Kiah and Chua

[2007] FamCA 310

FAMILY COURT OF AUSTRALIA

KIAH & CHUA [2007] FamCA 310

FAMILY LAW - PRACTICE AND PROCEDURE - Application - Dismissal or Striking Out

APPLICANT: Mr Kiah

RESPONDENT: Ms Chua

FILE NUMBER: SYF 3680 of 2006

DATE DELIVERED: 20 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 20 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS COTTER-MOROZ

SOLICITOR FOR THE APPLICANT: BROPHY BRIDGE AND MIROW

COUNSEL FOR THE RESPONDENT: MS CARR

SOLICITOR FOR THE RESPONDENT: E H TEBBUTT & SONS

Orders

1. The husband’s application for summary dismissal of the wife’s application is hereby dismissed.

2. The husband’s application for a stay is hereby dismissed.

3. The husband’s application to hear the wife’s principal application in a summary manner is hereby dismissed.

4. Costs are reserved.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3680/2006

Mr Kiah

Applicant

And

Ms Chua

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. In these proceedings, the husband and wife originally lived in Hong Kong.  While living there, they agreed to parenting orders.  The parenting orders made provision that the child live with the husband principally and spend time each year with the wife.  Subsequently everything changed, apart from the orders.  The wife moved to Australia and the husband moved to Shanghai. The husband moved firstly to Peking then to Shanghai.  It is important that his moves are noted because, on my understanding, although my understanding is likely to be defective, the jurisdiction of the Hong Kong courts does not apply to the rest of China.  The law in Hong Kong is basically a development of that inherited from the British colonial era, whereas the law of China is entirely that developed on the basis of Chinese culture and traditions and the People's Revolution.  Despite that, the husband complied with the Hong Kong orders and ensured that the wife have the time those orders provided with the child in question, including in Australia, for three consecutive years.

2. When the child came to Australia in 2006 the wife simply failed to return him contrary to her obligations under the consent orders.  The husband has since obtained orders from the courts of Hong Kong requiring the wife to return the child to him as well as in relation to her disobedience of the consent orders.

3. The husband has come to Australia and has filed, firstly, a response to the wife's application ‑ that is, the wife's application for parenting orders which provide her with principal residence of the child in Australia. He has also made an application in a case, the most up to date version having been filed on 25 January 2007. That application seeks that the application by the mother for parenting orders in Australia be either dismissed or stayed and that all orders necessary to allow the husband to take the child back to China with him be made.  In addition, the application seeks that the application itself be dealt with summarily. 

4. I can understand that it is within the power of this Court to make a summary dismissal order or what is in effect a summary order for a stay until final hearing. However, the husband, through his counsel, submits that I should make all orders summarily in the sense that I should embark upon a summary hearing of the issues which I must consider in relation to all of the other orders that the husband seeks ‑ that is, to decide what orders are in the best interests of the child.

5. Actually, in submissions, the husband's counsel has urged upon me that I should simply hear the case summarily.  What that means is, in my understanding, hear the wife's application for residency on some sort of summary basis.  I find it difficult to understand how I could actually hear the case summarily if I have to consider the merits of the issue of the child's best interests.

6. My understanding of the cases leads me to conclude that I could hear the application for summary dismissal if I consider whether or not the evidence provided on behalf of the wife - in this type of case, it seems to be in relation to the child's best interests - would give the wife a reasonable prospect of success in her application for residency in Australia and find that she has no reasonable prospects of success.

7. I also am of the view that I could hear what is, in effect, an application for permanent stay. If I would stay the wife's application for residency or what is, in effect, an application for residency ‑ what I shall call residency ‑ the child will go back to China and there will be no way for this Court to ensure that he will be returned.  Any application by the wife for his residency in Australia would be defeated.  I would have to, in hearing that stay application, consider the welfare of the child.  There would have to be a reason for the grant of a stay which would involve consideration of the child's welfare.

8. In ZP & PS, the High Court clearly said that the bald consideration of the welfare of the child cannot be used as an excuse for failing to consider the facts which are relevant to that child's welfare.  In other words, one cannot ignore some of the significant facts relating to a child's welfare, overemphasise some facts as being more important for a child's welfare or misconstrue facts as being related to a child's welfare if they are not.  I have to consider all of the substantial facts relating to a child's welfare and give them the weight which they warrant before deciding what is in a child's welfare.  To do that, I cannot engage in a summary hearing on a stay application.

9. As for the concept of hearing the wife's application summarily, I simply do not understand that concept.  It does not exist as a power of this Court.

10. Accordingly, I shall dismiss the husband's application for summary dismissal because the facts that the wife presents clearly give her more than a reasonable prospect of success in her application to be the principal carer of the child in Australia, and I shall refuse to hear the application for a stay as well as the wife's application for residency on summary bases.  I shall make inquiries about whether or not I can expedite the hearing. I note that all parties agree to that expedition.  

11. I do not think this is a case where the exigencies of the case entitle the parties to have an immediate hearing.  I think there are many other people who need to have their case heard.  I think that the father is capable of coming to Australia when a trial is set rather than to immediately press this case into the list at the expense of other cases.  However, I want to ensure two things.  The first is that it gets heard as quickly as possible.  The second is that the father continues to see the child until such time as he returns to China on 26 March.

12. The matter should not be necessarily heard by me.  I think that this is a matter that will get on faster if it is not regarded as being limited to me, although there is no reason why I should not hear it if I am available.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KIAH & CHUA