Wul and Au-Yong - [2016] FamCA 1041

FAMILY COURT OF AUSTRALIA

WUL & AU-YONG

[2016] FamCA 1041

FAMILY LAW – PARENTING – International relocation – finely balance case – where the wife wishes to move with 5 year old boy to Taiwan. Permission to relocate granted.

Family Law Act 1975 (Cth)

A v A (2000) FLC 93-035
Godfrey and Sanders [2007] FamCA 102
Kopel and Ferro [2016] FamCAFC 202
Mazorski and Albright [2007] 37 Fam LR 518
McCall and Clark (2009) FLC 93-405

U v U (2012) 211 CLR 238

APPLICANT:

Ms Wul

RESPONDENT:

Mr Au-Wong

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4588

2012

DATE DELIVERED:

29 November 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

8, 9, 10, 11 August 2016, 21 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

Pearsons Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Puckey

SOLICITOR FOR THE RESPONDENT:

Berry Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ambrose

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That all extant parenting orders are forthwith discharged.
That the husband and the wife take all necessary steps to register these orders in a court of appropriate jurisdiction in Taiwan such that they are enforceable by the husband.
That the husband and the wife have equal shared parental responsibility for J born … 2011 (“the child”).
That from 22 August 2017 (for the purposes of s 65Y of the Family Law Act 1975 (Cth)) the wife has permission to take the child from Australia to live in Taiwan.
That other than as prescribed by these orders, the child live with the wife.
Until and including Monday 22 August 2017, the child spend time with the husband as follows:
(a)Each weekend from 4.00pm on Friday (or such time as kindergarten concludes) until 6.00pm on Sunday;
(b)From 4.00pm on Christmas Eve 2016 until 6.00pm on Christmas Day 2016; and,
(c)By electronic communication (Skype or equivalent) at 6.00pm on each Wednesday with the wife being responsible for making the call.
From 22 August 2017 (unless the wife does not move to Taiwan and in which case, the parties shall have leave to seek alternative orders if agreement is not reached) and subject to paragraphs (8) to (11) of these orders, the child spend time with the husband during the following periods:
(a)For the period of 14 days from 4.00pm on 24 December in each odd-numbered year and from 4.00pm on 25 December in each even numbered year;
(b)For the period of 14 days after the conclusion of school term 1 according to the Taiwanese education authorities, in January each year;
(c)For seven weeks commencing at the start of the summer vacation (as determined by the Taiwanese education authorities);
(d)For a further period of 14 days at such other times in Taiwan as the husband may be able to arrange; and
(d)By electronic communication (Skype or equivalent) during all intervening weeks when there is no face to face contact occurring on three nights per week…

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 Wul and Au-Yong

Details

AGLC: Wul and Au-Yong [2016] FamCA 1041
Case: [2016] FamCA 1041
Decision Date: 29 November 2016

CaseChat Overview and Summary

In this matter before Cronin J, the parties, identified as the husband and wife, sought orders concerning their child, J. The dispute centred on parenting arrangements, including the child's residence, time spent with each parent, and the potential relocation of the child to Taiwan.

The court was required to determine the appropriate parenting orders for the child, J, considering the parents' applications. Key issues included whether to discharge existing parenting orders, the extent of equal shared parental responsibility, and the conditions under which the child could relocate to Taiwan with the wife. The court also had to establish specific arrangements for the child's time with the husband, both before and after the proposed relocation, and address the practicalities of international travel and communication.

Cronin J discharged all extant parenting orders and made new orders establishing equal shared parental responsibility for J. The wife was granted permission to take the child to live in Taiwan from 22 August 2017, with the child to live with the wife otherwise. Detailed provisions were made for the child's time with the husband, including weekend and holiday contact, and significant periods of time in Taiwan from 22 August 2017 onwards. The court also stipulated arrangements for the wife to bring the child to Australia for contact with the husband, with provisions for the husband to contribute to airfares. Further orders addressed electronic communication, the husband's option to bring the child to Australia, and the holding of the child's passports. The court also included a Fact Sheet detailing the obligations and consequences of contravening the orders.

Orders

Orders of the court

That all extant parenting orders are forthwith discharged.

That the husband and the wife take all necessary steps to register these orders in a court of appropriate jurisdiction in Taiwan such that they are enforceable by the husband.

That the husband and the wife have equal shared parental responsibility for J born … 2011 (“the child”).

That from 22 August 2017 (for the purposes of s 65Y of the Family Law Act 1975 (Cth)) the wife has permission to take the child from Australia to live in Taiwan.

That other than as prescribed by these orders, the child live with the wife.

Until and including Monday 22 August 2017, the child spend time with the husband as follows:

(a) Each weekend from 4.00pm on Friday (or such time as kindergarten concludes) until 6.00pm on Sunday;

(b) From 4.00pm on Christmas Eve 2016 until 6.00pm on Christmas Day 2016; and,

(c) By electronic communication (Skype or equivalent) at 6.00pm on each Wednesday with the wife being responsible for making the call.

From 22 August 2017 (unless the wife does not move to Taiwan and in which case, the parties shall have leave to seek alternative orders if agreement is not reached) and subject to paragraphs (8) to (11) of these orders, the child spend time with the husband during the following periods:

(a) For the period of 14 days from 4.00pm on 24 December in each odd-numbered year and from 4.00pm on 25 December in each even numbered year;

(b) For the period of 14 days after the conclusion of school term 1 according to the Taiwanese education authorities, in January each year;

(c) For seven weeks commencing at the start of the summer vacation (as determined by the Taiwanese education authorities);

(d) For a further period of 14 days at such other times in Taiwan as the husband may be able to arrange; and

(d) By electronic communication (Skype or equivalent) during all intervening weeks when there is no face to face contact occurring on three nights per week at 6.00pm or such other time as may be agreed in writing (Taiwanese time) with the wife being responsible for making the necessary connection.

Until 1 January 2019, for the purposes of paragraphs (7)(a) to(7)(c), the contact time shall be by agreement and failing agreement, on a rolling cycle of 72 hours with the husband followed by 24 hours with the wife.

For the purposes of paragraphs (7)(b) and (7)(c) the wife shall bring the child to Australia to meet the husband at the Melbourne international airport. The wife shall book and pay for all fares for herself and the child but the husband shall contribute the identifiable cost of the child’s airfare (if any) within 14 days after the child’s arrival in Australia by payment to the wife’s nominated bank account (until the child is able to fly unaccompanied by an adult in which case, the husband shall purchase and pay for his airfares).

10.

After 1 January 2019, for the purposes of paragraph (7)(a), the husband’s time with the child shall be spent in Taiwan but with the husband having the option of bringing the child to Australia every even-numbered year for that relevant period.

11.

For the purposes of paragraph (7)(d), the husband shall give the wife 14 days electronic written notice of his intention to go to Taiwan.

12.

All passports of the child shall be released to the wife and held by her but made available to the husband if he is travelling internationally with the child.

13.

That the respective applications of the parties are otherwise dismissed.

14.

That 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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