EJK & TSL (No. 4)

Case [2006] FamCA 1022

FAMILY COURT OF AUSTRALIA

EJK & TSL (No 4) [2006] FamCA 1022

APPEAL - From decision of Family Court Judge – Whether trial Judge erred in exercise of discretion in refusing to grant stay of orders pending appeal against his substantive orders providing for child to live with father and be returned to Korea for Korean courts to determine parenting issues – Trial Judge considered in the exercise of his discretion the likely success or otherwise of grounds of appeal – Whether trial Judge properly applied principles relevant to granting a stay in parenting proceedings – Consideration of relevant principles as discussed in Clemett and Clemett (1981) FLC 91-013.

Examination of the consideration of substantive grounds of appeal by the trial Judge – Whether error by trial Judge in determining mother’s parenting application on a threshold basis – Whether trial Judge had proper regard to principles enunciated in Rice and Asplund (1979) FLC 90-725 and King and Finneran (2001) FLC 93-079 – Whether error by trial Judge in failing to appoint an Independent Children’s Lawyer and order a Family Report – No error by trial Judge in circumstances of case – Whether trial Judge was in error by failing to give significant weight to mother’s position she would not return to Korea because of likely criminal proceedings – No error by trial Judge in exercise of discretion.

Whether trial Judge’s findings that appeal not brought bona fide vitiated the exercise of his discretion – Discretion not impeached by this finding – Real consideration was effect of delay in proceedings on child in light of history of matter – Whether trial Judge properly considered hardship to either party – No appealable error by trial Judge – Whether trial Judge properly considered time until appeal could be heard – No error by trial Judge.

Appeal dismissed.

COSTS – Mother totally unsuccessful in proceedings – Mother ordered to pay father’s costs as agreed or failing agreement as assessed.
Family Law Act1975 (Cth), s 60CA
Family Law Rules 2004, Ch 19

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
Clemett and Clemett (1981) FLC 91-013
Coulton v Holcombe (1986) 162 CLR 1
De Lewinski v Director-General New South Wales Department of Community Services and Anor (1996) 70 ALJR 532; (1996) FLC 92-678
F and C and Child Representative [2004] FamCA 568
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80; [2005] 3 WLR 14; [2005] UKHL 40
In re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

King and Finneran (2001) FLC 93-079

Re K (1994) FLC 92-461
Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416

Rice and Asplund (1979) FLC 90-725

Sanders…

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AGLC
EJK & TSL (No. 4) [2006] FamCA 1022
Case
[2006] FamCA 1022
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia from a decision of a single judge. The appeal challenged the trial judge's refusal to grant a stay of his substantive orders, which had provided for a child to live with the father and be returned to Korea for Korean courts to determine parenting issues. The mother, the appellant, argued that the trial judge erred in his exercise of discretion by considering the likely success of her grounds of appeal and by failing to properly apply the principles relevant to granting a stay in parenting proceedings, particularly as discussed in *Clemett and Clemett*.

The court was required to determine whether the trial judge had erred in his consideration of the substantive grounds of appeal, including whether he had improperly determined the mother's parenting application on a threshold basis, and whether he had properly regarded the principles in *Rice and Asplund* and *King and Finneran*. Further issues included whether the trial judge erred by failing to appoint an Independent Children's Lawyer and order a Family Report, and whether he gave sufficient weight to the mother's position regarding her reluctance to return to Korea due to potential criminal proceedings. The court also considered whether the trial judge's finding that the appeal was not brought *bona fide* vitiated his discretion, and whether he properly considered the effect of delay on the child, the hardship to the parties, and the time until the appeal could be heard.

The Full Court found no error in the trial judge's exercise of discretion. It held that the trial judge had properly considered the relevant principles for granting a stay, including the likely success of the appeal grounds, the best interests of the child, and the potential hardship to the parties. The court determined that the trial judge had not erred in his substantive findings or in his procedural decisions regarding the appointment of an ICL or the ordering of a Family Report, finding these actions unnecessary in the circumstances. The finding that the appeal was not brought *bona fide* did not, in itself, impeach the exercise of discretion, as the primary consideration was the effect of delay on the child.

The appeal was dismissed. The appellant was ordered to pay the respondent's costs of the appeal, to be agreed or assessed.

Orders

Orders of the court

1.

The appellant pay the respondent’s costs of the appeal as agreed, or failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

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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