Zhou& Wei

[2018] FamCA 340

FAMILY COURT OF AUSTRALIA

ZHOU& WEI [2018] FamCA 340

FAMILY LAW – CHILDREN – Parenting – Interim orders – Where the evidence is not helpful relating to various orders – where the court does the best it can.

Family Law Act 1975 (Cth)

APPLICANT: Ms Zhou

RESPONDENT: Mr Wei

FILE NUMBER: MLC 140 of 2018

DATE DELIVERED: 10 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jacobson

SOLICITOR FOR THE APPLICANT: Antippa Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lam

SOLICITOR FOR THE RESPONDENT: Ma & Company Solicitors

Orders

1. Pursuant to s 65Z(2) of the Family Law Act 1975 (Cth), the wife Ms Zhou may travel internationally with the child B (the child) born … 2009 (otherwise known by her Australian name as B).

BY CONSENT IT IS ORDERED

1. That the wife have the sole parental responsibility for the child, B born … 2009 (and known as “B”).

2. That until further Order, the Mother have the sole use and occupation of the real property at C Street, Suburb D.

3. That within 14 days, the husband shall provide full and frank disclosure about the purchase and financing of the real property described in certificate of title volume …3 folio …3 and situated at and known as E Street, Suburb F, Victoria.

4. That the wife not further encumber the Suburb D property or increase the present Mortgage without prior written consent of the Respondent until further order.

5. The wife meet any mortgage payments on Suburb D as and when they fall due until further order.

6. That the application for interim orders sought by the wife and the response thereto by the husband are otherwise dismissed.

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 Zhou & Wei 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 MELBOURNE

FILE NUMBER: MLC 140  of 2018

Ms Zhou

Applicant

And

Mr Wei

Respondent

REASONS FOR JUDGMENT

1. These are proceedings that, remarkably, did not resolve in resolutions after the parties negotiated all day yesterday in the duty list.  The proceedings were commenced in this court on 15 January 2018 by the wife filing an application for final orders.  There is a response by the husband to the substantive proceedings.  My concern is specifically only with the issues of an interim nature as between the parties.  I have just spent the last hour with the respective practitioners, going through each of the orders sought, ascertaining which ones are pressed and which ones are not and, of those that are pressed, which ones are disputed.  In the case of those that are disputed, what evidence is relied upon.

2. In respect of the wife’s application for interim orders, she only seeks one order that is opposed, and that relates to number 9 in her list of orders, and although it is not pleaded in any clear sense, what she seeks is permission under section 65Y of the Family Law Act1975 (Cth) (“the Act”) to be able to travel internationally. The evidence that she uses to support that is the fact that she obviously has roots in China – ironically enough, there are proceedings in China and she had intended to go back to China in December. In opposing that order, the husband says that he has concerns that if she goes to China – and I interpolate here, probably any other place outside of Australia – she may not come back and that may affect his relationship with the parties’ child B, who is now eight years of age.

3. There might be some substance to that assertion if there was a regular and ongoing relationship between father and child.  The wife’s evidence here is that the father has not seen the child, apart from one fleeting glance, since 2016, which is two years ago.  The father’s evidence is that he had endeavoured to make arrangements to see his daughter, but I am perplexed as to why, if indeed there was any substance to the correspondence, he did not follow it up.  No better example of that can be seen than in the fact that the very applications before me at the moment do not seek parenting orders.  The solicitor for the husband says that he is going to make some form of application, but I expect time will tell. 

4. It must also be noted in this proceeding that the wife’s unchallenged evidence is that there have been five intervention order proceedings against the husband and none against her.  One wonders exactly what has been going on.  In any event, I can comfortably say that the child is in the care of the mother, whose capacity and responsibility as a parent are not challenged.  That can be seen on the basis that, initially, the husband sought some form of control over the movement of the child, but when I asked about the questions of orders for residence and parental responsibility, neither of those were opposed.  Indeed, as I understand it, the husband consents to those arrangements. 

5. On that basis, the only issue for me is whether or not, in contemplating an order to allow a child to travel internationally, there is some risk which is at the level of unacceptability such that the court should not permit the travel until such time as the parenting issues are permanently resolved.  That is very difficult to make an assessment here for a number of reasons.  The first reason is that there are already proceedings in China, including, it would seem, orders that the husband have time with the child.  Despite that, he does not seem to have endeavoured to enforce those orders or indeed taken up the time. 

6. The second point is that, even on his version, there are proceedings in China and he will be needing to travel. How he expected the child to remain unattended by her mother in whom he places sufficient confidence to consent to an order for sole parental responsibility escapes me. As I said, the only evidence that the husband relies upon is the fact that he has concerns. There have been a whole raft of things going on between these parties, but at no stage has his concern been elevated to the point of factual assertion based on some sort of empirical evidence. In my view, there is no basis here for me to be concerned about the wife travelling backwards and forwards with the child and, on that basis, I shall give her permission under section 65Y of the Family Law Act to travel internationally. I shall otherwise make orders in terms of paragraphs 1, 12 and 13 of her proposed orders.

7. That leaves me then with the husband’s proposed orders.  The orders he initially sought were not pressed, save for numbers 3, 4 and 8.  The wife consents to orders number 3 and 4.  That leaves number 8.  Curiously, what the husband there seeks is a restraining order of a mutual nature that each party be restrained by injunction from abusing, belittling, rebuking or otherwise speaking negatively about the other party and members of the other parties’ family or friends by any means of communications whatsoever.  The husband obviously, by virtue of seeking a mutual order, consents to that order against himself. 

8. Ironically, it is probably unnecessary that he do so because there is currently an intervention order against him precluding him from doing the very things that he says that he will not do.  It would seem that that has not been the position in the past.  The wife is not interested in that order and opposes it being made against her.  That means that the onus in proving the need for that order falls upon the husband.  At its highest, the husband points to some evidence about past conduct of the wife during their relationship, but it has now been a long time since the parties were together. 

9. He points to the fact that, in 2014, at the G Hospital, his mobile phone went missing and says that a nurse, whom he describes as Ms H in ward eight of the hospital, told him that the wife had taken his iPhone without permission.  He then reported the matter to the Suburb J Police Station to a police officer whose name was Officer K.  That was in November 2016.  He said he was very concerned about what occurred because this phone contained his private information, contacts, bank accounts and access to social media accounts.  I stress that this was all in 2014 and it took him until 2016 to report it.  I am perplexed as to why the evidence is the way it is, but presumably it means something to the husband.

10. Today, I have the benefit of an affidavit by the wife in which she not only says that she knows nothing about this, but she certainly denies having taken his phone.  Whether or not that incident can be sorted out at trial remains to be seen, but it seems to me that the issue still has to focus on the words of the injunction that the husband seeks.  There is no evidence in this case of the wife abusing him or his family, belittling him or his family, rebuking him or his family or otherwise speaking negatively about him or his family.  That seems to be the case in respect of not only oral matters, but also electronic and written communications as well. 

11. There is no evidence, therefore, that would justify making an order against the wife and, accordingly, the request for that order is dismissed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 May 2018.

Associate: 

Date:  17 May 2018