about the mother’s co-ownership with the maternal grandmother of a home-unit in Suburb S, in the course of construction since the exchange of Contracts for Sale on … 2016, does not provide any detail of the extent, if any, of the mothers equity in that property. The annexed purchase contract indicates a deposit to be paid, presumably on exchange, of $126,000, but there is no indication of whether the mother paid any of that sum, or if it was paid by the maternal grandmother.
The mother’s Financial Statement sworn 9 January 2018 would seem to suggest that the mother had no equity in a transaction, given that the reference in Item 43, the said contract of sale gives it a $NIL value and the mother does not detail any liability relating to borrowings for that or any other purpose in Part K.
In the course of submissions on behalf of the mother, I sought detail in relation to any equity the mother may have in the subject transaction and I was informed by Ms Hydes:
I am instructed that my client will be taking the loan to – well, the mortgage to pay this property. The deposit was paid by my client’s mother, but she will be taking on the burden of the mortgage to make repayments for the property. It’s in the early stages of construction at the moment.
At the time that the mother was expressing a possible intention to return to reside in China and to raise [X] in China following the parties’ separation, she had already entered into the contract to purchase the Suburb S unit jointly with her mother.
The mother puts forward her ownership of a Motor Vehicle Q as a tie to residence in Australia.
On the evidence, she appears to own the vehicle outright, but as stated above, it must be considered a “loose” tie given that she could sell the vehicle at short notice, and without any notice to the father, before going to China. She could also have the vehicle sold on her behalf by a third party after she has gone to China.
In relation to the mother’s employment in Australia, her evidence is that it is part-time employment with [A] as that corporation’s Sydney representative as a professional. The corporation is incorporated in China and has only one other employee in Australia, Mr E, who is based in Perth.
The mother does not give any evidence in relation to the work that she does for the corporation, or any projects in which she is engaged, other than in representing the company at the Work Event 2019 in … at the [B] Park. Without more evidence as to the depth of the mother’s involvement on behalf of the corporation in Australia it cannot be taken as a strong tie to Australia, particularly given that the corporation is based in China.
The mother also gives evidence that she has also taken a part-time role with [O]. The only evidence she offers in relation to the connection is that she has spoken to a manager about her mother’s health and they have agreed to grant her leave so that she can go to China, and that she will recommence her role, whatever that may be, upon her return. The mother annexes a “Statement" from a Ms F, the manager in [O], asserting that the mother “is working as a full-time professional from …” but the document has no provenance. This cannot be taken as a strong tie to Australia.
The mother asserts that [X]’s attendance at Suburb G Early Learning Centre will be held for him during a trip to China, and he will be able to resume going to day care 3 days a week immediately upon return. The mother advances this as a further tie to residence in Australia, but it is no tie at all as the place can be cancelled from China, or simply abandoned.
In the orders sought by the mother, she proposes that she provide to the Court a cash surety of $10,000 for the duration of the trip to China.
During submissions I pointed out to Ms Hydes that in the mother’s Financial Statement from January 2018, she asserted total savings of $2,500 and that the mother did not give any evidence in her affidavits as to where the sum of $10,000 was to come from.
Ms Hydes advised:
I am instructed that the $10,000 will be coming from her personal savings and is the entirety of her personal savings in her bank account.
The mother gives no evidence as to how she will fund the cost of the travel for herself and [X] from China, if the whole of her personal savings are paid into the Court as a surety.
China is not a Hague Convention country. As stressed by Ms Leung in her submissions for the father, the mother did not provide any evidence of the legal processes available to the father in the People’s Republic of China to have [X] returned to Australia in the event that [X] is retained in China by the mother, or by members of her family.
Whilst the loss of $10,000 would appear to be a serious matter for the mother if that sum is the totality of her savings, and I have no real basis to doubt that assertion, the mother’s family would seem, on the evidence, to be people of some financial substance and their assistance to the mother may be a counterbalancing compensation for her on the loss of her savings, particularly given the strong inference in the father’s evidence that it is very much the wish of the maternal grandmother that [X] be raised in China.
