Yim and Zieth (No.3)

Case [2019] FCCA 3404

FEDERAL CIRCUIT COURT OF AUSTRALIA

YIM & ZIETH (No.3) [2019] FCCA 3404

Catchwords:
FAMILY LAW – Parenting application – where parties are of Chinese ethnicity – where two children of relationship – where parents deliver children to China to remain in the care of maternal grandparents – where children shuttled between China and Australia – where parties employed or conduct business operations in both Australia and China – where applicant mother secures employment in China as a professional and leaves respondent father to care for children in Australia for an extended period – where respondent purchases property and settles children and maternal grandparents in Australia – where respondent works in Melbourne and spends little time with children on weekdays – where dispute arises between respondent and grandfather – where respondent demands grandparents vacate property – where applicant returns to Australia – where parties take out bilateral family violence intervention orders – where one effect of IVO is to exclude respondent from property – where applicant seeks sole parental responsibility – where parties raise allegation and counter allegation on manifold issues – whether there should be sole or equal shared parental responsibility – whether presumption of equal shared parental responsibility rebutted – whether the respondent should have substantial time with children – risk posed to children of abuse or neglect by applicant, respondent and maternal grandfather – whether practicable for children to live with respondent – priority to be accorded to wishes of adolescent children with maturity and insight on their preferences – parenting principles.
FAMILY LAW – De facto property application – jurisdiction – where parties dispute date of separation – where respondent alleges separation occurred in January 2009 and applicant contends it occurred in 2015 – where respondent does not opt in – applicable principles – court’s power to determine whether it has jurisdiction – where post-2009, respondent purchases two properties in applicant’s name and secures borrowings to complete purchases in applicant’s name – where applicant is registered proprietor of properties and mortgagor for secured liabilities – where respondent maintains and alters records of Chinese Corporation on basis applicant is the relevant “Legal Person” – where respondent registers trademarks using  address of applicant’s parents as business address – where the court finds parties’ final separation was after 1 March 2009 – court has jurisdiction to entertain an application for an extension of time.
FAMILY LAW – De facto property application – leave to proceed – where applicant seeks leave to file application for adjustment of property interests out of time – where respondent opposes application – applicable principles – where applicant is registered proprietor of two properties, subject to registered mortgages – whether hardship to applicant or children – leave will not be granted if to do so would not alleviate hardship – need to demonstrate that the loss would be of a right which, in all the circumstances, is substantial – leave refused.
FAMILY LAW – Sole use and occupancy – where both parties seek sole use…

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AGLC
Yim and Zieth (No.3) [2019] FCCA 3404
Case
[2019] FCCA 3404
Decision Date

CaseChat Overview and Summary

In the matter of Yim and Zieth (No.3), Judge A Kelly of the Federal Circuit Court of Australia considered parenting arrangements for the children X and Y. The dispute concerned the terms of parental responsibility, living arrangements, and time spent with each parent, as well as other ancillary matters including school enrolment and communication protocols.

The court was required to determine the extent of equal shared parental responsibility, the specific time arrangements for the children to spend with the respondent father, and the practicalities of changeovers and communication. Further issues included the enrolment of one of the children at a specific school, the interaction of the court's orders with any existing state court intervention orders, and the discharge of previous parenting orders. The court also addressed the potential for applications for costs.

Judge Kelly ordered that the applicant mother and respondent father have equal shared parental responsibility for the children, with the children to live with the mother. The father was granted specific time with the children on alternative Saturdays and during half of school holidays, with provisions for agreement or default arrangements. The court also established detailed protocols for changeovers, communication between parents and children, school-related matters, and the prevention of certain behaviours in the children's presence. Crucially, the court ordered that its parenting orders would prevail over any inconsistent interim intervention orders made by a Magistrates Court, rendering such intervention orders invalid. The court also made orders regarding the enrolment of child Y at D School and the potential appointment of a Registrar to execute documents if necessary.

Orders

Orders of the court

Parenting

1.

The applicant mother and respondent father have equal shared parental responsibility for the children X born on … 2003 and Y born on … 2006 (the Children).

2.

The Children live with the mother.

3.

Subject to paragraphs (4), (5), (6) and (7) of this Order, the Children spend time and communicate with the respondent father:

(a) each alternative Saturday, from midday until 5:00pm; or

(b) in accordance with the wishes of the Children; or

(c) as otherwise agreed in writing.

4.

