YUE and LAU
[2018] FCWA 20
•16 FEBRUARY 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: YUE and LAU [2018] FCWA 20
CORAM: DUNCANSON J
HEARD: 15, 16, 17, 18 AND 19 JANUARY 2018
DELIVERED : 16 FEBRUARY 2018
FILE NO/S: PTW 2771 of 2017
BETWEEN: MS YUE
Applicant
AND
MR LAU
Respondent
Catchwords:
CHILDREN - International relocation - Where the mother's student visa expires - Where there are no pathways open to her to obtain permanent residence in Australia - Where the mother is the primary carer of the young child - Where the Court is satisfied it is in the best interests of the child to relocate with the mother to the People's Republic of China
Legislation:
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61DA, s 65DAA, s 69ZW
Category: Reportable
Representation:
Counsel:
Applicant: Mr M Cole
Respondent: Mr S Jones
Solicitors:
Applicant: Terrace Law
Respondent: Ideal Legal Services
Case(s) referred to in judgment(s):
Malcolm & Monroe (2011) FLC 93-460
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1These proceedings concern [J] who is two years of age. J lives with the mother, [Ms Yue] and spends supervised time with the father, [Mr Lau] each Saturday from 9.45 am to 12.30 pm. The mother wants J to continue living with her and she seeks to relocate him to the People's Republic of China ("China"). The father wants J to live with him and consequently to remain in Perth.
2The mother would like to remain in Australia but is unable to do so. She must leave Australia because her student visa expires [in early] 2018.
The orders sought by the mother
3The mother proposes that J live with her and she be permitted to relocate him to China. The mother proposes that she have sole parental responsibility for J except that she consult the father and give him not less than 21 days' notice of her decision in relation to J’s schooling, medical treatment and any change to his residence outside of Beijing.
4The mother proposes that J spend time with the father in China, at the father's expense for up to three, two-week periods in any one year on Wednesday, Saturday and Sunday from 9.00 am to 5.00 pm in those weeks. The mother proposes J spend such other times with the father as may be agreed between the parties and J’s time with the father be supervised by a paternal grandparent.
5In the event the mother is not permitted to relocate J to China the mother proposes J live with her and the father spend gradually increasing periods of time with him.
The orders sought by the father
6The father proposes that he have sole parental responsibility for J. In the event the mother resides in Australia J should live with him. J should spend time with the mother each fortnight in week one from Friday to Monday and week two from Wednesday to Thursday, on special occasions and otherwise as may be agreed between the parties. The father proposes that handover take place at his home.
7The father seeks an injunction restraining the mother from removing J from the Commonwealth of Australia and that his name be placed on the Family Law Watch List for a period of 5 years. The father seeks an order that the mother provide J’s passport to the father.
8In the event J is permitted to relocate to China the father proposes that the mother take him to Hong Kong to spend four periods of one week with the father, with the mother to meet one half of the father's cost of travel and the whole of J’s cost of travel. The father proposes there be electronic communication.
9The father proposes various other orders concerning the provision of information and a non-denigration order.
BACKGROUND
10The mother was born [in] 1986 and is 31 years of age.
11The father was born [in] 1981 and is 36 years of age.
12Both parties were born in China and speak Mandarin.
13The father migrated to Australia in 2007 as a student and became an Australian Citizen [in] 2014.
14The parties met online in November 2013 having been introduced by the father's cousin. They commenced a relationship by communicating through video calls. The mother came to Perth on a student visa [in] 2014 and the parties commenced living together on that date.
15The parties married [in] 2014.
16J was born [in] 2015. The parties separated [in] 2017.
17On 9 May 2017 the mother commenced these proceedings and on that day a recovery order was made for the delivery of J to her care. An order was made, until further order that J live with her.
18On 12 May 2017 orders were made for the father to spend supervised time with J for two hours each week.
19A case assessment conference took place on 31 August 2017. The parties agreed J would spend time with the father from 9.45 am to 12.30 pm each Saturday with handovers supervised. J’s time with the father remained supervised.
THE PARTIES AND THEIR WITNESSES
20Both parties had the assistance of an interpreter at trial. In my assessment of each party I have been mindful to take account of cultural differences and language difficulties.
The mother
21 I consider the mother gave truthful evidence. She was thoroughly cross‑examined by counsel for the father in relation to incidents of family violence and in particular an occasion when the father threw a mobile phone. Counsel pointed to some inconsistencies in her evidence comparing it with the notice of risk of abuse, the case assessment conference memorandum and the WeChat messages between the parties which became Exhibit 7. I found the mother's explanations to be reasonable and plausible. Some inconsistencies arose partly by reason of language difficulties and interpretation.
22The mother had a good recollection of events and I consider her evidence to be reliable.
