Mu & Zhihao [2025] FedCFamC1F 630 (1 September 2025)

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).

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mu & Zhihao has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These parenting proceedings between the Applicant mother, Ms Mu ("the mother"), and the Respondent father, Mr Zhihao ("the father"), were formally commenced in Division 2 in April 2023. That was shortly after the mother left Country B with the children to live in Australia.
2. The parenting proceedings were effectively stayed whilst the Central Authority in Country B pursued, through the Central Agency in Australia, orders for the children's return to Country B. Those Hague Convention proceedings were commenced by the Central Authority in September 2023, and although the progression of those proceedings were interrupted for a number of reasons, ultimately, on 14 June 2024, the Central Agency discontinued the Hague Convention proceedings in Australia.
3. I am aware from my involvement with this matter that the father asserts that the instructions given to the Australian Central Authority by the Country B Central Authority were incorrect, wrong, or, he goes so far as to say, malicious in some way. Nonetheless, as a result of the instructions received by the Australian Central Authority, the Hague proceedings were discontinued, effective on 20 June 2024.
4. A number of orders were made by Williams J on 20 June 2024, but effectively dismissed any other outstanding proceedings. The father filed an Application in an Appeal seeking leave to an appeal from those Orders out of time. The Application was actively resisted by both the mother and the Independent Children's Lawyer ("ICL"). The Application was dismissed by a Registrar, but the father, again, seemingly without the benefit of legal advice, sought a Review of the Registrar's dismissal Order and an extension of time in which to bring his appeal, both applications being opposed by the mother and the ICL.
5. Those Applications came before Austin J on 5 December 2024, and for the Reasons published (see Zhihao & Mu [2024] FedCFamC1A 228), his Honour made Orders dismissing the Applications in Appeal and the Responses to the Applications in Appeal, effectively bringing those proceedings to an end.
6. Those proceedings having then concluded, but with an Application by the mother still on foot, on 10 October 2024, the mother filed an amended Initiating Application. In such Application she sought, essentially, the orders that she is seeking today, namely that the children live with her in Australia and that the mother have, as it was then termed, sole parental responsibility.
7. These competing applications for parenting orders under the Family Law Act 1975 (Cth) ("the Act") first came before me on 27 February 2025. It was noted at that time that after the dismissal of the Hague Convention proceedings, the father had not participated in the proceedings and had failed to comply with orders of the Court that he file material (see, for example, the Order of a Senior Judicial Registrar dated 30 August 2024).
8. On 27 February 2025, considering the age of the children (X ("X") is now 17 years of age and Y ("Y") is now 13 years of age), the Court ordered a specific issues report be prepared specifically directed to the children's wishes. The Court, of course, was aware that for the Hague Convention proceedings, as is the usual practice, a Hague report prepared pursuant to r 25 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) in September 2023 had been produced on 31 October 2023.
9. The father, as he had not previously appeared, also did not appear before me on 27 February 2025, but the reasons for obtaining a specific issues report was to effectively update the children's wishes. Because of the father's failure to engage, the Court ordered the mother to file an updating affidavit and listed the matter for an undefended hearing on 9 May 2025. The specific issues report prepared by a Court Child Expert, Ms J was released to the parties on 17 April 2025.
10. When the matter came before me on 9 May 2025, the father again had failed to appear before the Court, but, as he has subsequently done so electronically on 8 May 2025, for this final hearing, he chose to forward to chambers documents that were unsworn, however they were written in English without translation. The Court record will show that on 9 May 2025, in the absence of the father, the Court noted:

...that the Court has today marked:

1. The father's letter attaching his unsworn affidavit dated 6 May 2025 as Exhibit 1; and
2. The father's further letter to the Court dated 8 May 2025 as Exhibit 2.

1. The Court further ordered the reappointment of an ICL to represent the interests of the children and listed the matter for a final hearing commencing today, 1 September 2025, at 10.00am.

SHOULD THE MATTER PROCEED ON AN UNDEFENDED BASIS?

1. In view of the father's failure to participate in any meaningful way, the Court further ordered on 9 May 2025:
   1. That unless otherwise ordered, the Respondent father is required to appear personally before the Court at the Final Hearing in Brisbane.
   2. That if the father wishes to attend by electronic means at the Final Hearing, he shall file and serve within thirty (30) days, an Application in a Proceeding supported by affidavit setting out the basis upon which he wishes to attend electronically.
   3. That the Applicant mother shall file and serve a Response to any Application in a Proceeding (if filed) within fourteen (14) days of such Application being filed.
2. The father filed no such application until he filed an Application in a Proceeding at 4.22pm last Wednesday, 27 August 2025, in which he sought:
   1. The Respondent father be permitted to attend the trial listed on 1 - 3 September 2025 electronically.
   2. A [ K Language] interpreter be made available for the Respondent father for the duration of the trial.
   3. The Respondent father is to file his Case Outline by 28 August 2025.
   4. In the alternative, if Order 1 is not granted, the trial listed on 1 - 3 September 2025 be adjourned to a date to be fixed, and the Respondent be granted an extension of time to obtain legal advice and file his material.
   5. Liberty to apply on 3 days' notice.

1. Noting that the father has lived in Country B, it seems all his life, but has worked in a legal office run by the mother, who is a legal professional, I make the observation that the relief as sought above has the appearance of relief prepared by a lawyer in some form.
2. What can be said, of course, is that the Application to appear electronically was filed over two months after it should have been, and apart from his assertion that he must remain in Country B to support his elderly parents, which may well be correct, he provides no evidence other than paragraph 27 of this affidavit in support filed 27 August 2025. I say that noting that - in addition to the unsworn documents allowed to be used as evidence - as noted in the Order of 9 May 2025, the father has filed an extensive case outline which he has signed and which, in a sense, may have been similar to an affidavit, however it was not witnessed and the father says he did not have time to have any affidavit notarised so as to comply with his requirement to file any further affidavit upon which he intended to rely.
3. The history of this matter establishes, in my view, a failure by the father to comply with r 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules). As a result, as I have communicated as best as I can to the father through the K Language interpreter who appears also by video, remotely from Melbourne, the Court will proceed today on an undefended basis. It seems apparent from his Application in a Proceeding that if the Court elected, as it has, to proceed on an undefended basis, he sought an adjournment.

1. It seems to me that the father's application for an adjournment is based on the fact that he says he has not had time to obtain legal advice. He says, effectively from the bar table, he has made upwards of 40 applications for advice and believes he could get community assistance in this matter if given more time.
2. I am not satisfied his mere assertions that he will get a lawyer can be accepted in view of the length of time that he has chosen to operate without a lawyer, including during the Hague proceedings in Australia.
3. I note that Mr Gittoes-Ceasar, solicitor advocate for the mother and Ms Chesterman of Counsel for the ICL opposed an application to adjourn even the undefended trial. In my view, these matters ought to be completed. The father's position, as articulated in documents here as either sent to my chambers, which have been marked exhibits at previous Court events, or filed in the Court is immovable and from his perspective, I understand, relate to his strongly held belief that the children were unlawfully removed from Country B, which was their habitual place of residence.
4. As I say, the Hague Convention proceedings (although started) were discontinued and nothing more needs to be said about that issue. It is not in the best interests of these children who have now been the subject of at least two interviews by a Child Court Expert and who the mother says are settled in Australia and wish to remain living here, as they have expressed to the report writer, to have these proceedings continually delayed.
5. For those reasons, I refuse the application for adjournment made by the father.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.