CHOU & LONG - [2014] FamCA 1116

FAMILY COURT OF AUSTRALIA

CHOU & LONG [2014] FamCA 1116

FAMILY LAW – CHILDREN – Best interests – where the parents lived with the child in Taiwan – where the mother brought the child to Australia – where the mother has retained the child in Australia without the father's consent – where the father seeks orders for the immediate return of the child to Taiwan – where the application is dismissed.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

ZP v PS (1994) 181 CLR 639
EJK v TSL (2006) 35 Fam LR 559
Karim v Khalid (2007) 38 Fam LR 300

APPLICANT: Ms Chou

RESPONDENT: Mr Long

FILE NUMBER: BRC 6334 of 2014

DATE DELIVERED: 12 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 December 2014
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: ABA Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kirkman-Scroope

SOLICITOR FOR THE RESPONDENT: NR Barbi Solicitor Pty Ltd
Orders
Until further order
(1)The child, L LONG, born … 2011 (also known as …), shall live with the mother.
(2)That the child shall spend such time with the father as is agreed between the mother and the father or as further ordered by this Court.
(3)That the child shall communicate with the father as is agreed between the mother and the father or as further ordered by this Court.
(4)That the child’s name be maintained on the Airport Watch List.
(5)That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child be independently represented by a lawyer and it is requested that the Legal Aid Office of Queensland make arrangements as soon as practicable to secure that independent representation of the child’s interests.
(6)That the competing applications of the parties for final parenting orders be listed for trial before his Honour Justice Forrest over four days in July 2015 on dates to be fixed and advised to the parties as soon as possible.
(7)That the father has liberty to file an Application in a Case seeking more specific orders for the child to spend time with him and to communicate with him pending the trial of the substantive applications in the event that agreement is not able to be reached between him and the mother about those matters and any such Application in a Case should be referred to his Honour Justice Forrest in the first instance for listing consideration.
(8)That the competing applications of the parties for final parenting orders be listed on a date to be fixed before a Registrar after an Independent Children’s Lawyer has filed a Notice of Address for Service in the matter, for the making of all directions necessary to have this matter ready for trial by July 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chou & Long has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law…

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 CHOU & LONG

Details

AGLC: CHOU & LONG [2014] FamCA 1116
Case: [2014] FamCA 1116
Decision Date: 12 December 2014

CaseChat Overview and Summary

In the matter of CHOU & LONG, Forrest J of the Federal Circuit Court of Australia made orders concerning the living arrangements and communication of a child, L LONG. The dispute involved competing applications for final parenting orders between the mother and the father.

The court was required to determine the interim living arrangements for the child, the extent of time the child would spend with the father, and the nature of communication between the child and the father pending a final determination. Further, the court considered the need for independent representation of the child's interests and the arrangements for the future conduct of the proceedings, including a trial date.

Forrest J ordered that the child shall live with the mother. The court further ordered that the child would spend time with and communicate with the father as agreed between the parents or as further ordered by the court. Crucially, the court ordered that the child's interests be independently represented by a lawyer, requesting the Legal Aid Office of Queensland to make arrangements for this. The competing applications for final parenting orders were listed for a four-day trial in July 2015. The father was granted liberty to file an application seeking more specific interim orders regarding time and communication if agreement could not be reached. Directions were to be made by a Registrar to prepare the matter for trial.

Orders

Orders of the court

Until further order

(1) The child, L LONG, born … 2011 (also known as …), shall live with the mother.

(2) That the child shall spend such time with the father as is agreed between the mother and the father or as further ordered by this Court.

(3) That the child shall communicate with the father as is agreed between the mother and the father or as further ordered by this Court.

(4) That the child’s name be maintained on the Airport Watch List.

(5) That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child be independently represented by a lawyer and it is requested that the Legal Aid Office of Queensland make arrangements as soon as practicable to secure that independent representation of the child’s interests.

(6) That the competing applications of the parties for final parenting orders be listed for trial before his Honour Justice Forrest over four days in July 2015 on dates to be fixed and advised to the parties as soon as possible.

(7) That the father has liberty to file an Application in a Case seeking more specific orders for the child to spend time with him and to communicate with him pending the trial of the substantive applications in the event that agreement is not able to be reached between him and the mother about those matters and any such Application in a Case should be referred to his Honour Justice Forrest in the first instance for listing consideration.

(8) That the competing applications of the parties for final parenting orders be listed on a date to be fixed before a Registrar after an Independent Children’s Lawyer has filed a Notice of Address for Service in the matter, for the making of all directions necessary to have this matter ready for trial by July 2015.

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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