Zin & Yijun

Case [2022] FedCFamC1F 313

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Zin & Yijun [2022] FedCFamC1F 313

File number(s): SYC 2141 of 2022
Judgment of: SCHONELL J
Date of judgment: 11 May 2022
Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the wife took the children to Country B for a holiday with the husband’s consent and decided to stay there – Where the husband seeks that the children be returned to Australia – Where the wife opposes returning to Australia and contends that it is a matter for final hearing because there are a number of risk factors – Where the children are habitually resident in Australia – Consideration of the s 60CC primary and additional considerations of the Family Law Act 1975 (Cth) – Found that it is the best interests for the children to be returned to Australia.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69E, 69ZL
Cases cited:

Adamson & Adamson [2018] FamCA 523

Atwill & Mardin [2018] FCCA 1401

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520

Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22

Sterry & Sterry [2017] FamCAFC 226

Division: Division 1 First Instance
Number of paragraphs: 84
Date of hearing: 2 May 2022
Place: Sydney
Counsel for the Applicant: Mr Todd
Solicitor for the Applicant: Unified Lawyers
Counsel for the Respondent: Mr Berg
Solicitor for the Respondent: Cambridge Lawyers

ORDERS

SYC 2141 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ZIN

Applicant
AND:

MS YIJUN

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

11 MAY 2022

THE COURT ORDERS THAT:

1.That all extant applications be adjourned to 10.00 am on 11 July 2022 before Senior Judicial Registrar Jenkinson for an interim hearing.

2.The applicant husband (“the husband”) is to file a financial statement and financial questionnaire within 28 days.

3.The parties are to exchange financial disclosure pursuant to r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) within 42 days from today’s date.

4.The parties are to file one consolidated affidavit each in preparation for the interim hearing as to child support, spousal maintenance and interim parenting orders by no later than 7 days prior to the interim hearing and the affidavit is to be limited to 20 pages and 10 annexures.

5.Pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer is appointed for the children:

(a)X born in 2015; and

(b)Y born in 2020.

6.Legal Aid NSW is requested to make arrangements as soon as possible for appropriate representation for the children and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.

7.The Court advise the Senior Solicitor, Family Law Litigation Section of Legal Aid NSW of this order forthwith.

8.Each party make available to the Independent Children’s Lawyer…

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AGLC
Zin & Yijun [2022] FedCFamC1F 313
Case
[2022] FedCFamC1F 313
Decision Date

CaseChat Overview and Summary

The case of Zin & Yijun involves a dispute between the parties regarding the residence of their children following the wife's decision to take the children to Country B for a holiday with the husband's consent and subsequently deciding to remain there. The husband sought an order for the children's return to Australia, while the wife opposed this and argued that the matter should be left until a final hearing due to various risk factors. The Federal Circuit and Family Court of Australia was tasked with deciding whether the children should be returned to Australia immediately or await a final hearing.

The legal issues before the court included whether the children should be returned to Australia immediately or await a final hearing and the application of the primary and additional considerations of the Family Law Act 1975 (Cth) in determining the children's best interests. The court needed to weigh the risk factors presented by the wife against the benefit to the children of maintaining a relationship with both parents. The court also had to consider the appropriate jurisdiction for addressing the parenting aspects of the matter, given the wife's desire for final orders.

In its reasoning, the court found that it was not in the best interests of the children to await a final hearing for their return to Australia. The court acknowledged the serious allegations made by the wife but concluded that it was necessary to act cautiously and address the identified risks while balancing the importance of a meaningful relationship with both parents. The court determined that the children's return to Australia would allow for a more efficient investigation of the allegations against the husband, better involvement of the husband in necessary psychological interventions for the children, and the maintenance of the children's relationship with their father. The court also found that the presumption of equal shared parental responsibility should not apply given the circumstances.

The court ordered that the children be returned to Australia within 35 days, with the wife using her pre-booked return tickets. Pending the children's return, they were to spend time with the husband via video call twice a week. The husband was required to pay certain expenses, including mortgage repayments, utilities, rates, school fees, and spousal maintenance. Additionally, the husband was to undergo urinalysis testing and provide the results to the wife's solicitors. The wife was restrained from changing the children's residence without the husband's consent or a court order.

