KUAN & TOH

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.