Xun and Han

[2015] FCCA 3300

FEDERAL CIRCUIT COURT OF AUSTRALIA

XUN & HAN [2015] FCCA 3300

Catchwords:
FAMILY LAW – All matters resolved by consent save discrete issue of son’s possible travel to China – father wanting to take son (but not daughter) to China for family visit – mother fearful son would not be returned to Australia – father having no family, property or employment in Australia – father wholly financially dependent on his parents – mother’s fears accepted – Watch List order to remain in full force and effect.

Cases cited:
Goode v Goode [2006] FamCA 1346

Applicant: MS XUN

Respondent: MR HAN

File Number: MLC 11732 of 2014

Judgment of: Judge Burchardt

Hearing date: 2 November 2015

Date of Last Submission: 2 November 2015

Delivered at: Melbourne

Delivered on: 18 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Hutchings

Solicitors for the Applicant: Robinson Gill

The Respondent: In person

ORDERS

1. All extant applications be dismissed. 

2. The Watch List Order made 24 December 2014 remains in full force and effect.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11732 of 2014

MS XUN

Applicant

And

MR HAN

Respondent

REASONS FOR JUDGMENT

Introductory

1. Although this case has had its twists and turns, there is now one short, very clearly defined issue left for the Court to determine.  The respondent father wants to take the older child of his relationship with the applicant mother, X (also known as X) to China for a holiday to see his family.  He says he is keen to return to Australia with X.  The mother does not trust him and says he will not return and, therefore, should not be allowed to go.

2. For the reasons that follow, I agree with the mother and I am not prepared to make an order permitting X to be taken to China by the father.

The History of the Proceeding

1. In order to properly understand the dispute it is necessary to explain how these proceedings have evolved.  The mother filed an Initiating Application on 23 December 2014 in which, relevantly, the mother sought that both she and the father be the subject of a Watch List order in relation to X, who was born on (omitted) 2009. 

2. The mother’s supporting Affidavit filed contemporaneously reveals that X was born in China and is a Chinese national.  X’s younger sister, Y, was born on (omitted) 2014 in Australia and is an Australian national.  She does not have a passport, but X does.  The passport was at that time in the mother’s possession.

3. The mother deposed that it was open to the father to apply for and obtain a Chinese passport from the Chinese Consulate without her consent and the mother deposed that there was a real and immediate risk that the father would leave with X to return to China, from where it was anticipated he would arrive in Australia on (omitted) 2014.

4. The mother deposed that the parties married in (omitted) 2006 in Australia and again in (omitted) 2007 in China with two separate ceremonies.  She deposed to separation on 7 July 2014 when the father left the former matrimonial home at Property L and went to China.  The mother deposed that she had moved out of the former matrimonial home, but that the father had been in China since 7 July 2014 even though there had been contact while he was overseas.  The father left because he obtained a job in (omitted) Province.

5. The Affidavit deposed to conversations about taking X to China and the mother’s refusal to do so.  At paragraphs 6 and 7 the mother deposed:

   “6.    The Respondent also informed me that he would be returning to Australia to see the child.  When I spoke to him in November, he said that I could take the child to China for one month whilst I was on annual leave, or if I cannot go to China he would come to Australia.  I told him that I refused to take the child to China.  The Respondent does not like living in Australia and when we were together he would often comment to me that he wanted the family to return to China.  I do not wish to return to China nor do I wish my child to live in China.

   7.    The Respondent has his entire family in China and I believe that he could have free childcare if he were to return to work, if the child were to accompany him to China.  The Respondent’s family in China are affluent and he can rely on them to look after X whenever required.  His mother believes that the child would have a better standard of living with his family in China than in Australia with me.”

6. The Affidavit went on to further detail the father’s dislike of living in Australia and the absence of ties on the father’s part to Australia other than the former matrimonial home.  The mother deposed to the potential difficulties of seeking to institute legal proceedings in China to resolve the matter were X to be taken there.

