Chiao and Wen (No 2) - [2014] FamCA 268

FAMILY COURT OF AUSTRALIA

CHIAO & WEN (NO 2)

[2014] FamCA 268

FAMILY LAW – CHILDREN - Final Orders – where the matter has proceeded without the mother being involved – father sought orders the child live with him – best interests - mother has a history of non-attendance – where child previously returned to father pursuant to recovery order – child lived with father during period of adjournment – child to live with father who shall have sole parental responsibility – child to spend time with mother as agreed between the parties – father to facilitate telephone contact

Family Law Act 1975 (Cth) s 60CC, 68

Allesch v Maunz (2000) 203 CLR 172
Haydon & Bennett and Anor [2012] FamCAFC 89
Sexton & Sexton [2012] FamCAFC 218
Sinnott & Firth (No 2) [2013] FamCAFC 159

APPLICANT:

Mr Chiao

RESPONDENT:

Ms Wen

INDEPENDENT CHILDREN’S LAWYER:

Franklin Legal

FILE NUMBER:

ADC

3665

2011

DATE DELIVERED:

28 April 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

Paul G Doube

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Valentine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Franklin Legal

Orders

All previous parenting orders be discharged.
The father shall have sole parental responsibility in respect of decisions concerning the major long term care, welfare and development of the child C (also known as “the child”) born … 2002.
That the child live with the father.
The mother shall spend time with the child upon such terms and upon such conditions as agreed between the parties.
The father shall facilitate telephone contact between the child and the mother upon such conditions as agreed between the parties.
The parties are restrained from making disparaging, belittling or denigrating remarks about the other party, or discussing these proceedings, in the presence of the child.
The Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.
The Marshal of the Family Court of Australia and all officers of the Australian Federal Police are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the child from the Commonwealth of Australia.
That the order for the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to s 62B and s 62DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations of 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of…

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 Chiao and Wen (No 2)

Details

AGLC: Chiao and Wen (No 2) [2014] FamCA 268
Case: [2014] FamCA 268
Decision Date

CaseChat Overview and Summary

In *Chiao and Wen (No 2)* [2014] FamCA 268, the Family Court of Australia considered parenting orders concerning a child, C, born in 2002. The proceedings were initiated by the father, Mr. Chiao, who sought orders for the child to live with him and for him to have sole parental responsibility. The mother, Ms. Wen, had a history of non-attendance and limited involvement in the proceedings, ultimately not appearing at the final hearing.

The primary legal issue before the Court was to determine the final parenting orders in the best interests of the child, C, given the mother's absence and the father's application for sole parental responsibility. The Court was required to consider the provisions of the *Family Law Act 1975* (Cth), particularly section 60CC regarding the best interests of the child, and to ensure that the principles of natural justice were upheld despite the mother's non-participation. The Court also had to consider the child's history, including previous recovery orders and periods of residence with the father.

Justice Berman applied the principles of the *Family Law Act 1975* (Cth) and relevant case law, including *Allesch v Maunz* (2000) 203 CLR 172, to determine the best interests of the child. Despite the mother's non-attendance, the Court did not proceed on an undefended basis without proper consideration. The Court noted the mother's history of non-attendance and her expressed frustration with the proceedings, but also her statement that she would be happy with an arrangement where the child lived with the father if the child was happy. The Court considered the Independent Children's Lawyer's report and the father's evidence, concluding that it was in the child's best interests for the child to live with the father and for the father to have sole parental responsibility.

The Court ordered that all previous parenting orders be discharged. The father was granted sole parental responsibility for decisions concerning the child's long-term care, welfare, and development, and the child was ordered to live with the father. The mother was to spend time with the child as agreed between the parties, and the father was to facilitate telephone contact. The parties were restrained from making disparaging remarks about each other in the child's presence. Further orders were made to place the child on the Airport Watch List and to restrain either party from removing the child from Australia. The appointment of the Independent Children's Lawyer was discharged.

Orders