ZELLER & WHITBY

[2012] FamCA 789

FAMILY COURT OF AUSTRALIA

ZELLER & WHITBY [2012] FamCA 789

FAMILY LAW – CHILDREN – application by the father seeking final orders in relation to the child – where the matter was heard on an undefended basis – where the mother travelled to China with the child and it appears that the child has remained there since – where the father has not had any contact with the child for an extended period of time – where the mother makes allegations of domestic violence against the father – where the Court has before it limited information about the mother and child’s circumstances – where the Court was of the view that it was not in the best interests of the child for orders to be made – father’s application dismissed.

Family Law Act 1975 (Cth) ss 31(2), 39, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA, 69E, 69ZN, 69ZT & 69ZX.

APPLICANT: Mr Zeller

RESPONDENT: Ms Whitby

FILE NUMBER: SYC 2228 of 2011

DATE DELIVERED: 14 September 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Sydney

JUDGMENT OF: Dawe J

HEARING DATE: 2 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The Initiating Application of the father filed on 12 April 2011 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SYC 2228 of 2011

Mr Zeller

Applicant

And

Ms Whitby

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed on 12 April 2011 the father, Mr Zeller (“the father”), sought certain parenting orders in relation to the child C born in November 2008 (“the child”).  The final parenting orders sought by the father in that application included orders that the child live with the mother Ms Whitby (“the mother”) and spend time with the father on alternate weekends during school holidays and on special occasions.

2. On 22 August 2011 the mother filed a response seeking that the father’s application be dismissed, or in the alternative that she be permitted to leave the Commonwealth of Australia forthwith and that the father remove the name of the child from the PACE Alert System.  Included in the final orders sought by the mother was paragraph 4:

   4.The matter be adjourned for a period of twenty four (24) months;

   a.In the event the respondent mother and the child [C] born […] November 2008 (the child) returns to Australia within twenty four (24) months, the mother is to bring this to the attention of the father vie (sic) each party’s respective legal representation and the father is to spend time with the child at the cost of the father as follows:

   i.At times and dates as recommended by the contact centre;

   b.The matter be re listed (sic) before the court upon seven (7) days notice to the each parties (sic) legal representative.

   c.Upon the Respondent Mother returning to the Commonwealth of Australia, the applicant pay to the wife for her maintenance the sum of $400.00 per week until further order.

3. By the reply filed on 2 February 2012 the father sought additional final orders, including “LOCATION and RECOVERY orders” and that the mother return the child immediately to the care of the father.

4. The orders sought by the father in that reply also included:

   1.        …

   That the mother is prohibited from again removing or taking possession of the child.

   That the Court issue a warrant, pursuant to Section 65Q, authorising any member of the Commonwealth or of a State police to arrest the respondent mother.

   That the mother provide the Registrar of the Family Court of Australia at Sydney with information she has or obtains about:  The whereabout (sic) of the child.

   2.Final parenting orders.

   3.The applicant father has responsibility for major decisions about the child/[C].

   4.THAT the child is to be and remain known by the surname [Zeller] and both parents and their servants and agents are restrained from identifying or referring to the child under any other surname.

   5.That the Respondent pay the Applicant’s taxed costs of and incidental to this application, including all costs associated with the return of the child to the applicant father.

   6.That passport order.

5. The proceedings were originally filed and dealt with in the Federal Magistrates Court of Australia at Sydney.  At a time when both the mother and father were represented by counsel an order was made on 25 August 2011 by Federal Magistrate Altobelli transferring the proceedings to the Family Court of Australia.

6. Following directions hearings in this Court when the mother failed to appear in person or be represented, orders were made listing the matter as an undefended matter before a Judge on the 2 March 2012.

7. On that date the matter was listed and heard before me.  The father appeared unrepresented.  He had the assistance of an interpreter.

Relevant Background

1. The father Mr Zeller lives in New South Wales.  He is employed as a professional.  The father was born in 1965 and is therefore aged 47.  The mother was born in 1979 and is therefore aged 32.  The parties met in China.

