Kim and Lam - [2008] FamCA 379

FAMILY COURT OF AUSTRALIA

KIM & LAM

[2008] FamCA 379

FAMILY LAW – JURISDICTION – Conflict of

Family Law Act 1975 (Cth)

Henry and Henry (1996) FLC ¶92-685
Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
B v B (Re jurisdiction) (2003) FLC ¶93-136
EKG and JSL (2006) 35 Fam LR 559; [2006] FamCA 730

APPLICANT:

Mr Kim

RESPONDENT:

Ms Lam

FILE NUMBER:

SYC

4247

2007

DATE DELIVERED:

9 May 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

2 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

RESPONDENT:

In person (by telephone link to Korea with interpreter)

Orders

IT IS ORDERED THAT:

The oral application of the wife seeking an order that the Court decline to exercise the jurisdiction it has, to hear and determine both the father’s application for parenting orders, and the mother’s application for parenting orders in circumstances where the like issues are the subject of proceedings before a Korean court, is dismissed.
Each party is to file and serve by 30 June 2008 an affidavit setting out the evidence in chief of each witness upon which they wish to rely at the hearing.
The matter be listed for further directions before Justice Fowler at 9.30 am on 22 August 2008
AND THE COURT NOTED that on that day the Court proposes to allocate hearing dates for the matter.
Leave be granted to the mother to attend by telephone link on 22 August 2008.
Korean interpreters be booked by the registry for each party and that both interpreters attend at Court on 22 August 2008.
Liberty is reserved to each party to apply in the event of difficulty in preparing the matter for hearing on seven days notice to the court and to the other party specifying the matters in respect of which orders are sought.

IT IS NOTED that publication of this judgment under the pseudonym Kim and Lam is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4247 of 2007

MR KIM

Applicant

And

MS LAM

Respondent

REASONS FOR JUDGMENT

Introduction

Before the court is an oral application of the wife seeking an order that the court decline to exercise the jurisdiction it has to hear and determine both the father’s application for parenting orders and the mother’s application for parenting orders in circumstances where the like application is the subject of proceedings before a Korean court.

Background facts

The father was born in August 1971.
The mother was born in May 1974.
The father came to Australia in 1992 and became an Australian citizen in May 1999.
The wife has permanent resident status in Australia.
In November 2003 the parties married in Australia.
The marriage was registered also in Korea.
In November 2004 the child Y was born in Australia.
In May 2006 the child S was born in Australia.
Both of the children are Australian citizens.
The parties’ joint habitual…

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 Kim and Lam

Details

AGLC: Kim and Lam [2008] FamCA 379
Case: [2008] FamCA 379
Decision Date: 9 May 2008

CaseChat Overview and Summary

In the matter of *Kim and Lam*, heard before Justice Fowler, the wife sought an order that the Court decline to exercise its jurisdiction to hear and determine parenting applications made by both the father and the mother. This application was made in circumstances where similar issues were already the subject of proceedings before a Korean court.

The central legal issue before the Court was whether it should exercise its jurisdiction in parenting matters when parallel proceedings were underway in a foreign jurisdiction. The wife contended that the Australian court should defer to the Korean court.

Justice Fowler dismissed the wife's application. The Court reasoned that it retained jurisdiction to hear and determine the parenting applications before it. The decision to dismiss the wife's application implies that the Court found sufficient grounds to proceed with the Australian proceedings, notwithstanding the existence of the Korean proceedings. The Court then made directions regarding the filing of evidence, the listing of the matter for further directions and the allocation of hearing dates, and arrangements for the mother's attendance and the provision of interpreters.

Orders

Orders of the court

IT IS ORDERED THAT:

The oral application of the wife seeking an order that the Court decline to exercise the jurisdiction it has, to hear and determine both the father’s application for parenting orders, and the mother’s application for parenting orders in circumstances where the like issues are the subject of proceedings before a Korean court, is dismissed.

Each party is to file and serve by 30 June 2008 an affidavit setting out the evidence in chief of each witness upon which they wish to rely at the hearing.

The matter be listed for further directions before Justice Fowler at 9.30 am on 22 August 2008

AND THE COURT NOTED that on that day the Court proposes to allocate hearing dates for the matter.

Leave be granted to the mother to attend by telephone link on 22 August 2008.

Korean interpreters be booked by the registry for each party and that both interpreters attend at Court on 22 August 2008.

Liberty is reserved to each party to apply in the event of difficulty in preparing the matter for hearing on seven days notice to the court and to the other party specifying the matters in respect of which orders are sought.

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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