Xu and Xu - [2018] FamCA 255

FAMILY COURT OF AUSTRALIA

XU & XU

[2018] FamCA 255

FAMILY LAW – CHILDREN – Where the father has disengaged from proceedings – Where it is appropriate for the matter to proceed undefended – Where there are concerns about the parenting capacity of both parents – Where the mother is a disengaged parent with limited insight – Where the mother is supported by her older son and partner in caring for the child – Where the child’s maternal half sibling is a significant emotional support for him and assists in the child’s care – Where the father does not have the relational skills to develop a relationship with the child – Where the child has expressed the view that he wishes to spend no time with his father – Where the Family Consultant is of the opinion the child has decided that any benefit of spending time with the father is outweighed by the emotional pressure placed on him by the mother – Where it is in the best interests of the child to spend no time with the father – Orders made as sought by the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 69ZN
Family Law Rules 2004 (Cth) r 16.07

G & C [2006] FamCA 994 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
APPLICANT:	Mr Xu

RESPONDENT:

Ms Xu

INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

FILE NUMBER:

PAC

5571

2011

DATE DELIVERED:

26 April 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

25 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Opal Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

Orders

That the mother have sole parental responsibility for the care, welfare and development of the child of the relationship, B born … 2005 (“the child”).
That the child live with the mother.
That the father be at liberty to telephone the child on the mother’s mobile number (to be provided to the father by SMS text message within seven (7) days of the date of these orders) from his mobile number …, with such number to be displayed on the caller identification on one occasion per week being 9am each Saturday or at such other time as agreed between the parties.
That the mother will not prevent, interfere with or restrict such telephone calls unless the child chooses not to speak with the father.
That the father be at liberty to send to the mother at a PO Box address (to be provided to the father by SMS text message within seven (7) days of the date of these orders) gifts and cards to the child for his birthday and Christmas.
That the mother shall provide to the child such items received pursuant to Order (5) above and acknowledge receipt to the father by way of SMS text message.
That…

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 Xu and Xu

Details

AGLC: Xu and Xu [2018] FamCA 255
Case: [2018] FamCA 255
Decision Date: 26 April 2018

CaseChat Overview and Summary

In the matter of *Xu and Xu*, decided by Hannam J, the dispute concerned parenting orders for a child born in 2005. The orders reflect a final determination of the parties' respective rights and responsibilities regarding the child's care, welfare, and development.

The court was required to determine the primary caregiver for the child, where the child would reside, and the nature and extent of the father's ongoing involvement in the child's life. This included establishing communication channels and provisions for gift-giving.

Hannam J ordered that the mother have sole parental responsibility for the child and that the child live with her. The father was granted liberty to telephone the child once per week, with specific conditions regarding the timing and method of contact, and the mother was directed not to interfere with these calls unless the child chose not to speak with the father. The father was also permitted to send gifts and cards for the child's birthday and Christmas, with the mother to provide these items to the child and acknowledge receipt. The mother was further ordered to keep the father informed of any major health events concerning the child and any changes to her mobile phone number. Finally, the child's name was to be removed from the Family Law Watchlist.

Orders

Orders of the court

That the mother have sole parental responsibility for the care, welfare and development of the child of the relationship, B born … 2005 (“the child”).

That the child live with the mother.

That the father be at liberty to telephone the child on the mother’s mobile number (to be provided to the father by SMS text message within seven (7) days of the date of these orders) from his mobile number …, with such number to be displayed on the caller identification on one occasion per week being 9am each Saturday or at such other time as agreed between the parties.

That the mother will not prevent, interfere with or restrict such telephone calls unless the child chooses not to speak with the father.

That the father be at liberty to send to the mother at a PO Box address (to be provided to the father by SMS text message within seven (7) days of the date of these orders) gifts and cards to the child for his birthday and Christmas.

That the mother shall provide to the child such items received pursuant to Order (5) above and acknowledge receipt to the father by way of SMS text message.

That the mother shall keep the father informed as soon as practicable of:

(a) any major event relating to the child’s health; and

(b) any change in her mobile phone number.

That the child’s name be removed from the Family Law Watchlist.

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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