2. The father came to Australia in 2001 and has since lived in Sydney.  The mother arrived in August 2009.

3. The child of the parties C was born in China in November 2008 and came to Australia with the mother in August 2009.

4. The parties were married in Sydney in September 2009.

5. According to the affidavit of the father filed on 12 April 2011, on or about 13 October 2010 the mother went to China to see her parents.  The parties’ son travelled with the mother.  The father asserts that he did not know that she was going to China.  He alleges that an email from the mother informed him that she would return in the future.  In the affidavit of 12 April 2011, the father said that the mother had not returned and he had attempted to locate her.

6. When the mother filed a response to the father’s application on 22 August 2011 she was represented by solicitors.  In the mother’s affidavit filed at the same time, she alleged that the parties separated on 1 March 2010.  The mother alleges that she was living with her mother in China when her son was born.  She said that she continued to live with her mother and came to Australia when the child was nine months old.  The father had returned to Australia when the child was two days old (according to the mother’s allegations).

7. The mother alleged in her affidavit that there was domestic violence.  These allegations were denied by the father.  The father did however in his oral evidence admit to an isolated incident when he had damaged a door because he was angry about the mother’s unacceptable behaviour.

8. A copy of an Apprehended Domestic Violence Order (“AVO”) of 24 November 2009 was filed in the Court on 19 July 2011.  The mother and child are protected persons and the defendant is the father.  The order which was in force for a period of two years provided, inter alia, that the father must “not assault, molest, harass, threaten or otherwise interfere with the protected person(s) …”.

9. The mother in her affidavit refers to travelling back to China with her mother and the child.  Whilst the mother and child were in China the father visited.

10. The father confirms that he understood that the mother returned from China to Australia in about April 2011, but left the child in China with the maternal grandmother.  The mother in her affidavit referred to a visit she made to China to see the child between 8 June and 8 July 2011.

11. On 4 July 2011 Federal Magistrate Altobelli made specific orders.  At that time the father was represented by Mr Cohen and there was no appearance by or on behalf of the mother.  The orders made on 4 July 2011 were as follows:

    “1.Until further order the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the Child [C] born […] November 2008 (male) from the Commonwealth of Australia. 

    2.The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said Child from the Commonwealth of Australia.

    3.Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said Child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

    4.The Mother and the Child are restrained from leaving the Commonwealth of Australia.

    5.The matter be adjourned to 18 July 2011 at 9:30am for Mention.

    6.An interpreter in the Mandarin language be appointed.

12. On 19 July 2011 a Duty Solicitor appeared for the mother and Mr Cohen appeared for the father.  The Court directed that the parties participate in a Child Dispute Conference and made other procedural directions.

13. In the affidavit sworn by the mother on 22 August 2011 she referred to being pregnant by her new partner and wishing to return to China.

14. On 25 August 2011 when the father was again represented by Mr Cohen and the mother was represented by Ms Brooks, the Court made the following Order and notations:

    1.The proceedings are transferred to the Family Court of Australia to be listed for directions before a Registrar on 10 October 2011 at 9:30am.

    THE COURT NOTES THAT:

    a.The Court is asked to make an Order relating to a child who is in China.

    b.The Respondent Mother seeks an Order to enable her to return to China to resume her role as a parent.

    c.This case raises issues of the recognition and enforcement of an Order of the Federal Magistrate’s (sic) Court of Australia of a child in an outside jurisdiction.

1. At the further directions hearing the mother did not appear and was not represented.  As a result the matter was listed as an undefended matter before me on 2 March 2012.  At that hearing I heard the oral evidence of the father who was unrepresented but assisted by an interpreter.

2. During the oral evidence of the father, he confirmed that his understanding was that the mother and child had travelled to China in October 2010, that the mother had returned in July 2011 but that the child had remained in China.

3. In relation to the allegations made by the mother about domestic violence, the father said that notwithstanding those allegations the mother had continued to live with him until March 2010.

