Zhi & Zhen

[2008] FamCAFC 215

FAMILY COURT OF AUSTRALIA

ZHI & ZHEN [2008] FamCAFC 215

FAMILY LAW - APPEAL – Against orders of a Federal Magistrate which provided that the mother be permitted to remove the parties' child from the jurisdiction of the Commonwealth for a period for travel – Whether the Federal Magistrate failed to properly address and evaluate the risk of the child not being returned by reason of the mother's prior post separation conduct – Established that the exercise of discretion miscarried in that his Honour failed to have regard to material facts and circumstances – Re-exercise of discretion – Further evidence considered – Significant conditions attached to the mother's removal of the child from the jurisdiction of the Commonwealth for a period of one month.

FAMILY LAW - COSTS – Leave granted to appeal by oral notice of appeal against the order of a Federal Magistrate for costs in relation to a stay application – Where regrettable that costs order made against the father in circumstances where he had done nothing wrong, and in circumstances where the matter that led to his incurring a costs order was beyond his control and largely within the control of the Court – Where not appropriate that mother should be out of pocket and should retain her costs order –  The Court accordingly requests that favourable consideration be given to any request by the father to be indemnified with respect to the costs order.

Family Law Act 1975 (Cth) Part VII

CDJ v VAJ (1998) 197 CLR 172

APPELLANT: MR ZHI

RESPONDENT: MS ZHEN

APPEAL NUMBER: EAA 138 of 2008

FILE NUMBER: SYC 3537 of 2008

DATE DELIVERED: 24 December 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 24 December 2008

REPRESENTATION

COUNSEL FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Ladopoulos

SOLICITOR FOR THE RESPONDENT: Kevin Lo & Co

Orders

1. That the appeal is allowed.

1. That the orders of the Federal Magistrate of 28 November 2008 in relation to the removal of the child K ZHI from the jurisdiction of the Commonwealth of Australia are varied to read “That upon the mother lodging with the Court in cash or by Bank Cheque the sum of $25 000 on or before 2 pm this day the child K ZHI be permitted to leave the Commonwealth of Australia on 26 December 2008 to travel with his mother to the Peoples Republic of China via Singapore”.

1. That the Court further orders that the said sum of $25 000 be repaid or remitted to the mother upon the mother producing evidence to the Registrar that the child K ZHI has been returned to the jurisdiction of the Commonwealth on or before 4 pm 31 January 2009.

1. That the Court further orders that in the event of the child not being returned to the jurisdiction of the Commonwealth of Australia by 4 pm on 31 January 2009:

(a)Order 1 of the orders of the Federal Magistrates Court of 28 November 2008 be varied to provide that the child therein referred to live with the father; and

(b)The father shall have liberty to apply to the Federal Magistrates Court without further notice to the mother for an order with respect to the sum of $25 000 referred to earlier in these orders.

1. That the Court grants to the Appellant Husband a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.

1. That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

1. That leave is granted to appeal by oral Notice of Appeal against costs orders made by the Federal Magistrate’s Court on 12 December 2008.

1. That such appeal is dismissed.

1. Note that the mother through her Counsel undertakes that the costs order made by Federal Magistrate’s Court of 12 December 2008 will not be enforced for a period of two months from this day.

IT IS NOTED that publication of this judgment under the pseudonym ZHI & ZHEN is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

APPEAL NO: EAA 138 of 2008
FILE NO: SYC 3537 of 2008

MR ZHI

Appellant

And

MS ZHEN

Respondent

REASONS FOR JUDGMENT

1. By Notice of Appeal filed on 8 December 2008 MR ZHI (“the father”) appealed against orders made by Federal Magistrate Dunkley on 28 November 2008 in proceedings between the father and MS ZHEN (“the mother”). The order, the subject of the appeal which has been heard today was order (6) which provided that the mother be permitted to remove the parties' child, K (“the child”) who was born in November 2000 and is thus 8 years age, from the jurisdiction of the Commonwealth from 22 December 2008 to travel with his mother to the People's Republic of China via Singapore.

