Yung & Duan (No. 2)

[2021] FamCA 428

FAMILY COURT OF AUSTRALIA

Amended pursuant to r 17.02A of the Family Law Rules 2004 (Cth) on 19 July 2021

Yung & Duan (No. 2) [2021] FamCA 428

File number(s):	BRC 2119 of 2018
Judgment of:	BAUMANN J
Date of judgment:	1 July 2021
Catchwords:	FAMILY LAW – CHILDREN – Where the child lives in Australia with his sister and non-biological father – Where both of the child’s biological parents are deceased – Where the child’s maternal family seek orders for equal shared parental responsibility and provision for the child to visit China – Consideration of COVID-19 travel restrictions – Where the Court gives significant weight to expressed wishes of the child – Order made for equal shared parental responsibility between the child’s sister and non-biological father, with an obligation to inform the maternal family of major long term decisions, and child not to travel outside of Australia to spend time with the maternal family.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited:	Goode & Goode (2006) FLC 93-286
Number of paragraphs:	62
Date of hearing:	14 June 2021
Place:	Brisbane
Counsel for the Applicants:	Ms M Murphy
Solicitor for the Respondents:	Self-represented
Counsel for the Independent Children's Lawyer:	Ms R Lyons

ORDERS

BRC 2119 of 2018

BETWEEN:

MR YUNG

First Applicant

MS YUNG
Second Applicant

AND:

MR DUAN
First Respondent

MS WAN
Second Respondent

MS DUAN
Third Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	1 JULY 2021

THE COURT ORDERS ON A FINAL BASIS:

1.That the child, Y (X) born … 2006 (“the child”) live with the Applicant, Mr Yung (“the step-father”).

2.That the step-father and Ms Yung have equal shared parental responsibility for decision making for the major long term issues for the child, but with an obligation to consult and inform the maternal grandparents and the maternal aunt (“the Respondents”) in accordance with Order 3.

3.That the step-father and Ms Yung shall inform the Respondents when a decision about a major long term issue is to be made in the exercise of parental responsibility:

(a)in writing by email to the Respondents, outlining the decision to be made;

(b)request their response and views by email within fourteen (14) days; and

(c)take into account their views when making a decision and inform the Respondents of the decision made by email within seven (7) days of the decision being made.

4.That the step-father and Ms Yung and the Respondents shall keep each other informed of their home and email addresses and advise of any change to these details within forty eight (48) hours of any change occurring.

5.That the child shall communicate with the maternal grandparents by way of telephone or WhatsApp call at all reasonable time as initiated by the child, but at least weekly on a Sunday between 5.00pm and 6.00pm (Brisbane time), when the Respondents may initiate the call.

6.That the step-father shall encourage telephone communication and:

(a)ensure the Respondents have the child’s mobile phone number and inform them of any change;

(b)ensure the child’s mobile phone is charged, and if required, has enough credit to enable calls to be received or made; and

(c)ensure the calls are in private and unrecorded.

7.That the child shall spend time with the Respondents in Australia as follows:

(a)During Queensland gazetted school holidays, as agreed between the parties and in accordance with the child’s wishes;

(b)During the Queensland gazetted school term, after school and during the weekend, as agreed between the parties and in accordance with the child’s wishes; and

(c)When the Respondents are able to travel to Australia, they shall provide the step-father with no less than sixty (60) days’ written notice of their intention to travel to Australia to spend time with the child and shall provide an itinerary for their trip to the step-father, including their intended Australian address and contact details.

8.That the child otherwise not travel to spend time with the Respondents outside of Australia.

9.That the step-father have authority to consent to issuing a passport for the child pursuant to s 11 of the Passports Act 2005 (Cth).

10.That the step-father provide the Respondents with copies of the child’s reports cards within seven (7) days of receiving them from the child’s school.

11.That this Order operates as an authority to the child’s treating medical and health professionals to provide the Respondents with information and documents relating to the child’s health.

12.That the step-father or Ms Yung may inform the Respondents as soon as practicable of any accident, emergency, serious illness or significant injury involving the child.

13.The step-father and Ms Yung will not make any hurtful or disparaging comments to, or in the presence of the child, about the Respondents.

14.That the Respondents will not make any hurtful or disparaging comments to, or in the presence of the child, about the step-father or Ms Yung.

15.That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That accepting that international travel for the child to China is not currently permitted, and is also contrary to the expressed wishes of the child, if any application is made for the child to travel to China at a future date, then such application should, if possible, be listed before the Honourable Justice Baumann for determination.

Notation:  Order 9 has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) to show “s 11”.