7. A Watch List order was made in respect of the two children ex parte on 24 December 2014.  Although the father filed a Notice of Address for Service in March 2015, nothing further happened until 16 April 2015 when final parenting orders were made by consent.  These orders were made pursuant to a parenting agreement entered into by the parties dated 13 April 2015, a copy of which signed by the parties is on the Court file.  The orders provided for the children to live with the mother and spend time with the father.  Relevantly for these purposes, at paragraph 3.1, the parties noted that they had decided and agreed that both children would become Australian citizens and would attend school in Australia.  By paragraph 3.5 there was a regime for X to spend time with his father every Sunday from 8.00 am to 8.00 pm during the school term and a much more limited spend time regime for Y by paragraph 3.8, with Y spending time with her father only when the father picks up or drops off X on Sundays during the school term.

8. Similar arrangements were posited for school holidays, at least in 2015. 

9. The agreement also posited that if X obtained Australian citizenship by the end of November 2015 he would travel with his father back to China for the December 2015/January 2016 school holidays. 

10. What is particularly striking about this agreement is that to all effects and purposes Y was expunged from time with her father.

11. The property component of the parties’ dispute was adjourned to a Conciliation Conference by order made on 3 September 2015 and that was partly resolved, as the Registrar’s notes assert, by the Conference on 15 October 2015.

12. When the matter came before the Court for trial on 2 November 2015 Final Property and Child Support orders were made by consent in terms of Minutes proffered to the Court.  The net effect was to give the mother the former matrimonial home although there were other terms, not in each instance entirely easy to construe, which might be said to have benefited the father.

13. In the meantime the father had filed his Response, Affidavit and Financial Statement on 6 August 2015.  His Affidavit is predominantly about financial matters although I note that the time spent with X was asserted to be greater than that in the agreement earlier filed with the Court and it was asserted that time is spent with Y on each Friday from 6.00pm to 8.00 pm.

14. The financial matters alleged are not now of any great moment, save that if I were to accept the figures that the father says his parents advanced him, from 2007 to 2014, the total sum involved would be $293,970.  It would seem that the mother’s assertion that the father’s family are affluent in China may be correct.

15. I further note that the paternal grandmother came to Australia in June 2013 and stayed with the parties for three months to look after X.  The Affidavit confirmed that the father had worked in China between July 2014 and November 2014.

16. The general tenor of the Affidavit is that the father made markedly the greater contribution to the parties’ finances during the eight year relationship (to the extent of 82 per cent towards the acquisition of the former matrimonial home and equal contribution towards the welfare of the family).  It should be noted that the matrimonial home was clearly bought in 2013.

17. The mother filed a further Affidavit on 1 September 2015.  This confirmed inter alia that she came to Australia in 2005 and achieved permanent residence in 2008.  The father came to Australia in 2004 and also holds permanent residence in Australia (although the date of this being achieved was not given).

18. The Affidavit confirmed that both parties lived in China between June 2009 and August 2011.  The matrimonial home in Property L was bought in 2013 for $481,000 plus stamp duty.  According to the mother’s Affidavit some $380,000 of this was obtained from the mortgage and $20,000 from her own finances.  It is immediately apparent, therefore, that the paternal grandmother, who made up the rest, must have provided a significant amount.

19. The Affidavit is otherwise entirely concerned with the history of the relationship and financial matters, although at paragraph 21 the mother relevantly asserts “the husband did not want to work in Australia and has spent as much time as possible in China whilst meeting eligibility requirements for permanent residency in Australia”.

20. At paragraphs 40-43 the mother commented briefly upon the question of X travelling to China.  She deposed that she had reluctantly agreed to X travelling to China for extended holidays in December 2015 to January 2016 and remained extremely concerned that X would not be returned to Australia.  At paragraphs 42-43 she deposed:

    “42.  … X is the only grandson in the husband’s family and as such holds a special place in the family. 

    43.  The husband now appears to have changed his position in his affidavit filed August 2015.  In the event that the husband is to remain predominantly in Australia there will be no need for X to travel to China to spend time with him.”

21. The final Affidavit filed is that of the mother affirmed on 29 October 2015.  This is in part a reprise of her earlier materials, although I note that X will turn 6 years old on (omitted) 2015 and commence primary school in (omitted) in 2016.  The mother deposed agreeing to the orders made in April 2015 on the basis that she thought that X would be protected and unable to stay in China if he was an Australian citizen, but that she had now received legal advice that this was not the case.  She deposed to certain difficulties in obtaining an Australian passport for X.  She deposed that the father is an only child and X the only grandson.