The maternal grandmother
23[The maternal grandmother] too had the assistance of an interpreter. The maternal grandmother deposed to the father being verbally abusive to the mother. She spoke of the father's parents visiting her and her husband in China, wanting her to encourage her daughter to reconcile with the husband. She spends time in Perth and assists in the care of J who has become fond of her. She and her family will support the mother in China.
Ms H
24[Ms H] was not required for cross-examination. Ms H is a friend of the mother. Ms H's son and J often play together. She deposed the mother and maternal grandmother provide good care for J.
Mr L
25The Beijing [Company A] has offered the mother employment as a senior [engineer] commencing [in] 2018 for a period of three years. Their letter of offer was dated 16 October 2017. Mr L, a [director in the company], gave evidence electronically from China.
26The mother was previously employed at that firm. If she returns she would be an independent engineer, but working under an engineer's guidance. The mother would receive a base salary of ¥15,000 (Yen) per month with commission.
27Company A offers benefits including health, life, disability, retirement plan and unemployment insurance coverage.
28I am satisfied that the offer of employment is genuine and that the mother is welcome back at Company A.
The father
29At times the father had difficulty explaining events but he was not uncooperative. I consider the father endeavoured to give truthful evidence, but in some respects his evidence is less reliable than that of the mother.
30The father denied telling the mother to leave the house. The father was specifically asked by the mother's counsel, if between 29 April and 10 May 2017 the mother was free to come back into the house at any time. He said she was. I find that was not the case. It is inconsistent with the WeChat messages written at the time. For example, on 4 May 2017 the father wrote to the mother's parents (referring to the incident on 29 April 2017) that he was so angry, he kicked her out. On 5 May 2017 messages were exchanged in which the mother asked the father to please let her stay for two more days. One of the messages dated 5 May 2017 read:
You cannot kick me out like this. I hate to leave the baby. Please allow me to stay longer.
31A further message of the same date read "I am begging you".
32I do not accept the father's evidence regarding the mother breastfeeding J. He said she stopped feeding him in September 2016. Although photographs in this respect were inconclusive, I prefer the mother's evidence as to this issue which I find to be credible.
Dr W
33[Dr W] is a consultant psychiatrist. He provided an assessment of the father dated 8 September 2017. Dr W opined that he found the father to have no symptoms or signs to fulfil any criteria for a major psychiatric syndrome or mental disorder. There was nothing in his clinical findings that would suggest the father would not be an appropriate parental figure. He did not regard the father as a person who would pose a potential risk or danger either to himself, to his child or his partner.
34In a later report dated 4 October 2017, Dr W confirmed he did not find any aspects of serious psychiatric illness during the mental examination of the father. In preparing this report he was provided with the affidavit of the mother which included her complaints about the father's controlling behaviour. He opined that any behavioural problems during the relationship were likely to be related to personality issues or stress and not likely to be related to a serious psychiatric mental illness.
Dr T
35[Dr T] is a general practitioner and she provided a report in respect of the father dated 4 October 2017. She confirmed it was based on information provided to her by the father. She was asked about a consultation in December 2016 which she said was specifically to address parental concerns about J’s susceptibility to infections and child safety in the playground and at child care. The notes to which counsel referred in cross-examination had indicated that the grandparents were worried about rabies and viruses. Dr T explained that these concerns were not unreasonable having regard to cultural differences. In her report, she described the father as very attentive and affectionate towards J during visits, showing insight and sensitivity regarding his wellbeing.
The paternal grandparents
36The paternal grandparents provided a written testimony. They described him as an upright and honest person, a person of good nature and strong personality although not talkative.
37The paternal grandparents referred to the father's care for J and the extent to which he provided for the mother including his support of her study.
38The paternal grandparents referred to the parties having a short time to get along with each other and misunderstandings by reason of their different personalities. The paternal grandparents stated that the mother misinterpreted and fabricated facts to achieve her personal purposes through utilising the power of the judiciary by fraud.
39The paternal grandparents did not swear an affidavit. They were not available for cross-examination. Although I give little weight to their evidence, I do not disagree with their evidence that the father is a good person, a good father to J and that there were misunderstandings between the parties.
Ms W
40[Ms W] is a friend of both parties. She deposed to the father attending [a children's reading group] with J each week with the mother attending on occasions.
41Ms W was not available for cross-examination. Although I give her evidence little weight, my own assessment of the father accords with her description of him at paragraph 26 of her affidavit where she states:
From [Mr Lau's] actions and behaviour, I could tell that he is a dedicated, responsible and caring father to [J] and cared deeply for his son's safety, health and well-being.
Ms C
42[Ms C] is a friend of both parties. Her evidence was not dissimilar to that of Ms W. She spoke highly of the father and his parenting of J.
43Ms C was not available for cross-examination. I give her evidence little weight, although I do not disagree with her evidence as set out above.
THE EVIDENCE
44The evidence at trial centred on a number of issues including those referred to below.
The mother's pregnancy
45The mother became pregnant in 2014. The mother said the father claimed that it was likely the child was not his. The father said and I accept he was very happy she was pregnant and excited at the prospect of becoming a father.
