Zau v Uongh - [2013] FamCA 347

FAMILY COURT OF AUSTRALIA

ZAU & UONG

[2013] FamCA 347

FAMILY LAW – DE FACTO – Section 90RD application – No evidence to satisfy the Court that there was a de facto relationship.

FAMILY LAW – CHILDREN – Father seeks dismissal on the Rice v Asplund point – Not satisfied it is appropriate having regard to the nature of the parenting roles subsequent to previous orders – Application for parenting orders should be determined at trial.

Family Law Act 1975 (Cth)

FO v HAF [2006] QCA 555
Keaton v Aldridge [2009] FamCA 92
Marsden and Winch [2009] FamCAFC 152
Rice and Asplund (1979) FLC 90-725
Simonis v Perpetual Trustee Co Limited (1987) DFC 95-052
SPS and PLS [2008] FamCAFC 16

APPLICANT:

Ms Zau

RESPONDENT:

Mr Uong

FILE NUMBER:

MLC

3931

2012

DATE DELIVERED:

23 April 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

2 April 2013

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

That all extant interim applications are dismissed.
That paragraphs 1 to 3 of the application filed 26 October 2012 are dismissed for want of jurisdiction.
The Court declares pursuant to s 90RD of the Family Law Act 1975 that the applicant and the respondent have not been in a de facto relationship.
Paragraphs 4 and 5 of the application filed 26 October 2012 are adjourned to a date to be fixed for final hearing before a Judge.
That paragraph 5 of the response filed 12 November 2012 is adjourned to a date to be fixed for final hearing before a Judge.
That save as to issues of costs, all applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Uong 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