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

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

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).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

1. Ms Murphy, Counsel for the Applicants, described this case as a sad one.  Whilst that descriptor could be applied to much of the work undertaken by the Family Court of Australia, there are a number of issues which the child the subject of these proceedings, Y (referred to by all the parties as “X”), has had to endure.  X was born in China in 2006.  He is now 15 years of age.  He has an older sister, Ms Yung, who was born in 1998 (and is now 23 years of age).  X and Ms Yung shared the same mother but different fathers.

2. The biological father of Ms Yung is the other Applicant, Mr Yung (aged 52 years), who is the biological father of Ms Yung and the step-father of X.  In these Reasons he is referred to as “the step-father”.  What is clear is that the step-father and the mother separated in 2003 when Ms Yung was but five years of age, after a relationship of some 13 years.  Separation occurred in Australia because the step-father and the mother had migrated to Australia in 1997 and had taken Australian citizenship.  When the relationship between the step-father and the mother broke down, the mother and Ms Yung relocated back to China.

3. In 2005, the mother and the biological father of X married in China and, as already indicated, X was born in 2006.  Ms Yung returned to Australia in 2010 and lived with her biological father Mr Yung, it would seem, to undertake school in Australia.  One of the first challenges young X had to deal with was the death of his biological father in 2014 when X was but eight and a half years of age.  In July 2017, the mother, it seems, was diagnosed with a terminal illness and she decided, it seems for treatment reasons, to return to Australia with X in July 2017.  The treatment continued until November 2017 and sadly, whilst on a holiday back to China in early December 2017, the mother’s health deteriorated such that she died later in China.  X therefore had become an orphan at the age of 11.  It is not absolutely clear why X returned to Australia in January 2018 but he did so with the maternal grandparents.  However, the maternal grandparents returned to China in February 2018.  The trip to Australia of the maternal grandparents included their daughter, Ms Duan (the late mother’s sister).

4. The grandparents, Mr Duan and Ms Wan, are now aged 75 years and 67 years, respectively.  In these Reasons I refer to them as “the grandparents”.  Of course, it should be recalled that they are not only the grandparents of X but are also the grandparents of Ms Yung.  The mother’s sister Ms Duan was, with her parents, a Respondent to the Applications before the Court relating to X.  The proceedings commenced in Australia with an Application by the step-father and Ms Yung, filed in the Federal Circuit Court of Australia in February 2018, shortly after the return to China of the maternal grandparents.

5. A further relevant issue is that Ms G, as the daughter of the deceased, applied to the Supreme Court of Queensland for letters of administrations as result of the intestacy of her mother who had property in Queensland.  Those estate proceedings created further controversy between the parties.  Since Orders were made by Judge Spelleken in July 2018, where her Honour ordered that the child, X, not be moved out of Australia, the child has continued to live in Australia with the step-father and his sister, Ms Yung.  The grandparents and Ms Duan (the maternal aunt) have, since the beginning of the proceedings, sought orders that the child live with them in China.  However, as is identified, that position changed at the time of trial.

6. Family Consultant and Psychologist, Ms B, conducted interviews for the purpose of a family report on 28 August 2018 and published her report on 7 September 2018.  Thereafter, because of some of the complexities in this case, the Federal Circuit Court of Australia transferred the matter to the Family Court of Australia.  When the matter first came before me in January 2020, I listed the matter for hearing to commence on 16 June 2020.  At the time I listed the matter for hearing, the COVID-19 pandemic had not created the havoc that it has.  Suffice to say that in my case management of the matter, it had been my hope that the grandparents would have been in a position to come to Australia as they intended for the final hearing, not only to see their grandson and granddaughter, but to maintain their relationship with X.

7. The travel restrictions between Australia and China have prevented that occurring.  Accordingly, having ordered an updated family report in terms of an interview with X alone, which was conducted on 28 April 2020, Ms B published her second report on 29 April 2020.  Ms B gave evidence at the hearing which took place before me over one day on 14 June 2021.

   HOW THE HEARING PROGRESSED

8. It is worth noting that the trial was conducted by way of Microsoft Teams.  The Applicants, Mr Yung and Ms Yung, were represented by Ms Murphy of Counsel and an instructing solicitor.  The Respondents (the grandparents and Ms Duan) were unrepresented and appeared by way of Microsoft Teams from China.  The Court was assisted with the efforts of the Independent Children’s Lawyer (“ICL”), Ms Huth, who retained Ms Lyons of Counsel to represent her.  As the transcript will reveal, the grandparents did not speak English.

