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Loh & Nong (No.2) [2018] FCCA 171 (25 January 2018)
Last Updated: 27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
Catchwords: FAMILY LAW – Parenting
– Father seeks to change final parenting Orders made after a 3 day
defended hearing in May 2013
and amended in 2015 – Child now 8 years
– preliminary Rice v Asplund issue – Father’s
application to vary Orders dismissed.
|
Hearing date:
|
2 November 2017
|
Date of Last Submission:
|
2 November 2017
|
Delivered on:
|
25 January 2018
|
REPRESENTATION
Solicitors for the
Applicant:
|
Goldrick Farrell Mullan Lawyers
|
Counsel for the Respondent:
|
Mr Gould
|
Solicitors for the Respondent:
|
Watts McCray Lawyers
|
THE COURT ORDERS THAT:
(1) The Father’s Application filed 23 May 2017 and
amended on 19 June 2017 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Loh
& Nong (No.2) is approved pursuant to s.121(9)(g) of the Family Law
Act 1975 (Cth).
FEDERAL CIRCUIT COURT OF AUSTRALIA AT
SYDNEY
|
SYC 3074 of
2017
Applicant
And
Respondent
REASONS FOR JUDGMENT
Introduction
- This
case concerns the parties’ only child, X, now 8 years of age.
- The
Father, by application filed in May 2017, seeks the discharge of the Watch List
order made on 28 May 2012 and continued by order
of his Honour Judge Kemp on 20
September 2013 after a 3 day hearing in which the Father sought to have the
Watch List order discharged
(“the Orders”). The Father seeks orders
to enable X to travel with him to Korea and to (country omitted) in (omitted)
2017, (omitted) 2017 and in (omitted) 2019, on condition that he lodge a bond of
$50,000 into his solicitors’ trust account
prior to travel, to secure
X’s return to Australia.
- The
Mother seeks an order that the Father’s application be dismissed with
costs. On 7 August 2017, His Honour Judge Monahan
directed that the threshold
question as to whether proceedings should be re-opened (the Rice &
Asplund issue) be addressed as a discrete issue at this interim hearing.
- It
is the Mother’s case that the Father has not discharged the onus on him to
overcome the threshold imposed by the so-called
rule in Rice & Asplund
to vary the earlier Orders. She also seeks an order that the proceedings be
transferred to Judge Kemp for further hearing, presumably
for the purpose of the
hearing of this Rice & Asplund issue, though her solicitor did not
press that application at this hearing. The Father seeks to be permitted to
agitate his application
for X to travel with him to (country omitted) and Korea.
- The
Father was represented by Mr Gould of counsel and the Mother by her solicitor Mr
Mullan. Each party relied on their own affidavit.
The Mother also relied on an
affidavit of her solicitor. Each party’s legal representative made
written[1] and oral submissions.
Material facts
- The
parties met in Korea in 2002. The parties commenced living together in late 2003
when the Father settled permanently in Australia.
The Father obtained permanent
residency in Australia in 2005. The parties married on (omitted) 2006.
- There
is one child of the relationship, X, born (omitted) 2009.
- The
parties separated on 15 July 2011. X has lived primarily with the Mother since
separation with substantial time with the Father.
X currently spends 5 nights a
fortnight with the Father during school terms as well as half school holidays
and time on special
days.
- The
Father is 44 years of age. He is a full time (occupation omitted) with (employer
omitted) and lives in his own home at (omitted).
- The
Mother is 44 years of age. She is a (occupation omitted) and lives with X in a
unit in (omitted).
- On
28 May 2012, an order was made placing X’s name on the Airport Watch
List.
- On
20 September 2013, final property and parenting orders were made by His Honour
Judge Kemp of this Court after a 3 day hearing.