REASONS FOR JUDGMENT

Ms Zau (“the applicant”) brought an application to the Court seeking orders against Mr Uong (“the respondent”). The financial orders sought relied upon the Court having jurisdiction under the Family Law Act 1975 (Cth) (“the Act”) to divide assets between the parties. The parenting orders relating to 15 year old W, (“the child”) seek a change to orders that have stood for about eight years.
The discrete hearing on 2 April 2013 required two specific rulings. They were:
(a)were the applicant and respondent in a de facto relationship on and/or after 1 March 2009; and
(b)has there been sufficient change of circumstances since 2005 to warrant re-examining the primary parenting orders which left the respondent having the main responsibility for the child?
For the reasons that follow, the answers to those two questions are:
(a)No;
(b)Yes, but only in respect of the child’s future time with the applicant.
In 1991 or 1992, the applicant met the respondent. Both were married. Although contentious, I am satisfied on the evidence that their immediate ensuing relationship was emotionally charged and sexual. The respondent conceded he was in love and wrote so to the applicant. She has retained that letter, referring to it as the respondent’s promise. Indeed, the relationship gave rise to the conception of the child some years later.
Much occurred over the years between the parties both here and in Shanghai, China.
In June 2005, Brown J made final parenting orders for the child at a hearing which the applicant did not attend. Her Honour’s orders were that the child live with the respondent and he have responsibility for decisions about the child. In addition, her Honour ordered that the applicant’s contact with the child be as agreed between the parties. Those proceedings have been on foot for some time and the applicant had participated. In essence, it would seem, Brown J made the final orders on the basis of the respondent’s concerns about the applicant’s gambling. Her Honour’s views as indicated in her reasons were that the child had been with his father and in his care subsequent to June 2003 when the child had been found in a hotel room by himself after being absent from school for some days. Her Honour seemed of the view that the applicant had left the child in the hotel unsupervised while she was gambling. Her Honour described the mother as having intermittent contact arrangements.
Despite those orders, only a few years later, the child, with the respondent’s agreement, was living with the applicant in a home now owned by the respondent in Shanghai.
The child later returned to Australia because, so it seems, he did not want to live in China. He is now a teenager. He returned to live with the respondent and a half-sibling and has lived with the respondent ever since. It was contentious as to just what his relationship currently is with his mother. The respondent’s view is that the child wants to live with him but if he wishes to spend time with his mother, he is at liberty to instigate the necessary arrangements. The child is now in boarding school and it would seem, doing well. As such, it would seem unlikely that he would have a view about changing his position but in my view, that needs to be contemplated. It is not an urgent matter because the child is settled and doing well.
The more difficult question in this case is what was the nature of the relationship between the applicant and the respondent and if, as all agreed, it had come to an end, when that occurred.
Before embarking upon that, it is important to understand the context in which the hearing was conducted.
The applicant filed her application on 4 May 2012. That came before a registrar on 10 July 2012. At that time, the applicant was represented by counsel. The case was adjourned to 4 October 2012 for an indication as to whether or not the parties were ready to proceed with the threshold issue. That issue had then been identified as whether or not there was a de facto relationship at all. The applicant was ordered to file and serve further material by 8 August.
The registrar indeed held a telephone hearing on 4 October 2012 at which time, the applicant was represented by a duty solicitor. A further order was made by the registrar for the applicant to file and serve material by 29 October and otherwise the case was adjourned to a hearing about the threshold determination.
On 8 November 2012, I set the timetable for a first day hearing before myself to examine what the issues were. That hearing occurred on 3 December 2012 when the applicant appeared without representation and I fixed the timetable for a final threshold hearing four months ahead. Because there was a contentious issue in relation to holiday contact between the applicant and the child, I adjourned that to a hearing before the Senior Registrar just prior to Christmas. At the hearing before me, the applicant had the assistance of an interpreter.
I had canvassed with both parties the nature of the issues and in my view, there was ample time for the parties to prepare.
On 19 December 2012, the Senior Registrar conducted an interim hearing and made an order for school holiday contact between the applicant and the child. It is of some relevance to the proceedings before me that the Senior Registrar said:
10.[The child] is currently holidaying overseas with his father. The mother complains that the father has made it difficult for her to see and spend time with [th child], particularly since late 2011.
11.Counsel submits that it is not the case at all. In fact, with respect to these holidays, he had asked her for any proposals. To that end, I refer to his affidavit, filed on 17 December, and paragraph 6, 7, 8, 9, and 10 which relate specifically to his overtures and correspondence, commencing on 18 September 2012 and sent on instructions, informing the mother that if she wished, and/or intended to have or wanted to spend any time at the end of Term 4, 2012 and he set out details about his availability, and requested a response from her by no later than 1 October.
12.On 4 November, a further email was sent to the mother, because she had not responded and in it informed her that he had made plans for [the child’s] holidays.
13.On 5 November, the mother responded to that email, indicating for the first time she wished to spend time from 15 December 2012 to 14 January 2013.
