The Twins Joseph and Noah Chan Born on September 3 2000 Ages 8 Current Location: South

Part B

Research Table

The twins – Joseph and Noah Chan – born on September 3 2000 – ages 8 – current location: South Australia

• Family Law Council, “The ‘Child Paramountcy Principle’ in the Family Law Act” December 2004 Discussion Paper accessed on 20 October 2008
• Nicholes S, “Family Law Reform Act and Hague Convention” (1996) 70(9) LIJ 35
• Dickey A, “Without Reasonable Excuse in s112AD(1)” (1998) 72 ALJ 342

Lily Chan – born on Dec 4 1992 – age 15 years 10months – current location: Vancouver, British Columbia, Canada

• Hon Justice Kay, “The Hague Convention - Order or Chaos?” (2005) 19 AJFL 245
• Gray J, “International Child Abduction – What Can a Lawyer Do?” (2007) 45(4) LSJ 53
• Keris E, “The Interests of Children or the Interests of the Child? Discretionary Non-Return of Child under Art 13 of Hague Convention” (2007) 12(2) AJHR 139
• Hon Emile R. Kruzick, “International Child Abduction and the Canadian Law” (2005) accessed on 20 October 2008

Explanatory Legal Memorandum

To: Jane Malonowski From: Client: Wayne Chan

Subject: Legal issues in relation to child custody orders and abduction under family law applicable in the jurisdiction of New South Wales, South Australia, Commonwealth and Canada.

The legal position regarding the safe return of the twins, Joseph and Noah Chan, to Sydney

Since the twins are currently within Australia, the processes that relate to the return of these children are found in the Family Law Act 1975 (Cth), and there are no NSW or SA legislation that would apply[1]. According to s67T(a), a recovery order can be made by “a person with whom the child is to live under a parenting order”. Given that in Feb 4 2002, the client was awarded with full custody (now termed ‘live with’) of the children under a parenting order, the client can make this application. It follows that the court may make a recovery order as it thinks fit with regards to the best interest of the children as paramount consideration (ss67U, 67V). In determining the best interests of the children, the court is to consider the factors in s60CC.The relevant primary consideration is s60CC(2)(a), the benefit to the child of having a meaningful relationship with both parents, which requires an evaluation of “the nature and quality of the relationship to establish whether any “benefit” or meaningful relationshipexists”[2]. Some additional considerations which have potential application to the client’s case include:

• s60CC(3)(b) relationship with parents and other relatives – since the twin’s last contact with Wayne and their paternal grandparents was over 5 years ago when they were 3 years old, it potentially has a negative impact on the nature of the relationship
• s60CC(3)(c) willingness of each parent to facilitate and encourage a close and continuing with the other parent – in J v W[3], the court suggested that a mother who unilaterally moved the child without permission and in breach of court orders indicates a lack of willingness. Accordingly, in this case, the fact that Emily Wong removed the children without permission, in breach of the parenting order and sends an email intentionally to mislead Wayne as to the whereabouts of the children amount to a lack of willingness.
• s60CC(3)(d) the likely effect of any changes in the child’s circumstances, including separation from parents and relatives – there might not be major negative impacts in returning them to Sydney because they are relatively young and their maternal grandmother could still maintain contact with the twins after returning them back to Sydney
• s60CC(3)(e) practical difficulty and expense in spending time with child – in Naylor & Tauchert[4] the court found that where the parent has busy work commitments, it may affect their ability to spend time with and take care of the child. Considering that Emily frequently travels overseas for business trips, this factor could potentially apply in favour of the client.
• s60CC(f) capacity to provide for the emotional and intellectual needs of the children – Wayne can argue that the needs of the children are better met when the parent can stay in Australia to look after them and where the grandparents are not separated.
• s60CC(g) the maturity, sex, lifestyle and background of either parent – under this factor, Wayne’s sexual orientation could potentially affect the court’s decision. However, in Craven & Crawford-Craven[5] the court held that homosexuality is not usually a relevant consideration.

Weighing up these factors and given that there is no evidence of violence or abuse by the client towards the children, it is likely that the court will rule in favour of the client and return the children to Sydney. In fact, in most recovery cases where there are no allegations of violence, the court tends to take a lenient approach in granting a recovery order[6].

The legal position regarding the custody of the twins, Joseph and Noah Chan

There does not appear to be an issue regarding the custody of the twins since the Feb 4 2002 parenting order remains on foot, but the status of the mother’s Gold Coast custody application would need to be confirmed. The removal of the twins to Canada and their subsequent return to Australia is unlikely to affect the status of the order unless Emily has made custody applications in Canada. However, it is recommended that the client make a contravention application and ask the court to alter the current parenting arrangement to make up for the lost time with the children and to deter Emily from future abduction under s70NEB. To invoke the court’s power under s70NEB, it must be first established that there is a contravention. Under s70NAC, a person is taken to have contravened an order made under the Act where the person is bound by the order and she has intentionally failed to comply with the order. The question of contravention will depend on the terms of the order[7]. It is unlikely to be disputed that Emily, by taking the children to Canada without the approval of Wayne, is an intentional failure to comply with the custody arrangements made under the order. Moreover, it is unlikely that Emily would be able to provide a reasonable excuse for contravening as defined in s70NAE, as there is no issue of health or safety problems while the children were under the care of the client. Accordingly, it is recommended that the client ask the court to exercise its power under s70NEB(1)(b)&(d) to make a further parenting order to compensate for the lost time with children as a result of the contravention (that is, 5 years) and order that the mother enter into a good behaviour bond to prevent future breaches, taking into account the best interest of the child (as determined above)[8].

