FAMILY LAW CASE WATCH – LAM & ZENG [2015] FCCA 2558

Application to take child out of Australia to visit family members in China – permission for child to travel internationally – LAM & ZENG [2015] FCCA 2558

Peter Pavusa accredited family law specialist is a Brisbane Family Lawyer of Merthyr Law, who practices exclusively in Family and Relationship Law.

Facts:

The Application was by the Mother of 15 year old boy to visit family in China.  The Mother and Father both born in China but now live in Australia.  An independent children’s lawyer was appointed and supported the Mother’s Application to take the child out of the country for the requested period of four weeks, His Honour Judge Scarlett referred to the case in the Full Court of the Family Court in Line & Line [1996] 21 Fam LR 259 and the decision of Her Honour Judge Baker in the matter of Time & Bailey [2014] FCCA 2094.

The country to be visited is the Peoples Republic of China which is not a party to the Hauge Convention on the civil aspects in international child abduction.

However, His Honour found that issue was only one factor to be taken into account.

Referring to the Judgment of Judge Baker he agreed that the considerations include:

“… (a)      the length of the proposed stay out of the jurisdiction;

        (b)      the bona fides of the application;

       (c)      the affect on the child of any deprivation of access;

       (d)      any threats to the welfare of the child by the circumstances of the proposed environment; and

       (e)      the degree of satisfaction which the court based its assessment of the parties that a promise of return to the jurisdiction would be honoured.”

His Honour ordered that as the period of the visit was approximately four weeks, that the Mother’s family were paying for the Mother and child to visit China, that she had not visited China for a number of years and not seen her mother for approximately eight years, that the Application was bona fide with the Mother not considering leaving the country with the child permanently, to visit the child’s maternal grandmother who was terminally ill, that the Mother appears well settled on a permanent basis in Australia, that the Father would be able to speak to the child on two occasions per week and His Honour found that he had no concerns the Mother would not return the child to Australia and that she was able to care appropriately for the child who has a degree of disability.

His Honour granted the Mother’s Application to travel overseas with the child