4. In his oral evidence the father was unable to provide the Court with particulars of the mother’s current whereabouts and whether she had remained in Australia or had been able to leave Australia, notwithstanding that the orders of Federal Magistrate Altobelli preventing her from so doing.

5. The evidence of the father confirms that the child was not quite two years old when his mother took him back to China.  Prior to that time the father had formed a relationship with the child during the child’s time in Australia between August 2009 and October 2010.

6. The father has not had the opportunity to continue his relationship with his son since October 2010.  It is assumed by the father that the child remains in China, either in the care of the maternal grandmother or, if the mother has been able to leave Australia, in the care of the mother.

7. The current whereabouts of the mother remains unknown.

The Law

1. The Family Court of Australia is granted original jurisdiction with respect to matters under the Family Law Act 1975 (Cth) (“the Act”). 

2. Section 31(2) provides:

   (2) Subject to such restrictions and conditions (if any) as are contained in section 111AA, the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories.

3. Section 39 of the Act provides:

   (1)Subject to this Part, a matrimonial cause may be instituted under this Act:

   (a)     in the Family Court; or

   (b)     in the Supreme Court of a State or a Territory.

   …

   (4)Proceedings of a kind referred to in the definition of matrimonial cause in subsection 4(1), other than proceedings for a divorce order or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act if:

   (a)in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage--either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; and

   (b)in any other case--any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date.

   (4A)In subsection (4), relevant date , in relation to proceedings, means:

   (a)if the application instituting the proceedings is filed in a court--the date on which the application is so filed; or

   (b)in any other case--the date on which the application instituting the proceedings is made.

4. These proceedings were commenced on 12 April 2011.  Therefore the amendments which came into force on 7 June 2012 do not apply.

5. The provisions of the Act which apply are:

Section 60B
Objects of Part and principles underlying it

(1)The objects of this Part 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.

(2)The 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 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).

(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary:

(i)     to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views: and

(ii)    to develop a positive appreciation of that culture.

Section 60CA

Child’s best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Section 60CC

How a court determines what is in a child’s best interests

Determining child’s best interests

(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)The primary considerations are:

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

Note:  Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3)Additional considerations are:

(a)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;

(b)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);

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(d)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;

(e)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;

(f)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;

(g)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;

(h)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;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j)any family violence involving the child or a member of the child's family;

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)     the order is a final order; or

(ii)    the making of the order was contested by a person;

(l)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;

(m)any other fact or circumstance that the court thinks is relevant.

(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)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; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)     participating in making decisions about major long-term issues in relation to the child; and

(ii)    spending time with the child; and

(iii)   communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

…

Section 60CG

Court to consider risk of family violence

(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

(a)is consistent with any family violence order; and

(b)does not expose a person to an unacceptable risk of family violence.

(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

Section 61DA

Presumption of equal shared parental responsibility when making parenting orders

1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

3. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

4. The presumption may be rebutted by evidence that 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 for the child.

Section 65D

Court's power to make parenting order

(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

Note:Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.

(2)Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

(3)If the application for the parenting order was made as a result of the adjournment under paragraph 70NEB(1)(c) of proceedings under Subdivision E of Division 13A of Part VII:

(a)the court must hear and determine the application as soon as practicable; and

(b)if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that Subdivision.

Note:The applicant may apply to the Family Court or to the Federal Magistrates Court for the application for the parenting order or for the proceedings under Subdivision E of Division 13A of Part VII, or both, to be transferred to the Federal Magistrates Court or to the Family Court, as the case requires (see section 33B of this Act and section 39 of the Federal Magistrates Act 1999 ).

Section 65DAA

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2)Subject to subsection (6), if:

(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

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

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

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

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

(i)     the child’s daily routine; and

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

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

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));

(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).

Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Section 69E

Child or parent to be present in Australia etc.