The Husband had sought an order
that X’s name be removed from the Airport Watch List and by agreement with
the Mother, that
X be permitted to travel to Korea with the Father for a
holiday with his paternal grandfather and extended paternal family for a
maximum
of three weeks and a maximum of two trips per year. The Mother strongly opposed
the order sought because she believed the
Father intended to remain in Korea
with X, and that she would be unable to recover him from that jurisdiction. In
particular, she
argued that the Father was socially isolated in the Australian
community, (as noted by the expert report writer), had no family in
Australia,
and that it had been a source of arguments between them during the marriage that
the Father wished to return to Korea
to live. (The parties agreed at interviews
for the expert report that one of the parties’ main relationship issues
concerned
him wishing to return to Korea and the Mother not wanting to do
so[2]). The Mother argued that Korea
was not a signatory to the Hague Convention, the Courts in Korea were
“somewhat patriarchal”, the Father was not an Australian
citizen, owned no property in Australia and the Father had minimal respect for
her role
in X’s life. The Mother was concerned that the Father would apply
for Korean citizenship of the child, which could ultimately
expose him to
military service. The Father proposed lodging a bond of $50,000, but the Court
noted that the Father adduced no evidence
to satisfy the Court that a sum of
money (to enable the Mother to litigate) would guarantee X’s return to
Australia by the
Courts of Korea.
- The
Court gave many reasons for its decision to leave the Watch List order in force.
It accepted the expert’s view that the
Father was socially isolated in
Australia; it found the parties’ communication was poor and an order
requiring the Mother’s
consent to X’s travel would add to the
tension between the parties; it accepted the expert’s view that, given the
extent
of her fear that X would not be returned, the Mother’s parenting
capacity was likely to be adversely affected if X were permitted
to travel; it
noted that while the Father said he intended to buy real estate, he had not done
so; it noted the Father had no definite
plans for travel to Korea and
acknowledged the political instability on the Korean Peninsula; the Court noted
that Korea was not
a signatory to the Hague Convention and there was no evidence
on which the Court could assess the chance of X being successfully
recovered to
Australia if the Father retained him there. The Court was satisfied the parties
could discuss X’s overseas travel
in later years, given they had equal
shared parental responsibility. The Court
said[3]
- The Court
is of the view that the degree of risk in the husband choosing not to return, at
this point in time, given his family connections
in Korea, it being a
non-convention country and the lack of connections in Australia and the
potential negative impact of his proposal
on the wife’s parenting capacity
militates against his application being successful.
- The
Father filed an appeal in relation to both the parenting and property orders,
including the order leaving X on the Airport Watch
List. On 14 February 2014,
the Mother filed a Contravention Application. That Application and the Appeal
were later resolved between
the parties by consent and further final parenting
orders were made on 2 July 2015. Those orders did not refer to the Airport
Watch
List order, which remained in force.
- On
26 July 2014 the Father purchased a property in (omitted), Sydney.
- The
Father filed this application for variation on 23 May 2017, 3 years and 8 months
after the final parenting orders were made.
- On
(omitted) 2017, the Father became an Australian citizen.
- At
the date of hearing, X was 3 years and 9 months of age. He is now 8
years of age.
Legal principles
- All
parenting proceedings are governed by Part VII of the Family Law Act
1975. Section 65D provides that the court must make such parenting order as
it thinks proper.
- In
circumstances in which one party seeks to reopen parenting proceedings, Her
Honour Chief Justice Evatt in Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725
held[4] that:
...the
principles which, in my view, should apply in such cases are that the court
should have regard to any earlier order and to
the reasons for and the material
on which that order was based. It should not lightly entertain an application to
reverse an earlier
custody order. To do so would be to invite endless litigation
for change is an ever present factor in human affairs. Therefore the
court would
need to be satisfied by the applicant...that there is some changed circumstance
which will justify such a serious step,
some new factor arising or, at any rate,
some factor which was not disclosed at the previous hearing which would have
been material...
It is a question of finding that there are circumstances which require the
court to consider afresh how the welfare of the child
should best be served.
These principles apply whether the original order is made by consent or after a
contested hearing. The way
they apply and the factors which will justify the
court in reviewing a custody order will vary from case to case. Once the court
is satisfied that there is a new factor or a change in circumstances, then the
issue of custody is to be determined in the ordinary
way...[5]
- In
the appeal decision of King &
Finneran[6], his Honour Justice
Collier said[7]:
- The rule in
Rice and Asplund is a rule evolved to protect children from involvement in
further unnecessary litigation. To require
a court to make a detailed
determination of the matters set out in section 68F would defeat the purpose of
that protection...