The lack of attention to detail by the applicant in these proceedings has permeated them. The Senior Registrar said:
20.The mother has the benefit of the interpreter booked for her by the Court. She does speak English, and I assume also understands it reasonably well, but I appreciate that for any person where English is not their first language, things may be difficult or confusing, and thus the interpreter.
…
22.The mother sought to address me directly in English and not use the services of the interpreter. I have required that she be used as best we can so there is no doubt what is said by her or me.
23.She has been shown, through the use of the interpreter, the orders made by his Honour. She looked puzzled. I was told she was given a copy some time before the case was called.
In respect of the parenting issue, the Senior Registrar said:
33.So the Court should not then lightly entertain reopening a case and proceedings about a child or children unless there has been a significant change of circumstance. And a significant change of circumstance means not just that a child has grown a little older or that son/mother peripheral arrangements have altered, but rather “significant” is given its ordinary meaning. And unless the Court is satisfied that a significant change has or will soon occur, and generally it is that it has already occurred, then the proceedings should not be necessarily permitted to be reopened, because to do so could result in endless litigation.
I have set those out so there can be no misunderstanding that despite her language difficulties, such as they were, the applicant knew she had to prepare for the hearing before me.
It was the applicant’s evidence that after the hearing before the Senior Registrar, she went to a lawyer and that is confirmed by a Notice of Address for Service having been filed. However, for reasons which seem related to finances, the services of that lawyer were terminated (presumably by the lawyer) just before the deadline for filing her affidavit material on 1 February 2013.
The applicant met the deadline albeit her view might be that the evidence was put together in a rush. But again, she had legal advice both in January 2013 and also in the early stages of the proceedings in 2012 when the issues were defined.
Despite meeting the deadline of 1 February 2013, the applicant then went overseas and missed her deadline for any affidavit in reply she might want to file. After some discussion, I gave her leave to file that affidavit in reply even though it was not signed. She had provided a copy to the solicitors for the respondent. No real opposition was raised to the filing of the document and although it would appear on the court file as unsigned, the applicant swore in the witness box that its contents were true and correct.
Much time was wasted while the applicant sought assistance of a duty solicitor and then did not have the annexures to the affidavit to which I have just referred ready.
When the proceedings began, I refused her application for an adjournment based upon what she described as the pressure that was being applied to the child because of the proceedings. I could not see that pressure being ameliorated if it existed.
The language of the applicant’s affidavit is not grammatically perfect but the concepts are clear.
To the extent that the jurisdiction of the Court is dependent upon a finding of the existence of a de facto relationship, the applicant not only had that explained to her in December 2012 but she also remarked that she had read the relevant law on the subject. Indeed, she quoted from the checklist in s 4AA(2) of the Act.
I explained the process of the hearing and her right to cross-examination. It was with difficulty that she interchangeably used the interpreter (as she did in the hearing before the Senior Registrar) but after several discussions, she confirmed she wanted to use the interpreter for assistance rather than constant translation. That can also be seen also having occurred in the hearing before the Senior Registrar.
It has been said that a trial judge has a responsibility to search carefully through an unrepresented litigant’s material to avoid them being prejudiced by their own obfuscation but the Court cannot make a case for that litigant. Accordingly, I have examined the affidavit material the applicant filed including all of the annexures. I have made findings based upon that material.
As a witness, the applicant was unresponsive, indeed aggressive. When excited, she became loud and it was obvious that she found it difficult to concentrate on the task at hand. She reverted to pejorative language under pressure but gave every indication of understanding the meanings of her words.
As a witness, the respondent was mostly calm and responsive. Being cross-examined by the applicant, on one occasion however, he had a virulent outburst calling her a “bitch” and accusing her of “raping” him. This was a peculiar reaction to a series of questions about their sexual relationship and when I remonstrated with him, he quickly apologised for his outburst.
The applicant’s evidence was hard to follow and in parts, inconsistent. She produced a number of documents said to corroborate her evidence but as I shall set out below, they did the opposite. The lack of detail about the real nature of the domestic and personal relationship was obvious yet that could not have been due to ignorance. The applicant knew what she was addressing because, as I have already said, she had access to the legislation. In addition, she reverted to a statement about what was usual or acceptable in Chinese culture. That statement highlighted the glaring gaps in her evidence. Those gaps were filled by the respondent who was able to tell me what had occurred during those periods of time.
I found the respondent a much better historian than the applicant and when all of the documents produced by both parties were collated, I have no hesitation in finding that there is no evidence that:
(a)the parties lived together as a couple; nor that
(b)there was a genuine domestic basis; nor that
(c)the parties had lived in a de facto relationship immediately before, on or after 1 March 2009.
As the proceedings began, I confirmed with both parties the material they relied upon. The applicant had the affidavit filed on 1 February 2013 and the document that she had prepared and which she swore to be true in the witness box. The respondent relied upon his affidavit filed 21 February 2013.

