Killam & Loeng

Case [2015] FamCAFC 41


FAMILY COURT OF AUSTRALIA

KILLAM & LOENG [2015] FamCAFC 41

FAMILY LAW – APPEAL – CHILDREN – Where the father has resided in China for 15 years – Where the mother and children have never resided in Australia – Where children have dual citizenship – Where the children have close relationships with family in China –Where the parties were on a holiday to Australia – Where the father retained the children’s passports so as to prevent them returning to China – Where the primary judge ordered the children be permitted to leave Australia to be returned to China – Whether the primary judge properly considered the children’s best interests – Whether the primary judge summarily dismissed the father’s application for parenting orders without giving proper consideration to the relevant principles – Whether the primary judge ought to have considered the likely outcome of parenting proceedings under Chinese law in considering the children’s best interests – Whether the primary judge gave appropriate weight to a risk that the children may be separated in China – Where the father alleges that he would suffer prejudice in family law proceedings in China – Whether there was an agreement between the parties to relocate to Australia – Whether the children would experience negative impacts if they were not returned to China – Whether the children had a significant association with Australia – Whether the primary judge’s findings were open on the evidence – Appeal dismissed.

FAMILY LAW – COSTS – Where there were circumstances justifying an order for costs – significant wealth of the parties – Appeal wholly unsuccessful and without merit.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Edwards v Noble (1971) 125 CLR 296
EJK & TSL [2006] FamCA 730
In re F (Abduction:  Custody Rights) [1991] Fam 25
In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80
In re L (Minors) [1974] 1 WLR 250
M v M (1988) 166 CLR 69
McKee v McKee (1957) AC 352
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Pascarl and Oxley (2013) FLC 93-536
Randle & Randle [2011] FamCA 830
Reynolds v Reynolds (1973) 1 ALR 318
Ryan & Russell [2013] FamCA 787
ZP v PS (1994) 181 CLR 639
APPELLANT: Mr Killam
RESPONDENT: Ms Loeng

FILE NUMBER:

BRC

125

of

2015

APPEAL NUMBER:

NA

6

of

2015

DATE DELIVERED: 18 March 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane

JUDGMENT OF:

Finn, May & Ainslie-Wallace JJ

HEARING DATE: 18 February 2015
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 6 February 2015
LOWER COURT MNC: [2015] FamCA 53

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr S. T. White SC

SOLICITOR FOR THE APPELLANT: Jones Mitchell Lawyers
COUNSEL FOR THE RESPONDENT: Mr J. Linklater-Steele
SOLICITOR FOR THE RESPONDENT: Cassandra Pullos Lawyers

Orders

  1. The appeal be dismissed.

  2. The appellant pay the respondent’s costs of and incidental to the appeal, the costs to be…

Continue reading Killam & Loeng

Sign in free to access the full text

Details
AGLC
Killam & Loeng [2015] FamCAFC 41
Case
[2015] FamCAFC 41
Decision Date

CaseChat Overview and Summary

The appeal arose from a family law dispute between Killam, the father, and Loeng, the mother, concerning the custody of their two children. The father had resided in China for 15 years, while the mother and children had never lived in Australia. Both children held dual citizenship and had close familial ties in China. During a holiday in Australia, the father retained the children's passports to prevent their return to China, prompting the mother to seek orders for their return. The primary judge ruled in favour of the mother, ordering the children to be permitted to leave Australia and return to China. The father appealed, arguing that the primary judge did not adequately consider the children's best interests, the likely outcomes of parenting proceedings under Chinese law, and the risk of separation in China.

The court had to determine whether the primary judge properly assessed the children's best interests, whether the father's application for parenting orders was properly dismissed, and if the primary judge should have considered the potential impact of Chinese law on the children's best interests. Additionally, the court examined whether the primary judge appropriately weighed the risk of the children being separated in China and if the father's claim of prejudice in Chinese family law proceedings was adequately addressed. The appeal also challenged whether there was an agreement to relocate to Australia, the potential negative impacts on the children if they were not returned to China, and the children's association with Australia. Ultimately, the court found that the primary judge's findings were supported by the evidence, leading to the dismissal of the appeal.

The court dismissed the appeal, holding that the primary judge had appropriately considered the children's best interests and that the appeal was wholly unsuccessful and without merit. Consequently, the father was ordered to pay the mother's costs of and incidental to the appeal. The costs were to be agreed upon, with a fallback to assessment, and were to be paid within 28 days of agreement or assessment.

In conclusion, the court's ruling upheld the primary judge's decision and imposed costs on the appellant for the unsuccessful appeal. This decision underscores the importance of considering the best interests of the children, the potential implications of foreign law, and the unique circumstances of each family law case.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant pay the respondent’s costs of and incidental to the appeal, the costs to be agreed and failing agreement to be assessed. Such costs to be paid 28 days after agreement or assessment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.