46The father deposed the mother was not pleased she was pregnant and wanted to end the pregnancy immediately. I do not accept this. I accept the mother's evidence that she was concerned that she had taken medication which may harm the baby. The mother described both parties as hesitant and confused. The mother asked the doctor for a referral for a termination which would enable her to consider what to do. Both parties were undecided about this. The doctor told her the medication had only a slim chance of harming the baby. She subsequently made the decision to keep the child and the father agreed with her. The mother said every day she prayed for a healthy baby.
Who was the primary carer of J during the relationship?
47A significant issue between the parties was who the primary carer for J was after his birth. The mother explained that after J was born she breastfed him every three hours for six months. She continued to breastfeed him between the age of six months and one year when she fed him every three or four hours. By this time she was in Semester One of 2016. J would not accept frozen breast milk. The mother attended university and the father brought J to her to feed. The father collected her from university and when he did so, J usually was in the car sleeping, but when he woke, she breastfed him to comfort him. She breastfed him again before he went to sleep.
48The mother continued to breastfeed J until the end of August 2017.
49I accept that the father was the primary carer for J at times when the mother attended university, and on average during 2016 this was three or sometimes four days a week, and usually for no more than three hours at a time although sometimes twice a day. It was put to the mother that she spent periods of time at [University A] library. She conceded she did in Semester Two during the exams. She did not attend University A library in Semester One because she did not know she was permitted to do so. The mother cared for J when she returned home from university.
50In late March 2017 the mother's study requirements increased and the father played a greater role in caring for J.
51This was consistent with the mother's explanation to the police.
52Annexure LI-L to the father's affidavit filed 8 January 2017 was a WeChat message posted by the mother without a translation. The father referred to it at paragraph 183 of his affidavit. The translation of this message differed to the father's evidence about it in his affidavit. The gist of the message was that the mother was very busy with looking after the child and work, but that the father had assisted her by looking after the child during the exam period. This message was consistent with the mother's evidence that the father assisted her during exams, but at other times she was responsible for caring for J, the household and her university studies.
53I also accept the father's evidence that he provided good care for J during these times. The mother had some criticism about the standard of care referring to the father's control over J in that he did not encourage him to play with other children or let him play outside. Dr T refers to a consultation in December 2016 to address parental concerns about J's susceptibility to infections and child safety on the playground at child care. I consider the father's approach to parenting was a cautious and caring one and at worst perhaps a little over-protective. There is no suggestion that J came to any harm in the care of the father.
54The mother has been J's primary carer since the relationship ended.
The parties' separation
55On 29 April 2017 the father looked through the mother's phone and found a video message she had sent to her sister in which she said she regretted marrying a beast. At the time the mother was in the bedroom holding J. She heard a loud bang in the living room. The father came to the bedroom and kicked the door. He played the video message to her and asked her how she dared to say this. He called her a "stupid bitch". He told her after she finished her university studies she should "piss off back to China". The father threw the mother's phone and smashed the screen. She was scared and begged him not to be angry. J screamed and she tried to calm him. The father threw the mother's clothes in a travel bag and told her to leave; she did so. She spent two nights at the home of a friend. The mother sought assistance from the police which angered the father further. The police contacted Crisis Care and arranged accommodation for the mother for a night.
56The mother said, referring to the police report, that when the father was stable he was good with J, but she feared that if the police were involved he would become unstable.
57The mother returned to the home on 2 May 2017.
58On 4 May 2017 the police attended the home and spoke with the father. They had no concerns about J. The father's explanation to the police about the argument was not inconsistent with that of the mother, although the father reported that it was the mother who was screaming at him and upsetting the child and he said he asked her to leave and she walked out voluntarily.
59On 5 May 2017 the mother went to university. She wanted to return home, but the father would not permit her to do so. She sought assistance from Crisis Care and obtained accommodation at a refuge. J remained in the care of the father until the mother obtained a recovery order.
Was the mother building a case against the father?
60The mother was extensively cross-examined about the WeChat messages which were exchanged between her and the father. The father's position was that these messages were contrived or set up by the mother to build her case. The alternative finding would be that they were an accurate reflection of events at the time. I find them to be the latter.
61The messages lend some support to the mother's evidence regarding the father's behaviour. In a message from the father to the maternal grandparents the father confirmed that the mother had told her sister he was "a brute". He described this as a curse on him and an indirect curse on his baby and his parents. He told the mother's parents he was very angry and argued with her that night. He said he was so angry, he kicked her out.
62On 10 May 2017 the father sent a message to the mother saying he knew the reason she chose not to move back because she was concerned she would be restrained as before. He wrote if she moved back he would not put any restraint on her anymore and he would give her the key to the front door. He further went on to say he would work on his short temper and he wished she could be more patient as well. This message was sent after the mother had obtained a recovery order for J.