9. Ms Duan, although her English is, certainly at first blush, understandable and clear, she at times required the use of an interpreter.  Not only were there technical challenges which were all overcome with the cooperation of all parties, but they were not assisted by the fact that the interpreter, in Cantonese as required by the grandparents and at times by Ms Duan, was also coming into the Court via Microsoft Teams from Melbourne.  Notwithstanding these challenges, I am satisfied that all parties had a fair opportunity to present their cases.

   COMPETING PROPOSALS

10. As I already indicated, by the time the matter had reached the trial, the position of the Respondents, the grandparents and Ms Duan, had altered to the extent that they no longer pressed for an order that X live with them in China, as had been their position consistently since the start of the proceedings, but sought orders set out in the case outline which are marked as Appendix Two to these Reasons.  In particular, the orders sought that the child stay in Brisbane and live with his sister, Ms Yung “who will inform us by emails if she planned to move out three months in advance”.

11. To take account of the fact that Ms Yung, at her age, required some flexibility, it provided in the proposal of the Respondents that “if Ms Yung does not continue to live with the child, the child may live with the Applicant if the child wishes so”.  The Applicants’ position at the commencement of the trial had been consistently, since the beginning, that X should live with the step-father and Ms Yung.  However, Ms Yung was not formally, initially at the start of the trial, an Applicant, no doubt influenced by some observations made by the Court about the problems associated with two parties having some form of “joint” residence of the child.

12. Ms Murphy made an application to reinstate Ms Yung formally as a party.  I agreed with such an application, particularly in circumstances where, as these Reasons will indicate, there are some obligations that may be imposed upon Ms Yung in respect of the child.  Otherwise, Appendix One to these Reasons are the orders sought by the step-father.  He seeks there that the child live with him.  The ICL supported broadly the proposals of the step-father.

13. Whilst there were some disputes about how various orders should be worded, all parties identified the three major issues to be determined by the Court as being:

    (a)parental responsibility;

    (b)whether Ms Yung should be required to be a person with whom X lives and her involvement in those living arrangements; and

    (c)whether X should be required to travel to China to spend time with the maternal family, including the Respondents.

14. As a result of the narrowing of the issues, the cross-examination was directed to those factors.

    STATUTORY PATHWAY

15. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

16. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

17. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

18. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest 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 interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

    ASSESSMENT OF THE ADULTS

19. As can be seen by the introductory contextual history, this is a sad case that no one would have wished to be undertaken and only arising from the fact that the mother, Ms F Duan, died in 2017 with an infant child in her care and without a biological father available to assume that care.  As is clear from all the material, X spent the first almost 11 years of his life in China, from his birth until approximately December 2017, apart from a short period of time where he came to Australia with his mother while she was having treatment.

20. Accordingly I accept, as the grandparents indicate in their evidence, that they had significant involvement in the rearing of X whilst he lived in China, as is the cultural norm and as occurred, they say, in this case.  Arising from that history therefore and the tragic loss for the grandparents of their daughter, it is only to be expected that they had a significant emotional involvement in this case.  There is nothing about the grandparents that concerns me in terms of their capacity to parent, other than their age and the difficulty they have, understandably, experienced in supporting X continuing to live in Australia. 

21. Sadly, not only have they lost their daughter, but from their perspective and clearly a difficult perspective, they feel they have lost the relationship with their grandson, X.  Perhaps less obvious in the material but still a contextual issue in my view, is the conflict in relation to X which has, to some degree, made their relationship with their granddaughter Ms Yung somewhat strained.  The grandparents are fully supported by Ms Duan, who is their younger daughter.  She was, of course, the sister of the deceased mother.  She is a finance professional in China, articulate and one might think, somewhat driven in her desire for X to have the best education that he can.

22. Ms Duan is, in every sense, not only an advocate for her parents but also, in my assessment, an advocate for her late sister.  She is in that role because I am satisfied that there is at least some evidence that the mother would have supported X living with her parents in China, rather than living with the step-father and/or Ms Yung in Australia.  I have on many occasions been required to remind the maternal family, in determining what is in the best interests of a child, one must look at the situation now and not effectively – although one understands the motivation – seeking to implement the wishes of a deceased parent without consideration of other factors.

23. Mr Yung is the biological father of Ms Yung and in the role of step-father of X, I am satisfied as Mr Yung deposes to, that X knows he is not his biological father and refers to him as “Uncle”.  Mr Yung has had a 25 year career as a public servant in Queensland.  There is no suggestion of any criminal or anti-social behaviour.  Although his English is not perfect and Cantonese is the preferred language in his home, he demonstrates a significant relationship with X and he has stepped up to the plate in every way when these tragic events have unfolded.

