VUONG & NHAN

[2015] FCCA 2216

FEDERAL CIRCUIT COURT OF AUSTRALIA

VUONG & NHAN [2015] FCCA 2216

Catchwords:
FAMILY LAW – Ex tempore ruling on Rice & Asplund objection – father seeking week about parenting regime – application dismissed. 

Legislation:  

Family Law Act 1975

In the marriage of Rice & Asplund (1979) FLC 90-725

Applicant: MR VUONG

Respondent: MS NHAN

File Number: MLC 8798 of 2009

Judgment of: Judge Burchardt

Hearing date: 20 July 2015

Date of Last Submission: 20 July 2015

Delivered at: Melbourne

Delivered on: 20 July 2015

REPRESENTATION

The Applicant: In person

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Mr Eidelson

Solicitors for the Independent Children’s Lawyer: Westminster Lawyers Pty Ltd

ORDERS

1. The matter be adjourned to this Court for mention before Judge Burchardt on 24 July 2015 at 9.30 am.

IT IS NOTED that publication of this judgment under the pseudonym Vuong & Nhan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 8798 of 2009

MR VUONG

Applicant

And

MS NHAN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 8 October 2014, orders were made by Judge Turner.  Relevantly they provided that the mother was to keep the father routinely informed about the schools the children attended and there were ancillary orders made which permitted the father to attend those schools, subject to certain conditions set out in the orders. 

RECORDED  :  NOT TRANSCRIBED

1. Those orders themselves followed some time after a section 11F report, following interviews on 23 September 2013.  The reporter noted that Mr Vuong had a tendency to raise his voice, something I have observed today as well.  It observed that X was likely to benefit from not being compelled to spend time with his father until further consideration of material, which included the possible psychiatric assessment of Mr Vuong, something that does not appear to have occurred.

2. The orders of Judge Turner on 8 October 2014 provided very limited time spent between X and his father and to all effects and purposes provided that Y and Z spend time with the father in accordance with their wishes.  Since then – that is to say, since the orders made by Judge Turner – there have been various appearances before the Court, that the father has now filed an Initiating Application on 8 May 2015.  On its face it seeks that all three children live with him on a week-about arrangement. 

3. Given the language and representational difficulties that both parties have the misfortune to experience, the Court appointed an Independent Children's Lawyer.  Counsel for the Independent Children's Lawyer – to whom I express my thanks – outlined the history of the matter in the Court.  Until December 2014, the father had not seen the children for three years.  Since then he has seen X for three hours at Christmas and will see him again on X’s birthday in (omitted) of this year.

4. The father wants to know where Y – who is understood to live in Sydney – lives.  He seeks that the Court compel the mother to tell him her address.  Y is over 18.  This Court has no jurisdiction to make orders in respect of her at all. 

5. So far as any orders relating to Z and X are concerned, counsel for the Independent Children's Lawyer has submitted that this is a case in which Rice & Asplund doctrine is clearly raised.  Counsel submitted there has been no material change of circumstances.  He further submitted that the father’s proposal for week-about time had no practical utility in the circumstances. 

6. I asked Mr Vuong if he wished to adjourn and seek advice about the matter counsel had raised, but he elected to respond directly with submissions.  In due course, I caused Mr Vuong to cease his submissions, as they were not in my view further addressing the point at hand. 

7. The father said that he had met Z in the street and she asked him to sign some documents.  He submitted that this means that she still loved him.  And he said that Y had sent him a Christmas card and therefore still considers him as her father.  He had some complaint as to an interruption to a phone call with Z.  He said that X has now changed school and he has not been told the address.  These were changes and he wants to see how his children are going at school.

8. He iterated a desire that the Court should have power to order the mother to say where Y is, but as I have already indicated, I do not have that power.  He also asserted that he did not wish to appear in Court again.

9. Ms Nhan said she had been coming to Court for the last 13 years, and she did not wish to come again and again for the same matter.  She raised the proposition that these proceedings have been a distraction to her two elder children in their final years of school.  Mr Vuong took issue with that assertion.

10. The terms of the orders made before Judge Turner plainly give the father the opportunity to engage with the children’s schools should he wish to do so and should he behave himself.  Given that the mother is obliged to tell the father which school X is at under the extant orders, and will no doubt do so now that I have made this clear – especially with the advice of Mr Eidelson - it is instantly and overwhelmingly apparent that there has been no material change of circumstances since Judge Turner’s orders.

11. All the matters now raised fall comfortably within the ambit of the orders then made and there is nothing in the actions of Y and Z that suggest that anything has changed.  Furthermore, even if contrary to that view one were to assert that there was a material change of circumstances, the nature of the application brought by the father shows immediately how inappropriate it would be to embark upon further inquiry.

12. In the uncontested circumstances of the history of how much time he has spent with the children, the application for equal time is utterly misconceived.  I am going to dismiss the application and discharge the Independent Children's Lawyer.  I note there have been a large number of applications to the Court over time, as counsel submitted.  If there is any similar further application – and should it be similarly deficient in merit to the one I am dismissing – the Court would be minded to contemplate an order, ordering that no further applications be filed, save by leave of the Court.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Associate: 

Date:  14 August 2015