(1)Proceedings may be instituted under this Act in relation to a child only if:

(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or

(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

(2)In this section:

"relevant day" , in relation to proceedings, means:

(a)if the application instituting the proceedings is filed in a court--the day on which the application is filed; or

(b)in any other case--the day on which the application instituting the proceedings is made.

Note Division 4 of Part XIIIAA (International protection of children) has effect despite this section.

Section 69ZN

Principles for conducting child‑related proceedings

Application of the principles

(1)The court must give effect to the principles in this section:

(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and

(b)in making other decisions about the conduct of child‑related proceedings.

Failure to do so does not invalidate the proceedings or any order made in them.

(2)Regard is to be had to the principles in interpreting this Division.

Principle 1

(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

Principle 2

(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

Principle 3

(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:

(a)the child concerned against family violence, child abuse and child neglect; and

(b)the parties to the proceedings against family violence.

Principle 4

(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

Principle 5

(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

Section 69ZT

Rules of evidence not to apply unless court decides

(1)These provisions of the Evidence Act 1995 do not apply to child-related proceedings:

(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;

Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

(a)the court is satisfied that the circumstances are exceptional; and

(b)the court has taken into account (in addition to any other matters the court thinks relevant):

(i)     the importance of the evidence in the proceedings; and

(ii)    the nature of the subject matter of the proceedings; and

(iii)   the probative value of the evidence; and

(iv)    the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

(5)Subsection (1) does not revive the operation of:

(a)a rule of common law; or

(b)a law of a State or a Territory;

that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

Section 69ZX

Court's general duties and powers relating to evidence

(1)In giving effect to the principles in section 69ZN, the court may:

(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and

(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and

(c)give directions or make orders about how particular evidence is to be given; and

(d)if the court considers that expert evidence is required--give directions or make orders about:

(i)     the matters in relation to which an expert is to provide evidence; and

(ii)    the number of experts who may provide evidence in relation to a matter; and

(iii)   how an expert is to provide the expert's evidence; and

(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.

(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:

(a)about the use of written submissions; or

(b)about the length of written submissions; or

(c)limiting the time for oral argument; or

(d)limiting the time for the giving of evidence; or

(e)that particular evidence is to be given orally; or

(f)that particular evidence is to be given by affidavit; or

(g)that evidence in relation to a particular matter not be presented by a party; or

(h)that evidence of a particular kind not be presented by a party; or

(i)limiting, or not allowing, cross-examination of a particular witness; or

(j)limiting the number of witnesses who are to give evidence in the proceedings.

(3)The court may, in child-related proceedings:

(a)receive into evidence the transcript of evidence in any other proceedings before:

(i)     the court; or

(ii)    another court; or

(iii)   a tribunal;

and draw any conclusions of fact from that transcript that it thinks proper; and

(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).

Note: This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.

(4)In proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration:

(a)subsection 126H(1) of the Evidence Act 1995 does not apply in relation to information that would:

(i)     reveal the identity of a journalist's source; or

(ii)    enable that identity to be discovered;

if the court considers that it is in the best interests of the child for the information to be disclosed; and

(b)the court must not direct, under a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations, that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child.

Discussion

1. The father is resident in Australia and an Australian Citizen.  He is, and was at the relevant time, present in Australia, ordinarily resident in Australia and domiciled in Australia.

2. The whereabouts of the mother and child are unknown.  The mother submitted to the jurisdiction of this Court when she filed answering documents in August 2011.  It appears from the mother’s affidavit that in about October 2010 the mother returned to China with her mother, taking the child with her.  In the affidavit the mother further says that she stayed in China until April 2011 when she returned to Australia leaving the child in China with her mother.

3. The affidavit filed by the mother in August 2011 indicated that the child at that time was still in China with the maternal grandmother and that the mother was pregnant by her new partner.

4. The primary considerations to be considered include the benefit to the child of having a meaningful relationship with both of the child’s parents.  It is clear from the evidence of the father, and indeed it was not contested by the mother, that the child has not had an opportunity to continue a meaningful relationship with the father since the child was taken to live in China.  The evidence is not clear as to whether the child currently has the benefit of a meaningful relationship with the mother, who may be either in China or Australia.

