Hong and Wai - [2015] FCCA 3448

FEDERAL CIRCUIT COURT OF AUSTRALIA

HONG & WAI

[2015] FCCA 3448

Catchwords:
FAMILY LAW – Child almost aged 10 – father brought child to Australia without the mother’s knowledge and without her consent – child has lived in China with his mother for most of his life – whether the Court should consider the matter summarily or engage in a full hearing.

Killam & Loeng [2015] FamCAFC 41
ZP & PS [1994] HCA 29
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55
Gilmore & Gilmore (1993) FLC 92 – 353
Re L (1974) 1 WLR 250

Applicant:

MS HONG

Respondent:

MR WAI

File Number:

MLC 11287 of 2015

Judgment of:

Judge Harland

Hearing date:

8 December 2015

Date of Last Submission:

8 December 2015

Delivered at:

Melbourne

Delivered on:

8 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr Strum SC appearing with Ms Renwick

Solicitors for the Applicant:

Nicholes Family Lawyers

Counsel for the Respondent:

Mr Davis

Solicitors for the Respondent:

Blackwood Family Lawyers

ORDERS

The respondent father forthwith and within 24 hours deliver the child X (‘the child’) born (omitted) 2005 to the applicant mother.
The father deliver the child’s current passport to the applicant mother at the same time as returning the child.
Upon the respondent father’s compliance with these orders that order 3 made on 12 December 2015 be discharged, thereby removing the child from the watch list.
The mother is permitted to remove the child from Australia.
Liberty to apply is granted to all parties.

IT IS NOTED that publication of this judgment under the pseudonym Hong & Wai is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11287 of 2015

MS HONG

Applicant

And

MR WAI

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The instructing solicitors and counsel on both sides have worked hard in a short period of time to bring this matter before the Court. It is not a straightforward case. The Court has been greatly assisted by the thorough preparation and focused advocacy.
This concerns X, who will be 10 years old on (omitted) 2015. Somewhat unusually in family law matters, there are a lot of background facts that are agreed between the parties, and, again, that is a measure of the focus that the lawyers have put into this case so that what has been argued has really been focused on the issues that are relevant for determination rather than being taken up with other issues that are very important to parties but not relevant to the particular issues to be argued today.
Both parents were born in China. The parties had a fairly short relationship from 2005 to 2007 when they lived in (country omitted). X was born in (country omitted) and is a (country…

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 Hong and Wai

Details

AGLC: Hong and Wai [2015] FCCA 3448
Case: [2015] FCCA 3448
Decision Date: 8 December 2015

CaseChat Overview and Summary

In *Hong and Wai*, heard by Judge Harland, the applicant mother sought the immediate return of the child, X, from the respondent father. The dispute concerned the physical custody and location of the child, with the mother seeking to have the child delivered to her and permitted to remove the child from Australia.

The court was required to determine whether to order the immediate return of the child to the mother and whether to permit the mother to remove the child from Australia. This involved considering the welfare of the child and the existing orders of the court.

Judge Harland ordered the respondent father to forthwith deliver the child X to the applicant mother within 24 hours, along with the child's current passport. Upon the father's compliance, a previous order made on 12 December 2015, which had placed the child on a watch list, was to be discharged. The mother was also permitted to remove the child from Australia. Liberty to apply was granted to all parties.

Orders

Orders of the court

The respondent father forthwith and within 24 hours deliver the child X (‘the child’) born (omitted) 2005 to the applicant mother.

The father deliver the child’s current passport to the applicant mother at the same time as returning the child.

Upon the respondent father’s compliance with these orders that order 3 made on 12 December 2015 be discharged, thereby removing the child from the watch list.

The mother is permitted to remove the child from Australia.

Liberty to apply is granted to all parties.

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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