The legal issue

Section 4AA of the Act sets out a definition of de facto relationship the only relevant part of which for this hearing is that a person is in such a relationship with another person if having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. The section provides a list of circumstances to be considered if it is necessary to work out whether the persons have been in such a relationship. Those factors are illustrative rather than determinative. No particular finding is necessarily determinative of the issue and a court is entitled to attach such weight to any matter, as may seem appropriate in the circumstances of the case.
Thus, the first enquiry for the court is to consider whether the relationship satisfies the definition of s 4AA(1) on its own terms. De facto relationships develop over time and it can be difficult to pinpoint the exact moment when the relationship became “de facto” (see Keaton v Aldridge [2009] FamCA 92) and indeed, if it existed, when it ended.
There must be a degree of interdependence between the parties of an emotional, financial or physical nature. The very words “genuine domestic basis” suggest a shared residence with a mutual intention to share lives with one another. However, it is also important to remember that as a discretionary judgment, a court is not required to dissect the words of s 4AA(1) into discrete elements. Rather, it is a “single composite expression of a comprehensive notion or concept” (see Simonis v Perpetual Trustee Co Limited (1987) DFC 95-052, 75,589 per Kearney J.) Thus, the first inquiry must be to examine the overall nature of the parties’ conduct bearing in mind that it will have changed or varied as the relationship changed and to ultimately come to a conclusion based upon the concept of a couple living together on a genuine domestic basis.
Where parties have never lived together in a common abode, the circumstances strongly indicate that they have not “lived together as a couple on a genuine domestic basis” (see FO v HAF [2006] QCA 555, Keane JA [with whom McMurdo P agreed] at [25].) I see no reason to depart from that view.
The following detail is the relevant evidence and my findings upon it relating to the financial issue.
The applicant said that she and the respondent had been in a de facto relationship since 1991 and that it ended on 11 December 2011. The only inference open was that this was one long de facto relationship. All of that was denied by the respondent.
In about 1991, the applicant said she and the respondent agreed to do business together and share a life together. She said she moved into a flat belonging to a friend of the respondent. The respondent denied renting the flat nor that he lived there. Despite saying the respondent lived there, the applicant then said that after she separated from her husband, the respondent told her that he was not “going to move soon” because of his children. The applicant then detailed what she said occurred “if he was in Melbourne”. When the respondent was challenged about a letter he wrote in 1992, he conceded that he had been in love with the applicant but that was a long time ago.
On that evidence, I could not find that in 1991 or 1992, the applicant and respondent were living as a couple.
The applicant said she was not happy “living like this way” but the respondent gave her expensive gifts. Again, nothing would suggest they were a couple even if I could conclude they were lovers.
In June 1993, the applicant said they moved to Suburb B and her family came from China. At that time, she said the respondent’s sister invited them all to her house for dinner. The respondent said that the applicant did live in Suburb B but at that time, he was living at Suburb C with his wife and children. In her affidavit in reply, the applicant said that in early 1993, she had wanted to finish the relationship with the respondent. By the September of 1993, she said he took her parents on a six day holiday to the Gold Coast. All of this enables me to conclude that the parties were not living as a couple on any genuine domestic basis in 1993.
In January 1995, the applicant said they moved to Suburb D and the respondent introduced his wife to the applicant. Importantly, the applicant said the respondent’s wife and she visited each other and were “going out together” but the respondent said he was still living with his wife at that time. That would certainly seem consistent with the applicant’s version. The applicant said most of the time their relationship was fine and they travelled together. None of that assists me to determine what sort of relationship they then had.
In 1997, the applicant fell pregnant and when the respondent’s wife found out, things “turned wrong”. In the applicant’s words:
That’s time he was moved out from their just moving in [the respondent’s home].

