Yung & Anor and Duan & Ors

[2020] FamCA 948

FAMILY COURT OF AUSTRALIA

YUNG AND ANOR & DUAN AND ORS [2020] FamCA 948

FAMILY LAW – CHILDREN – application for the child to remain in Australia where the Respondents seek the child live in China – where the trial was initially adjourned due to COVID-19 travel restrictions – matter set down for Final Hearing

FAMILY LAW – CHILDREN – where the Third Respondent raised concerns about the child’s schooling during the course of the Case Management Hearing – Order made for the Applicants to provide the Respondents with further information about the child’s schooling progress

Family Law Act 1975 (Cth), s 60CC

FIRST APPLICANT: Mr Yung

SECOND APPLICANT: Ms Yung

FIRST RESPONDENT: Mr Duan

SECOND RESPONDENT: Ms Wan

THIRD RESPONDENT: Ms Duan

FILE NUMBER: BRC 2119 of 2018

DATE DELIVERED: 26 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 26 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Ms K Buckley

SOLICITOR FOR THE APPLICANTS: Mitchells Solicitors

THE FIRST RESPONDENT: Self-represented

THE SECOND RESPONDENT: Self-represented

THE THIRD RESPONDENT: Self-represented

INDEPENDENT CHILDREN’S LAWYER:

Ms M-A Huth

Legal Aid Queensland

Orders

1. That the Applicants shall provide to the Respondents further information as to the child’s, Y born … 2006 schooling progress including details of any concerns raised by the school within fourteen (14) days.

2. That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 21 June 2021 in the Family Court of Australia at Brisbane.

3. That these proceedings be adjourned for Case Management Hearing at 9.30am on 10 March 2021 in the Family Court of Australia at Brisbane.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2119 of 2018

Mr Yung

First Applicant

And

Ms Yung

Second Applicant

And

Mr Duan

First Respondent

And

Ms Wan

Second Respondent

And

Ms Duan

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. The Court has been seized of an application relating to the parenting of X, also known as Y, born in 2006.

2. The dispute is between his Applicant stepfather and biological sister, who seek that X remain living in Australia with them.  The Respondents are the maternal grandparents and the maternal aunt who reside in China.

3. The history of the matter is tragic, most significantly shaped by the death of X’s mother in late 2017 due to cancer.  As the history shows, X returned to Australia in January 2018 and has continued to live in Australia since then.  The grandparents and their daughter, Ms Duan, who, of course, is a sister of the deceased mother, wish the child to live with them in China.  It is fair to note that the emotional conflict here is intense, and understandably so.

4. Notwithstanding a report procured by the Independent Children’s Lawyer from family report writer, Ms B, in which the child indicates a preference to live in Australia, the Respondents believe they are doing what the mother of the child would have wanted, namely, to ensure the child returned to China to live with them.

5. The matter was listed initially for a hearing before COVID-19 restrictions came into force.  That hearing was 16 June and when it became apparent on 29 May 2020 that there would be difficulties in conducting a trial, and in circumstances where the Respondents hoped and expected to be able to come to Australia for the hearing, the matter was adjourned in the hope that things would improve.  Sadly, the capacity for international travel to and from Australia has not improved, and there is no current likelihood on current indications that the Respondents will be able to enter Australia to conduct their trial.  I say “conduct their trial” because it is a further complication in this matter that, of the three Respondents, both the maternal grandmother and grandfather do not speak English and require the assistance of an interpreter.  Their daughter Ms Duan speaks better English, but is also likely to be assisted by an interpreter.  The challenges of conducting a trial such as this by Microsoft Teams with a Cantonese-speaking interpreter, probably in Australia, are enormous.  However, the certainty for this young man as to where he lives hangs over his head and needs to be resolved.  Ms Buckley, Counsel for the Applicants, seeks a trial date; as does the Independent Children’s Lawyer.

6. I have implored Ms Duan, on behalf of herself and her mother, that she should try to engage a qualified lawyer in Australia who could appear for them at a trial, and who should hopefully speak Cantonese as well as English.  Even today’s interim Case Management Hearing identified how difficult and slow engaging with people overseas who do not speak English and represent themselves can be.

7. Nonetheless, the parties have all filed their material, and little will change between now and the trial, although I will consider any updating material when the matter comes back before me on 10 March 2021.  The matter will be listed for three days in May/June 2021.

8. When the matter comes before me in March, it will be my hope, of course, that travel restrictions may have changed such that the Respondents can actually travel to Australia.  If not, we will have to do the best we can.

9. During the course of today’s Case Management Hearing, Ms Duan raised concerns about information relating to X’s education.  I have made an Order that requires the Applicants to provide the Respondents with further details about what could be some challenges he is facing at the moment.

10. I have tried on a number of occasions to explain to the Respondents that, under Australian law, when considering the best interests of a child, the wishes of a child must be considered, pursuant to s 60CC(3)(a) of the Family Law Act 1975 (Cth).

11. Even though the Respondents are aware that X seems to be settled now in Australia, goes to C School, and does not wish to live in China, they press with their application, as they are entitled to do, and, as I say, motivated, it seems to me, strongly, by what they believe would have been the intentions of the child’s mother.

12. I appreciate that the Independent Children’s Lawyer, Ms Huth, has used every possible endeavour to try to have this matter resolved, and the fact that the child will be 15 years of age when the trial takes place may be a relevant consideration to the weight that should be applied to the child’s wishes.  Nonetheless, the matter needs finalisation, and, doing the best I can, it will get a trial.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 26 October 2020.

Associate: 

Date:  17 November 2020