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…

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 v Uongh

Details

AGLC: Zau v Uongh [2013] FamCA 347
Case: [2013] FamCA 347
Decision Date

CaseChat Overview and Summary

Ms Zau, the applicant, sought financial orders against Mr Uong, the respondent, based on the premise of a de facto relationship. The applicant also sought parenting orders concerning the parties' child, W, aiming to vary existing orders made in 2005. The court was required to determine two principal issues: whether the applicant and respondent were in a de facto relationship, and whether there had been a sufficient change in circumstances since 2005 to warrant a review of the parenting orders.

The court's reasoning regarding the de facto relationship centred on the definition in section 4AA of the *Family Law Act 1975* (Cth), which requires parties to have lived together as a couple on a genuine domestic basis. After examining the evidence, including the applicant's and respondent's affidavits and various documents, the court found no evidence that the parties had lived together in a common abode, nor that they had a genuine domestic basis for their relationship. The court noted that while the parties had a long and complex history, including a sexual and emotional connection that led to the conception of their child, this did not establish a de facto relationship as defined by the Act. The court specifically found that the parties had not lived together as a couple, there was no genuine domestic basis for their relationship, and they had not lived in a de facto relationship on or after 1 March 2009.

Regarding the parenting orders, the court found that there had been a sufficient change in circumstances since 2005 to warrant re-examining the child's future time with the applicant. Despite the applicant's difficulties in presenting her case and the court's finding that she had not established a de facto relationship, the court acknowledged that the child's living arrangements had changed significantly since the 2005 orders, including periods of living with the applicant in China. The court therefore adjourned the parenting orders for a final hearing. The court also dismissed the financial orders for want of jurisdiction due to the absence of a de facto relationship.

Orders