Zin & Yijun (No 2) - [2022] FedCFamC1F 493

Federal Circuit and Family Court of Australia
(DIVISION 1)
Zin & Yijun (No 2) [2022] FedCFamC1F 493

File number(s): SYC 2141 of 2022

Judgment of: SCHONELL J

Date of judgment: 12 July 2022

Catchwords: FAMILY LAW – PARENTING – Interim Orders – Where the mother failed to comply with court orders by not returning to Australia with the children – Where the mother had notice of the orders requiring her to return the children to Australia – Where the mother has stopped fostering the relationship between the father and the children – Interim procedural and parenting orders as sought by the father made.

Cases cited: Zin & Yijun [2022] FedCFamC1F 313

Division: Division 1 First Instance

Number of paragraphs: 22

Date of hearing: 11 July 2022

Place: Sydney

Counsel for the Applicant: Mr Todd

Solicitor for the Applicant: Unified Lawyers

The Respondent: No Appearance

Solicitor for the Independent Children's Lawyer: SCB Legal
ORDERS

SYC 2141 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ZIN

Applicant

AND:
MS YIJUN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

12 JULY 2022

THE COURT ORDERS THAT:
1.The matter be removed from the docket of the senior judicial registrar and reverted to his Honour Justice Schonell for hearing.
2.This Application be listed on an urgent basis.
3.The property proceedings are stayed pending the children’s return to the Commonwealth of Australia.
4.The requirement for the affidavit material in Order 4 of the Orders made on 11 May 2022 is stayed pending the return of the children to the Commonwealth of Australia.
5.Leave is granted to the applicant father (“the father”), through his legal representatives, to approach the chambers of Justice Schonell within 3 days of the children returning to Australia to obtain a date for a directions hearing or interim hearing as deemed appropriate by the Court at that time.
6.Leave is granted to the father to seek that the matter be relisted on 48 hours’ notice in the event the children are not returned to Australia by 30 July 2022.
7.Pending further order of the Court and otherwise until such time as the children return to the Commonwealth of Australia, the father has sole parental responsibility for the children, X born in 2015 and Y born in 2020.
8.The father is permitted to remove the children from South Korea for the purposes only of returning the children to the Commonwealth of Australia.
9.Notwithstanding the children currently being placed on the Family Law WatchList in Australia, a direction is made to the Australian Federal Police and Australian Boarder Force to ensure the children’s and father’s safe entry into Australia without being ceased
10.The father is provided sole parental responsibility to renew, if required, the child Y's Australian Passport and to update, if required, X's Australian residency status, without the consent of the respondent mother (“the mother”) and any requirement for the mother’s consent is dispensed with.
11.The father’s costs of this Application be reserved.

Note: 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 Zin & Yijun (No 2)

Details

AGLC: Zin & Yijun (No 2) [2022] FedCFamC1F 493
Case: [2022] FedCFamC1F 493
Decision Date: 12 July 2022

CaseChat Overview and Summary

Mr Zin, the father, applied to the Federal Circuit and Family Court of Australia for various interim parenting and procedural orders in relation to his two children, X and Y, after Ms Yijun, the mother, failed to return the children to Australia from South Korea. The mother had notice of the orders requiring her to return the children to Australia and had stopped fostering the relationship between the father and the children. The father sought the orders on an urgent basis. The court had to decide whether to grant the interim procedural and parenting orders as sought by the father. The court found that the mother had failed to comply with the previous court orders by not returning to Australia with the children and had notice of the orders. The court also found that the mother had stopped fostering the relationship between the father and the children. The court granted the interim procedural and parenting orders as sought by the father, including granting the father sole parental responsibility for the children, permitting the father to remove the children from South Korea to return them to Australia, and directing the Australian Federal Police and Australian Border Force to ensure the children's and father's safe entry into Australia without being ceased. The court also granted the father leave to seek that the matter be relisted on 48 hours’ notice if the children were not returned to Australia by 30 July 2022. The court stayed the property proceedings pending the children's return to Australia and stayed the requirement for the affidavit material pending the return of the children to Australia. The court reserved the father's costs of the application.

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

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

12 JULY 2022

THE COURT ORDERS THAT:

1. The matter be removed from the docket of the senior judicial registrar and reverted to his Honour Justice Schonell for hearing.

2. This Application be listed on an urgent basis.

3. The property proceedings are stayed pending the children’s return to the Commonwealth of Australia.

4. The requirement for the affidavit material in Order 4 of the Orders made on 11 May 2022 is stayed pending the return of the children to the Commonwealth of Australia.

5. Leave is granted to the applicant father (“the father”), through his legal representatives, to approach the chambers of Justice Schonell within 3 days of the children returning to Australia to obtain a date for a directions hearing or interim hearing as deemed appropriate by the Court at that time.

6. Leave is granted to the father to seek that the matter be relisted on 48 hours’ notice in the event the children are not returned to Australia by 30 July 2022.

7. Pending further order of the Court and otherwise until such time as the children return to the Commonwealth of Australia, the father has sole parental responsibility for the children, X born in 2015 and Y born in 2020.

8. The father is permitted to remove the children from South Korea for the purposes only of returning the children to the Commonwealth of Australia.

9. Notwithstanding the children currently being placed on the Family Law WatchList in Australia, a direction is made to the Australian Federal Police and Australian Boarder Force to ensure the children’s and father’s safe entry into Australia without being ceased

10. The father is provided sole parental responsibility to renew, if required, the child Y's Australian Passport and to update, if required, X's Australian residency status, without the consent of the respondent mother (“the mother”) and any requirement for the mother’s consent is dispensed with.

11. The father’s costs of this Application be reserved.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 2141 of 2022
Judgment of:	SCHONELL J
Date of judgment:	12 July 2022
Catchwords:	FAMILY LAW – PARENTING – Interim Orders – Where the mother failed to comply with court orders by not returning to Australia with the children – Where the mother had notice of the orders requiring her to return the children to Australia – Where the mother has stopped fostering the relationship between the father and the children – Interim procedural and parenting orders as sought by the father made.
Cases cited:	Zin & Yijun [2022] FedCFamC1F 313
Division:	Division 1 First Instance
Number of paragraphs:	22
Date of hearing:	11 July 2022
Place:	Sydney
Counsel for the Applicant:	Mr Todd
Solicitor for the Applicant:	Unified Lawyers
The Respondent:	No Appearance
Solicitor for the Independent Children's Lawyer:	SCB Legal

SYC 2141 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ZIN Applicant
AND:	MS YIJUN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	12 JULY 2022