- ....To
apply the test in Rice and Asplund is to make an assessment on the material then
available to the court as to whether or not
the matters raised in that material
make it necessary or proper in the best interests of the children, the subject
of litigation,
to allow further proceedings. In arriving at such a decision,
the court will give consideration to the importance or seriousness
of the issues
raised, both individually and where necessary collectively, and the impact that
they may have on the children. ...[8]
- The change
or fresh circumstance must be such that upon becoming advised of it and being
satisfied of its existence, a court would
be left in no doubt that it was
necessary to re-litigate the parenting issue in dispute between the parties.
That is not to say a
court must be satisfied that the fresh or changed
circumstance would result in a change to the orders. It merely indicates that
the
change or fresh circumstance must be such that if taken into account
there is real likelihood that a change may
follow.[9]
- In
the 2008 decision of SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363, his observations
subsequently affirmed by the Full Court in Marsden & Winch
[2009] FamCAFC 152 [46], Warnick J said:
[48(iii)] At
whatever stage of a hearing the rule is applied, its application should remain
merely a manifestation of the ‘best
interests principle’.
[48(v)] The application of the rule is closely connected with the nature of,
and degree of, change sought to the earlier order.
[81] ...when the threshold question described in Rice and Asplund is
determined as a preliminary matter, it remains a determination
‘on the
merits’. Where an application is dismissed at a preliminary stage, it is
not dismissed for some technical reason,
such as the failure of a party to
appear or some lack of compliance with form and procedure but rather because,
assuming the evidence
of the applicant is accepted, there is an insufficient
change of circumstance shown to justify embarking on a hearing. Though sometimes
unstated, the underlying conclusion will or ought to be that the interests of
the child in not being the subject of further litigation
is more powerfully in
the child’s welfare than to allow the application to
continue.
- In
the Full Court decision of Carriel & Lendrum (2015) FLC 93-640, the
Full Court said that where the principle in Rice v Asplund is being
considered, it will not be appropriate or necessary to discretely address many
of the factors in section 60CC of the Family Law Act 1975 in determining
where the best interests of the child might lie. The Full Court
said[10]:
In a case where the principle in Rice & Asplund
arises for consideration, there are two circumstances which are central to the
decision. First, there will already exist a parenting order and, axiomatically,
the terms of that order will reflect the best interests
of the child/ren at the
time of its making. Second, the fact that an order has been made reflects that
disputation between parties
to a parenting dispute, such dispute being
inherently contrary to the best interests of the child/ren whilst it exists, has
been
brought to an end by a curial order. Those twin circumstances dictate the
conclusion that it cannot logically be in the best interests
of the child/ren to
embark upon further litigation enquiring as to the child/ren’s best
interests unless it is first demonstrated
that a sufficient change in
circumstances has occurred since the parenting order was
made.
Father’s counsel submission
- The
Father’s counsel submits that, while the scope of the hearing is limited
to the threshold issue, the Court must look to
the circumstances that existed at
the time of the hearing, that led the Court to the decision it came to, and
compare them to the
current circumstances. When that is applied to considering
the discrete issue of overseas travel, the Court is no doubt empowered
to
consider what the proposal for overseas travel was at the time of the making of
the original order and what the proposal is now.
Counsel submits that even if
the Court does not accept that there has been a material change of circumstance
from the making of final
orders on 20 September 2013 to present, the Court still
has the power to make the order that it considers is in X’s best
interests[11].
- Counsel
for the Father submits that the main goal of the principle in Rice and
Asplund, to avoid unending litigation over parenting of a child, would not
be affected by allowing this Application to
proceed[12]. The Father is not
seeking to re-litigate the parenting arrangements. His application is limited
to the discrete issue of travel.
In light of changes in X’s circumstances,
counsel argues that it is no longer in X’s best interests to be denied the
opportunity to travel overseas with his Father.
Changed circumstances alleged by Father
- The
order sought by the Father to be varied was made when X was 4 years of age. He
is now 8 years old, has commenced primary school
and is well settled in his
routine in and outside school.
- X
now has many friends and is involved in a number of extracurricular activities.
X did not have those strong ties to Australia at
the time of the original
hearing in May 2013.