Whilst that last is not specifically dealt with by the mother in her evidence, I can take it as contested evidence, and as is the case in so many interim parenting hearings, the Court is in no position to make findings in relation to contested facts, but must use all of the evidence available, even contested facts, to make the best assessment available of the likelihood of the occurrence of a risk event, and in this case, the risk of [X] being retained in China.[14]
[14] See Deiter & Deiter [2011] FamCAFC 82 at [61]; Banks & Banks (2015) FamCAFC 36; Marvel & Marvel (No.2) (2010) Fam LR 348 at paragraphs [120]-[123].
All in all, the only strong tie that the mother can be said to have to residing in Australia is the risk of the loss of $10,000 proposed by her as a surety for her return of [X] to Australia following a six-week trip to China for a holiday.
It is not that the proposed sum is shown to be adequate to fund steps by the father to have [X] returned to Australia, it almost certainly is not, but I do not have the evidence to make a proper assessment of that, it is the effect of the loss of that sum on the mother. Accordingly, I cannot find that the mother presents adequate evidence of strong ties to Australia.
Overseas Travel
In In the Marriage of Kuebler, P. and Kuebler, J.A.[15] (“Kuebler”), the mother sought to travel with the child to the Galapagos Islands for a period of about twelve months to be with her new partner who was stationed there to undertake research. The child had been spending time with his father each alternate weekend, but that time would not be possible for the twelve month period the child was overseas. The trial Judge allowed the child to so travel. On appeal to the Full Court Asche SJ, with whom Gun and Yuill JJ agreed, said:
[15] In the Marriage of Kuebler, P. and Kuebler, J.A. (1978) FLC 90-434.
[15] In my view, the considerations that should be given to an application which involves the custodial parent taking a child out of the jurisdiction, without being exhaustive, would be these:
(a) The length of the proposed stay out of the jurisdiction;
(b) The bona fides of the application;
(c) The effect on the child of any deprivation of access;
(d)Any threats to the welfare of the child by the circumstances of the proposed environment;
(e)The degree of satisfaction in which the Court based its assessment of the parties that a promise of a return to the jurisdiction would be honoured.
The oft cited authority on the issue of overseas travel by a child where opposed by a parent is In the Marriage of Line SJ and Line DG[16] (“Line”) where the Full Court in the joint judgment of Murray, Lindenmayer and Kay JJ said at 4.47 to 4.51:
4.47The fixing of an appropriate level of security in circumstances such as these is always a delicate matter, and one very much for the discretion of the trial judge. However, in exercising that discretion we consider that a trial judge should have regard to a number of relevant matters. Some of the matters we will now identify have been already highlighted by Asche SJ in In the Marriage of Kuebler (1978) 4 Fam LN 4; FLC 90-434 . We think it timely that we again draw attention to those matters and others we believe to be appropriate.
4.48The first of those matters to which the trial judge should have regard is the purpose of such security, in respect of which we adopt, with respect, the two-fold purpose referred to in the submissions of counsel for the husband and set out in paragraph 4.42 above, namely:
(a) to provide a sum which will realistically entice the person removing the children to return; and
(b) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
4.49 The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there).
4.50 We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 (the Convention). However, in considering and deciding what weight to give to this factor, the court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.
4.51 Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.
[16] In the Marriage of Line SJ and Line DG (1997) FLC 92-729.
In Thompson and Malhotra[17] at paragraphs 49 and 50, the Full Court approved Kuebler and Line and remarked at paragraph 73 that none of the factors referred to in those cases are definitive. The fact that a parent who wishes to travel outside Australia with a child has no assets or family ties in Australia is a relevant consideration, but is not definitive.
[17] Thompson and Malhotra [2010] FamCAFC 85.
In Doyle and Rusedski[18] (“Doyle”) Cronin J said:
[18] Doyle and Rusedski [2016] FamCA 317.
[168] Decisions about international travel are difficult to make because no-one can foretell the future. Albeit there is no specific proposal for international travel in this case, the mother has cultural and family connections with Poland. But Poland is only one country to which she and most other parents might wish to travel with a child.
[169] The father seeks an absolute prohibition on any such travel.
[170]In the exercise of its discretion (on the basis that this is a parenting order which must be proper (s 64B)) if the Court granted the mother’s request, the decision would be a leap of faith but the discretion must be exercised within the framework of the evidence that it is presented. (Gin and Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3).
