Hsing and Song - [2016] FamCA 986

FAMILY COURT OF AUSTRALIA

HSING & SONG

[2016] FamCA 986

FAMILY LAW – CHILDREN – Best Interests – Where the child was living with the father and the paternal grandparents in China – 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 China.

Family Law Act 1975 (Cth) ss 4, 60CC, 61DA, 65D, 65DAA, 65DAC
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
Zanda v Zanda [2015] 51 Fam LR 502
Killam & Loeng (2016) FACA 53

APPLICANT:

Mr Hsing

RESPONDENT:

Ms Song

FILE NUMBER:

BRC

10854

2016

DATE DELIVERED:

17 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

14 and 17 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hackett
Mr Di Carlo

SOLICITOR FOR THE APPLICANT:

Bruce Dulley Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

T Lawyers Pty Ltd

Orders

IT IS ORDERED UNTIL FURTHER ORDER

That the mother, Ms Song, and the father, Mr Hsing, shall have equal shared parental responsibility for making decisions on all “major long term issues” as that term is defined in s 4 of the Family Law Act in relation to the child, B born … 2012, (“the child”) save for and excluding the decision for the child to be returned to China as soon as practicable.
That the child shall live with the father and spend time with the mother as agreed between the parties in writing.
That the child be returned to China and to give effect to such order:
(i)The mother shall deliver the child into the care of the child’s paternal grandparents, as soon as they can be in Brisbane and attend at the home of the mother’s friend, Ms C, at D Street, Suburb E to collect him from her as soon as they can be here, even if that is within the next seven days;
(ii)The mother shall hand the child’s Australian passport to the paternal grandparents at the time she delivers the child to the paternal grandparents pursuant to 3(i) hereof;
(iii)When the paternal grandparents, Mr F born … 1961 (paternal grandfather) and Ms F born … 1957 (paternal grandmother), attend at the Brisbane International Airport with tickets to board a return flight to the People’s Republic of China with the child, B born … 2012 (male), in their care, with the intention of taking him on the flight with them to China, that child’s name shall be immediately removed from the Family Law Watchlist maintained at all points of departure in Australia by the Australian Federal Police and the said paternal grandparents shall be permitted to board the international flight to China with the said child in their company.
That notwithstanding paragraph…

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 Hsing and Song

Details

AGLC: Hsing and Song [2016] FamCA 986
Case: [2016] FamCA 986
Decision Date: 17 November 2016

CaseChat Overview and Summary

In *Hsing and Song*, Forrest J of the Federal Circuit and Family Court of Australia made orders concerning the parental responsibility and living arrangements for the child, B. The dispute involved the mother, Ms Song, and the father, Mr Hsing, regarding the future of their child, who was born in 2012.

The court was required to determine issues of equal shared parental responsibility for major long-term issues, the child's living arrangements, and the specific arrangements for the child's return to China. The court also considered the practical steps necessary to facilitate the child's departure from Australia and ongoing communication between the child and the mother.

Forrest J ordered that the parents have equal shared parental responsibility for major long-term issues, with the exception of the decision for the child to return to China. The child was ordered to live with the father and spend time with the mother as agreed in writing. Crucially, the court ordered that the child be returned to China, with specific directions for the mother to deliver the child to his paternal grandparents, hand over his Australian passport, and for his name to be removed from the Family Law Watchlist to facilitate their departure. The orders also stipulated that if the mother remained in Australia, the child's time with her would include holiday periods in both Australia and China. The father was also directed to facilitate regular video communication between the child and the mother.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER

That the mother, Ms Song, and the father, Mr Hsing, shall have equal shared parental responsibility for making decisions on all “major long term issues” as that term is defined in s 4 of the Family Law Act in relation to the child, B born … 2012, (“the child”) save for and excluding the decision for the child to be returned to China as soon as practicable.

That the child shall live with the father and spend time with the mother as agreed between the parties in writing.

That the child be returned to China and to give effect to such order:

(i) The mother shall deliver the child into the care of the child’s paternal grandparents, as soon as they can be in Brisbane and attend at the home of the mother’s friend, Ms C, at D Street, Suburb E to collect him from her as soon as they can be here, even if that is within the next seven days;

(ii) The mother shall hand the child’s Australian passport to the paternal grandparents at the time she delivers the child to the paternal grandparents pursuant to 3(i) hereof;

(iii) When the paternal grandparents, Mr F born … 1961 (paternal grandfather) and Ms F born … 1957 (paternal grandmother), attend at the Brisbane International Airport with tickets to board a return flight to the People’s Republic of China with the child, B born … 2012 (male), in their care, with the intention of taking him on the flight with them to China, that child’s name shall be immediately removed from the Family Law Watchlist maintained at all points of departure in Australia by the Australian Federal Police and the said paternal grandparents shall be permitted to board the international flight to China with the said child in their company.

That notwithstanding paragraph 2 hereof that provides for the child to spend time with the mother as agreed between the parties in writing, in the event that the mother remains living in Australia then the time the child shall spend with the mother shall include some holiday time in Australia during his Chinese school holidays as well as some holiday time in China should the mother choose to travel to China to spend time with him.

That the said child shall communicate with the mother when he is not in her care by video chat facility at all reasonable times, but not less than on two (2) occasions each week, with such communication to be facilitated by the father.

That the competing Applications for final orders are listed to a Registrar for mention on the date to be fixed for the purpose of the making of any further directions considered necessary in the proceedings.

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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