- X
has expressed his desire to spend time with his paternal family “which
would naturally see him having the opportunity to spend time with them in
Korea.”[13].
- X
has established a strong attachment to his paternal grandfather whom he met in
(omitted) 2014 when his grandfather travelled to
Australia. X should be given
the opportunity to build on that relationship. The Father deposes to the
paternal grandfather being
unlikely to be physically fit enough to travel to
Australia again.
- Since
final orders were made, X has had the chance to meet his aunt, uncle and cousins
who travelled to Australia in 2014 to stay
with the Father for 4 weeks. The
Father’s sister, her husband, and their two sons aged 11 and 14 years live
in (country omitted).
It is in his interests for X to be able to build on those
relationships by travelling to (country omitted) to stay with them, to
go
fishing and camping with them. The Mother has met the family many times in
(country omitted) and in Sydney.
- At
the time of the final hearing in 2013, the Father had no specific travel plans.
He now proposes travel to Korea to share in the
paternal family’s
celebrations in (omitted) 2018 for the paternal grandfather’s
80th birthday. He also proposes travel to (country omitted) to spend
time with his sister and her family.
- The
Father’s connections to Australia have been consolidated since the final
hearing. In particular:
- The
Father became an Australian citizen on (omitted) 2017. He was only a permanent
resident at the time of hearing in 2013. He
has now been domiciled in Australia
for 14 years.
- The
Father has obtained an Australian Passport which “as far as the Father
is concerned, represents and has resulted in the forfeiture of his Korean
passport.”
- The
Father has full time employment and has been with the same company, (employer
omitted), for a period of 13 years.
- The
Father now owns a property at (omitted), subject to mortgage with equity of
approximately $500,000. He did not own property at
the time of the hearing. He
owns a car and has superannuation entitlements of approximately $140,000 in
Australia. The Court said
in its Reasons for Judgment that this [the travel
issue] was “...a matter that could be examined further when the husband
has that property so
available.”[14] The Father
offers the Mother permission to lodge a caveat on that property for any period
he is in Korea with X (though I note this
offer was specifically withdrawn in
the Father’s Amended Application filed on 19 June 2017).
- The
Father is engaged in various outdoor sports including (omitted). He is also
involved in (hobby omitted) and goes to the gym.
He has a number of friends in
Sydney and no assets outside Australia.
- The
Father’s counsel also submits that the Court was not made aware at the
original hearing that Korea was a party to the Hague
Convention and had ratified
legislation giving effect to the Convention prior to that hearing. The Court
assumed, in the absence
of evidence, that Korea was not a party to the
Convention and took this factor into account in determining to dismiss the
Father’s
application to discharge the Watch List order (though I note that
Annexure F to the Father’s affidavit, states that the Hague
Convention has
been in force between Australia and Korea since 1 June
2015[15]). Further, the Father has
obtained expert evidence, not adduced at the original hearing, to confirm that
in the majority of cases
in Korea, children are recovered to their home country.
(I am not satisfied that this submission is supported by that expert evidence).
Finally, the Father’s counsel submits that all the Father’s formal
documents record his name as “Mr Loh” including his
driver’s licence, medicare card, passport, Centrelink details, credit
cards and NSW Electoral enrolment,
whereas the name “Mr Loh”
also being used, may have been the cause of confusion and concern in the past.
Mother’s response
- Mr
Mullan, the Mother’s solicitor, submits that the Father seeks to rely on
evidence which is not relevant to the discrete issue
of whether he should be
permitted to reopen the parenting litigation, evidence upon which he would seek
to rely if permitted to pursue
his application to travel with X to Korea. Mr
Mullan argues that the Mother is prejudiced by the Father’s failure to
limit
his evidence to the discrete issue before the Court, in breach of Court
directions to file an affidavit on the discrete issue. The
Court should
therefore either adjourn the application with costs or dismiss his application
with costs. Mr Mullan sought an order
for dismissal but did not seek an
adjournment.