2. His Honour made orders ancillary to that order including an order that the mother shall do all things to ensure that the child is returned to the Commonwealth by no later than 25 January 2009. His Honour also directed order (9) that the mother provide relevant details of the itinerary for the proposed journey. Against that order the father has appealed. If successful the father seeks that the Federal Magistrate's orders permitting the mother to remove the child from the jurisdiction of the Commonwealth be set aside.

3. The mother has resisted the father's appeal and sought to maintain the Federal Magistrate's orders. On 19 December 2008, the Federal Magistrate who made the orders being unavailable within the terms of the Rules, Halligan FM stayed the operation of the Federal Magistrate's orders of 28 November 2008 so far as they related to the child's removal from the jurisdiction. On 12 December 2008 the Federal Magistrate who made the orders of 28 November 2008 declined to stay his orders and ordered the father to pay costs of that day in the sum of $1250. The father's Notice of Appeal clearly having been filed 8 December 2008 does not challenge that order but it is apparent that the costs order of 12 December 2008 is disputed by the father.

4. The proceedings, it is not in doubt, before the learned Federal Magistrate arose in the context of what seems from the transcript of 28 November 2008 to have been a typically busy day during the course of which his Honour was obliged, in this instance, to make a decision in difficult circumstances. The matter was urgent. There was no opportunity to test the evidence relied upon the party. The father was not only unrepresented but, English not being his first language, was in need of assistance which was provided to him by a Mandarin interpreter.

5. As is usually the case in such circumstances, this Court has considerable sympathy for the learned Federal Magistrate's difficult position. However, as an intermediate appeal Court, this Court must apply relevant appeal principles. Put simply, if applying such principles the appeal is found to have been made out, the father is entitled to have his appeal allowed. To the extent that that may be unfair to the learned Federal Magistrate given the circumstances in which his Honour had to deal with the case that is not a basis for declining to uphold a successful appeal.

6. The Court has the benefit of his Honour's unedited reasons for judgment. That in itself is perhaps somewhat unfair to the learned Federal Magistrate but objectively in the absence of edited reasons for judgment this Court, of necessity, must refer to his Honour's unedited reasons. Time does not permit the delaying of the appeal.

7. To better appreciate the appeal to this Court it is helpful to refer to some of the factual matters which his Honour recorded by way of background to his judgment. The learned Federal Magistrate recorded that the father was 55 years of age and that the mother was 39 years of age; and that there is one child of the relationship, K, who was born in November 2000. The parties commenced cohabitation in September 1999 and were married in the People's Republic of China in January 2000 and after the birth of their son came to live in Australia. The parties separated on 2 October 2006 and were divorced on 31 July 2008.

8. The mother has at all material times in the post separation period been the child's primary carer. The learned Federal Magistrate referred to the time which the child has spent with his father, (see paragraphs 4 and 5 for reasons for judgment). Whilst there may be some dispute about those times and reasons for them it is tolerably clear that the mother has been the child's primary carer. His Honour referred to the fact that the mother was in full-time employment as an accountant, that she is an Australian citizen, and that she has an Australian passport. The child of the parties is an Australian citizen and has an Australian passport. The Australian passports were issued by the Australian Government on 20 February 2005 and are current.

9. His Honour recorded at paragraph 5 that prior to the parties’ signature:

   "The mother and child travelled to the People's Republic of China and returned on two occasions."

10. In the appeal however, the father has correctly identified that the focus of interest is rather more on the child being removed and returned after the parties separated than in earlier times when there was, presumably, a more amicable relationship between them. There can be no serious challenge to the learned Federal Magistrate's conclusions with respect to the potential benefits of the trip to China proposed by the mother in the application which came before him. The proposed trip was essentially for a period of a month, commencing earlier this week and concluding at the end of January.

11. The issue, as his Honour identified in paragraph 6, was then and remains whether, as the father fears, the child will not return to Australia if he is allowed to travel with the mother to the People's Republic of China. The learned Federal Magistrate recorded in that regard that the father alleged that:

    On one previous occasion he had to travel to China and force the mother and son to return to Australia.

12. His Honour then referred to unsubstantiated allegations made by the father about the mother. He then, proceeded to make the order which gives rise to this appeal.

