Dai & Chu (No 2) - [2023] FedCFamC1F 686

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dai & Chu (No 2) [2023] FedCFamC1F 686

File number(s): MLC 6491 of 2023

Judgment of: JOHNS J

Date of judgment: 16 August 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – stay application – where the father unilaterally relocated the children to Australia – where orders made for the children to return to Country B with the mother – where father seeks a stay of the orders – where the father has filed an appeal in conjunction with the stay application – where appeal will be rendered nugatory if stay is not granted

Legislation:
Family Law Act 1975 ss 60CA, 60CC(2) & (3), 69E, 111CD

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.12

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Dai & Chu [2023] FedCFamC1F 667

Kwon v Lee (2006) FLC 93-287

Division: Division 1 First Instance

Number of paragraphs: 79

Date of hearing: 15 August 2023

Place: Melbourne

Counsel for the Applicant: Dr Ingleby

Solicitor for the Applicant: T Squared Legal

Counsel for the First Respondent: Mr Bartfeld KC

Solicitor for the First Respondent: Rubin Blight Hardy Family Lawyers & Mediators

Counsel for the Second Respondent: Ms Tenace

Solicitor for the Second Respondent: Melbourne Law Offices
ORDERS

MLC 6491 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DAI

Applicant

AND:
MR CHU

First Respondent

MS LING

Second Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

16 AUGUST 2023

THE COURT ORDERS THAT:
1.That the operation and execution of the decree contained in orders 1, 2, 3 and 5 made on 11 August 2023 be stayed pending finalisation of the father's Amended Notice of Appeal filed 14 August 2023 on condition that pending the determination of the appeal:-
(a)The children X also known as T born 2012 and Y also known as U born 2018 live with the mother;
(b)The children spend time with the father at such times as may be agreed in writing between the father and the mother;
(c)That without admission as to the necessity or entitlement for such an order, the father be and is hereby restrained from coming within 500 metres of:
(i)the V Hotel, W Street, Sydney or any other address at which the mother and the children are residing;
(ii)the mother; or
(iii)the children or either of them.

2.That forthwith the mother's lawyers do all such acts and things as may be required to notify the Australian Federal Police of the stay of the operation of order 1 of the orders dated 11 August 2023 AND IT IS REQUESTED that the Australian Federal Police confirm their receipt of this advice.
3.That by 4.00pm on 25 August 2023 the father do all such acts and things as may be required to file any application and affidavit in support of his application for interim orders to spend time with the children.
4.That by 4.00pm on 4 September 2023 the mother and…

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 Dai & Chu (No 2)

Details

AGLC: Dai & Chu (No 2) [2023] FedCFamC1F 686
Case: [2023] FedCFamC1F 686
Decision Date

CaseChat Overview and Summary

The case of Dai & Chu (No 2) was heard in the Federal Circuit and Family Court of Australia. The matter involved a dispute between the parents, Ms Dai and Mr Chu, regarding the relocation of their two children to Australia and subsequent orders requiring the children's return to their country of habitual residence, Country B. Mr Chu filed a Notice of Appeal and an Application in a Proceeding seeking a stay of the orders made on 11 August 2023, pending the determination of his appeal. The legal issues before the court were whether a stay should be granted and, if so, what the conditions of the stay should be. The court found that the father's appeal had been filed in a timely fashion but that his bona fides was questionable due to his actions in destroying one of the children's passports and his conduct at the mother's hotel. The court also found that the risk of the appeal being rendered nugatory if the children were returned to Country B was a compelling consideration. The court granted a stay of the orders but subject to certain conditions, including that the children live with the mother and that the father be restrained from coming within 500 meters of the mother and the children. The court also made directions for the filing of material in relation to the father's proposed spending time arrangements with the children and listed the matter for hearing before the court on 8 September 2023.

The final orders made by the court were that the operation and execution of the decree contained in orders 1, 2, 3 and 5 made on 11 August 2023 be stayed pending finalisation of the father's Amended Notice of Appeal filed 14 August 2023, on the condition that the children live with the mother, that the children spend time with the father at such times as may be agreed in writing between the father and the mother, and that the father be restrained from coming within 500 metres of the mother or the children or either of them. The court also made orders for the mother's lawyers to notify the Australian Federal Police of the stay of the operation of order 1 of the orders dated 11 August 2023, and requested that the Australian Federal Police confirm their receipt of this advice. The court further made orders for the father to file any application and affidavit in support of his application for interim orders to spend time with the children by 4.00pm on 25 August 2023, and for the mother and the second respondent to file and serve any response and affidavits in support in respect of the father's application by 4.00pm on 4 September 2023. The court listed all extant interim applications as to the children's time with the father for hearing before the court at 10.00am on 8 September 2023.

Orders