- Mr
Mullan submits that the fact that Korea is a Hague Convention signatory,
contrary to the Court’s understanding of the position
in 2013, is not in
itself enough to warrant the discharge of the Watch List order. This was only
one of many factors considered
by the Court in deciding it was not in X’s
best interests to remove X’s name from the Watch List. Mr Mullan submits
that the Father gives no explanation as to why he did not raise this issue or
pursue the issue of the Watch List when the matter
was before the Court again in
July 2015.
- The
paternal grandfather’s 80th birthday should have been within
the contemplation of the Father at the 2013 hearing, and in July 2015, and is
not a change in circumstance
which has arisen since those orders were made. Nor
is it a factor sufficient to disturb the order maintaining X’s name on the
Airport Watch List.
- The
Father has failed to include the full reasons of the Court for its decision on
the issue of X’s overseas travel, a deliberate
omission, given that the
reasons as a whole, are not supportive of the orders sought by the Father.
- The
expert evidence on the Korean Court’s approach to Hague Convention
applications, can be given no weight because the expert
is not available for
cross examination, the cases referred to give no insight into the Court’s
approach in every case, and
the report is irrelevant to the question of whether
the Father should be permitted to proceed with his application to reopen. .
- The
Father has refused to provide documents to verify his financial position as
requested by the Mother’s solicitors, resulting
in a Court hearing any
application for overseas travel being unable to determine what sum of money
should be required by way of a
security bond. The Court noted in the 2013
proceedings that the Father had not disclosed the funds he had transferred to
his father
in Korea.
- The
Father has withdrawn his offer to permit the Mother to lodge a caveat against
his real property if permitted to travel overseas
with X. The Court can draw the
inference that the Father is not prepared to risk the loss of his assets if X
travels with him, because
the Father does not intend to return X to
Australia.
- The
Father has not offered a firm undertaking to the Court that he will return X to
Australia in accordance with any order made. The
Father deposes to his
“intention” only to return X. It is submitted that the
Father has carefully chosen his words and that his
“intention” may well change if the Father is permitted to
travel to Korea with X.
- The
Father has chosen to understate the seriousness of the international situation
in relation to Korea and its neighbours. The situation
has deteriorated, not
improved, since the 2013 orders were made.
- The
relevant law referred to by the Korean legal ‘expert’ suggests that
the Father would have good prospects of retaining
X in Korea if he could delay
X’s return for more than 12 months. This is a further basis for the
Mother’s ongoing concern
about the Father’s intentions if permitted
to travel.
- The
Father adduces no evidence of his ability to obtain a Korean passport for X
without the Mother’s consent. It is significant
that the Father has not
adduced evidence that he has not nor will he apply for a Korean passport for X,
nor as to inquiries made
by him in this regard since July 2015. The Mother
understands from her inquiries to the Korean Consulate that the Father can
obtain
a Korean passport for X without the Mother’s
permission[16]. The Mother also
received advice that under Korean law, X would be considered to be under
“full custody” of his Korean born father.
- The
Mother deposes to the Father maintaining the position he held in the 2013
proceedings that he wants X to be educated in Korea.
He has taught X to speak
Korean and has involved him in male sports popular in Korea: (hobbies omitted).
The Mother deposes to her
view, based on communications with the Father since
2013, that the Father has been actively grooming X to be in a position to
‘fit
in’ in Korea and if X were permitted to travel there, the
Father would be able to convince the Korean Courts that it would
be in X’s
best interests for him to remain with the Father in
Korea”[17]. As already noted,
if the Father could delay a judicial determination in Korea for 12 months, the
Father would be in a strong position
to argue that X should remain with him
there.
- While
the Father asserts that the Mother has close ties with members of his family,
the Mother deposes to the Father’s strong
objection to the Mother having
any contact with his family. Annexure K to her Affidavit is an email
from the Father dated 18 January 2014 advising gifts and cards sent from the
Mother to his family were
offensive and she was not to send anything to
his family again[18].
- Communication
between the parties has not improved since 2013. It remains as “poor
and ineffective” as it was in September 2013.
- The
Mother contends that nothing of significance has changed since the orders were
made in 2013. The Father’s connections to
Korea remain unchanged; his lack
of connections to Australia remains unchanged. The potentially negative impact
of the Father’s
proposal to take X to Korea on the Mother’s
parenting capacity, remains unchanged.
