KILLAM & LOENG - [2015] FamCA 53

FAMILY COURT OF AUSTRALIA

KILLAM & LOENG

[2015] FamCA 53

FAMILY LAW – CHILDREN – welfare jurisdiction – whether it is in the children’s best interests to make a summary order for their return to a non-Convention country – Order made

Family Law Act 1975 (Cth) s 67ZC

In re L (minors) [1974] 1 WLR at 264-265
Karim & Khalid (2007) FLC 93-348; (2007) 38 Fam LR 300
Kwon & Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559)
Pascarl & Oxley (Edited) [2013] FamCAFC 47
ZP v PS (1994) 181 CLR 639

APPLICANT:

Mr Killam

RESPONDENT:

Ms Loeng

FILE NUMBER:

BRC

125

2015

DATE DELIVERED:

6 February 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

3 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McMillan QC

SOLICITOR FOR THE APPLICANT:

Mr Jones of Jones Mitchell Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steel

SOLICITOR FOR THE RESPONDENT:

Ms Pullos of Cassandra Pullos Lawyers

Orders

The mother is forthwith permitted to remove the children R, born … 2008 (a female) and J, born … 2012 (a female) permanently from the Commonwealth of Australia.
The father forthwith instruct his solicitors, Jones Mitchell Lawyers, to immediately deliver all of the children’s passports and travel documents currently held by that firm to the mother’s solicitors, Cassandra Pullos Lawyers.
The Court requests that the Australian Federal Police immediately remove the children’s names from the Airport Watch List in force at all points of international arrivals and departures in the Commonwealth of Australia.

AND IT IS FURTHER ORDERED

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Killam & Loeng has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 125 of 2015

Mr Killam

Applicant

And

Ms Loeng

Respondent

REASONS FOR JUDGMENT

The parties and their two children, R born in 2008 and J born in 2012, flew from Shanghai into Melbourne on 19 December 2014 for an annual holiday. After spending a week or so there with the children’s paternal grandparents, the then family unit travelled to the Gold Coast to continue their holiday.
Despite the existence of travel plans which provided that the parties and children depart Australia on 11 January 2015 and return to Shanghai, they remain on the Gold Coast.
Since 7 January 2015, the children have lived with the mother in rental accommodation. Since 27 January 2015, they have spent some limited time with the father, who also continues to live in his own…

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 KILLAM & LOENG

Details

AGLC: KILLAM & LOENG [2015] FamCA 53
Case: [2015] FamCA 53
Decision Date: 6 February 2015

CaseChat Overview and Summary

In the matter of *Killam & Loeng*, Hogan J of the Family Court of Australia considered an application concerning the welfare of two children, R and J. The dispute involved the mother's desire to permanently remove the children from Australia, with the father's position on this matter being a key element of the proceedings.

The central legal issue before the Court was whether it was in the best interests of the children to make a summary order permitting their permanent removal from Australia to a non-Convention country. This required the Court to assess the children's welfare in the context of international relocation.

Hogan J reasoned that the children's best interests were paramount and, in this instance, favoured the mother's application for permanent removal. The Court's decision was informed by the specific circumstances of the case, leading to orders that facilitated the mother's relocation with the children. The orders directed the mother to be permitted to remove the children permanently from Australia, and required the father to instruct his solicitors to deliver the children's passports and travel documents to the mother's solicitors. Furthermore, the Court requested the Australian Federal Police to remove the children's names from the Airport Watch List. The orders also included a fact sheet detailing the obligations and consequences of contravention, pursuant to sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

The mother is forthwith permitted to remove the children R, born … 2008 (a female) and J, born … 2012 (a female) permanently from the Commonwealth of Australia.

The father forthwith instruct his solicitors, Jones Mitchell Lawyers, to immediately deliver all of the children’s passports and travel documents currently held by that firm to the mother’s solicitors, Cassandra Pullos Lawyers.

The Court requests that the Australian Federal Police immediately remove the children’s names from the Airport Watch List in force at all points of international arrivals and departures in the Commonwealth of Australia.

AND IT IS FURTHER ORDERED

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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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