Vu & Ton (No 3) - [2022] FedCFamC1F 95

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vu & Ton (No 3) [2022] FedCFamC1F 95

File number(s): MLC 7739 of 2019

Judgment of: KARI J

Date of judgment: 2 March 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where the matter is listed for final hearing for four days – respondent seeking declaration that the parties lived in a de facto relationship and the finalisation of parenting proceedings - where the father denies the parties were in a de facto relationship for the period of time asserted by the respondent – where the mother seeks that both issues be determined at the same time – where the father seeks a family assessment report before parenting matters proceed – parties agree by consent to bifurcate the two issues – order for section 62G family report - threshold issue to proceed to final hearing

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 62G, 62G(3A), 90SM(4)(c)

Cases cited: In the Marriage of Hall (1979) FLC 90-713

Division: Division 1 First Instance

Number of paragraphs: 75

Date of hearing: 7 February 2022

Place: Adelaide

Counsel for the Applicant: Mr Hall

Solicitor for the Applicant: Hiways Lawyers

Counsel for the Respondent: Dr Smith

Solicitor for the Respondent: Lander and Rogers
ORDERS

MLC 7739 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VU

Applicant

AND:
MS TON

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

7 FEBRUARY 2022

THE COURT ORDERS THAT:
1.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and Z (born 2009) are to attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 30 July 2022 and that the family report address:
(a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child and upon her relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the child and upon her relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child

2.Not later than 4.00 pm on 28 February 2022 the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.
3.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
4.The parties and the child…

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 Vu & Ton (No 3)

Details

AGLC: Vu & Ton (No 3) [2022] FedCFamC1F 95
Case: [2022] FedCFamC1F 95
Decision Date

CaseChat Overview and Summary

Vu and Ton's case involves a dispute over parenting arrangements for their child Z, born in 2009. The matter was initially filed in the Federal Circuit Court of Australia, but was later transferred to the Family Court of Australia. The primary legal issue in the case was whether the parties were in a de facto relationship in Australia after 2011. The court was also required to decide on various orders relating to the parties' financial affairs. The case came before the Family Court of Australia for a threshold hearing, which was scheduled for four days to determine the de facto relationship status and other related issues.

The court had to consider whether the parties were in a de facto relationship in Australia after 2011, and if so, the implications of that relationship for the parenting arrangements and financial orders. The court also had to consider the visa issues pertaining to the child, as raised in the Interim Orders sought by the mother. The parties had agreed to obtain a Family Report from Dr W, which was to be at the expense of the father.

The court determined that the parties were not in a de facto relationship in Australia after 2011, and therefore the jurisdiction of the Family Court of Australia was not enlivened. The court made orders in relation to the parenting arrangements and financial affairs of the parties, taking into account the Family Report obtained from Dr W. The court also considered the visa issues pertaining to the child and made appropriate orders in relation to those issues. The court's decision was based on a thorough consideration of the evidence and legal principles applicable to the case.

The court made orders in relation to the parenting arrangements and financial affairs of the parties, as well as the visa issues pertaining to the child. The court found that the parties were not in a de facto relationship in Australia after 2011, and therefore the jurisdiction of the Family Court of Australia was not enlivened. The court ordered that the Family Report obtained from Dr W be at the expense of the father. The court also made orders in relation to the visa issues pertaining to the child, taking into account the evidence and legal principles applicable to the case.

Orders

Orders of the court

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Background

Background to the litigation

Rather than set out any detailed background to the litigation in these reasons, I propose to adopt that which her Honour has previously set out.BACKGROUND TO THE CURRENT DISPUTE These proceedings were commenced by the applicant on 11 July 2019 in relation to parenting arrangements for the parties’ child Z born in 2009. When the respondent filed her Response to the Application for Final Orders on 26 July 2019 she sought orders both in relation to parenting arrangements for the child, certain declarations as to the existence of a de facto relationship between the parties and thereafter various orders relating to the parties financial affairs. The topic of whether there was a de facto relationship between the parties that enlivens the jurisdiction of this court is a topic which is the subject of dispute between them. The parties agree that they were in a de facto relationship in their native China from some time in 2009 until some time in 2011. It is during that period of time that the child of the relationship was born. The parties however are in dispute as to whether or not they resumed their de facto relationship after 2011. When the proceedings were initiated by the applicant they were initiated in the Federal Circuit Court of Australia. The matter came on for hearing before Judge Carter on 30 July 2019. Her Honour made a raft of orders that day but significantly for present purposes at paragraph 5 of those orders her Honour made the following order with the consent of the parties:5.By consent, the parties attend upon [Dr W] (“[Dr W]”) on 11 November 2019 (or such other date or time as agreed between the parties or directed by [Dr W]) for the purposes of obtaining a Family Report, such report to be at the expense of the father. On 16 August 2019 Judge Carter determined it appropriate to transfer the matter to the Family Court of Australia. The first hearing of the proceedings in the Family Court of Australia took place before Registrar Moser on 11 October 2019. On that occasion Registrar Moser referred “All extant applications…to a hearing before a Judge on a date to be fixed, noting that the lawyers estimate[d] that the hearing could take 4 -5 days.” On that same day the parties provided the court with a minute of proposed orders which were made by the court with their mutual consent. At paragraph 1 of that proposed minute of order the following was recorded:1.The matter be set down for a threshold defended hearing of four days duration on a date to be advised to determine:(a)the question of whether the parties lived in the de facto relationship at any time in Australia (paragraph 9 of the Initiating and amended Initiating Application and paragraph 1 of the Interim Orders sought in the Amended Response to Initiating Application);(b)Paragraph 8 of the Interim Orders sought in the Amended Response. I have had regard to paragraph 8 of the Interim Orders sought in the Amended Response filed by the mother on 11 September 2019 and understand that the outstanding issue related to Visa issues pertaining to the child.

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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File number(s):	MLC 7739 of 2019
Judgment of:	KARI J
Date of judgment:	2 March 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – where the matter is listed for final hearing for four days – respondent seeking declaration that the parties lived in a de facto relationship and the finalisation of parenting proceedings - where the father denies the parties were in a de facto relationship for the period of time asserted by the respondent – where the mother seeks that both issues be determined at the same time – where the father seeks a family assessment report before parenting matters proceed – parties agree by consent to bifurcate the two issues – order for section 62G family report - threshold issue to proceed to final hearing
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 62G, 62G(3A), 90SM(4)(c)
Cases cited:	In the Marriage of Hall (1979) FLC 90-713
Division:	Division 1 First Instance
Number of paragraphs:	75
Date of hearing:	7 February 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Hall
Solicitor for the Applicant:	Hiways Lawyers
Counsel for the Respondent:	Dr Smith
Solicitor for the Respondent:	Lander and Rogers

MLC 7739 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR VU Applicant
AND:	MS TON Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	7 FEBRUARY 2022