The only inference open is that the applicant and respondent were not living together and the pregnancy compounded difficulties in whatever their relationship was.
During the pregnancy, even on the applicant’s version of the evidence, the respondent was not with her; indeed, she thought he had a new girlfriend. She said he left her and the child upon the child’s birth without financial and emotional support. It must be remembered that the applicant’s case was that there was a de facto relationship from 1991. That is not possible.
The child was born and the respondent denied paternity. The testing procedure solved that problem and the respondent began to pay child support. The applicant’s evidence was that she and the respondent had a “nice family time” during April 1999 to 2002 but in 2000, the respondent had married another woman even if the marriage only lasted for a short time. The applicant confirmed two addresses were kept which suggests an absence of a genuine domestic relationship. Her affidavit in reply did not advance the position further for that period.
The period of 2003 onwards was glossed over by the applicant but she referred to the respondent talking to her father about getting custody of the child. One might wonder why that might occur if they were happily in a de facto relationship. 2005 was portrayed by the applicant as a year where the respondent sent her to China but the findings and judgment of Brown J in 2005 would suggest otherwise. Her Honour said:
2.On 25 August 2003 a number of interim orders were made providing for [the child] to live with his mother on each second Saturday and Sunday during the day, and each Tuesday and Thursday after school. He was to live with his father at all other times. An order restrained both parties from removing [the child] from the Commonwealth and his name was placed on the airport watch list. A child representative was appointed.
3.The matter was back before the court on 20 November 2003. The mother did not appear and her lawyer sought leave to withdraw. Although a form 3A response had been filed on 25 August 2003, no response was ever filed to the affidavit sworn by the father on 13 November 2003. Further orders were made on 20 November 2003 in the mother's absence, providing for [the child] to live with the father, and for the mother to have contact on giving notice. Specific orders allowed the father to remove [the child] from Australia for the purpose of some overseas travel.
…
5.The evidence is of very unreliable and intermittent contact arrangements from her side. [The child] has lived with his father for the bulk of the time since his father found him in Sydney. He is in a secure family environment with the father's current wife, his cousins and other family members. A nanny attends to [the child’s] needs when necessary. The father is his primary caregiver.
All of that suggests, in the absence of the applicant, her Honour was of the impression that the applicant and respondent were not living together. That is supported by the applicant’s affidavit in August 2003 which she had filed for the proceedings before Brown J. There, she said the parties lived “close” to each other. Thus, I find that to June 2005, the parties had not been in any de facto relationship.
The applicant said that from 2005 to 2006, agreement was reached that the applicant would care for the child in China. There is no dispute that the child did live in Shanghai with the applicant but just what role the respondent played remains unclear. It is not said by the applicant that the respondent lived with her in Shanghai on any particular basis or for any particular time.
The applicant said she and the respondent bought a house in Shanghai in November 2006 for her father and the family. Despite that statement, the applicant’s own documents show that a Shanghai court in 2012 directed that she return the house to the respondent. That hearing arose out of the death of her father. When I challenged the applicant to explain that hearing because it showed that the respondent was seeking the return of the title to the house from the applicant after asserting it had been obtained inappropriately after the death of her father, her retort was that the respondent had money and by inference, had orchestrated the court hearing. There is no evidence to support that assertion. Curiously, she produced the court documents.
It was the respondent’s evidence, unchallenged by the applicant that he stayed in the house in Shanghai at times when he visited and when the applicant came to Australia, she stayed in his home but that was on only one occasion according to him. The irresistible conclusion is that the relationship of whatever type it was, remained intermittent and certainly the parties were not a couple living together on a genuine domestic basis. During the period of time that the applicant was in China with the child, the respondent shipped furniture to China from Australia for her and he paid the costs of the Shanghai house and also child support.
Curiously, the sexual relationship (if it existed in 2006 and thereafter) was not one that could shed light on their relationship. In cross-examination, the respondent said he had not had sex with the applicant for a long time. The applicant responded by scoffing yet despite my invitation, at no stage did she put to the respondent that what he was saying was untrue. She had every opportunity to suggest that they had a regular tryst or that some sexual intimacy occurred at a particular time, but she did not do so. It was the respondent’s evidence that he visited five or so times to Shanghai and either stayed in the house with the child and the applicant or otherwise in a hotel. That statement gave the applicant an opportunity to put to him that they had a sexual relationship at that time and again, despite my invitation, she did not do so. It was during that cross-examination of the respondent by the applicant that the outburst I earlier mentioned occurred. I confess, I am none the wiser about what it all meant.
In April 2008, the applicant and the respondent went to Thailand. Even this event was contentious. The applicant said they came from Shanghai but the respondent said he went with other families and the applicant joined them. The applicant conceded one family but not more. In her affidavit however she described the accompanying group as “friends”. The applicant said they stayed in the same bedroom and in the one bed. Just where the child was remains unclear. All of that was denied by the respondent. Even if what the applicant said was true, it would confirm the inconsistency of the parties’ relationship rather than the opposite. It was clear they were not regularly living together as a couple in some form of union but rather as a separated couple of parents and their meetings were around times that they had the child.
To the extent that a finding is required, I accept the respondent’s version of what happened in Thailand.