Conclusion
- The
Court must be satisfied that there are circumstances which require the court to
consider afresh how the welfare of X should best
be served. As the authorities
make clear, the purpose of the ‘rule’ is to discourage endless
litigation between parties.
There must be a real likelihood of the order being
changed, and even then the likely change must be weighed against the potential
detriment to the child caused by the litigation itself.
- The
Father’s case for re-opening the discrete issue of overseas travel, rests
substantially on X’s greater age and maturity,
his expressed wishes and
his need to further develop his paternal family relationships, the
Father’s increased ties to the
Australian community, and the Court’s
finding in 2013 that the application was “premature” and could be
revisited
by the parties, who were to have equal shared parental responsibility,
when circumstances changed. The Father contends that the
conditions referred to
by the Court before overseas travel could be seriously considered, have now
largely being met: Korea is a
Hague Convention country; the Father is now an
Australian citizen and upon receipt of his Australian passport intends to
renounce
his Korean citizenship; the Father now owns property in Australia; the
Father has specific travel plans; X is well settled at school
with many friends,
and he is involved in a number of extracurricular activities including (hobby
omitted); the parties have largely
complied with Court orders since final orders
were made in 2013; since the Mother raised it as an issue in her affidavit of 1
August
2017, the Father has corrected the spelling of his name from ‘Mr
Loh’ to ‘Mr Loh’ on all official documents,
so all documents
now record his name as Mr Loh and he could not use a different identity to
deceive the authorities or the Mother.
- The
Mother’s firm belief that the Father intends to relocate to Korea
permanently with X if the Watch List order is discharged,
has not changed since
the 2013 hearing. The Mother is convinced the Father intends to relocate to
Korea permanently with X. She believes
he is preparing X for life in Korea by
teaching him Korean and involving him in sports popular with boys in Korea. The
Mother believes
that Father’s dismissive attitude to her role in X’s
life has not changed. She believes the Father would have little
difficulty
persuading a Korean court that X should remain in his care in Korea. The Mother
deposes to the parties’ ongoing
problematic communication and inability to
work together for X’s benefit. She deposes to the Father’s ongoing
social
isolation in Sydney (as noted by the expert in 2013) and his ongoing
desire to return to live in Korea and to have X educated there.
- The
Mother’s solicitor deposes to his repeatedly unsuccessful efforts to
obtain documents to verify the Father’s financial
circumstances to enable
the Mother and the Court to assess the adequacy of the security being offered by
the Father if X were permitted
to travel. Mr Mullan wrote to the Father’s
solicitors on 6 June 2017 requesting a valuation of the Father's (omitted)
property;
loan statements to verify the liability secured on the property; a
Financial Statement setting out the Father’s current financial
position;
particulars as to how the $50,000 would be sourced and what further orders would
be proposed as to how any caveat lodged
on the (omitted) property might be
utilised for obtaining funds to recover X if the Father did not return him to
Australia. By
letter of 15 June 2017 in response, the Father declined to
provide any of the information sought. The Father’s solicitors
also
advised that the Father no longer proposed security by way of a caveat on his
property, resulting in an Amended Application
in a Case filed and served in June
2017.
- I
agree with the Father’s counsel that there have been a number of relevant
changes in circumstance since the 2013 and 2015
orders were made. The question
is whether those changes are sufficient to justify a reconsideration of the
earlier orders in relation
to the travel issue, whether those changes would be
likely to result in a discharge of the Watch List order, whether it would be
in
X’s best interests for the litigation to be reopened.
- The
Father did not confine the evidence he relied on to the issue of whether he
should be permitted to re-litigate the travel question:
the ‘Rice &
Asplund’ issue. He adduces the evidence upon which he would rely to
satisfy the Court it would be in X’s best interests to travel to
Korea
with the Father. He says he would pay security in the sum of $50,000 to secure
X’s return to Australia. The Mother, in
responding to the Father’s
case, then adduces evidence upon which she would rely in opposing the
application.
- I
am satisfied the order sought to be changed by the Father is a significant
order. If the Mother’s fears were realised, X
would lose the benefit of
the active involvement of both his parents in his life. The law is clear that
there must be a real likelihood
that the order would be changed if the
litigation were reopened, as a result of the changes in circumstance since the
original order
was made. I am not satisfied that the evidence supports such an
outcome.