13. As noted earlier such evidence as there was before the learned Federal Magistrate was untested given that the father was unrepresented. How effectively the evidence might ever have been tested is perhaps difficult to imagine. There was evidence before his Honour and that evidence was indeed, to a considerable extent, controversial.

14. For present purposes, the father essentially urges that the learned Federal Magistrate failed to properly address and evaluate the risk of the child not being returned by reason of the mother's prior post separation conduct. The focus of the evidence before his Honour and before this Court relates to that topic.

15. In a document filed in the appeal, headed "Affidavit of Appeal", albeit largely restating matters either appearing in his earlier affidavit or the subject of submissions to the learned Federal Magistrate, the father reiterated his allegation that in June 2006, shortly before the parties separated, and at least inferentially at a time when the relationship was somewhat turbulent, the mother removed the child without the father's knowledge or consent and took him to China.

16. The father asserted that the mother represented that the removal would be only for one week, but it transpired that it continued until about 28 January 2007. The father also asserted that the return of the child was brought about at his insistence. For her part, the mother has a somewhat different version of those events. The mother placed the removal in August 2006 rather than June, not a great deal turns on that for the present purposes. The mother also asserted that the child then stayed with her parents in China and that she joined him there three weeks before returning to Australia in January 2007. The mother asserted that she and the father had agreed to send the child to stay in China with her parents because:

    "At the time the relationship between the respondent and I had deteriorated to the point where we were having many arguments at home. The respondent and I thought it would be best for [the child] if he was not exposed to our arguments."

17. It is clear that the parties agree that the child’s removal was consensual. What they do not agree about is the duration of the removal, nor do they agree as to the circumstances which have led to the child's return. Before the learned Federal Magistrate there was no evidence, documentary or otherwise, which impacted upon the balance of probabilities. The other matter upon which the father relied, which is reiterated in his "Affidavit of Appeal", is what he referred to as an attempt to "smuggle the child out of the country" in December 2007.

18. Whilst the motivation asserted by the father is denied by the mother, the essential facts asserted by him do not appear to be controversial having regard to the terms of the mother's affidavit in the proceedings in the lower Court. From the mother's affidavit it is apparent that, albeit at a time prior to the father's application to prevent her from travelling out of Australia with the child, she booked a trip to China and obtained tickets for that purpose.

19. Pursuant to those arrangements, on 6 January 2008 the mother and the child went to Sydney Airport to depart for China but were prevented from doing so by the Australian Federal Police. Thus, objectively, what the father asserted is accurate, but in reliance upon the affidavit of the mother an innocent interpretation of her actions could be inferred. Even so, what could also be inferred is that the mother took those steps without prior reference to the father.

20. If one accepted the mother's evidence, namely that the trip was booked in October 2007, she was not on notice at the time of the father's desire to restrain the child from removal from the jurisdiction. On the other hand, notwithstanding that the father had parental rights pursuant to Pt VII of the Family Law Act 1975 (Cth) and that there was no legal restraint on her seeking to do so, the mother clearly booked a trip without reference to the father.

21. Given that the father is unrepresented it is appropriate to refer briefly to the course of the proceedings before the learned Federal Magistrate. In fairness, the Court does not understand the father to suggest any denial of natural justice or procedural fairness and sensibly is that so having regard to the transcript. With respect to him the learned Federal Magistrate was in a difficult situation, faced with conflicting evidence and no material capable of impacting upon the probabilities and with a litigant in person presenting - or seeking to present a case through an interpreter.

22. Before the learned Federal Magistrate there was some confusion as to whether the child was on a watch list or not as at January 2008. Nothing turns on that for the present purposes. Having identified the father's affidavit accurately there is no question which became Exhibit A before his Honour and is before this Court, and read that statement, the learned Federal Magistrate asked the father whether there was anything further that he wished to say in the proceedings.

23. Objectively, although perhaps somewhat cryptic and certainly nowhere near as clear as the affidavit of appeal upon which the father has sought to rely in this Court, the statement which became Exhibit “A” before his Honour did convey the basis of the father's opposition to the child's removal from China. In response to the learned Federal Magistrate's invitation to do so through his interpreter the father proceeded to amplify his concerns, (see transcript page 6 and following). With respect to the father, many of the matters there referred to were not material to the issue before his Honour, or at best dealt somewhat tangentially with matters which were relevant. His Honour then delivered the judgment to which reference has briefly been made.