Around 2008, the applicant and the respondent discussed the child returning to Australia. The respondent said that it was his decision for the child to go to his current boarding school.
In December 2008, the child indicated a desire to remain in Australia and according to the applicant, she left Australia in January 2009 to return to China where she stayed until March 2009. That too is inconsistent with a relationship of any permanency. The child was clearly being cared for by his father.
In March 2009, the applicant returned to Australia to as she said, “see [the child]”. All of that supports the conclusion that as at 1 March 2009, the parties were not in a de facto relationship.
In April 2009, because of her father’s illness, the applicant came back to Australia and took the child to China. Her father then died and she said that although the respondent was in China, he did not attend the funeral. Subsequent to the funeral, the child returned to Australia. That sequence of events enables me to find that from the start of 2009, the child’s home was in Australia yet for whatever reason, the applicant remained within China and the respondent lived in Australia.
I find there was no de facto relationship up until 1 March 2009. The question remains as to what occurred after 1 March 2009.
In her affidavit in reply, the applicant said that after her father’s death, she discussed with the respondent what to do with the Shanghai house. Again, on her own evidence, this issue and who owned the house was determined by the Chinese legal system. On my interpretation of the judgment of that court, the applicant was ordered to return the ownership of the property to the respondent. Indeed, looking at the background of the judgment, the house had been in the name of the applicant’s father and upon his death, the applicant had transferred it into her own name. It was that course of action that the Chinese court set aside returning the ownership to the respondent.
There is no evidence of any relationship between the parties in 2009 and the respondent’s evidence is that he had nothing to do with the applicant. I accept that.
In 2010, the applicant came to Australia in what appears to be an attempt to sort out the Shanghai house. This trip included attending at the respondent’s house where his sister was staying. The applicant conceded that the respondent was not present but the police were called. That indicates there was a dispute between the applicant and the respondent’s sister and the reasons seem to have been that even though she had a reasonable relationship with the sister, she was excluded from staying in the house. There is no evidence as to what action the police took but it appears that they were called on two occasions a day or so apart.
In her trial affidavit, the applicant said (and to which the respondent made a general denial):
In 2011 I talked to the respondent’s friend if the respondent is still not going to settle me back to Australia I am going to sell the house back to Australia living with [the child], I have been waiting in China for two years I can waiting no more. I know the respondent not going to let me back to Australia near my son [the child W] because he got new girl again. I told him many time don’t let his youngest son become another victim because his selfish behaviour.
Thus, I find that in 2011, there was no coupledom, no domesticity being shared between them and certainly no form of intimate relationship. I find therefore that there was no de facto relationship at all.
The applicant attached to her trial affidavit and subsequently tendered to the Court a variety of documents which purported to somehow corroborate the relationship. I have carefully examined those documents some of which are emails between the parties and others documents such as photographs. The emails corroborate the respondent’s version. He makes clear that when he went to Shanghai, he wanted access to the key to the house to stay there. In January 2009, relating to the respondent’s Melbourne residence, the respondent was critical of the applicant for using the telephone for too long and leaving a cooking appliance on in the home. That might suggest some indication of domesticity but then the following statement appeared from the respondent:
If you are going to stay in Melbourne. Would you please find a place urgently. I don’t think it is convenience to stay at my house.
At least from the respondent’s perspective in January 2009, he seemed to be terminating the licence he had given to the applicant to use his house in Melbourne. In her response to that email, the applicant said:
Don’t worry about me I can stay in anywhere, now I here is for my son [the child W] he is here, I am just look after him, once you find right person can take care about him, I will leave here very quick!
The correspondence mentioned strongly suggests that there was no living together or genuine domestic relationship.
The same documents attach a number of photographs. The photographs which appear to have been taken in 1991 confirm that the respondent expressed love for the applicant. For the reasons I have articulated, I do not know where that assists the applicant. She attached photographs of her in model pose and they were also taken over 20 years ago.
There were also photographs of the respondent with the applicant’s father and the child present tendered in evidence. None of those support a conclusion of a genuine domestic relationship. The respondent acknowledged a respect he held for the late father of the applicant. There are also photographs of the applicant in a family group shot with the respondent, the child and two other children of the respondent. But in the same group of photographs, the respondent’s wife also appears. I am not at all convinced that that proves anything.
In 2008, the applicant wrote an email to the respondent but it was directed to issues about the child. She had written in response to an email dated 28 April 2008 from the respondent to her in which he said he did not want to argue in front of the child. He made reference to the fact that they were “separated” but he would make sure that he took care of the child. He then talked about a budget to cover various expenses. It was the respondent’s evidence and not denied by the applicant that what he had paid was money for the support of the child. There did not seem to be any suggestion of him supporting the applicant.
In February 2013, in a letter tendered as part of the annexure to the reply affidavit, the applicant had written to the solicitor for the respondent. That letter makes serious allegations of the law firm misleading the Court and not disclosing the complete truth. It was critical of the law firm for being unprofessional. Something akin to that was made by way of a remark in the court room about counsel appearing for the respondent. Nothing I heard in any of the evidence supported any such conclusion. Quite the contrary, the respondent had prepared for the hearing properly and the cross-examination of the applicant was undertaken by counsel for the respondent professionally, succinctly and indeed, sensitively.