[171]Part VII of the Act governs the exercise of the Court’s power. Whether or not a parent agrees to international travel would normally be determinative of the issue on the basis that parental responsibility involves all of the powers, duties and authority needed to care for children (s 61B) but that is always subject to any order of the Court (s 61C). Relevantly here, the Court is empowered to determine questions such as international travel.
[172]Section 60CA provides that a court must regard the best interests of the child as the paramount consideration; that is, it is not the only interest and therefore a parent’s desire to travel internationally with a child and the other parent’s objection to it, are legitimate matters for the Court to balance but always with the view that if there is a clash of the interests of the child and the parent, the interests of the child must prevail.
[173]Because the best interests’ principles require a consideration of the factors set out in s 60CC (and others), it is important to recognise that the factors which most shed light on international travel are the benefit to the child of a meaningful relationship with the father (s 60CC(2)(a)), the nature of the relationship between the child and both parents but also the likely effect upon him of being removed from his father by such an international trip (s 60CC(3)(b) and (d)) and the attitude to the child and the responsibilities of parenthood demonstrated by the parents (s 60CC(3)(i)).
[174] In considering the legitimate interests of the parents to enable that balancing of interests, a number of observations about parental rights and entitlements must be contemplated.
[175]Albeit in the context of an international relocation case, some helpful observations were made by various judges in U v U [2002] HCA 36.
[176]Kirby J observed that it was recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents were principles underlying the objects of Pt VII of the Act . The same observations were made by Hayne J [at 176]
[177] Kirby J referred to the judgment of Thorpe LJ Payne [2001] EWCA Civ 166; [2001] 2 WLR 1826 where his Lordship referred to fractured family units having connection with two or more national jurisdictions being much more common today than in earlier times when “international travel was less common, wives less willing to challenge husbands' rights and legal aid less available for such cases even than it is now.” That was a case about international relocation and international abduction but the point was being made that if individual jurisdictions adopted a chauvinistic approach to applications to relocate then there was a risk that the parent affected would resort to flight. That is so much harder (but not impossible) where there are watchlist injunctive orders in place. His Lordship also observed that “recognition of the respect due to the primary carer's reasonable proposals for relocation encourages applications in place of unilateral removal.”
[178] In Nash v Nash [1973] 2 All ER 704 at 706 Davies LJ emphasised:
[W]hen one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.
[179] . . . . . . the Court has to assess the risk as to whether or not that the international trip will terminate the relationship with the other parent.
[180] This Court adopted that approach in Line and Line (1997) FLC 92-729 where some of the factors relevant for consideration in an international travel case were said to be:
(a) The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);
(b) The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and
(c) The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and
(d) Whether the country of travel is a signatory to the Hague convention.
[188] The Court cannot eliminate all risk and the question must be answered by reference to whether the risk is unacceptable. In Fardon v the Attorney-General for the State of Queensland [2004] HCA 46, the High Court considered what those words meant. They cannot be defined with precision but a court should have regard to a risk established “according to a high degree of probability…established on and by acceptable and cogent evidence”.
Finally, I refer to the decision of McClelland J in Rashid and Hijaz[19] at paragraphs 227 to 233, after referring to the judgment of Cronin J in Doyle:
[19] Rashid and Hijaz [2018] FamCA 619.
[227]I respectfully agree with his Honour’s approach and note that the Court has a similar task in this case. That is, it is necessary to consider the benefit of the child travelling to the USA for the purpose of maintaining contact with her paternal relatives, as well as retaining a connection to the culture of the USA. On the other hand, it is also necessary to consider the risk of the child possibly being retained in the USA upon travelling there, with the consequent termination of the child’s relationship with her primary carer and maternal relatives, with whom she has lived for the past five years.
[228]In M v M (1988) 166 CLR 69 (“M v M”), the High Court noted that the Family Court “is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about will have a detrimental impact on the child’s welfare”.
[229]Writing extra-judicially, the Honourable John Fogarty AM, a former judge of this Court, said the following in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261:
… unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.
[230] In M v M, the High Court said that in assessing whether a child faces an unacceptable risk of harm, the “existence and magnitude of the risk … is a fundamental matter to be taken into account”.
[231]In N & S (1996) FLC 92-655 at 82,714, Fogarty J said that “the essential weight must be attached to the magnitude of the harm to which the risk relates”.