During school term and Christmas holidays, the Children spend time and communicate with the respondent for half of such holidays as may be agreed in writing and in default of agreement for the first half of such holidays, subject however to:

(a) the express wishes of the Children or either of them;

(b) the respondent being in substantial attendance at those times.

5.

Where changeover is not able to take place at the Children’s schools, such changeover occur at IGA Supermarket, Suburb A , unless otherwise agreed in writing.

6.

Each party shall do all acts and things as may be reasonably necessary to give effect to the reasonable wishes of the Children that they spend time, or communicate, with the other party.

7.

Provided any such communication be initiated by the Children, each party may communicate with the Children whether by correspondence, telephone, text message, mobile phone or other digital application.

8.

The parties and each of them, whether by himself or herself, their servants or agents or howsoever otherwise are restrained from:

(a) preventing or discouraging the Children from contacting or communicating with the other party at any time;

(b) abusing, insulting, rebuking or otherwise denigrating one another, or members of their respective extended family, in the presence or hearing of the Children;

(c) discussing this proceeding or matters raised in this proceeding in the presence or hearing of the Children;

(d) changing, or taking any step in connection with a change in, the Children’s enrolment in their schools without the consent in writing of both parents;

(e) removing, or attempting to remove, the Children or either of them from the Commonwealth of Australia without having first provided to the other parent (not less than 28 days before the date of proposed travel), notice of such intended travel, a detailed itinerary and a copy of prepaid tickets for the outbound and return travel;

(f) withholding the Children’s passports from when they are reasonably required, whether for the purposes of pre-travel identification or travel that has been agreed upon or otherwise.

9.

Each of the parties be authorised to obtain from the Children’s schools at their respective request and expense (if any), such information as a parent would ordinarily be provided or entitled to, including but not limited to school reports, school photographs, order forms and notices of events and, for the purposes of this Order, the parties be authorised to provide a copy of this Order to each of Children’s schools.

10.

Each of the parties be at liberty to attend the Children’s school events provided that, during such attendance, each refrain from approaching the other parent or any members of their extended family who may be present and ensure that they conduct themselves in a respectful manner toward the other parent and any extended family member.

11.

The parties undertake a post-separation parenting course and furnish a certificate of completion to the other.

12.

The parties do all acts and things as may reasonably be necessary to procure the enrolment of the child, Y, at D School to commence in Term One, 2020.

13.

In default of compliance with paragraph (12) of this Order, and the court considering it necessary to exercise the powers of the court under s.106A(1) of the Family Law Act 1975 (Cth) (Act), a Registrar of the Federal Circuit Court of Australia be forthwith appointed to execute any documents in the name of either party and do all acts and things as may be necessary to give validity and operation to an application for enrolment of Y at D School.

14.

Each party keep the other informed of any significant medical condition or serious injury that may occur while either of the Children are in their care and this Order constitutes the authority of any medical or allied professional who may be treating the Children, to discuss the diagnosis, treatment and prognosis concerning any such condition or injury.

15.

The parties be authorised to provide a copy of this Order to any medical or allied professional.

16.

Each party keep the other advised of their current residential address, contact telephone numbers (both landline and mobile telephone) and email addresses and advise the other of any changes to such details within 48 hours of such change occurring.

Property

17.

The application for leave to proceed out of time pursuant to s 44(6) of the Act be dismissed.

Sole use and occupancy

18.

The parties respective applications for the sole use and occupancy of the properties the subject of their applications be dismissed.

Other matters

19.

Pursuant to s 68P(2)(a) of the Act, that to the extent that this Order may be inconsistent with any Interim Intervention Order that has been made by a Magistrates Court (Intervention Order):

(a) this Order prevails over such Intervention Order and operates according to its terms;

(b) that Intervention Order is invalid, pursuant to s 68Q(1) of the Act.

20.

The parties be authorised to provide a copy of these reasons for judgment to a State court.

21.

Subject to paragraph (22) of this Order, all previous parenting orders in this proceeding be discharged.

22.

The appointment of the Independent Children’s Lawyer be discharged with effect from 31 March 2020.

23.

By 4.00pm on 12 December 2019, the parties file and serve any submissions, not exceeding 6 pages (1.5 spacing, font 12) in relation to any application for costs.

24.

Any application for costs be decided on the papers.

25.

Pursuant to ss 65DA(2) and 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order are set out in Annexure A and these particulars are included in this Order.

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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