63On 28 May 2017 the paternal grandfather sent a message to the mother in which he referred to the father having been regretful, that he promised he would mend his way and turn over a new leaf.
64The father's counsel suggested to the mother that she was critical of the father and picking on him. She said and I accept that she did not dare do that and he became angry if there was any criticism of him. She said she changed and compromised and became more submissive.
65Exhibit 6 was the police information provided in response to a s 69ZW order. The mother's explanation to the police of the circumstances was mostly consistent with her evidence. The mother did not want the police to contact the father because she said the father was nervous and angry about having a criminal record. She wanted him to calm down and she feared the police involvement would make him worse.
66I accept the mother's evidence in this respect and I accept she did not make the report to the police to build a case against the father.
The father's mental health
67I refer to the evidence of Dr W and Dr T as set out above. I accept their evidence in respect of the father and find that the father does not suffer from a mental disorder such that he would not be an appropriate parent to J. I also accept Dr W's evidence that the father does not pose a potential risk or danger to himself, to the mother or to J.
Family violence
68There was family violence between the parties during the relationship.
69The mother felt the father was controlling of her. She lived in a house owned by him. She was in Australia pursuant to a student visa and the father had not sponsored her to become a permanent resident. On occasions the father became angry and lost his temper. He asked her to leave the home.
70The mother said she did not have a key to the house. The father said he offered the mother a key and she did not want it.
71I find that it is more probable than not that at times the mother did not have a key to the house. This is consistent with what the father wrote to the mother in the WeChat message referred to at paragraph 62 above.
72For the most part the father denied family violence. He said the mother had a key and had the freedom to attend university. He said he loved the mother and had not wanted her to leave the home. When asked however if he would sponsor the mother to remain in Australia, he said that would be conditional upon J living with him. The father denied he stopped the mother from learning to drive.
73In opening counsel for the father submitted that the parties' attitudes and behaviours should be assessed in the light of their cultural differences. I agree with that submission. The father had some strong ideas about his obligations as a husband. He is far more restrictive than the mother. It is important to consider the parties' circumstances in the context of their culture. For example, reference was made to a WeChat message which spoke of a Chinese proverb which, translated literally meant "if the fishnet were to be broke the fish will die". Dr W said this was a reference to the unfortunate effects of a family breaking up and not some sort of expression of a suicide pact.
74The father was very concerned about J's wellbeing and the mother found his parenting of J unnecessarily restrictive.
J's present circumstances
75J has lived with the mother since early May 2017. He has spent supervised time with the father for two hours each week. The maternal grandmother has spent some time in Australia and provided support to the mother. The mother lives at a refuge. The evidence of the maternal grandmother and the mother's witness is to the effect that J is thriving.
76The reports from Building Bridges Contact Service are favourable in terms with respect to J's time with the father.
77The supervisor reported that the father provided well for J bringing appropriate toys and snacks to the visits. The supervisor described the father as very aware of J's needs. The supervisor reported the father responds to J's needs without hesitation and J responds to him in a loving way. On occasions, J has asked for the mother, but the father was able to comfort him both then and on occasion when he fell over. The supervisor described the father as having a quiet, calm demeanour and being very kind and loving to J.
The mother's visa – can she remain in Australia?
78The mother travelled to Australia on a student visa (subclass 500). She studied a [Master of Urban and Regional Planning] at [University B] and obtained her degree. During the relationship the father did not sponsor her for permanent residence by way of partner visa. The mother's student visa expires on 28 February 2018.
79The mother was provided with advice as to her visa options to remain in Australia permanently. A letter of advice from [a law firm], Lawyers and Migration Specialists became Exhibit 11. [Mr E] also gave oral evidence and was cross-examined.
80The advice was that at present there are no pathways to permanent residence available to the mother and it would be necessary for her to apply for a Class FA (Visitor) visa or a Class VC (Graduate) visa before her current student visa expires if she wished to remain in Australia after 28 February 2018. Both of these are temporary visas.
81Mr E was questioned as to the likelihood of success of an application by the mother to extend her student visa by enrolling in a [Master of Nursing]. Mr E said that there is nothing effectively preventing the mother from lodging a valid application for a student visa, but student visas are subject to the "genuine temporary entrant" and "genuine student" requirements and do not lead to permanent residence. Mr E described this as a "high risk application" with a "very, very high" chance of refusal. He opined that the Department of Home Affairs ("the Department") would be sceptical of the mother, who is qualified in engineering and urban and regional planning, suddenly changing the course of her studies to undertake a Master of Nursing, and as such would be unlikely to accept that she would be a genuine temporary entrant and a genuine student.
82The possibility of the mother applying for a parent visa was explored. She would have to be sponsored by J and given that he is a minor, she would need to be sponsored by an Australian Citizen or permanent resident relative of J, for example the father. The processing time for a parent visa is around 30 years.
