KUAN & TOH - [2016] FamCAFC 115

FAMILY COURT OF AUSTRALIA

KUAN & TOH

[2016] FamCAFC 115

FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – where proceedings instituted initially in Malaysia and subsequently in Australia – where the father’s application sought the speedy return of the children to Malaysia – where the trial judge refused the father’s application – where his Honour’s orders are an “interlocutory decree” within the meaning of reg 15A of the Family Law Regulations 1984 (Cth) – where leave to appeal required – where no error established – leave to appeal refused – appellant to pay the respondent’s costs.

Family Law Act 1975 (Cth) ss 60CC, 67ZC and 94AA(1)
Family Law Regulations 1984 (Cth) reg 15A
Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983)

Barrios and Sanchez (1989) FLC 92-054
Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93-030
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Henry v Henry (1996) 185 CLR 571
Jess and Ors & Jess and Ors (2014) FLC 93-620
Karim and Khalid (2007) FLC 93-348
Kwon and Lee (2006) FLC 93-287
Licul v Corney (1976) 180 CLR 213
Medlow & Medlow (2016) FLC 93-692
Pascarl & Oxley (2013) FLC 93-536
Sampson and Hartnett (No. 10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
ZP v PS (1994) 181 CLR 639

APPELLANT:

Mr Kuan

RESPONDENT:

Ms Toh

FILE NUMBER:

PTW

4846

2015

APPEAL NUMBER:

2016

DATE DELIVERED:

21 April 2016

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray, Strickland &
Murphy JJ

HEARING DATE:

21 April 2016

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

28 January 2016

LOWER COURT MNC:

[2016] FCWAM 27

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hooper SC

SOLICITOR FOR THE APPELLANT:

Lavan Legal

COUNSEL FOR THE RESPONDENT:

Mr Berry SC

SOLICITOR FOR THE RESPONDENT:

Culshaw Miller

Orders

1)The applicant have leave to amend the Amended Notice of Appeal filed on 12 April 2016 to include an application for leave to appeal.
2)The application for leave to appeal be dismissed.
3)The applicant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 8 of 2016
File Number: PTW 4846 of 2015

Mr Kuan

Appellant

And

Ms Toh

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Murphy J

The father of two children, aged five and three, appeals orders made by Monaghan M on 28 January 2016. The issues before his Honour arose out of the proceedings instituted by the father initially in Malaysia and proceedings subsequently issued by the mother…

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 KUAN & TOH

Details

AGLC: KUAN & TOH [2016] FamCAFC 115
Case: [2016] FamCAFC 115
Decision Date: 21 April 2016

CaseChat Overview and Summary

In the case of Kuan v Toh, the father, the applicant, sought the return of his children to Malaysia after the proceedings were initially instituted in Malaysia and subsequently transferred to Australia. The primary judge had dismissed the father's application, which included an order that constituted an interlocutory decree within the meaning of regulation 15A of the Family Law Regulations 1984 (Cth). The father appealed against the primary judge's decision, but he was required to obtain leave to appeal. The appeal court needed to determine whether there was any error on the part of the primary judge that warranted granting leave to appeal.

The appeal court found that the primary judge had carefully considered the relevant statutory criteria and had made findings that were open on the evidence before him. The appeal court held that there was no error in the primary judge's determination, and therefore, leave to appeal was not warranted. The appeal court also considered the Convention on the Civil Aspects of International Child Abduction, which was relevant to the dispute, but ultimately found that it did not alter the outcome of the case.

As a result, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs of and incidental to the appeal as agreed and in default of agreement, as assessed. The court also granted the applicant leave to amend the Amended Notice of Appeal to include an application for leave to appeal. This decision underscores the importance of establishing error as a threshold requirement for granting leave to appeal in family law matters involving international relocation of children.

Orders

Orders of the court

1) The applicant have leave to amend the Amended Notice of Appeal filed on 12 April 2016 to include an application for leave to appeal.

2) The application for leave to appeal be dismissed.

3) The applicant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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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