In summary, the court ordered the immediate return of the children to Australia, finding it to be in their best interests. The court also made various interim orders regarding financial support, parenting arrangements, and the involvement of an Independent Children's Lawyer. The final orders were subject to review and variation as necessary.

Orders

Orders of the court

SYC 2141 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ZIN

Applicant

AND:

MS YIJUN

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

11 MAY 2022

THE COURT ORDERS THAT:

1. That all extant applications be adjourned to 10.00 am on 11 July 2022 before Senior Judicial Registrar Jenkinson for an interim hearing.

2. The applicant husband (“the husband”) is to file a financial statement and financial questionnaire within 28 days.

3. The parties are to exchange financial disclosure pursuant to r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) within 42 days from today’s date.

4. The parties are to file one consolidated affidavit each in preparation for the interim hearing as to child support, spousal maintenance and interim parenting orders by no later than 7 days prior to the interim hearing and the affidavit is to be limited to 20 pages and 10 annexures.

5. Pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer is appointed for the children:

(a) X born in 2015; and

(b) Y born in 2020.

6. Legal Aid NSW is requested to make arrangements as soon as possible for appropriate representation for the children and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.

7. The Court advise the Senior Solicitor, Family Law Litigation Section of Legal Aid NSW of this order forthwith.

8. Each party make available to the Independent Children’s Lawyer within 7 days of notification or filing of the Notice of Address for Service copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

9. Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by a party.

10. The respondent wife (“the wife”) shall do all that is required and sign all documents necessary so as to cause the children to be returned to Sydney, New South Wales, in the Commonwealth of Australia, within 35 days of the date of these Orders.

11. The wife is to do all that is required and sign all documents necessary so as to cause the passport for the child X to be renewed forthwith and provide documentary evidence of the application and supporting documentation of said application within 7 business days from today’s date.

12. For the purposes of obtaining the passport for the child X, the husband is to sign the application form and provide all documents necessary to the wife no later than 2 days after her requesting said signature or documents.

13. Pending the children’s return to Australia, the children are to spend time with the husband by way of video call twice a week on a date and time agreed between the parties and absent agreement then on Tuesday and Friday between 6.00 pm and 6.30 pm for a period of up to 15 minutes.

14. For the purposes of the children returning to the Commonwealth of Australia, the wife is to use the credits available to her by virtue of the return tickets already booked. Should any further fee be raised by the airline or a difference in price be incurred to change the date of return travel, then the husband will pay said fee and/or difference in the price for the wife and children to return to Sydney, Australia.

15. Upon their return to Australia, the children and the wife are to have sole occupation to the exclusion of the husband of the former matrimonial home being the property situated at and known as G Street, Suburb H, NSW (“the home”).

16. The husband is to pay the mortgage repayments, utilities and rates associated with the home.

17. The parties are to forthwith do all that is required and sign all documents necessary so as to cause X’s enrolment to be reinstated with C School and for the child to recommence attending school.

18. The husband shall be responsible for the payment of the school fees for X.

19. On a without admissions basis and without prejudice to the husband’s position, from the children’s return to Australia and pending the hearing of the spousal maintenance application filed by the wife, the husband will:

(a) continue to pay the private health insurance premiums at the current rate of cover;

(b) pay for the child Y’s day care fees for 5 days a week; and

(c) pay to the wife the amount of $500 per week by way of spousal maintenance.

20. On a without admissions basis, the husband will undergo a chain of custody urinalysis test once a fortnight for a maximum of three fortnights.

21. The husband is to instruct his solicitors to provide a copy of the results of the urinalysis tests to the wife’s solicitors within 72 hours of said results being received.

22. Within 7 days of the wife’s arrival to Australia, the wife is to cause the delivery of the children’s passports, Australian and Country B, to her solicitors with the passports to be retained by her solicitors pending further order.

23. Pending further order, each party and each of their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children X (a male) born in 2015 and Y (a male) born in 2020, or either of them, from the Commonwealth of Australia.