83The mother could apply for a contributory parent visa, again being sponsored as above. Government lodgement fees totalling $47,370 are payable and the sponsor is required to provide an Assurance of Support and pay a bond of $10,000. The processing time for a contributory parent visa is between 37 and 39 months. The mother would have to go offshore to lodge the application and be offshore at the time of grant of the visa. As to whether the mother could remain in Australia in the interim period, there would be no automatic right to enter Australia to await the outcome of the application. She would have to apply for a visitor visa or another temporary visa.
84Regarding the possibility of the mother obtaining a visitor visa to remain in Australia pending the outcome of a contributory parent visa application, Mr E said the Department would generally grant a short-term three-month visitor visa, recognising that it is in the best interests of the child not to be separated from a parent for significant amounts of time. This visa could possibly be extended, however the Department would not grant such a visa where the applicant is effectively residing in Australia as a "de facto resident" and has resided in Australia for more than 12 months in any 18-month period. If the mother were to obtain a visitor visa she would have no work rights or earning capacity while she remained in Australia.
85If the mother lodged an offshore contributory parent visa application she may be able to obtain a graduate visa in the interim to enter Australia on a temporary basis of around 18 months only, and undertake employment for work experience. Mr E opined, however, that after the graduate visa expired, the mother would be required to go overseas and remain overseas. He said it would be unlikely that the mother could obtain a visitor visa thereafter, "because there is that disconnect between de facto residence in Australia, and the visitor visa, which requires you to be a genuine visitor for temporary purposes only".
86The mother cannot afford the fees of the contributory parent visa. The father was not prepared to pay. He does not have the available funds, and he was not prepared to borrow against his unencumbered home to meet the fees. Even if he did so there are practical difficulties associated with this process, including the requirement that the mother be offshore to apply, and the difficulty for the mother to remain in Australia and support herself in the interim period outlined above.
87I find there are no permanent visa pathways available to the mother.
The parties' financial circumstances
88The father lives in a home which is unencumbered. He borrowed money from his parents who in turn borrowed it from friends and relatives to pay off the loan. The house is worth about $510,000. The father owes his parents and their friends a total of $697,309. The father does not work, but previously earned over $100,000 per annum as [a mechanic]. He intends to return to employment including if J is placed in his care.
89The mother is not allowed to work in Australia. Her parents send her money when necessary. She is not entitled to any Government benefits apart from special benefit for J of $568 per fortnight. She has no Medicare or other benefits. Her continued residence in Australia is financially uncertain and insecure.
THE LAW
90These proceedings are determined under Part VII of the Family Law Act1975 (Cth) ("the Act").
91In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
92Section 60B sets out the objects and the principles underlying them.
93The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
94The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
95In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary considerations and the additional considerations.
96It is necessary for me to give careful consideration to the proposals of the parties and to determine the arrangements which are likely to promote J's best interests. I am mindful that the best interests of J is the paramount consideration, but it is not the only consideration. It is necessary for me to consider all proposals or, subject to procedural fairness, to formulate others which I consider to be in J's best interests.
97In Malcolm & Monroe (2011) FLC 93-460, the Full Court said at 85,515:
83.We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259–260. Equally, there is no onus on a parent who may be "left behind" to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court's inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
PARENTAL RESPONSIBILITY
98Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances where there is abuse or family violence.
99The presumption may be rebutted by evidence which 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.
100Equal shared parental responsibility imposes an obligation upon the parties to consult as to major long-term issues regarding the children and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are issues about the care, welfare and development of the children of a long-term nature including issues about their education (both current and future), religious and cultural upbringing, health, their name and changes to their living arrangements that make it significantly more difficult for them to spend time with a parent.
101Pursuant to s 65DAA of the Act, a consequence of making an order for equal shared parental responsibility is that the Court is required to consider whether or not the child spending equal time with each parent would be in the child's best interests and reasonably practicable. If so, the Court must consider making such an order.
102If the Court does not make an order for equal time the Court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child's best interests and reasonably practicable. If so, the Court must consider making such an order.
103Both parties seek an order for sole parental responsibility for J and I refer to that further below.
The mother's position
104The mothers' proposals are set out above in the orders sought by her. The mother's student visa expires on 28 February 2018. She is not able to obtain permanent residence in Australia. She intends to return to China and she wants to take J. The mother has little support in Australia apart from the refuge and her mother who has short periods of stay in Australia. Her parents are supportive financially and emotionally, but her mother's visits incur expense and require her to be away from her husband for long periods of time.
105The mother deposed:
I left my job in China to relocate to Australia with the hope of staying here permanently and raising a family. However now that the relationship has broken down and I have no family here, I will like to relocate and to do so with [J].
106The mother has been offered a position at her previous place of employment which would enable her to support herself and J and be close to her family in China. She proposes to base herself in Beijing where the paternal grandparents reside and to provide them with an opportunity to spend time with J.
107The mother said she has and will continue to promote the relationship between J and his paternal grandparents. She has no extended family in Australia whereas in China J will have the opportunity of spending time with extended family on both sides.
