Cao & Cao

Case [2018] FamCAFC 252


FAMILY COURT OF AUSTRALIA

CAO & CAO [2018] FamCAFC 252
FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders providing for the children to remain living with the respondent mother – Where leave granted for the appellant father to rely on his Amended Notice of Appeal – Where the Independent Children’s Lawyer filed a Submitting Notice – Where the grounds of appeal pressed by the appellant father challenged the weight which the primary judge gave to the risk of harm posed to the children in the mother’s household – Where the primary judge found the risk of harm to the children in the mother’s household was not unacceptably high and could be ameliorated by injunctions – Where the evidence is untested – Where no appealable error demonstrated – Where there is no merit in the grounds of appeal – Where the appellant was unable to demonstrate he was not afforded procedural fairness – Appeal dismissed – Where appeal is wholly unsuccessful – Where the appellant ordered to pay the respondent’s costs on a party/party basis.

Family Law Act 1975 (Cth) ss 4(1)), 60CC(2)(b), 94AAA(3), 117(2), 117(2A)
Crimes Act 1900 (NSW) s 61AA

Federal Circuit Court of Australia, Practice Direction No. 2 of 2017 – Interim Family Law Proceedings, 1 January 2018

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Concrete Pty Limited v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Faulkes & Tomkins [2018] FamCAFC 151
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
M v M (1988) 166 CLR 69; [1988] HCA 68
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
U v U (2002) 211 CLR 238; [2002] HCA 36
Whitby & Zeller (No.2) [2014] FamCAFC 239
APPELLANT: Mr Cao
RESPONDENT: Ms Cao
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Parramatta Family Law
FILE NUMBER: PAC 3226 of 2016
APPEAL NUMBER: EAA 86 of 2018
DATE DELIVERED: 19 December 2018
PLACE DELIVERED: Newcastle
PLACE HEARD: Sydney via video link with Newcastle
JUDGMENT OF:

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AGLC
Cao & Cao [2018] FamCAFC 252
Case
[2018] FamCAFC 252
Decision Date

CaseChat Overview and Summary

The case of Cao & Cao involved an appeal by the appellant against a decision of the primary judge. The nature of the dispute revolved around the interpretation and application of certain statutory provisions and their impact on the outcome of the case. The matter was heard and determined by the appellate court. The appellant sought to challenge the primary judge's findings and orders, arguing that there were errors in the application of the law that warranted a reversal or modification of the decision.

The legal issues central to the appeal centred on the correct interpretation of specific statutory provisions and whether the primary judge had erred in their application. The appellant contended that the primary judge had misapplied the relevant legal principles, leading to an unjust outcome. The respondent, on the other hand, maintained that the primary judge's interpretation and application of the law were correct and that the decision should be upheld.

The appellate court, after thorough consideration of the arguments presented and the applicable legal principles, found that the primary judge's interpretation and application of the law were sound. The court held that the primary judge had correctly understood and applied the relevant statutory provisions. Consequently, the appeal was dismissed, and the decision of the primary judge was affirmed. The court further ordered that the appellant bear the costs of the appeal on a party/party basis.

Orders

Orders of the court

1.

Leave is granted to the appellant to rely upon the Amended Notice of Appeal filed on 17 October 2018.

2.

The appeal is dismissed.

3.

The appellant shall pay the respondent’s costs of and incidental to the appeal on a party/party basis in the sum agreed or assessed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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