24. In my view, part of his motivation is not only to do the right thing by X but also to support his daughter Ms Yung, who has taken on responsibilities with X as well.  Ms Yung is now 23 years of age; has spent all her secondary education and tertiary education in Queensland; is undertaking and has nearly completed a university degree.  She, like the other parties, gave evidence.  She was impressive as a witness and in my view, wise beyond her years.  I am absolutely satisfied she has the best interests of X in both her mind and her heart.

1. This should give, but is not clear it has to date, some level of support and comfort to the maternal aunt and grandparents, knowing that this highly impressive young woman is imminently involved in X’s upbringing.  As might be expected, X has suffered some adjustment issues.  One can only speculate how the loss of both his father and then mother; relocation from his place of birth and attachment and having to adjust to all that in a new country and a new school with a different culture to China, and where his English is not at the same level as Australian children of his age, has had an impact on him.

2. However, all the evidence, including the independent assessment by Ms B, identifies that he is happy and settled in his current environment.  This is reflected in paragraphs 102, 103, 105 and 109 of the first family report and also his comments made to Ms B for the purposes of the second family report and in particular, reference to paragraph 24.  Exhibit 1 was tendered, being the child’s school records.  They reflect that he has at times struggled; not with bad behaviour, but adjusting.  Certainly, Ms Duan believes that he is not performing at the level that she would expect him to be performing at and would achieve in China.

3. He clearly is stronger in maths and science than he is in English.  The step-father has recently arranged for him to have a tutor.  The full benefits of that tutorship may not yet be revealed in his student records.  In submissions, Ms Duan, on behalf of the maternal family, drew the Court’s attention to absences from school and some of the negative comments made by teachers about his engagement and performance academically.  I have read all those records.  They do not concern me in respect of this young man who has had so much to adjust to.  This was the position of the ICL, with which I agree.

4. X is currently in grade 10 at C School.  C School was a feeder school from J Primary School, where he had previously initially attended.  It may not be known to the maternal family that C School is a “GPS” school in Brisbane, much sought after by people with strong academic credentials, even though they are also required of course, as a State school, to take children within their catchment.  It is apparent to me from the evidence of the step-father that he is considering whether C School is the appropriate school for X.  No decision has yet been made.

5. For reasons which I will explain further, I would expect Ms Yung to be involved in that decision-making, but that essentially for X, him being happy to go to school and having friends and engagement at peer level socially may be as important for him at this stage of his development as his academic performance.  I had no evidence from any school teachers and can only rely upon the documents set out in Exhibit 1 and the further evidence identified in cross-examination.

   EVALUATION BY FAMILY REPORT WRITER

6. As I have indicated, Ms B had two opportunities to interview X.  Also in respect of the first report, she had the benefit of being able to interview and observe the grandparents as they made the effort, to their great credit, to come to Australia for the purposes of the family report interviews conducted.  At least for the first report, Ms B identified that although an interpreter had been booked for interviews, the interpreter cancelled on the day and a telephone interpreter was eventually arranged, however the interpreter was not available for the first interview with the Applicants.  The Applicants’ English was, I think, good enough to enable their interview to be relied upon.

7. Ms B supports X remaining living in Australia, broadly based upon his wishes and the way he has settled into this country in the difficult circumstances.  Her evaluation in the second report at paragraphs 32, 33, 34, 35 and 36, in my view, formed the basis of an opinion which the Court gives significant weight to.  It would have, I accept, been difficult for the grandparents and Ms Duan to hear X speak of his desire to remain in Australia.  It was clearly also difficult for Ms Duan to hear that X, in the earlier report when exploring why he may not wish to spend time or communicate with Ms Duan, asserts the Ms Duan had “slapped” him.

8. I make no finding that that has occurred and I accept that Ms Duan cares about her nephew and is a conduit for more information about the mother to the child, if that opportunity can be developed. I do not assess Ms Duan to be a risk at all to X. In a narrative style, I now propose to deal with the primary and additional considerations under the Act, which the statutory pathway requires to be considered when determining what orders are in the best interests of X.

   PRIMARY AND ADDITIONAL CONSIDERATIONS

9. By definition, section 60CC(2)(a) does not apply as the section only refers to “parents”. For the sake of completeness, however, I am satisfied that it would be of benefit to the child to have a meaningful relationship with the maternal side of his family through the grandparents, Ms Yung and Ms Duan. There is no evidence that there has been any opportunity in Australia for X to maintain a connection with the paternal side of his family who I infer, if they exist at all, are all in China.

10. The Court is required to consider and give greater weight to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  In my view, none of these factors arise for consideration in this case.

