AU-YONG & WUL - [2014] FamCA 486

FAMILY COURT OF AUSTRALIA

AU-YONG & WUL

[2014] FamCA 486

FAMILY LAW – CHILDREN – International travel – Wife wanted to go to Taiwan for confinement period during pregnancy and birth – Husband argued wife is flight risk – Application of wife granted with conditions – Wife’s pregnancy details sought and refused.

FAMILY LAW – SPOUSAL MAINTENANCE – Spousal maintenance order – Change of circumstances – Order discharged.

Family Law Act 1975 (Cth)

Gin & Hing [2010] FamCA 617
Goode and Goode [2006] FamCA 1346
Line & Line (1997) FLC 92-729

APPLICANT:

Mr Au-Yong

RESPONDENT:

Ms Wul

FILE NUMBER:

MLC

4588

2012

DATE DELIVERED:

8 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nikou SC

SOLICITOR FOR THE APPLICANT:

Berry Family Law

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Pearsons Lawyers Pty Ltd

Orders

That the wife MS WUL is permitted to remove the child J (“the child”) a male child born … 2011 from the Commonwealth of Australia for the purposes of travelling to Taiwan forthwith after the date of these orders and is required to return to Australia with the child by no later than 15 November 2014 on the terms and conditions set out in paragraph 2 hereof.
The wife’s departure from Australia with the child is subject to the following:
(a)Forthwith, the wife providing to the husband through his lawyers, copies of her travel itinerary including the addresses where she will be staying in Taiwan;
(b)The wife paying a bank cheque for $20,000 in the name of the husband as payee into the trust account of the solicitors for the husband to be held on trust by the solicitors as security for the wife’s return under paragraph 1 of these orders;
(c)The wife signing a document acknowledging that:
(i)the premises in Taiwan where the wife will reside has the necessary computer connections and electronic capacity to provide Skype Communication to Australia; and
(ii)she will provide (either personally or whilst she is invalided, the person caring for the child) Skype communication between the child J and the husband from Taiwan during each second day after her arrival in Taiwan at set times;
(d)The wife confirming in writing that she will sign any necessary document to enable the registration of this and any other order of this Court in the appropriate court in Taiwan.
That subject to the compliance by the wife with paragraph 2, the passport of the child be released to her and for that purpose, the Registrar shall be satisfied of compliance upon receipt of a letter signed by the solicitors of the wife that all matters have been attended to.
That whilst the wife is in Taiwan, the extant orders relating to the husband’s time with the child J are suspended and in lieu thereof, the husband’s time with the child be as follows:
(a)If the husband travels to Taiwan, for such time as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AU-YONG & WUL

Details

AGLC: AU-YONG & WUL [2014] FamCA 486
Case: [2014] FamCA 486
Decision Date: 8 July 2014

CaseChat Overview and Summary

In a family law matter before Cronin J, the wife, MS WUL, sought permission to travel to Taiwan with the child, J, for the period of her pregnancy and confinement. The husband opposed this application, raising concerns that the wife might be a flight risk. The court was also required to consider an application by the husband for details regarding the wife's pregnancy, and an extant interim order for spousal maintenance.

The primary legal issues before the court were whether to permit the wife to travel internationally with the child, and if so, under what conditions to mitigate the husband's concerns about the child's return. Additionally, the court had to determine the husband's entitlement to information about the wife's pregnancy and whether the existing spousal maintenance order should continue.

Cronin J granted the wife's application for international travel, imposing several strict conditions to ensure the child's return to Australia. These conditions included the wife providing her travel itinerary and accommodation details in Taiwan, depositing a $20,000 bank cheque as security for her return, and agreeing to facilitate regular Skype communication between the child and the husband. The court also ordered that the husband's existing time with the child arrangements be suspended while the wife and child were in Taiwan, with alternative arrangements for contact via Skype or in person if the husband travelled to Taiwan. The court discharged the interim spousal maintenance order and refused the husband's application for details of the wife's pregnancy.

Orders

Orders of the court

That the wife MS WUL is permitted to remove the child J (“the child”) a male child born … 2011 from the Commonwealth of Australia for the purposes of travelling to Taiwan forthwith after the date of these orders and is required to return to Australia with the child by no later than 15 November 2014 on the terms and conditions set out in paragraph 2 hereof.

The wife’s departure from Australia with the child is subject to the following:

(a) Forthwith, the wife providing to the husband through his lawyers, copies of her travel itinerary including the addresses where she will be staying in Taiwan;

(b) The wife paying a bank cheque for $20,000 in the name of the husband as payee into the trust account of the solicitors for the husband to be held on trust by the solicitors as security for the wife’s return under paragraph 1 of these orders;

(i) the premises in Taiwan where the wife will reside has the necessary computer connections and electronic capacity to provide Skype Communication to Australia; and

(ii) she will provide (either personally or whilst she is invalided, the person caring for the child) Skype communication between the child J and the husband from Taiwan during each second day after her arrival in Taiwan at set times;

(d) The wife confirming in writing that she will sign any necessary document to enable the registration of this and any other order of this Court in the appropriate court in Taiwan.

That subject to the compliance by the wife with paragraph 2, the passport of the child be released to her and for that purpose, the Registrar shall be satisfied of compliance upon receipt of a letter signed by the solicitors of the wife that all matters have been attended to.

That whilst the wife is in Taiwan, the extant orders relating to the husband’s time with the child J are suspended and in lieu thereof, the husband’s time with the child be as follows:

(a) If the husband travels to Taiwan, for such time as may be agreed to be as consistent as possible with the current arrangements in Australia; and

(b) If the husband is in Australia, by Skype Communication during each alternate day at times to be agreed.

Should it be necessary to do so, the solicitors for the wife shall be at liberty to provide a copy of these orders to the Australian Federal Police to confirm the right of the wife to travel internationally for the purpose and period of time permitted.

That the husband have liberty to apply on short notice to make an urgent application for the release of the trust funds if the wife has not returned the child to Australia within 24 hours of the scheduled date referred to in these orders.

That upon the wife returning to Australia with the child, she shall immediately advise the husband of her return.

That the husband and the wife may provide a copy of these orders to the Australian Passports Office, the Australian Federal Police, the Taiwanese Ambassadorial staff and any Taiwanese Judicial Authority for the purposes of its enforcement.

The interim order for spousal maintenance made on 10 January 2013 is discharged.

10.

The application by the husband for details as to the wife’s pregnancy is refused.

11.

That both parties have liberty to apply on an urgent basis in relation to the execution of these orders.

12.

Pursuant to s 65DA(2)and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13.

The application in a case filed 16 May 2014 and the response thereto filed 26 May 2014 are both otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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