108The mother proposes to maintain J's familiarity with Australian culture. The mother does not receive any financial support from the father.
109The possible means by which the mother may obtain permanent residence in Australia are discussed above. There is no pathway open to the mother to obtain permanent residence without the assistance of the father, and he is unable or unwilling to provide that assistance. At present the mother depends on the assistance of the [women's refuge] and financial assistance from her parents. Her counsel submitted that she should be permitted to leave now rather than engage in processes which would incur costs to her, when ultimately there is no pathway to permanent residence. The mother's position is that she is going to return to China, that it is in J's best interests to be in her care, and he should therefore relocate with her. Her counsel submitted that the father was the author of his own misfortunes in that he did not sponsor her during the relationship and he refuses to do so now.
The father's position
110The father denied family violence and believes the mother is abusing the legal system to separate him from J by spreading lies about him in the proceedings. He is concerned that the mother will disappear with J if she is given the opportunity to go back to China with him. He is concerned the mother's parents may forbid him to see the child once he is in China because they are hostile towards him. He referred to China being vast, saying he would be unable to locate J should the mother disappear and the laws in Australia would not assist him if she refused to allow J to spend time with him. The father said the mother's home in China is in a remote village away from any major towns or cities and transportation there is difficult. He said the mother's hometown does not have many amenities that J is used to, having been born and raised in Australia. The father fears for J's safety and wellbeing growing up in a remote village where there are many dangers and unknowns.
111The father deposed that the quality of life in Australia is superior and that J would face difficulties in China as he is an Australian Citizen. He said it would be difficult for J to acclimatise in what he describes as "such a foreign place". The father deposed that J will be confused and afraid of his new surroundings after being taken away from the father and the home with which he is familiar.
112The father said he is a good and responsible father. He deposed he was the primary carer for J before J was taken away from him and that J should live with him in Australia. He proposes to return to work on a part-time basis and will be able to support J. The father deposed he is a caring, capable father and will take care of J's wellbeing and happiness during his lifetime.
113The father's position was that he should resume the primary care of J and that he, unlike the mother, would promote the relationship between J and the other parent.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
114It is to the benefit of J to have a meaningful relationship with both of his parents. J spends time with the father, although not overnight. He enjoys his time with him.
115The mother has been J's primary carer since the parties separated in May 2017. The father was significantly involved in his care while the mother undertook her studies.
116If J moves to China with the mother he will spend infrequent time with the father and having regard to his young age this will have an impact on their relationship.
117This important factor will have to be balanced against the requirement that J's primary carer must leave Australia and the father's proposal that he be separated from her.
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
118J was exposed to family violence when the parties were together. J is not at risk of harm in the care of either party.
THE ADDITIONAL CONSIDERATIONS
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
119J is too young to express any meaningful view.
the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
120J has a close and loving relationship with the mother. J has a loving relationship with the father as is evidenced by the Building Bridges supervised contact reports.
121The maternal grandmother spends significant periods of time in Australia and J's relationship with her is a close one.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
122The mother has made most of the decisions about long-term issues for J. Both parties have spent time with him. The mother refers to her offer at the case assessment conference in August 2017 that J spend unsupervised time with the father, an offer which he did not take up.
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
123The mother supports J with income provided to her by her parents and the special benefit she receives from Centrelink. The father does not provide any financial support for J.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
124I was not assisted in this matter by an independent children’s lawyer or any expert evidence as to the likely effects upon J of a separation from either parent.
125The mother must leave Australia. She is J's primary caregiver. It would be detrimental to him to be separated from her and this is an outcome that would not be in his best interests.
126If J is permitted to relocate and accompanies the mother, she will remain his primary carer and in that sense his circumstances will not change. There will however be a change to J's circumstances in that he will no longer spend regular time with the father. That frequency of time which is usually desirable for young children to maintain their relationship with a parent will not be possible. J will have an opportunity of spending time with the maternal and paternal grandparents. J would communicate with the father by way of electronic means although there could be some difficulties associated with that given his young age. J will spend time with the father if and when the father travels to China to spend time with him. Having regard to J’s close bond with the mother, the likely detrimental impact upon him of being separated from the mother will be greater than that of being separated from the father.
127The mother's circumstances are unsettled and insecure. As she cannot remain in Australia she wishes to return to China and commence employment to enable her to provide for herself and J. She also wishes to access family support there.
128J is securely attached to the mother and this attachment is likely to enable him to adapt to changes in his living arrangements.
129It is likely that J will benefit from the security and stability of his primary carer.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
130If the mother relocates J to China there will be practical difficulty and expense which arises by reason of distance, travel and cost of travel.
131The father proposes that the mother take J to Hong Kong to spend four periods of one week with the father. It was not explained why the father proposes that J spend time with him in Hong Kong, rather than Beijing where the mother and the paternal grandparents live. J has not spent an overnight with the father since the parties separated.