24. The Marshal of the Federal Circuit and Family Court of Australia and all officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and take all necessary steps to restrain either party from removing or attempting to remove the said children or either of them from the Commonwealth of Australia.

25. AND THE COURT REQUESTS THAT, pending further Order of the Court, the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s name on the Family Law Watchlist, also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia.

26. The Australian Federal Police maintain an airport watch list of the said children on all flights leaving any international or domestic airport in all States and Territories of the Commonwealth of Australia.

27. The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these Orders.

28. The wife is restrained by injunction from changing the children’s residence without the husband’s prior written consent or an order of the Court.

NOTATIONS:

A. The wife has not yet raised a child support assessment with the Child Support Agency in Australia.

B. For the purposes of travelling to Country B, the parties had booked return airfares to Australia. The wife, upon her unilateral decision to remain in Country B, changed the date of return on said tickets to a later date in 2022. These tickets remain valid.

C. For the purposes of the orders requiring the husband undertake urinalysis testing, it is noted that the husband takes prescription medication being:

(a) Medication for blood pressure, the name of which the applicant is unsure of at this time, prescribed by his general practitioner Dr D;

(b) Medication for depression, prescribed by his general practitioner Dr D;

(c) Medication for adult attention deficit hyperactivity disorder (“ADHD”), prescribed by his psychiatrist, Dr F;

(d) A second medication for adult ADHD, prescribed by his psychiatrist, Dr F;

(e) Medication for obsessive compulsive disorder, prescribed by his psychiatrist, Dr F.

D. The husband has undertaken a urinalysis test on 27 April 2022, the results of which have yet to be produced.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The wife relied upon the following documents:(1)Response to Final Orders filed 20 April 2022;(2)Affidavit of wife filed 20 April 2022;(3)Parenting Questionnaire of wife filed 20 April 2022; and(4)Case Outline.BACKGROUND The parties are both Country B by birth. The parties married in Country B in 2014 and later that month, the wife moved to Queensland to live with the husband who had initially come to Australia in early 2011. In 2015, the parties’ first child X was born. In mid-2015, the parties’ and X obtained permanent residency. At some stage during 2017 (the exact date matters little for the purposes of this application), the parties moved to New South Wales where the husband purchased a business. In 2020, X commenced attending C School. In 2020, Y was born. In November 2021, the husband moved out of the former matrimonial home and indicated to the wife that he did not intend to travel with her to Country B for the forthcoming family holiday. The parties seem to agree that this was when they separated. In December 2021 (the date matters little for the purposes of this application), the wife travelled with the children to Country B for the purposes of a four-week holiday. On 31 January 2022, the wife, by a letter from her solicitor, informed the husband that she did not “have a plan to return to Australia in the near future as the elder child (X) will enter a primary school in Country B in early March of this year” (husband’s affidavit filed 31 March 2022, Annexure H). In the same letter, the wife proposed that the husband spend time with the children for half of each school holiday and on other occasions upon the giving of two weeks’ prior notice. She also sought various documents by way of disclosure obligations and sought a sum of money by way of spousal maintenance and child support. The letter ended with a statement to the effect that if she did not receive a response then the wife would be commencing proceedings without further notice. It is not in dispute that the husband had not been given any prior notice of the wife’s intention not to return to Australia nor is it in dispute that the wife’s intention to remain in Country B and enrol the child in school was a unilateral act. On 20 April 2022, the wife filed a Response in which she sought interim orders by way of financial injunctions and spousal maintenance. Despite the orders the husband sought in relation to interim parenting arrangements, she sought no interim parenting orders. As part of the final relief, the wife sought an order that she have 65% of the parties’ property, an order for permanent spousal maintenance, that the children live with her in Country B, and that she have sole parental responsibility. The wife proposed no time orders between the husband and the children. The husband contends in his affidavit that following the parties’ separation, and prior to the wife travelling to Country B with the children, he saw the children about two or three times a week, that he attended the home and sometimes stayed overnight but in a different room, and that X was dropped off to his sister’s place on one occasion.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In relation to the allegations of family violence, I take these matters into account and also note that the wife makes an allegation that the husband physically assaulted her.CONCLUSION I turn now to consider the issues of parental responsibility and other orders. The husband did not seek any orders for parental responsibility. As previously indicated, the wife sought no orders other than a mere dismissal of the husband’s application. No submissions were put to me about the appropriateness of making an order for parental responsibility. In this matter, given the allegations of risk, what would appear to be a high level of distrust and insufficient evidence, I find that it is not in the best interests of the child to make an order for equal shared parental responsibility or, for that matter, any order by way of parental responsibility. For these reasons, I am of the view consistent with s 61DA(3) that it would not be appropriate in the circumstances of this case for the presumption of equal shared parental responsibility to apply. In those circumstances, the mandate in s 65DAA is addressed. In relation to time arrangements, I am not being asked by the husband to make orders for time. I am merely being asked by the husband to make an order for the return of the children to Australia. It is proposed that the time orders would be addressed at an interim hearing upon the children’s return. I am of the view that it is in the best interests of these children for them to be returned to Australia as soon as possible. The wife seeks final orders from this Court as to parenting matters and thus she considers that this is the appropriate jurisdiction in which to hear the parenting aspects of the matter. This Court can address the questions of risk raised by the wife and a proper investigation of the allegations that she raises in relation to the husband and the possible risk he poses to the children more efficiently if the children are in Australia. The husband can be more properly and efficiently involved and engaged in any necessary psychological intervention that the child X needs and be involved in the therapy if considered necessary more efficiently if it occurs in Australia rather than Country B. The children can be, if thought necessary, be seen by an ICL and ultimately an expert for the preparation of a report more efficiently if the children are in Australia rather than Country B. The maintenance of the children’s relationship with their father can be more properly done with the children in Australia rather than in Country B. Whilst the wife made no such submission, and indeed by her adoption of the husband’s proposed orders (subject to the variations to which I have earlier referred) she could be taken as eschewing any such submission, I recognise that it is the wife who will be required to remain in Australia. The form of order as initially sought by the husband saw her as the primary carer and thus her freedom of movement is being temporarily constrained.