[232]In Blinko & Blinko [2015] FamCAFC 146 at 83, the Full Court confirmed that having identified a risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”.
[233]Accordingly, in applying those authorities to a determination of whether the making of orders requiring the mother to facilitate the child’s travel to the USA would present an unacceptable risk to the child, I intend to consider the following three related elements:
(a) The magnitude of the risk of the child being retained in the USA;
(b) The magnitude of the consequence to the child of the child being so retained in the USA; and
(c) The extent to which any such risk can be managed or ameliorated by building into the arrangements potential safeguards.
Discussion
What are the continuing ties, if any, between the mother and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends in Australia)?
As outlined above, the mothers only “real estate interest” is not at present a real estate, but is her rights in equity, under the general law and in statutes consequent upon the exchange of contract for sale and purchase of land in which she is a purchaser jointly with her mother, in a yet to be completed home unit property at Suburb S.
On the evidence before the Court, the mother has made no contribution to date to the purchase price and accordingly under Calverley v Green,[20] absent an application of the presumption of advancement, she would hold any interest thereunder on a resulting trust for her mother.
[20] Calverley v Green (1984) HCA 81.
The circumstances as to whether or not the mother has any legal interest in the real estate the subject of a contract may alter on completion dependent upon by whom the balance of the purchase price is provided. At the present time, and particularly as her co-purchaser is her mother, I find that the interest of the mother under that contract relating to purchase of real estate is a very weak tie to Australia.
The mother has no business interests of her own in Australia, but has her asserted employment with the Chinese Corporation and with [O]. The mother has provided no evidence about her asserted part-time employment with [O]. The mother asserts in her affidavit sworn or affirmed 9 May 2019 that such employment is part-time, whilst the document annexed to that affidavit and purporting to relate to that employment, though being a document without provenance, as noted above, asserts the mother “is working as a full-time professional from ….” This was seen to be a contradiction in the evidence offered by the mother to the Court.
The mother does not offer any solid detail in her evidence about her part-time employment with the Chinese company, abbreviated by her as ‘[P]’, other than to assert that she is working part-time as a professional for [P] in Sydney and has since … 2019, that it is an ongoing position, that she has an employment contract with the company, a copy of which she annexed annexes to her affidavit sworn 29 April 2019, being an employment contract in the very shortest of forms, and that she is engaged in organising for the company to be involved in the Work Event 2019 in … 2019.
On the mother’s own evidence, the Chinese company does not have any significant structure in Australia, indeed any structure at all other than the employment of the mother and one of the person based in Perth.
I find that neither employment position represents a strong tie to residence in Australia for the mother. The complete lack of detail in relation to [O] grounds that finding for that employment and the complete lack of detail other than an extremely "bare-bones” employment contract grounds that finding in relation to the Chinese Corporation.
I have made that finding without having regard to the evidence of the father in paragraph 18 of his affidavit affirmed 8 May 2019, in which he sets out his reasons for asserting that the Chinese company and the mother “do not have a genuine employment relationship”.
The mother does not have any family ties in Australia other than with the father as the other parent of her child.
Are there possible motives for the mother not to return with [X] to Australia and, if so, what is the strength of those possible motives?
Other than the desire of the mother, expressed through her Application before the Court that she have sole parental responsibility for [X], thereby freeing her from any obligation to consult with and make a genuine effort to come to a joint decision with the father about major long-term issues in relation to [X], I do not find that there is any other possible motive for the mother not to return with [X] to Australia, as opposed to possible motives the mother may have to retain [X] in China and both reside there.
Self-evidently, if the mother did retain [X] in China she would be relieved of the possibility of an obligation arising by the making of an order that the parties in any way share parental responsibility for [X], equal or otherwise, to show cooperation with the father about major long-term decision-making for [X], subject to any order that may be made under the domestic law of the People’s Republic of China, about which I have no evidence.
I do not find that this is, on the evidence, sufficient to be labelled a possible motive for the mother to not return [X] to Australia, or for the mother to remain with [X] in China.
Are there possible motives for the mother to retain [X] or have him retained in China and, if so, what is the strength of those possible motives?
The mother gives as her primary reason for wishing to undertake a six-week holiday trip with [X] to China the opportunity it affords her to visit and spend time with her immediate and extended family, all of whom are resident in China.