132If J remains in Australia and lives with the father he would only spend time with the mother when and if she is able to obtain a visa to visit Australia.
133Both parties expect to be employed. Each will have to meet the expense of travel.
134If the mother travels to Australia she would have to find accommodation at which to spend time with J. The father would have to do that as well, although if that time with J is spent in Beijing he may receive some practical assistance from his parents who otherwise appear to be very supportive of him.
135The father's family live in China. China is his home country and he is able to speak Mandarin. That destination is not foreign to the father.
136The mother proposes that the father spend time with J up to three times each year for two weeks, on three days each week.
137The mother proposes to live and work in Beijing. It is highly unlikely she would disappear into a remote part of China and not be found as feared by the father.
the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
138Both parties are capable of providing for J's needs.
139The support worker at the women's refuge described the mother as a competent mother with a strong nurturing relationship with the child putting his needs first. I accept this.
140The mother will be employed in Beijing. She will be able to provide for J financially. She will be entitled to receive benefits through her employment. She will receive the support of her family.
141The father owns the home where J lived until the parties separated. The father intends to obtain employment and would be able to provide financially for J.
142I am satisfied the father is able to provide for J's emotional needs. The only reservation I have in that respect is that the father appeared to lack some insight into J's needs with respect to his proposal that J be removed from the care of the mother and placed in his care. In cross-examination the father was reluctant to acknowledge that on occasions J cried for the mother when spending time with the father.
143The father was significantly involved in J's care when the mother was studying.
144Since May 2017 the father has spent only a few hours each week with J and that time remains supervised. His ability to care for him full-time and on a long-term basis is untested.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
145J is only two years of age. He is a child born in Australia of Chinese parents. He speaks Mandarin. The mother says if he relocates to China she will maintain his Australian culture.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
146This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
147Both parties are pessimistic about the other promoting the relationship between J and the other parent. The mother has demonstrated an appropriate attitude to J. The father has done so mostly, but not when he exposed him to family violence. J is closely attached to the mother and enjoys his relationship with the father which would indicate that neither party has undermined the relationship with the other parent. Both parties have complied with spend time orders.
148Both parties have responsibly accessed counselling to assist them with their difficulties as set out below.
any family violence involving the child or a member of the child's family
149J was exposed to family violence at the time of separation. There is now no family violence involving J or either of his parents.
if a family violence order applies, or has applied, to the child or a member of the child's family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
150There is no family violence order in effect.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
151It is desirable to make final orders although J is still very young. A refusal of the mother's application to relocate J to China may lead to further proceedings.
any other fact or circumstance that the court thinks is relevant
152The mother has attended counselling at the women's refuge which is an organisation providing support and assistance to women and children who have experienced, or are experiencing family and domestic violence.
153The father attended Relationships Australia FAIR Men's Group program for an intake session, but he did not meet the inclusion criteria.
CONCLUSIONS
154Having considered the evidence in the context of the primary and additional consideration, I have come to the following conclusions.
Parental responsibility
155There has been family violence between the parties. The presumption that it is in J's best interests that his parents have equal shared parental responsibility for him does not apply. For reasons set out below I intend to order that J live with the mother and consequently that she be permitted to relocate him to China. I consider it would be in J's best interests for the mother to have sole parental responsibility for him.
156The parties will be living in different continents. They have not communicated since they separated and I am not persuaded that they would be able to fulfil the obligations incumbent upon them arising from an order for equal shared parental responsibility. The father is a good person and I consider the mother should receive his input before making any long-term decision concerning J. She sensibly proposes to consult with the father and give him notice of a decision regarding long‑term issues and I consider an order in those terms to be in J's best interests.
157It is to J's benefit to have a meaningful relationship with both of his parents. If J lives in China his relationship with the father will not be an optimum one.
158There was family violence between the parties. The father was controlling. The mother was insecure by reason of her visa status. The father did not sponsor her to become a permanent resident. The mother was vulnerable and dependent upon the father.
159The father loves J, but at times his actions demonstrated that he lacks insight as to the impact of his behaviour upon J.
160The father is well meaning but did not acknowledge that the mother was J's primary carer and that a separation from her could have a detrimental impact upon him.
161J is happy in the care of the father and securely bonded with the mother.
162J's separation from the father is not likely to have as detrimental an impact upon him as a separation from the mother.
163I bear in mind the practical difficulties of J spending time with the father in the event that he is permitted to relocate to China, although these are mitigated to an extent by the fact that the father is from China, able to speak the language and has family there.
164The father has exposed J to family violence.
165J's relationship with the father is still developing and it is possible that development would be hampered by a move to China.
166Having weighed all of the factors carefully I have concluded that J should live with the mother and she should have permission to relocate J to China. I consider this to be in J's best interests. The mother has to leave Australia. It would be in his best interests that she continue to be his primary carer.
