Legal Research
Cases
Guanyu & Bai

Guanyu & Bai

Case [2023] FedCFamC2F 698 13 June 2023

Costs

Abuse of Process

Jurisdiction

Best Interests of the Child

Family Law

No judgment structure available for this case.

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guanyu & Bai [2023] FedCFamC2F 698

File number(s): SYC 381 of 2021

Judgment of: JUDGE ELDERSHAW

Date of judgment: 13 June 2023

Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs on an indemnity basis – Where father removed child from jurisdiction to China without mother’s knowledge or consent – Where father procured Australian passport for the child by falsifying the mother’s signature – Where father’s conduct has defeated the Court’s jurisdiction given no prospect of a return order – Where mother has been unable to have any contact with father or child for about four months – Where father’s conduct an exceptional circumstance – Application allowed.

Legislation:
Family Law Act 1975 (Cth) ss 60CC, 117, 121

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.17

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364

I & I (No. 2) (1995) FLC 92–625

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; [2015] FamCAFC 157

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfoldv Penfold (1980) 144 CLR 311

Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 43 FCR 280; [1993] FCA 115

Rimac & Rimac (No 2) [2022] FedCFamC1F 159

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187

Division: Division 2 Family Law

Number of paragraphs: 75

Date of hearing: 9 May 2023

Place: Sydney

Counsel for the Applicant: Mr Butters

Solicitor for the Applicant: Strategic Legal

The Respondent: The Respondent did not appear
ORDERS

SYC 381 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GUANYU

Applicant

AND:
MS BAI

Respondent

order made by:

JUDGE ELDERSHAW

DATE OF ORDER:

13 JUNE 2023

THE COURT ORDERS THAT:
Costs
1.Within 60 days of these Orders, the father is to pay the mother the sum of $88,162 AUD to the bank account nominated by the mother.

Service and s 121 Orders
2.Within seven days of these Orders, the mother is to cause a copy of these Orders and Reasons for Judgment to be delivered to B Street, Suburb C NSW (“the B Street, Suburb C property”) and by email to … com, together with the BSB and Account number into which the costs pursuant to Order 1 herein are to be paid.
3.Pursuant to s 121 of the Family Law Act1975 (Cth) (“the Act”), the mother may serve a copy of these Orders on the following:
(a)The real estate agent acting on the sales of the properties at D(1) Street, Suburb E and D(2) Street, Suburb E (“the Suburb E properties”);
(b)The vendor’s solicitor(s) as stated on the Contracts of Sale of the Suburb E properties;
(c)The Commonwealth Bank of Australia and any other…

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 Guanyu & Bai

Details

AGLC: Guanyu & Bai [2023] FedCFamC2F 698
Case: [2023] FedCFamC2F 698
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application for costs by the mother, Ms Bai, against the father, Mr Guanyu, in proceedings relating to their child, X, born in 2011. The mother sought an order that the father pay her costs of and incidental to the proceedings on an indemnity basis. She also sought leave to sell four Australian properties owned by the father to satisfy the costs if he did not pay them within the specified time. The mother further sought an order that the father return X to Australia and an order placing X’s name on the Family Law Watchlist for five years. The father did not file any material in response to the mother’s application and did not appear in the Court. The Court held that the mother’s application should proceed on an ex parte basis. The Court held that the mother’s costs application was justified on the basis of the father’s conduct in procuring an Australian passport for X by falsifying the mother’s signature and removing X from Australia without the mother’s knowledge or consent. The Court held that the father’s conduct was egregious and amounted to an exceptional circumstance warranting an order for indemnity costs. The Court made an order that the father pay the mother $88,162 within 60 days. If the father did not pay the costs in the specified time, the Court made an order authorising the mother to lodge caveats over the father’s properties and instructing her solicitors to conduct title searches of the father’s properties and to confirm whether the mortgagee remained the Commonwealth Bank of Australia. The Court also made an order that the father return X to Australia and an order placing X’s name on the Family Law Watchlist for five years.

Orders