22. The mother deposed at paragraphs 24 and 25:

    “24.  I was shocked when the husband and I walked out of court on 16 April 2015 and the husband stated to me that he would transfer our house in Property L to me if X lived in China.  The husband and I had not had any discussions about financial settlement before the orders were made in April 2015.

    25.  On a number of occasions after the making of court orders on 16 April 2015 the husband’s mother would also attend at my home when the husband was collecting X.  On more than one occasion the mother-in-law said to me that I could keep the Property L property if X went to live in China, that it was a choice of one or the other.”

23. The Affidavit deposed that the paternal grandmother has remained in Australia and that her visa expires in January 2016.  At paragraphs 28 and 29 of the Affidavit, the mother deposed:

    “28.  … I believe that the husband’s mother will continue to put pressure on the husband to have X returned to China to live with his grandparents.  The husband’s parents are affluent and on a number of occasions the husband’s mother argued with me, stating that X would have a better life if he lived in China.

    29.  I believe that if X is taken into China he will be placed permanently in the care of his grandmother.  The husband is strongly influenced by the views of his parents and is unlikely to take action himself to recover X in the event that his mother insisted that X remain living with her.”

24. The Affidavit goes on to depose to the obvious difficulties that would obtain if the child was held in China and deposed to the likely loss of the relationship between X and Y, who have a close and loving relationship.

25. The Affidavit deposed that the only asset the father retains in Australia is a Kluger motor vehicle and the interest in the former matrimonial home, and that once the property matters were resolved the father would have no remaining link to Australia. 

The Proceedings at Court

1. The mother’s counsel (the father was unrepresented) took the Court to the Amended Initiating Application filed 1 September 2015.  This, of course, was essentially concerned with property interests.  The Watch List order application was, however, a continuing part of the mother’s case.

2. There was some vague attempt by counsel to pursue a Rice v Asplund point in relation to the Watch List issue.  In circumstances where the father’s case was that he had agreed to give the mother the matrimonial home in exchange for taking X to China and where the mother had clearly deposed to a material change in the circumstances, namely her misunderstanding of the basis upon which the parenting agreement had been reached, it was, in my view, entirely inappropriate to proceed by way of the pathway indicated in Rice v Asplund.

3. Counsel conceded that since the orders had been made in April 2015, X had been spending more time with the father than those orders provided for.  He drew the Court’s attention to Intervention Order proceedings and a 12 month Intervention Order made against the father without admissions on application by Victoria Police on 17 July 2015. 

4. The mother was called and adopted her Affidavits as true and correct.  She said that in her generation, there was only one child per family because of the one child policy in China.  X was the only grandson in the family and a boy holds a key role in the family history as he will carry on the family name.  So far as she was aware, Chinese law is equal between the parties, but they might give a boy to a wealthy party.

5. The very brief cross-examination by the father really did not take the matter any further.  This is not a criticism, as he was self-represented.  The cross-examination consisted more of the father enunciating a series of propositions than actually putting any questions to the mother.  It was asserted that the orders made followed counselling, that the Chinese system was different, that the parties had to follow Australian law and that in China, the mother would get nothing.

6. The father made an extensive opening which I later caused him to adopt in the witness box as true and correct.

7. He said he really wanted to remove the Watch List order.  There were three points he wanted to make.  First of all, he asserted that the mother had lied to the Australian Tax Office and Immigration Department.  The second point was about the property settlement.  He said he had the first instalment paid by his parents and that there was no benefit in the nature of capital gain.

8. He said that if he tried to get benefit with capital gain, it would be impossible.  The mother could buy another property in the same area.  He said from the $96,000 allotted to him in the property settlement, he put $70,000 into Child Support for the children for the next two to three years.  He said he wanted the children to remain in Australia and to have a good time here.  He said both his parents had had major surgery on their backs and it was very difficult for them to come to Australia and therefore he wanted the children to visit in China.

9. The father said that his parents had only visited Australia once before the divorce, whereas the mother’s parents had visited numerous times.  He said his parents’ trip was to help the parties renovate their home.

