Killam & Loeng

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.