Ratio Decidendi

Legal Principle Established

The wife submitted that there are a significant number of risk factors, that the risk factors were such that there were concerns in relation to the husband having time with the children, that those risk factors required proper consideration and evaluation, which could only be conducted within the context of a final hearing. Counsel for the wife submitted that the observations of the Full Court in Sterry & Sterry [2017] FamCAFC 226 (“Sterry”) was authority for a proposition that this Court should not order a return of the child until there had been a fulsome assessment of the matters in relation to risk, which could only be conducted at a final hearing. I do not accept that Sterry is authority for that proposition nor do I accept that it is in the best interests of these children that their return should await a final determination, which may not occur for more than two years.PRIMARY AND ADDITIONAL CONSIDERATIONS In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 FamLR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 FamLR 439). Both parties consider it important that the children have a meaningful relationship with the other parent. They just differ as to the way it can occur and where it can occur. In that respect, the wife consents to orders being made in the terms of Order 17 of Exhibit “A”, namely that the children spend some video time with their father for 15 minutes on two occasions each week. As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the children from risk and harm than to the benefit to the children of having a meaningful relationship with both parents. The wife has made very serious allegations. I am unable in these interim proceedings to resolve the competing allegations but accept that I cannot ignore the allegations of risk. I need to act cautiously and the orders I make need to address the issues of risk that have been identified, balanced against the importance of a meaningful relationship. In determining what is in the best interests of the child, I will now consider the additional considerations as far as they are relevant. Dealing with the additional considerations, counsel for the wife placed some weight on the views expressed by the child, X, of a fear of his father. In particular, reference was made to the reports attached to the wife’s affidavit where the child expressed concern that his father would remove him or take him away. The difficulty I have with the reports is that it is unclear to me what has led the child to that conclusion and the context in which the statements were allegedly made. I also note that despite the reports recording such a statement, the reports did not say that the child should not see his father. I am conscious, however, of the risk but, also observe that the child is six years of age. There is, given his age, no evidence in relation to Y and his views.