10. The father said the other party has a bias against his parents and did not want any relationship with the parents, which would be bad for the children.

11. He then raised an issue about his daughter, Y, using an inappropriate name for the maternal grandmother.  (That matter was resolved by agreement and an annotation was made to the orders issued on the day).

12. The father said he wanted to reserve the right to remove the children from the Watch List.  He really wished for the children to have a good education in Australia until higher education.  He said he wanted to keep the blood link.  He had no other purposes and was not proposing to return to China with the children each year either.

13. The father then was called to the witness box.  He explained that he was unemployed and, as indicated, confirmed that the remarks made in his opening were true and correct.

14. Under cross-examination by counsel for the mother the father said the paternal grandfather’s back operation was about 10 years ago and that of the paternal grandmother in 2014.  They had both come to Australia in 2013 to assist with the renovation of the matrimonial home.  The paternal grandmother was still in Australia but her visa is due to expire in January 2016.  The paternal grandfather is in China.

15. The father confirmed that his mother was here as so many significant things were happening.  She would come no matter how ill she was.

16. When it was put to him that he effectively had no property in Australia except the motor vehicle and the financial settlement already made, he said, at the moment, this was the case.  This did not mean that he would not be able to create more value in the future.

17. It was put to him that he had never worked in Australia, but the father said that if that was true, then how could he have had tax returns in 2013.  The father confirmed that all his family is in China and when it was put to him that they were affluent, he said that depends.  What was affluent in China would not necessarily be affluent in Australia.

18. When it was put to him that his Financial Statement revealed that his family sent him $1,100 per week, he said that was correct.

19. The father confirmed that X was his only son and the only grandson of his parents.  This was very important to his parents and this was the same with the other party.  He said – and this was noteworthy – that his parents would want to raise X, but in Australia.  The father said he hoped to have both children live with him and that they would be educated in China.

20. When he was asked whether, under Chinese law, he could keep X, the father did not wish to answer.  When compelled to do so, he said that the maternal grandmother was applying for Australian citizenship.  If this was done, then China would not be appropriate for X.  He said it was not necessary for you (counsel) to ask this.  He said he could not control what the mother thinks.  Despite the mother’s concerns, he was also concerned that the mother would put the child into hiding so he would not see him.

21. The father asserted that the mother was not truthful in her Affidavit material and denied saying to her that she could keep the house if X lived in China.  He said she could keep the house and he could keep X, but he did not say in China.  The father referred to threats to use the Police to get the paternal grandfather back to China and said that the mother’s mental state was unsound.  He confirmed that his own mother often came to changeover.

22. When it was put to him that the mother said that the paternal grandmother had said the mother could keep the Property L home if X came to China, his reply, which was again noteworthy, was that this proposal was made when they were proceeding with divorce.  He also said that what his mother proposed was not his intention.  He said he was over 18 and that although he will respect his parents, this did not mean that he would do what they told him.

23. Nonetheless, when it was put to him that he was dependent on his parents for money, the father confirmed that this was true.  He said he was not able to say what they would do if he did not do what they want.  He said there were no plans for his parents to return to Australia at the moment.

1. The father said he was not sure whether he would be more comfortable in China.  He said the children should live with the mother or the father.  He said he wishes to remain in Australia currently.  He said he would not keep X in China.  He said everything he did was to have him grow up in Australia.  He would not have signed the property agreement if he did not wish to live here.  He said his parents had not applied to migrate to Australia.

2. In re-examination, the father said it was a very simple matter to bring the child back to China, the land where he (the father) was born.  There was also good opportunity for the children to get access to multiculture.  He said if the mother was so fearful, he was happy to go back together with her.

3. When recalled for further cross-examination by leave, if I understood his answer correctly, the father said that it might be okay to leave the matter lie for some three years and then look at it again.  He said he understood he could take the child back to China.  He made compromises in the agreements made.  He would not have agreed if he had not been able to take the child to China.