24. Before this Court, consistent with the judgment of the majority in CDJ v VAJ (1998) 197 CLR 172, learned Counsel for the mother has sought to adduce further evidence which, if accepted, would reinforce the learned Federal Magistrate's conclusions. Of particular relevance in that regard are the child and the mother's passports and the travel tickets with respect to the 2006/2007 journey to China and back.

25. It is tolerably clear from the passports of the mother and the child that they travelled back to Australia together leaving the People's Republic of China on 28 January 2007 and arriving back in Australia on 29 January 2007. To the extent that the father may assert that he brought the child back to Australia and it is not entirely clear that he does, the circumstantial evidence, being the dates appearing in the passport, suggest that on balance the child came back with the mother.

26. Perhaps more significant, however, given the dispute as to the circumstances surrounding the child's 2006 removal and January 2007 return are the travel tickets. On 15 August 2006 a ticket for the child's travel to the People's Republic of China issued. That ticket revealed a scheduled departure date of 26 August 2006. To the extent that anything turns on it, and little does, that is more consistent with the mother's version of events than the father’s; he asserted June was when the child was removed.

27. More significant, however, is the return date which was entered in the ticket when it was acquired on 15 August 2006. That date was 20 February 2007. In other words, whatever the father's state of knowledge or belief the ticket most certainly was not for one week travel to China but rather from the date of issue for a longer period, namely until February 2007. That is more consistent with the mother's version of events than the father's although it is not conclusive in that regard.

28. The child's ticket was changed on or about 20 September 2006 to provide for the child's return on 28 January 2007. That circumstance is difficult to reconcile with the father's version of events, but consistent with the mother's version of events. The dates are also corroborated by the evidence in relation to the mother's ticket which issued on 27 September 2006 with a return date of 28 January 2007. The further evidence thus sought to be relied upon and with respect to Counsel for the mother, in the Court's view correctly sought to be relied upon, to support the learned Federal Magistrate's decision in this Court's view limits the potential, if not eliminates it, for the father's complaint to be advanced by reference to the 2006/2007 removal of the child.

29. On balance, in light of the further evidence before this Court, albeit that evidence was not available to his Honour, it was reasonable for his Honour as inferentially he did, to disregard that removal as a basis for refusing to allow the mother to remove the child from China this month. So far as the other incident is concerned his Honour, with respect to him and with the undoubted benefit of hindsight, perhaps should have made some reference to the December 2007 attempted removal of the child from the jurisdiction.

30. As is clear from the evidence whilst the mother was not on notice at the time she booked the trip that the father opposed the child's removal from the jurisdiction, two things are clear. The first is that she made no attempt to seek his consent or advise him of the proposed journey. The second is that upon becoming aware of his application to restrain such a journey the mother did not advise the father of her intentions. 

1. It does not follow from that evidence that the father's contention is thereby entitled to succeed. It does however follow from the learned Federal Magistrate's failure to have regard to the evidence about that, and there was evidence which was substantiated, that the exercise of his discretion appears to have been undertaken in the absence of regard to facts material to the exercise of that discretion. If one asks rhetorically could he have come to a different view had his Honour had regard to that second matter, namely the attempted removal in December 2007, whilst he may have reached the same conclusion it cannot, in this Court's view, be said that his Honour would necessarily have come to the same conclusion. Nor could it be said that he would have reached no different conclusion.

2. Had his Honour had regard to the attempted removal in January 2008 it may be that the question of the imposition of conditions would have suggested itself to him as a possible outcome consistent with the best interests of the child. His Honour then could have invited submissions from the parties with respect to that topic. It is unnecessary to speculate about such matters. On balance and with all due respect to his Honour who was exercising a difficult discretion with some urgency and without the benefit of the evidence which this Court has, or the time which this Court has had to consider the matter, the Court is persuaded that the exercise of discretion miscarried in that his Honour failed to have regard to material facts and circumstances.