11. In terms of additional considerations, for a child who is now 15 years of age, the views expressed for him and I believe accurately recorded in the reports of Ms B, strongly support the position of the Applicants.  It should be recalled that X is not a child who has no understanding of living in China.  He was born there and had lived there for the first 11 years of his life.  Perhaps he has just made the best of decisions made by adults around him in the tragic circumstances to adjust to living in Australia.  Be that as it may, he does not see it as being in his interest or benefit at this stage to disrupt his current living arrangements.

12. It is impossible to determine whether these wishes are most influenced by the relationship with the step-father or the relationship with Ms Yung or a combination of both.  It is impossible to know to what extent his growing comfortableness at school and with peers and other Australian-type activities, including sport, has helped him to adopt the position of remaining in Australia.  As earlier indicated, although I can accept that the maternal family may feel offended that he does not wish to return to China, to their credit, he having expressed those wishes, they appear to have accepted it in their proposals.

13. In terms of the nature of the relationships a child has with persons other than parents (again noting that section 60CC(3)(b) relates to defined “parents”), I am happy to accept that he had strong relationships with his grandparents and perhaps also Ms Duan before he left China. I find however that his security and sense of routine and support now derives from his relationships with the step-father and Ms Yung. In my view, both relationships are important to him. He enjoys them and they are strong. I accept that the grandparents in China would not have had an opportunity to observe the strength of this relationship, particularly with the step-father and are therefore somewhat suspicious and dismissive of him.

14. In circumstances where no one is suggesting that X live in China, it is not necessary to consider the likely effect of any change of residence, as contemplated by section 60CC(3)(d). I will refer to the issue of the practical difficulty and expense of the child spending time with and communicating with other people significant to his care, welfare and development (as the grandparents are) when talking about the orders in relation to possible visits to China.

15. I am satisfied that the step-father, with the support from time to time as required of Ms Yung, have the capacity to provide for the needs of X, including emotional and intellectual needs.  I accept that that may be done differently in China.

16. As section 60CC(3)(g) identifies, the Court is required to consider cultural traditions and background. In this regard, as he maintains very much a Chinese cultural existence (noting Cantonese is the language spoken at home), there is no suggestion that the step-father and Ms Yung, both of whom have China connections, do not respect the cultural traditions of China. I accept however that if X lived in China, he would be immersed in that culture more easily than being a China-born child living in Brisbane.

17. The Court is required to make a finding as to the attitude to the child, and to the responsibilities of parenthood demonstrated “by each of the child’s parents” (section 60CC(3)). Clearly, that does not fully apply, however by extension of section 60CC(3)(m) I make the following findings. At least since Ms Yung obtained the approval of the Supreme Court to be the administrator of her mother’s intestate estate, she has had the opportunity, it would seem, to access the funds invested of approximately $130,000 partly for the benefit of X

18. However, to the great credit of the step-father, that has not been necessary.  He has, without it seems any financial support from the maternal family in China, met all of the child’s needs educationally, socially and medically.  Certainly, accommodation has been provided by the property that was owned by the mother at the time of her death and it may be said that the step-father, as a result, derived some benefit from that opportunity.  But in my view, that is purely incidental to him taking up the role of caring for X.  Furthermore, it is to be acknowledged that the step-father is the only real male role model for X, in Australia and possibly, because he is younger than the grandfather, even in China.

19. The fact that the step-father has such a strong and loving caring relationship with his daughter Ms Yung, evidenced in all their behaviour and their evidence before the Court means that that is an important further benefit to X.  I thought it was sad and disappointing that the maternal family, no doubt through the prism of grief which they continue to feel as set out earlier, were critical of both the step-father and Ms Yung in some ways and their parenting, their love for and their support for X.  In my view, the evidence does not support it and it did not, in my view, reflect positively on the maternal grandparents and/or Ms Duan.

20. There are no family violence orders that apply in this case. Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. Any orders under Australian law will only have effect upon X whilst he remains a minor. At age 18, any parenting orders made by the Court are of no longer any effect. He will be 18 in less than three years’ time. His focus is clearly his education and social engagements now, as they should be for a 15 year old boy. What he chooses to do when he is 18, noting he has both Australian citizenship and a China identity card, will be a matter entirely for himself.

21. I have no doubt that his maternal family in China would welcome him into their arms and support him in China if that was his choice.  This case has been determined and considered in light of the very uncertain COVID-19 environment in which all citizens of the world are seeking to operate.  Although the evidence before the Court as to restrictions may not be totally probative, but bearing in mind that the rules of evidence do not fully apply in parenting cases, I am comfortable in acknowledging that, at this point in time, X would not be able, without an exemption from the Australian government, to travel to China.

