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 ApplicantAND: MR DUAN
First RespondentMS WAN
Second RespondentMS DUAN
Third RespondentAND: 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…
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- AGLC
- Yung & Duan (No. 2) [2021] FamCA 428
- Case
- [2021] FamCA 428
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CaseChat Overview and Summary
The court was tasked with determining the best interests of X, specifically regarding his living arrangements, parental responsibility, and the extent of his contact with his maternal family in China. Key issues included how to balance the child's expressed wishes to remain in Australia with the maternal family's desire for him to visit China, and how to structure parental responsibility given the deceased biological parents and the existing relationships with the step-father and sister. The court also had to consider the practicalities of international travel and communication in light of global circumstances.
Baumann J gave significant weight to the expressed wishes of X, who was 15 years old at the time of the decision. The court found that X had adjusted well to living in Australia and did not wish to disrupt his current arrangements by travelling to China. While acknowledging the importance of X maintaining a relationship with his maternal family, the court prioritised his security and sense of routine derived from his relationships with his step-father and sister. The court ordered equal shared parental responsibility between Mr. Yung and Ms. Yung, with an obligation to consult and inform the maternal grandparents and aunt regarding major long-term decisions. The court also made orders facilitating communication between X and his maternal family in Australia, but specifically ordered that X not travel outside of Australia to spend time with them.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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 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. 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. 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. 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. 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.