The interim application

The applicant also sought a variety of interim orders of a financial nature. I do not need to repeat them because as I could not find that there was a de facto relationship, there could be no basis for the Court to make any of those orders. I propose simply to dismiss that interim application as part of the overall financial matter.

The parenting issue

As earlier indicated, the applicant also sought an order that the child live with her and that the parties have joint responsibility for him. The respondent sought parenting orders but essentially relating to the applicant’s time with the child. Those orders sought that the applicant’s time be limited to school holidays.
In cross-examination by the Court, the respondent conceded that there was an unresolved issue about the child but that he thought the child wanted to remain where he was and that included both living at the boarding school and spending time with the respondent. He agreed that whatever the child wanted, he would support.
There is no basis for me to dismiss the applicant’s application because there is an issue to be tried even if it would seem unusual having regard to the child’s age and placement.
The interim parenting orders pursued by the applicant were dealt with by the Senior Registrar and there is now little apparent difficulty in the school holiday area.
In relation to disposing of the substantive parenting application, it was always the case for the respondent that the Court should apply the principle known sometimes as the rule in Rice and Asplund (1979) FLC 90-725.
In SPS and PLS [2008] FamCAFC 16, Warnick J referred to the concept of rehearing issues which had been the subject of final orders. His Honour pointed out that the rule in Rice and Asplund (supra) must remain subject to the best interests’ principle. Part VII of the Act must therefore be applied but at the same time, it is in the interests of everyone that there be finality of litigation.
Warnick J had said that the facts that related to the best interests of children and in particular, the determination of such questions as to whether there had been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements, were likely to be identical or at least intertwined and that it may be better for all of the evidence to be before the Court before any decision was made. In Marsden and Winch [2009] FamCAFC 152 the Full Court did not disagree with the approach taken by Warnick J. Thus, the Act requires a court to consider whether, in all the circumstances, having regard to the best interests’ principles, the examination of any change of circumstances should be undertaken at the commencement of the case or after the evidence is all before the court.
There is a paucity of evidence here but for the reasons outlined in respect of the financial matters, something happened between the applicant and respondent after the orders of Brown J resulting in the child living with his mother. The applicant did not address that in any detail. Importantly, it would seem common ground that the child came back to Australia from China after what appears to have been 2 years and was placed in a boarding school where he has been for some time and is settled. It is also relevant to consider the age of the child because that is a factor that the court must consider when determining whether it would be in his best interests to make a parenting order.
That best interests’ principle applies in every case as does s61DA if a parenting order is to be made. S 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. Here, the applicant is seeking a share of the parenting decision-making processes as well as specific time with the child. Even if there was a basis to apply the Rice and Asplund (supra) approach, the s 61DA issue arises again if a parenting order relating to time is to be made.
Section 60CA requires the court to regard the best interests of the child as the paramount consideration. The court is then required to look to the mandatory provisions of s 60CC which includes amongst other things, the benefit to the child of having a meaningful relationship with both of the child's parents and the child’s views about the proposed orders depending upon his understanding and maturity. There is evidence of the mother’s care of the child in China and that he has expressed a wish to spend time with her. What little I understand about his views would indicate that he is a mature boy who enjoys boarding school and is progressing very well.
All of that would indicate that I could not simply dismiss the mother’s application on the basis that nothing has changed since the orders many years ago of Brown J.
Nothing in the mother’s evidence suggested that there was any urgency about the issue and the father’s position was that well should be left alone.
I propose to simply place the case in the list awaiting a trial and in due course, the Court can determine the best interests of the child if the parties are unable to reach agreement.

I certify that the preceding Eighty Six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 April 2013.

Associate:

Date: 23 April 2013