Rong & Huan - [2022] FedCFamC2F 117

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rong & Huan [2022] FedCFamC2F 117

File number(s): CAC 958 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 10 February 2022

Catchwords: FAMILY LAW – Parenting and property – Parental status involving parties’ seven year old son who has been living with the paternal grandparents in China since he was two years old while youngest son continues to live with the Mother and spends very limited time with the Father – Mother claims sending the child to China was the unilateral decision of the Father who Mother also claims was financially and emotionally controlling during the relationship seeks that the child be immediately returned to Australia – Father opposes the child returning to Australia – consideration of principle regarding the Court making a “coercive Order” – Orders made for the Father to do all things necessary to ensure that eldest child be returned to Australia and variation of parenting orders in relation to both children – Orders for financial disclosure.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Adamson & Adamson (2014) FLC 93-622
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Collu & Rinaldo [2010] FamCAFC 53

Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422

Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Maldera & Orbel (2014) FLC 93-602

Moose & Moose (2008) FLC 93-375

Oswald v Karrington (2017) 55 Fam LR 344
Sampson v Hartnett (No.10) (2007) 215 FLR 155; (2008) 38 Fam LR 315
Vontek v Vontek [2017] FamCAFC 28

Zanda v Zanda (2015) 51 Fam LR 502

Division: Division 2 Family Law

Number of paragraphs: 43

Date of hearing: 11 November 2021

Place: Canberra

Solicitor for Applicant: Mazengarb Family Lawyers

Counsel for Applicant: Mr G Stagg

Solicitor for Respondent: Mark Hanna Lawyers

Counsel for Respondent: Dr S Leslie

ORDERS

CAC 958 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN: MR RONG
Applicant

AND: MS HUAN
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

10 FEBRUARY 2022

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The children X ('X') born in 2017 and Y ('Y') born in 2014 live with the Mother.
2.Within 48 hours of the making of these Orders, the Father shall file a written undertaking, by which (under oath or affirmation) he confirms that he will comply with all the Orders of the Court regarding the return of Y to Australia as soon as possible.
3.Forthwith upon the making of these Orders, the Father shall surrender his passport to the Court until further order.
4.Within 14 days of the date of these Orders, being by 24 February 2022, the Father sign all documents and do all things necessary to effect the return of the child Y to the Commonwealth of Australia by no later than 31 March 2022, subject only to verified public health and/or travel impediment.
5.Within 21 days 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 Rong & Huan

Details

AGLC: Rong & Huan [2022] FedCFamC2F 117
Case: [2022] FedCFamC2F 117
Decision Date

CaseChat Overview and Summary

The case of Rong & Huan involved parenting and property issues between the parties, Mr Rong and Ms Huan, in the Family Court. The primary issue was the return of the eldest child, Y, who had been living with his paternal grandparents in China since he was two years old, while the youngest child, X, continued to live with the mother in Australia and spent limited time with the father. The mother sought that Y be returned to Australia to live with her, while the father opposed this. The court considered the principle regarding the making of a coercive order, and ultimately decided that the father must ensure that Y is returned to Australia and live with the mother, with orders for financial disclosure and the appointment of an Independent Children’s Lawyer. The court also varied the parenting orders in relation to both children and set out procedural directions for the matter.

In coming to this decision, the court considered the statutory principles under the Family Law Act 1975 (Cth), including the importance of children having a meaningful relationship with both parents, and the need to protect children from physical and psychological harm. The court also considered relevant authorities, including the Full Court decision in Sampson v Hartnett (No.10), which discussed the court's exercise of injunctive power, and the High Court decision in Bondelmonte v Bondelmonte, which involved the return of children from a non-Hague Convention country. The court found that the return of Y to Australia was in his best interests, and that the mother's proposed orders were appropriate, with some modest tweaking. The court also considered the property issues, including the father's failure to comply with orders for financial disclosure, and made orders for the father to provide such disclosure within a specified timeframe.

Orders