Spend time arrangements
167I consider the mother's proposal that J spend time with the father in China to be a sensible one. Had J been spending time with the father in Perth, I consider supervision in the future would not have been necessary. I do not know what the father's circumstances in China will be, for example where he will live and how he would accommodate J. It may be that his parents may be of assistance to him. It is likely that there will be some uncertainty for J when seeing the father after a period of time and it is likely he will need to be reintroduced at least for some of the earlier visits, given his young age. Until J is once again comfortable in the care of the father, overnight time may not be appropriate. I consider however that time during the day, perhaps for gradually increasing amounts of time each day of the father's visit would be best suited to J's emotional needs.
168It is difficult for me to predict J's circumstances once he is in China. If he has the opportunity of spending time with the paternal grandparents and getting to know them well, this might be of assistance when the father visits and J could then spend time with him in the company of other persons with whom he is familiar.
169J is very young and there will be a considerable distance between him and the father. The parties will have to work very hard to do their best to ensure that J's relationship with the father is maintained.
170Pending the relocation J should spend time with the father. Although I think supervision is no longer necessary, J has not spent more than two hours a fortnight with the father since separation and there has been some evidence of him crying for the mother. He is unlikely to be ready for overnight time prior to leaving Australia at the end of February 2018.
Other matters
171Both parties expect to be in employment. Each should be responsible for the costs of his or her own travel. There was no proposal by the father to provide financial support for J if he lives in China and therefore in the event that J travels the father should be responsible for the cost of his travel.
172The orders proposed by the father for electronic communication and the provision of information and also the non-denigration order are all orders which I consider to be in J's best interests and I shall order accordingly.
Electronic communication
173Electronic communication is important particularly by Skype or FaceTime. Such communication should take place not less than twice a week and at such other times as J may request as he gets older.
THE PROPOSED ORDERS
174Subject to hearing from counsel, the orders I propose to make are as follows:
1All previous parenting orders be discharged.
Parental responsibility
2The mother, [Ms Yue] have sole parental responsibility for [J] born [in] 2015.
3Before the mother makes a decision as it relates to a long-term issue concerning the child she shall:
(a) notify the father by email of the decision she intends to make and the reasons for the decision;
(b) seek the father's comments on the decision she intends to make;
(c) take into account any comments the father makes about the decision she intends to make, provided such comment is received, by email, from the father within five days of notice being given by her; and
(d) notify the father by email of the decision she has made.
The child's living arrangements
4The child shall live with the mother.
5The mother is permitted to relocate the child to the People's Republic of China ("China").
Spend time arrangements and electronic communication
6Pending relocation to China, the child shall spend time with the father on three occasions each week for four hours, with handovers to be supervised.
7Order 6 above be subject to the condition that handovers be supervised by Building Bridges Contact Service or other agency.
Spend time arrangements after relocation
8Upon the mother and the child relocating to China, the child spend time with the father as follows:
(a) in China for up to three two-week periods in any one year on Wednesday, Saturday and Sunday from 9.00 am to 5.00 pm in those weeks;
(b) at such other times as may be agreed between the parties;
(c) the child's time with the father be supervised in the event the mother considers this to be necessary and in his best interests;
(d) at such other times as are agreed in writing between the parties; and
(e)the child have electronic communication with the father by telephone, video link, Skype or FaceTime each Tuesday, Thursday and Sunday between 4.30 pm and 6.00 pm (China Standard Time) with the father to initiate the call and the mother to ensure the child has access to a telephone or computer to receive the call.
Injunctions
9The parties be restrained and an injunction is granted restraining each of them from denigrating each other, or the other party's family members in the presence of, or within the hearing of the child.
The provision of information
10The parties shall communicate via electronic communication (including but not limited to telephone, WeChat and email) with respect to the welfare of the child only.
11Each party shall keep the other party informed of any changes to their mobile telephone number, WeChat ID, email and residential addresses within 24 hours of any such change.
12Each party shall notify the other party of all matters concerning the health of the child as soon as reasonably practicable if the child suffers any illness for a period longer than 24 hours or in the case of serious illness, hospitalisation and/or accident involving either parent or child.
13Each party shall keep the other party informed of the names and addresses of any treating medical practitioner, other health practitioner and/or dental practitioner in relation to the child.
14Each party shall provide all required authorities and consents to each treating medical practitioner, other health practitioner(s) and/or dental practitioner(s) to discuss and provide both parties with reports as to the health of the child and other information they may lawfully be provided in relation to the child.
Passports
15The mother shall retain the child's passport.
Watch List orders
16The Australian Federal Police be requested to remove the said child’s name from the Family Law Watch List operating at all international ports in Australia and the father do supply the Australian Federal Police with a sealed copy of this order.
Procedural
17The proceedings otherwise be dismissed.
18All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
19In relation to material tendered as an exhibit into evidence in these proceedings:
(a) all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
20In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 18 and 19 above do not apply.
I certify that the preceding [174] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court
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