- The
Mother remains genuinely convinced that the Father intends to relocate with X to
Korea and on the basis of the information she
has obtained, that she would not
succeed in having him returned to Australia. I am not satisfied that the
Father’s evidence
challenges the validity of her opinion. There is no
evidence to support a finding that the parties’ communication has
improved,
or that there has been any positive change in their trust
relationship. On the contrary, and significantly, well after the 2013 hearing,
the Father threatened the Mother when she made efforts to engage with his
family. The Father’s evidence about the establishment
of his social
network in Australia is limited and deposed to in very general terms. The
Father’s refusal to disclose details
of his financial circumstances so the
adequacy of his offer of security could be assessed raises further concerns, as
does his decision
to withdraw his offer to the Mother of a caveat on his
property during any absence overseas, a decision not explained. The law
requires
any Court considering a security bond for overseas travel, to examine
the financial position of each party. In Line & Line (1997) FLC
92-729, the Full Court said that in exercising its discretion to fix an
appropriate level of security, the Court must have regard to “a sum
which will realistically entice the person removing the children to
return”; and “provide a sum to adequately provision the party
left in Australia to take action and proceedings in Australia and overseas in an
endeavour
to obtain the return of the
children”[19]. I find it
noteworthy that the Court had concerns about the Father’s failure to
disclose his financial position in relation
to the transfer of funds to his
Father in Korea in 2013, and that the Father has provided no explanation for his
failure to give
financial disclosure now.
- The
Court could not be satisfied on the basis of the “expert” report
provided, that X would be returned to Australia under
the ‘Hague
Convention’ if the Father kept him in Korea. I accept the Mother’s
solicitor’s submissions in
this regard. I also note that the cases
referred to give no indication of the overall statistics on Hague convention
matters, nor
any indication of the likelihood of the Father succeeding if his
aim was to delay a decision for 12 months.
- While
I accept that there have been changes in circumstance since the September 2013
orders were made, I find the changes have made
minimal impact on the fundamental
concerns raised by the Court when this issue was litigated in 2013. In
particular, the risk that
the Father would remain in Korea with X remains, and I
find that the Father fails to adequately address those risk issues. While
not
raised by either party, I also find it noteworthy that, as far as the evidence
discloses, the Father has not chosen to travel
to Korea or (country omitted)
without X, despite his evidence of the importance of his father’s
80th birthday celebrations and his wish to spend time with his
family.
- I
am not satisfied it is in X’s best interests for this litigation to
continue. I find there is little likelihood X would be
permitted to travel to
Korea (and therefore anywhere overseas) with the Father if his application were
allowed to proceed to a final
hearing. The Father’s application is
therefore dismissed.
I certify that the preceding fifty
nine (59) paragraphs are a true copy of the reasons for judgment of Judge
Sexton
Date: 25 January 2018
[1] Each party submitted an outline
of case document
[2] Nong &
Loh [2013] FCCA 1394 at paragraph 30
f)
[3] Nong & Loh [2013]
FCCA 1394 at paragraph 142
[4]
Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 at
78,905
[5] At
78,906
[6] [2001] FamCA 344; (2001) FLC 93-079 at
88,367
[7] At paragraph
41
[8] At paragraph
44
[9] At paragraph
50
[10] Carriel & Lendrum
(2015) FLC 93-640 at paragraph
57
[11] At paragraph 6.8 of the
Father’s outline of argument dated 25 October
2017
[12] At paragraph 6.11 of
the Father’s outline of argument dated 25 October
2017
[13] At paragraph 6.9 of the
Father’s outline of argument dated 25 October
2017
[14] Nong & Loh
[2013] FCCA 1394 at paragraph
139
[15] Annexure F of the
Father’s Affidavit affirmed 4 September
2017
[16] Annexure I of the
Mother’s Affidavit affirmed 26 October
2017
[17] Paragraph 41 of the
Mother’s Affidavit affirmed 26 October
2017
[18] Annexure K of the
Mother’s Affidavit affirmed 26 October
2017
[19] Line & Line
(1997) FLC 92-729 at paragraph 4.48
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