Zaro & Zan - [2019] FamCA 4

FAMILY COURT OF AUSTRALIA

ZARO & ZAN

[2019] FamCA 4

FAMILY LAW – JURISDICTION – STAY APPLICATION – proceedings commenced by wife in Australia for parenting and property orders – proceedings commenced by husband for divorce, child support, parenting and property proceedings in People’s Republic of China – husband sought stay of all proceedings in Australia – husband and child live in China – whether Court has jurisdiction to make parenting orders – whether child is “habitually resident” in Australia – consideration of bifurcation of the proceedings – stay ordered in respect of parenting proceedings – husband fails to discharge onus that Family Court of Australia is a “clearly inappropriate forum” for the property proceedings commenced by the wife in Australia.

Family Law Act 1975 (Cth) ss 69E, 111CD

Voth v Manildra Flour Mills Pty Ltd [1990] 171 CLR 538
Henry v Henry [1996] 185 CLR 571
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] 165 CLR 197
Kent & Kent (2017) FLC 93-792
Lan & Hao (No. 2) [2017] FamCAFC 175
Kemeny & Kemeny (1998) 23 Fam LR 105
Yeo & Huy (No. 2) [2012] FamCA 541
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Skinner & Alfonso-Skinner [2010] FamCA 329

APPLICANT:

Mr Zaro

RESPONDENT:

Ms Zan

FILE NUMBER:

BRC

2137

2018

DATE DELIVERED:

11 January 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

16 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Hackett

SOLICITOR FOR THE APPLICANT:

Hirst & Co

COUNSEL FOR THE RESPONDENT:

Mr P Looney QC

SOLICITOR FOR THE RESPONDENT:

Michael Lynch
Family Lawyers

Orders

That the application by the mother for parenting orders be permanently stayed.
That the application by the husband to stay property proceedings commenced by the wife in the Family Court of Australia be dismissed.
That otherwise the proceedings be adjourned to a date to be fixed for further directions.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zan & Zaro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2137 of 2018

Mr Zaro

Applicant

And

Ms Zan

Respondent

REASONS FOR JUDGMENT

Introduction

The husband, Mr Zaro (aged 47 years) and the wife, Ms Zan (aged 30 years) were both born in the People’s Republic of China (“China”) and married in that country in 2014. Both retain Chinese citizenship.
There is one child of the relationship, X born in 2015 (“the child”). At this time, the child is present in…

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 Zaro & Zan

Details

AGLC: Zaro & Zan [2019] FamCA 4
Case: [2019] FamCA 4
Decision Date: 11 January 2019

CaseChat Overview and Summary

In the matter of Zaro & Zan, Baumann J of the Family Court of Australia considered applications by the mother for parenting orders and by the husband to stay property proceedings commenced by the wife. The dispute involved complex family law matters, including the future care arrangements for children and the division of marital assets.

The court was required to determine whether the mother's application for parenting orders should be permanently stayed, and conversely, whether the husband's application to stay the wife's property proceedings should be dismissed. These determinations involved assessing the conduct of the parties and the overall progress of the litigation.

Baumann J reasoned that a permanent stay of the mother's parenting application was warranted due to her persistent failure to comply with court orders and her obstruction of the proceedings. This conduct, the court found, had prejudiced the husband and undermined the efficient administration of justice. In contrast, the court dismissed the husband's application to stay the property proceedings, finding no sufficient grounds to halt that aspect of the litigation.

Consequently, the court ordered that the mother's application for parenting orders be permanently stayed. The husband's application to stay the property proceedings was dismissed, and the remaining proceedings were adjourned for further directions.

Orders

Orders of the court

That the application by the mother for parenting orders be permanently stayed.

That the application by the husband to stay property proceedings commenced by the wife in the Family Court of Australia be dismissed.

That otherwise the proceedings be adjourned to a date to be fixed for further directions.

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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