Zau and Uong (No. 2) - [2015] FamCA 56

FAMILY COURT OF AUSTRALIA

ZAU & UONG (NO. 2)

[2015] FamCA 56

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – Review of a registrar’s decision – where the mother was refused leave to file an application to re-open her case – where judgment in the final parenting proceedings is reserved – whether it is in the interests of justice to re-open the case – best interests – mother’s application to re-open dismissed.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 23 Fam LR 755
Reid v Brett (2005) VSC 18

Smith v Bar Association (No. 2) (1992) 176 CLR 256

Suess & Jackson (2009) FamCA 164

APPLICANT:

Ms Zau

RESPONDENT:

Mr Uong

INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon & Associates

FILE NUMBER:

MLC

3931

2012

DATE DELIVERED:

4 February 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

4 February 2015

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:	No appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Clark

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon & Associates

Orders

IT IS ORDERED THAT

Leave be granted to the mother to file the application in a case dated 13 January 2015, the affidavit in support of that application sworn or affirmed 13 January 2104 and her affidavit sworn or affirmed 2 February 2015.
The mother’s application in a case filed 27 January 2015 and her application in a case dated 13 January 2015 filed pursuant to paragraph 1 of these orders be dismissed and removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Uong (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3931 of 2012

Ms Zau

Applicant

And

Mr Uong

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This matter was listed for final hearing before me commencing 24 November 2014.
The proceedings related to the child W (“the child”) who is now 17 years of age and has just commenced his VCE year at E School. The child was described by the family consultant Ms K as “a mature and intelligent young man” who “strongly advocated that he did not want the court to make orders requiring him to spend time with the mother.” On 25 November 2014, having heard the evidence and the submissions made by both the father, the mother and the Independent Children’s Lawyer, I reserved judgment to a date to be fixed.
On 27 January 2015 the mother, who was the applicant, filed an application in a case seeking a review of the registrar’s decision rejecting her application dated 13 January 2015 for filing. I will refer for convenience to that as “the application for review.” The mother annexed to her affidavit in support of the review application the application in a case dated 13 January 2015, which had been rejected, and the…

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 Zau and Uong (No. 2)

Details

AGLC: Zau and Uong (No. 2) [2015] FamCA 56
Case: [2015] FamCA 56
Decision Date: 4 February 2015

CaseChat Overview and Summary

In *Zau and Uong (No. 2)*, the proceedings before Macmillan J concerned an application by the mother for leave to file certain documents, specifically an application filed on 13 January 2015, an affidavit in support of that application sworn on 13 January 2014, and a further affidavit sworn on 2 February 2015. The mother also had a separate application filed on 27 January 2015.

The primary legal issue before the court was whether to grant the mother leave to file the specified documents. This question was intrinsically linked to the fate of her applications filed on 13 January 2015 and 27 January 2015, which were before the court for hearing.

Macmillan J granted the mother leave to file the documents as requested. However, despite granting this leave, the court then dismissed both the mother's application filed on 27 January 2015 and her application filed on 13 January 2015, ordering that they be removed from the list of cases awaiting hearing.

Orders

Orders of the court

IT IS ORDERED THAT

Leave be granted to the mother to file the application in a case dated 13 January 2015, the affidavit in support of that application sworn or affirmed 13 January 2104 and her affidavit sworn or affirmed 2 February 2015.

The mother’s application in a case filed 27 January 2015 and her application in a case dated 13 January 2015 filed pursuant to paragraph 1 of these orders be dismissed and removed from the list of cases awaiting hearing.

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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