5. Considerations of the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence raise the issues about the allegations made by the mother concerning the violent behaviour by the father. 

6. During his oral evidence before the Court at the final hearing, the father conceded that the AVO was obtained by the mother after an “isolated incident”.

7. The father also admitted angry behaviour in China in which he damaged a door.  He said that the mother’s behaviour had been unacceptable and he had become angry when she refused to let him in.  He admitted to being angry when he damaged the door.  He paid $2,500 for the damage.

8. During his oral evidence the father maintained that the mother’s behaviour in China (when she became pregnant by another man) was illegal behaviour in China and therefore he should “get the child”.

(a)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;

1. The Court does not have the benefit of any views expressed by the child, however due to the child’s young age this is not a significant factor.

(b)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);

1. The Court has again very limited information.  The Court is unable to determine what the current nature of the relationship of the child is with the mother or the maternal grandmother.  The father has had limited time with the child and has not had the child in his care or spent time with the child since October 2010 when the child was not quite two years of age.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. It is clear from the evidence that the mother has shown that she is not willing to facilitate or encourage a close and continuing relationship between the child and the father.

(d)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

1. This is a significant factor.  The child has always been in the care of either the mother or the maternal grandmother.  There is likely to be a significant effect upon the child if there was any change in his care arrangements.  Being removed from the care of his present caregiver could bring about significant emotional, psychological and cultural changes.

(e)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;

1. It is not clear whether the mother is residing in Australia or China.  It appears that the child is currently living in China with the maternal grandmother.  It can be assumed that the child has formed a close relationship with the maternal grandmother and that therefore there would be practical difficulty and expense for the child to spend time with all important relations.

(f)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;  and

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. The father’s evidence establishes that he has the capacity to provide for the practical needs of the child.  His commitment to the proceedings indicates an emotional attachment.  The mother’s behaviour in removing the child and restricting contact with the father calls into question her capacity to provide for the emotional needs of the child and her attitude towards her responsibilities as a parent.

2. Subsections (g) and (h) not relevant.

(j)any family violence involving the child or a member of the child's family;

1. The father admitted to incidents of family violence and attempted to explain them by referring to the mother’s behaviour and his anger about what he described as her illegal or inappropriate behaviour.

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. The AVO obtained by the mother has now expired. 

(l)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;

1. An order which would be least likely to lead to further proceedings in relation to a child is to be preferred.  In these circumstances however this factor is not significant.

(m)any other fact or circumstance that the court thinks is relevant.

1. The provisions of subsections (4) and (4A) of section 60CC highlight the extent to which the parents have fulfilled there responsibilities as parents and the circumstances since separation. As discussed above it is clear that the father has attempted to participate in making decisions for the child and sought to spend time with the child, but has been prevented from doing so by the actions of the mother.

2. In these unusual circumstances the provisions of section 65DAA (presumption of joint parental responsibility) have been significantly offset by the severe breakdown in any relationship between the parents, their inability to communicate and the significant possibility that the child is being cared for by the maternal grandmother in China.

3. The failure of the mother to attend at the hearing is significant.  However, it is also significant that the child may have been in the care of the maternal grandmother for a substantial part of the child’s life.  The Court has only limited information.  It is therefore inappropriate to make an order based upon the limited amount of evidence in circumstances in which the child resides in another country and has been residing there being cared for by others for a substantial part of the child’s life.

4. Whilst the Court acknowledges the father’s appropriate concerns about the mother’s behaviour, and in particular her actions which prevent him maintaining his role as parent to the child, the Court is not able to determine that it is in the best interests of the child that the orders sought by the father be made.

5. If the father obtained information locating the child in Australia then further proceedings may be appropriate.

6. The application of the father is dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 September 2012.

Associate: 

Date:  14 September 2012