The mother admits that she has made statements in the past evidencing her wish to herself return to reside in China and her wish to have [X] live in China with her and raise him in China. There is evidence from the father, though no doubt contested if specifically addressed by the mother, that the maternal grandmother also wishes the mother and [X] to reside in China for the medium or long-term.
While residing in Australia with [X] after separation, the mother has enjoyed the benefit of the use of a home owned by her mother and it is certainly possible that if she fails to return to Australia and remains living in China with [X] she can also enjoy the benefits of her parents’ property and resources there.
I find that there is a possible motive for the mother to remain in China and to retain [X] in China being a previously expressed wish so to do and the ease with which that could be accomplished, subject to the domestic law of the People’s Republic of China, with the support of her family’s resources in China.
The People’s Republic of China is not a signatory to the Hague Convention. I have no evidence of what recourse the father may have through the domestic law of the People’s Republic of China to recover [X] to Australia if he is improperly retained in China by his mother or her family.
I find that there is an unacceptable risk that if the mother is allowed to travel to China with [X], she would retain the child for a period considerably longer than the six-week trip that she asserts is her only intention, and accordingly I will not make the orders as sought by the mother in her Application in a Case filed 30 April 2019.
There is no interim or final Airport Watchlist order made in this matter. Neither party has made application for an interim Airport Watchlist order.
The father is a person in whose favour a parenting order within the meaning of section 65X of the Act has been made. That order is current, being the interim orders made by consent on 29 January 2018, including the order that [X] spend time by agreement or in lieu of agreement, as set out in the order.
Accordingly, section 65Y of the Act applies and is it is an offence under that section for the mother or any person acting on behalf of, or at the request of the mother, to take or send [X] from Australia to a place outside Australia except with the consent in writing, authenticated in accordance with regulation 13 of the Family Law Regulations 1984, of the father or pursuant to an order of a Court made under the Act. There is no such order in force. The penalty for a breach of section 65Y is imprisonment for 3 years.
In the father’s Response to an Application in a Case filed 8 May 2019, he sought an order that the mother’s Application in a Case filed 30 April 2019 be dismissed, and he further sought an order that the time he spends with [X] be expanded from the current order made by consent on 29 January 2018, of:
a)Each Saturday from 8:00am until 2:00pm;
b)Each Sunday from 8:00am until 10:00am; and
c)For two hours on the father’s birthday
To:
a)Each Monday from 5:45pm to 7:45pm;
b)Each Wednesday from 5:45pm to 7:45pm; and
c)Each Saturday from 6:00pm to Sunday 6:00pm, with changeover to occur as agreed between the parties, or in lieu of agreement, in front of Region [C] Shopping Centre.
The interim orders sought by the father introduced two hours on the evening of each Monday and Wednesday, and change the regime of six hours each Saturday and two hours each Sunday, to 24 hours from Saturday 6:00pm to Sunday 6:00pm.
It was plain at the interim hearing that the father’s Application for interim orders relating to time with [X] was opposed by the mother.
Ms Hydes submitted on behalf the mother that the purpose of the interim hearing was confined to the issue of the mother travelling overseas with [X] and that the “substantive matter”, by which Ms Hydes meant any increase in the time spent between the father and [X]:
Was adjourned until 4 July for the purposes of the parties engaging in further negotiations
However, the father pressed his interim Application, though his affidavit evidence at the interim hearing, being his affidavit affirmed 8 May 2019, addressed that issue only by referring to parts of the Family Report and indicating that he was “content to adopt the recommendations of the Family Consultant”, and confirming that he had completed the three hour “Talking With Your Kids Seminar”, being the initial process of the “Keeping Contact Program” run by [M] Counselling and [N] Counselling.
In the Family Report dated 7 January 2019, at paragraph 77 the Family Consultant says
In order to ensure that [X] is as comfortable as possible, there should be an increase in time with Mr Yoo before [X] begins to spend time with Mr Yoo overnight. [X]’s age is less relevant in terms of when he begins to spend time overnight with Mr Yoo, than the consistency he will need between the two homes is.