The Submissions of the Parties – Counsel for the mother

1. Counsel submitted that the father’s motives not to return to Australia were strong.  The influence of the grandparents was considerable, and the comments attributed to the paternal grandmother had not been disputed.  There were strong motives to remain in China, which is not a Hague Convention country.  The parties were of the view that there was no legal compulsion available in China to force a return to Australia.  X was born in China.  The father retains the Kluger motor vehicle and $20,000.  Both parental grandparents have travelled.  And, indeed, the paternal grandmother is presently here.  X has not even yet achieved Australian citizenship.  In the circumstances, the Watch List order should remain in full force and effect.

Submissions of the father

1. The father said his mother had come to Australia in severe pain.  She could not come whenever she wants.  His parents had spent the majority of their savings to buy a property here so that the parties could live here.  Divorce was beyond their imagination.  He said this did not mean he was wholly focused on his son and pays no attention to his daughter.  His daughter was still very young when the parenting agreement was made and still breastfeeding.  He intends to take both children to China in the future.  He does not now wish to insist that X go back this year, and wants to protect the right for the children to visit his parents.

2. He said the last issue was property, and he left the majority of his property to his children.  He said that counsel would use this against him.

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

2. It is readily apparent that the dispute in its current form does not altogether easily fit within this statutory pathway.

3. The father’s position is not entirely clear, but it appeared to suggest that he does not press for X to go to China with him this year, but is prepared to wait for a period of time.  It is implicit in his position that any such travel should await X achieving Australian citizenship.

4. Although the father’s evidence about the desirability of X living in China is not, perhaps, wholly clear, both parties’ submissions proceeded on the assumption that it is desirable that X continue to live in the primary care of his mother, and spend time with his father.  It is also conceded implicitly (if not explicitly) by both parties that it is desirable that both children live in Australia with their mother and are educated at least until secondary education in this country.

5. As I indicated at the commencement of this judgment, the real issue is whether or not the risk of the father not returning with X is sufficient that X should not be permitted to travel to China.

6. I am afraid it is all too obvious that the risk is as the mother asserts.  It is clear that the paternal grandmother (very understandably, given the cultural influences so obviously involved) would desperately wish to have X live in China with her and her family.  The things she has said to the mother, which are not in issue, make this all too clear.

7. The father has never had meaningful employment in Australia, and, indeed, spent six months of last year working in China.  The mother has asserted that the father does not like living in Australia, and the father has not seriously put this in issue.

8. The father is wholly dependent financially upon his parents.  If they are sending him, as he himself appears to admit, $1,100 per week, his parents are clearly affluent in Chinese terms.  Indeed, they would be affluent by Australian standards if they were able to forward amounts of this order to their child.

9. The father concedes that he is a dutiful son, and I simply do not accept, having seen him give his evidence, his asserted independence from his parents, particularly in circumstances where he concedes that he is wholly financially dependent upon them.

10. Everyone agrees that it is in the children’s best interests to live in Australia in the primary care of the mother.

11. It is a matter of concern that the father’s application has been so strongly focused only on his son.  Accepting, as I do, that Y was still very young when separation took place, the fact is that the father did not wish to take her back to China at the end of this year.

12. If the bargain was as he says it was (the house for the son’s visit to China) it is a matter of considerable concern that the daughter was excised from this bargain.

13. My decision can be started shortly.  Everything points against permitting X to live in China.  He would be separated from his sibling and his mother.  In a sense, it is not necessary to say more than that.

14. The evidence as a whole is overwhelming.  The father has every possible reason (as he would see it) to take X to China, and for X to live there, most probably in the primary care of his paternal grandmother, whom I have no doubt loves him, and who clearly sees this sole grandchild as an important figure in the family as a whole.

15. I accept that he is the only grandson.  He would carry on the family bloodline in name.  I am afraid the evidence overwhelmingly supports the accuracy of the mother’s fears.

16. It is plainly, therefore, not in the best interests of either of these children, and more particularly X, that the Watch List be discharged.

Conclusion

1. In the circumstances, it is not necessary for me to do anything more than to dismiss all extant applications, as the Watch List order is already in place.  For the sake of caution, however, I will order that the Watch List order remains in full force and effect.

2. I note the concession the father made that it might be appropriate to revisit the possibility of travel in some two or three years.  The parties may consider this, depending upon the march of events.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 18 December 2015