22. If X travelled to China at this stage (which again, I remind the parties reading this Judgment, he does not wish to do) then there is no certainty when or if he could return.  This is because the right of Australian citizens to return to Australia is being regulated.  There are many tens of thousands of Australian citizens wishing to return to Australia.  Even if he was able to obtain a flight at some point in the future, as to whether or not he would require to enter into quarantine and the effect that would have on his education, are very significant issues.

23. In my view, it would be contrary to the child’s best interests to allow him to leave Australia without certainty that he could return in a timely way and not undertake hotel or other quarantine.  I leave aside the costs of travel because that may not be in issue.  Of course, considering as I say, making an order that would be least likely to lead to further proceedings, if X’s wishes were significantly changed and/or the environment for international travel changed, then if the Court, as it proposes to do, makes an order restricting travel to China had to review those restrictions because of those changed circumstances, the Court could do so.

24. However, this would very much be dependent on X’s wishes.  In that regard, although there was some evidence in the material that suggested that X’s wishes or that the concerns of the step-father about moving to China may be associated with publicised recent unrest in China and/or difficulties of a political nature in China, I am not satisfied necessarily that those factors have shaped X’s view.  However, he would not be unaware as a 15 year old who has access to social media and media generally that there have been some difficulties in China.

    DISCUSSION

    Parental responsibility

25. I form the view that the Respondents, who did not have the benefit of any Australian legal advice for some time, may not have fully understood the concept of parental responsibility and I am not critical of them in that respect. Parental responsibility is a concept created by statute. Under Australian law, where parents are available, there is the presumption that is in the best interests of a child that parents have equal shared parental responsibility as defined by the Act. Parental responsibility can be the subject of orders of the Court. In this case, because there are no parents, the presumption clearly does not apply.

26. In my view, the proper test is to determine what order for parental responsibility is in the child’s best interests.

27. Parental responsibility does not arise for determination by how much time a child may have spent with one or other of the parties.  Making orders for parental responsibility refers to authority for persons to make major decisions about long term issues in the future.  As already indicated, X will be the subject of parental responsibility orders for only the next three years.  Whilst I accept that the grandparents and Ms Duan have an interest in his long-term decisions, I am satisfied that a proper consultation with them will occur if prescribed by the orders.

28. I raised, in final submissions, whether in fact the order for parental responsibility should be for the step-father and Ms Yung to have equal shared parental responsibility.  In my view, that is in X’s best interests.  They will require to consult with the maternal family on major decisions before a decision is made, other than in an emergency.  There is no reason why I would not be satisfied that the step-father will make decisions of a major nature in the best interests of X, however I believe the involvement of Ms Yung, X’s only blood relation in Australia, would be a benefit to the quality of that decision-making.

29. Not only is she younger, she also has recent personal experience both at secondary school and university.  She would be able to bring some insight into his educational needs.  As the administrator of the estate of her late mother, she of course has control of funds and so if, for example, there was an issue that may require funds to be expended (for example, counselling, other school fees or other support, medical expenses and the like), then within the terms of her administration of the intestate estate of her mother she would be entitled, if she chose to do so, to access some of those funds.

30. I believe Ms Yung’s relationship with her father is solid, respectful and that he is likely to listen to her.  A further benefit that might arise by having equal shared parental responsibility being vested in the step-father and Ms Yung equally is that as the granddaughter of the grandparents in China, hopefully she may be in a better position to explain decisions to them and they may – and should, in my view – respect the input of their granddaughter who is on the scene and cares deeply for her little brother.  It is likely that with Ms Yung communicating these decisions to her grandparents, it may be easier for the grandparents to consult and accept than if the decision was communicated by the step-father alone, because of the lack of respect which is obviously a problem for communication between the step-father and the grandparents and/or Ms Duan.

31. Before leaving this topic, I should make mention of part of the affidavit of Ms Duan which seems to suggest that the issue of parental responsibility in Australia might have some effect of probate laws in China.  She annexes a copy of one page of a statute in China.  The Court is not in the position to make an assessment of the application of China law.  All the Court knows is that there is no evidence that there is any property at all in China owned by the mother.  Whether there is property owned by the deceased father of X, the Court does not know.

32. Whilst often the issue of parental responsibility in Australia is seen by others, particularly outside the jurisdiction, as akin to “guardianship”, that terminology is not used in Australia.  Accordingly, sole parental responsibility or, in this case, equal shared parental responsibility for X has a parenting context and is not, in my view, necessarily associated with representing X in China probate proceedings if in fact any exist or may exist in the future.