The Family Consultant recommends in paragraph 87 that [X] begin to spend time with his father three times per week, preferably Saturday from 9:00am until 5:00pm, and on Monday and Wednesday each week for one or two hours after work, and that this regime continue for a period of three months.
The Family Consultant recommends that after that three month period an overnight stay could be introduced for a 24-hour period on weekends, in addition to the Monday and Wednesday time, and for this regime to remain in place until [X] is four years old, being until September 2020. She recommends that when [X] is four years old, an additional overnight could be introduced on an alternate weekend basis, with one less mid-week evening.
As stated above, the father deposes that he is content to adopt the recommendations of the Family Consultant.
There seems to be a growing practice amongst matters before the Court for parties to bring interim applications following the release of a Family Report seeking to have interim orders made in accordance with the recommendations in the Report. At that time the opinions expressed by the Family Report writer have not been tested as they would be in cross-examination on the full body of evidence presented on a final hearing consisting of the evidence in chief of the parties and their witnesses, evidence in cross examination of the parties and their witnesses, and any exhibits.
Family Reports are presented in the nature of Expert Reports and are therefore subject to the same legal requirements as any expert opinion evidence.[21]
[21] See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.
To assume that recommendations made in a Family Report are themselves a basis for further interim consideration of parenting issues is wrong whenever the factual matrix set out in the Report is the foundation from which the Report writer’s reasoning has reached the opinion expressed and is composed of disputed facts.
The mothers Application in a Case was filed on 30 April 2019 and came before the Court for mention on 1 May 2019. At that time, it was listed for interim hearing on 10 May 2019, and a direction was made for the father to file and serve his Response to Application in a Case by 4:00pm on 8 May 2019. The urgent listing was given on the basis that it was indicated at the mention on 1 May 2019 that the mother desired to travel to China for a six-week holiday commencing in … 2019.
The father’s Response to Application in a Case was filed at 7:27pm on 8 May 2019, out of time with the order for filing made on 1 May 2019. His Response added an issue relating to an increase in the father’s time with [X], being an increase sought beyond that recommended as the initial three month regime in the Family Report. Patently, the matter had been set down for interim hearing on 10 May 2019 in relation to the issue of travel overseas by [X].
The evidence presented at the interim hearing is not adequate to allow proper consideration of the issue of an increase in the father’s time with [X] in the light of the best interests of [X] as the paramount consideration.
Accordingly, I do not intend to make further orders sought by the father in his Response to Application in a Case.
The matter remains listed for further mention and directions on 4 July 2019 at 9:30am and remains in the Call-Over list on 26 September 2019 at 10:30am for allocation of a final hearing date. I will give consideration to further interim hearing on the issue of an increase in the father’s time with [X] at the mention on 4 July 2019.
Parental Responsibility
As the only orders I am making are orders dismissing the mother’s Application in a Case and dismissing the father’s Response to Application in a Case, there is a question as to whether or not I am "making a parenting order in relation to a child” within the meaning of that phrase in section 61DA of the Act. Nevertheless, in case I am, I will follow the legislative pathway and deal with parental responsibility.
Under section 61DA when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Parental responsibility for a child is defined in section 61B.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. When the Court is making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, then section 65DAA of the Act provides that the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child, and consider whether the child spending equal time with each of the parents is reasonably practicable and, if it is, consider making an order to provide for the child to spend equal time with each of the parents.
If an order is made providing for a child’s parents to have equal shared parental responsibility and the Court does not make an order for the child to spend equal time with each of the parents, then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if it is, consider making an order to provide for the child to spend substantial and significant time with each of the parents.
Substantial and significant time is defined in section 65DAA(3).
In this matter, based upon the evidence of both of the parties, there are reasonable grounds to believe that each of the parents has engaged in family violence. Accordingly, the presumption in section 61DA does not apply.
At the present time, no interim or final order has been made in relation to parental responsibility. There are competing final applications in relation to parental responsibility.
I do not consider that it is appropriate in the circumstances to make an order for equal shared parental responsibility, and accordingly the parties continue to each have parental responsibility for [X] pursuant to section 61C of the Act.
As I have not made an order for equal shared parental responsibility I do not need to consider the matters referred to in section 65DAA.
I make the orders as set out at the start of these reasons.
I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 4 July 2019
Key Legal Topics
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Family Law
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Civil Procedure
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Appeal
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