The legal position regarding the safe return of Lily Chan from Vancouver to Sydney

As Canada is a convention country under the Hague Convention on the Civil Aspects of International Child Abduction October 1980, the client can make an application to the Canadian courts under the convention for Lily’s return to Australia through the Australian Attorney-General[9]. In Canada, family law is governed by the laws of each province (unlike Australia), thus the relevant legislation is British Columbia’s Family Relations Act 1996. According to s55, the provisions of the convention have the force of the law in British Columbia and will apply in respect of a child who, immediately before a breach of custody or access rights, was habitually resident in a contracting state. However, it should be noted that the Hague Convention will not have any application once the child turns 16, and if the Lily turns 16 before the issue is resolved by the court, the Convention will have no application[10]. Since Lily is two months from 16 and any proceedings taken could easily exceed two months, any action taken would need to be expedited.

Applying the provisions in the Convention, there are three relevant questions the client would need to address before the British Columbian courts. Firstly, it needs to be established that Lily was a habitual resident of Australia prior to the removal[11]. The question of habitual residence is a question of fact and it is established by residing a place for an appreciable period of time, with a “settled” intention[12]. Prior to the abduction, Lily lived in Australia since birth for over 9 years, both parents were residents and lived in Australia before the divorce, and after the divorce, Lily continued to live in Australia with her paternal grandparents. Thus, the court is likely to accept that her habitual residence was Australia prior to the abduction. The second question is whether there was a ‘wrongful removal’, defined in article 3 of the Convention as a removal in breach of rights of custody by an institution under the state immediately before the removal and at the time of removal, the custody rights were actually exercised. Since the client has an Australian court order which granted him full custody of the child subjected only to Emily’s access rights, the court is likely to accept that by removing Lily to Canada without the client’s permission is in breach of his rights of custody[13]. Finally, under article 12 of the Convention, where the removal exceeds one year, the court shall order the return of the child unless it is demonstrated that the child is now settled in its new environment. This requires the court to weigh the best interest of the child, especially in not being uprooted, and the objectives of the Convention[14]. Given that Lily has lived in Canada for over 5 years and enrolled in a top private school, she is likely to have established connections with the people there and is ‘settled’ in the sense required. Having regard to the age she left Australia, that prompt return is no longer possible and the status quo could not be restored, the court may conclude that she should not be returned[15]. Moreover, considering her age and maturity, in the event she objects to being returned, the court can order against her return[16]. Therefore, there is a genuine possibility that the court might refuse to order the return of Lily under the Convention.

The legal position regarding the custody of Lily Chan

If the British Columbian courts approve Lily’s return to Australia, then her custody is determined under the Feb 4 2002 parenting order that is on foot. On the other hand, if the court decides against the client, he can still dispute Lily’s custody using the British Columbian law. There is likely to be two contentious issues in invoking the court’s power to make an access or custody order under s35 Family Relations Act 1996. The first is whether the court has jurisdiction over the matter. Regardless of whether Lily satisfies s44(1)(a), Lily’s current circumstances is likely to bring her within s44(1)(b) having regard to its application in Chan v Chow[17]. The second issue is whether the best interest of the child justifies the granting of custody or access to Wayne. In determining what is the best interest of Lily, the five factors in s24 and the twelve factors in One v. One[18] would be of great assistance. Since Lily is well settled in Vancouver, currently studying in a top school, and there is no issue of Emily’s capability to financially and emotionally support her, it is unlikely to be in Lily’s best interest to grant Wayne custody. Unless the client is willing to move to Canada to look after her day to day needs, the court, having refused a return application, is unlikely to grant custody to Wayne if it means relocating her to Australia as it destroys the whole purpose of refusing the initial application. Nevertheless, it is in the child’s best interest to maintain contact with the father, thus an access order might be granted.

[1]Power to deal with the “custody and guardianship of, and access to, children” has been handed over by the respective states to the Commonwealth – s(3)(1)(b) Commonwealth Powers (Family Law) Act (SA)1986, s(3)(1)(b) Commonwealth Powers (Family Law – Children) Act (NSW) 1986

[2]Elspeth & Peter [2006] FamCA 1385 paragraph 49

[3]J v W [2007] FMCAfam 740 paragraph 26

[4]Naylor & Tauchert [2008] FMCAfam 455 paragraph 124-129

[5]Craven & Crawford-Craven [2008] FamCAFC 93

[6] See generally Fitzgerald & Fitzgerald [2007] FamCA 1001

[7]Tasman & Tisdall [2008] FamCA 458

[8]s70NEB(5); see Msl & Gbac [2007] FMCAFAM 1036 for an application of s70NEB by the court

[9] Regulation 11 Family Law (Child Abduction Convention Regulations) 1986

[10]Article 4 Hague Convention on the Civil Aspects of International Child Abduction October 1980

[11]Article 4 Hague Convention on the Civil Aspects of International Child Abduction October 1980

[12]Chan v. Chow, 2001 BCCA 276

[13]Thomson v Thomson [1994] 3 S.C.R. 551

[14] J.E.A. v. C.L.M., 2002 NSCA 127 approved by Kubera v. Kubera, 2008 BCSC 1340

[15]These are some of the objectives of the Convention outlined in J.E.A. v. C.L.M., 2002 NSCA 127 approved by Kubera v. Kubera, 2008 BCSC 1340

[16]Article 13 Hague Convention on the Civil Aspects of International Child Abduction October 1980

[17]Chan v. Chow, 2001 BCCA 276

[18]One v. One, [2002] B.C.J. No. 2178 B.C.S.C