3. The father's appeal having been made out it becomes necessary to consider what the re-exercise of discretion this Court should order. The father's position is that essentially for the reasons advanced by him before the Federal Magistrate reiterated on appeal and to some extent amplified in oral submissions is that the child ought not be allowed to travel from Australia. The Court accepts, largely by reference to the evidence with respect to the events in December '07, January '08 that whilst it would be in the best interests of the child that he be able to undertake the proposed visit to China there is sufficient basis for imposing conditions to do so.

4. The mother has offered to lodge $25 000 which could and will become available to the father to pursue the child if the mother is allowed to remove him and fails to return him. Sensibly the mother's learned Counsel has raised nothing in opposition to an order reversing the current orders that the child live with the mother in the event of the mother failing to return the child within seven days of the proposed return date.

5. When the Court has regard to the further evidence on appeal in relation to the 2006/2007 removal of the child and has regard to the mother's employment, her citizenship of this country, the time she has lived in this country, the willingness to lodge a very substantial sum to secure the child's return and the mother's willingness to allow an automatic reversal of the primary parenting order, in this Court's view the balance is tipped in favour of allowing the child to be removed.

6. Although the father has not filed a formal Notice of Appeal against Dunkley FM’s order for costs of 12 December 2008 in relation to a stay application by the father with respect to orders made by Dunkley FM on 28 November 2008 in parenting proceedings between the father and the mother, sensibly Counsel for the mother has agreed that the Court deal with the challenge which the father undoubtedly wishes to agitate with respect to that order by way of oral notice of appeal. The Court will accordingly grant leave to appeal by oral notice of appeal against the order of 12 December 2008.

7. The circumstances surrounding the adjournment of the proceedings on that date are reasonably clear. The father had, on 8 December, filed a Notice of Appeal against the Federal Magistrate's order of 28 November 2008 permitting the mother to remove the child from the jurisdiction of the Court for a period of approximately one month. The father says and the Court accepts (a) because it is consistent with the usual practice and (b) because there is no reason not to, that on 12 December 2008, the return date of his stay application of 11 December 2008, he was not in possession of copies of the Notices of Appeal.

8. That, however, was not his fault. The father was physically unable to prove, as the learned Federal Magistrate not unreasonably required to know, that there had in fact been a Notice of Appeal filed. Thus, on the one hand, when the matter was adjourned as it was to 19 December 2008 the mother was entitled to seek the costs of a day wasted and the learned Federal Magistrate was entitled to award those costs on the basis that the father, albeit through no fault of his own, could not prove that he had in fact filed an appeal.

9. That is probably all that needs to be said to deal with the appeal itself. To stop there, however, would in the circumstances be somewhat unfair to the father. As is not in doubt, on the adjourned date, 19 December 2008, the father's application for a stay was successful. As noted earlier the father had in fact filed a Notice of Appeal on 8 December 2008 and was awaiting receipt of the sealed copies of the notice of appeal in order to serve them on the mother's lawyers.

10. Given that all of these documents are recorded and appear in electronic form within the Court system it is regrettable that this unfortunate litigant was exposed to a costs order in circumstances where he had done nothing wrong, and in circumstances where the matter that led to his incurring a costs order was beyond his control and largely within the control of the Court. Whilst the mother should not be out of pocket over 12 December 2008 and should retain her costs order, it would seem that whether it be the Court, whether it be the Federal Magistrates Court or the Family Court, or the Attorney Generals Department this litigant does have cause to feel that he has been unfairly disadvantaged by the Court's system. The Court accordingly requests that favourable consideration be given to any request by the father to be indemnified with respect to the costs order of 12 December 2008.

11. The learned Counsel for the mother has very fairly agreed that the order will not be sought to be executed for a period of two months from this date. It is to be hoped that before that period expires the system, to use the term loosely will do the right thing in relation to this very unfortunate order. It is perhaps lastly to be noted that the appeal which the father did file on 8 December 2008 was upheld and in the re-exercise of discretion significant conditions attach to the mother's removal of the child from the jurisdiction of the Commonwealth for a period of one month.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate: 

Date:  8 April 2009