33. Whilst there was initially a dispute in relation to the orders the Court would make as to where the child lives, it is not disputed that the child will now continue to live in Australia whilst he wishes to do so.

34. It would be inappropriate to seek to fetter unreasonably Ms Yung’s right as a 23 year old graduate to explore her life in whatever way she wishes to do.  As a credit to her, she did indicate in her affidavit that if the Court effectively ordered her to remain living in the home until X was 18 years of age, she would do so.  That is all that needs to be said.  The Court would not regard it as a proper exercise of jurisdiction to restrain her from leaving the home, although the Court will order that if she does leave the home permanently, she will advise the maternal grandparents.  I believe that is appropriate that they know who is living in the house with X.  In any event, I note that the unit has vested in Ms Yung as administrator and clearly there are discussions that may ultimately take place between Ms Yung, her father and, once he turns 18, X, as to how that unit might be used, sold or otherwise.

35. The third major issue was travel to China.  For reasons already indicated, if I made an order for travel to occur, it would not be able to be put into effect at this time.  Courts should be reluctant to make orders that cannot be put into effect.  There is no certainty about whether exemptions could be obtained.  Even if it could occur, the biggest issue now is that X does not wish to go.  That may change in the future but I cannot speculate it necessarily will.  I am concerned that a prescribed order for the child to spend time in China could end up being very disruptive to his education in Australia, which he only has two and a half years to go before university, if that is an option for him, needs to be considered.  I record however, what I indicated to the maternal grandparents and Ms Duan at the closure of the hearing; if X’s grandparents and/or Ms Duan were able to visit and that is, when they are able to do so as a result of international borders opening or a bubble between China and Australia being created, then there would be no doubt that the step-father would be happy for them to see X and in fact, his orders sought to so prescribe.

1. X would benefit from seeing them, even though I note that he has maintained some form of relationship by weekly telephone calls, although it is not clear whether this is with the grandfather as often as it seems to be with the grandmother.  I would invite and, in fact, strongly urge upon the maternal family that if they can travel to Australia before the child turns 18, to see and spend time with him physically, they should do so.  It is impossible to speculate if that was to occur, whether X’s views about travelling to China in the future would change.

2. I note however, that if there was evidence of a change in his views or a change in the national travel arrangements, then the Court may be invited to consider a change to the current orders which will prevent and prohibit travel to China.  With that possibility in mind, I propose to order that if there is any application to seek that the child travel to China made within the next two years, then that application, if possible, be listed before me in circumstances where I have conducted this trial; have made these findings and am well aware of all the evidence at least as it exists at this point in time.

3. The Orders which appear at the commencement of these Reasons are in the child’s best interests.  They are broadly based on the position adopted by the Applicants, with some amendment to the parental responsibility obligations and incorporation of some provisions from the ICL’s minute of order.  I do not regard it as appropriate to make an injunction restraining the step-father, as the primary carer of X in Australia, from moving from Brisbane, however if, for example, the child was to change school, then the grandparents would be well aware of that intention because there is an obligation for the step-father and Ms Yung to inform the grandparents.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       1 July 2021

APPENDIX ONE

1.   The Orders sought by the Step Father are broadly as follows:

a.   That the Step Father have sole parental responsibility for Y, born in 2006, (the Child), but with an obligation to consult and inform the Maternal Grandparents and the Maternal Aunt;

b.   That the Child live with the Step Father, and that the Child and Step Father are permitted to remain living in Australia (though the Child’s Sister is happy to continue living with the Child and the Step Father if the Court deems this necessary and desirable);

c.   That the Child communicates with the Maternal Grandparents and Maternal Aunt, at any time, and as encouraged by the Step Father;

d.   That the Maternal Grandparents and Maternal Aunt spend time with the Child in Australia as follows:

i.During Queensland Gazetted School Holidays, as agreed between the parties and in accordance with the Child’s wishes;

ii.ii. During the Queensland Gazetted School Term, after school and during the weekend, as agreed between the parties and in accordance with the Child’s wishes;

iii.When the Maternal Grandparents and Maternal Aunt are able to travel to Australia, they shall provide the Step Father with not less than sixty (60) days written notice of their intention to travel to Australia to spend time with the Child and shall provide an itinerary of their trip to the Step Father, including their intended Australia address and contact details;

e.   That the Child otherwise not travel to spend time with the Maternal Grandparents and Maternal Aunt outside of Australia;

f.    In the event that the Court orders time between the Child and the Maternal Grandparents and Maternal Aunt occur in China, then the Child shall spend time with the Maternal Grandparents and Maternal Aunt as follows:

i.Time shall only occur during the Queensland Gazetted School Holidays and in accordance with the Child’s wishes;

ii.Time shall occur as agreed, but the Child shall travel to China on at least one (1) occasion per calendar year;

iii.That the Child shall only spend time with the Maternal Grandparents and Maternal Aunt within China, in accordance with the Child’s wishes and for a period of no longer than two (2) weeks;

iv.The Step Father shall hold the Child’s passport at all material times;

v.The Step Father shall provide not less than sixty (60) days notice to the Maternal Grandparents and Maternal Aunt of their intention to travel to China with the Child, and shall provide an itinerary of their trip to the Maternal Grandparents and Maternal Aunt, including their intended China address and contact details;

vi.The Maternal Grandparents and Maternal Aunt shall pay the costs of the Child’s travel to and from China;

g.   That any time in China shall only commence upon the Australian Federal Government lifting the overseas travel restrictions, as advised by the Smart Traveller Website, and a COVID-19 Infection Rate of 0 being recorded in China, as verified by the World Health Organisation;

h.   That the Child shall continue his secondary education at C School, unless the Step Father determines otherwise.

APPENDIX TWO

Parental responsibility

2.   That Ms Wan, Maternal Grandmother and Ms Duan have Equal Shared Parental Responsibility for the major long term issues of the Child, namely Y (“The Child”), born in 2006 including, but not limited to:

1.1schooling of the Child, including decision about the type of schooling and the schools at which the child will attend;

1.2Changes to the Child’s living arrangements;

1.3surgery and hospitalization and medical treatment for any serious injury, illness, condition or disability including attendance of the child for whatever reason upon a child’s psychologist, counsellor, family therapist or psychiatrist;

1.4decisions about religious and religious instructions and observance by the Child;

1.5decisions about the Child playing or being involved in a sporting, culture, artistic or community activity including competition, training or meeting.

Living arrangements

3.   The Child stays in Brisbane and lives with his sister, Ms Yung. Ms Yung will inform us by emails if she plans to move out three (3) months in advance.

4.   Ms Yung will notify us as soon as practicable of any accident, emergency, serious illness or significant injury involving the Child.

5.   If Ms Yung does not continue to live with the Child, the Child may live with the Applicant if the Child wishes so.

Education

6.   That the Child shall continue his secondary education at C School, unless otherwise determined by Ms Wan and Ms Duan.

7.   These Orders shall constitute an authority to enable that Ms Wan and Ms Duan to enrol the Child at school, with the Child’s school to provide to Ms Wan and Ms Duan:

6.1Copies of all school reports, other reports on school progress and behavioural issues;

6.2Copies of newsletters, photographs and any other document associated with the Child’s schooling or extra-curricular activities, details of all functions, parent-teacher nights and other interviews, activities to which parents are invited and school photograph order forms;

6.3Maternal Grandparents and aunt are entitled to attend any public or school social, sporting or educational event involving the Child, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions.

Health

8.   That these Orders shall act as authority to the Child’s treating medical practitioner/s to provide Ms Wan and Ms Duan any medical information and documents for the Child.

Spent time and communication

9.   The maternal grandparents and aunt contact the Child, at any time and are to spend time with the Child as follows:

8.1in Brisbane during the time that Maternal grandparents and aunt visit Brisbane;

8.2in China during two weeks or more than two week longer Queensland School Holiday period with the respondents to pay for The Child’s return airfare to China;

10.  That the time the Child stays with the Applicants: 9.1 The Child shall not be removed from Brisbane until, and only for the purpose of, his return to China.

Special issues

11.  The parties will notify the other parties as soon as practicable of any accident, emergency, serious illness or significant injury involving the Child.

12.  In the event the Child requires medical or hospital treatment, the party then caring for The Child immediately inform the other parties via phone, SMS message or email.

11.1The Child’s general medical practitioner or any other professional associated with the health, welfare, care and development of the Child to communicate with each party and provide them with all such information and documents they may request from time to time regarding the Child’s medical health and general welfare, including any diagnoses, proposed treatment of prognosis for The Child.

Other

13.  During the stay with Ms Yung; the parties will:

12.1put the best interests of the Child before their own interests; 12.2 encourage the Child to have good relationship with the other party and speak to the Child about the other party in a positive and respectful manner;

12.3not blame, criticize or disparage the other party to the Child; and

12.4make a real effort to maintain polite, respectful communication with each other, refraining from any negative or hostile criticism, communication or argument in front of the Child.

14.  The parties will notify the other parties as soon as practicable of any accident, emergency, serious illness or significant injury involving the Child.