Lai and Sinclair - [2014] FCCA 2662

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAI & SINCLAIR

[2014] FCCA 2662

Catchwords:
FAMILY LAW – Children – parenting orders – application to vary parenting orders – where mother wishes to take child out of Australia to see maternal grandparents and other extended family members in China.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:
Lai & Sinclair [2013] FMCAfam 1584
Line & Line (1996) 21 Fam LR 259; FLC 92-729
Kuebler & Kuebler(1978) 4 Fam LN4; FLC 90-434
M v M [1998] HCA 68
Rice & Asplund (1979) FLC 90-725
Scott & Kent [2013] FCCA 127
Time & Bailey [2014] FCCA 2094
Wheldon & Dinh [2010] FamCA 740

Applicant:

MS LAI

Respondent:

MR SINCLAIR

File Number:

SYC 3552 of 2010

Judgment of:

Judge Scarlett

Hearing date:

14 November 2014

Date of Last Submission:

14 November 2014

Delivered at:

Sydney

Delivered on:

18 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Ulbrick

Solicitors for the Applicant:

G & D Lawyers

Counsel for the Respondent:

Mr Dalyell

Solicitors for the Respondent:

MMD Law

ORDERS

Order 10 made on 20 March 2012 is discharged.
The Applicant Mother is permitted to remove the child X born (omitted) 2008 from Australia for a holiday for the period 24 November 2014 until 22 December 2014.
The name of the child X born (omitted) 2008 is to be removed from the Family Law Watch List (also known as the Airport Watch List) maintained by the Australian Federal Police at all points of arrival and departure from the Commonwealth of Australia with effect from 23 November 2014.
By 4:00 pm on Friday 21 November 2014 the Mother is to provide to the Sydney Registry of the Court a signed transfer of ownership to the Respondent Father of her Mazda motor car registration number (omitted) together with its keys and a written notification of the location of the car as security for the Mother’s returning the child X to Australia AND IN THE EVENT THAT the Mother fails to return the child X to Australia by 22 December 2014 then fourteen (14) days thereafter the Father shall be entitled to take possession of the said motor car and register the said transfer.
By 4:00 pm on Friday 21 November 2014 the Mother is to pay an amount of $5,500.00 to the Sydney Registry of the Court to be held as security for the Mother’s returning the child X to Australia AND IN THE EVENT THAT the Mother fails to return the child X to Australia by 22 December 2014 then fourteen (14) days thereafter the Father shall be entitled to take possession of the said amount of $5,500.00.
The Mother must provide the Father with the following by 21 November 2014:
(a)A photocopy of departure and return airline tickets in the name of the child X;
(b)An itinerary indicating the addresses at which the child will be staying when out of Australia; and
(c)A mobile telephone number upon which the child may be contacted throughout…

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 Lai and Sinclair

Details

AGLC: Lai and Sinclair [2014] FCCA 2662
Case: [2014] FCCA 2662
Decision Date: 18 November 2014

CaseChat Overview and Summary

In the matter of Lai and Sinclair, heard before Judge Scarlett, the dispute concerned an application by the Applicant Mother for permission to remove the child, X, from Australia for a holiday. The Respondent Father sought to ensure the child's return to Australia.

The court was required to determine whether to grant the mother permission to travel with the child, and if so, what conditions should be imposed to secure the child's return. This involved balancing the mother's desire to take the child on holiday against the father's concerns about the child's welfare and timely return.

Judge Scarlett reasoned that the mother should be permitted to take the child on holiday, but that significant security measures were necessary to ensure the child's return. The court ordered that the mother provide a signed transfer of ownership of her motor vehicle and a cash sum of $5,500 to the court as security. Further conditions included the provision of flight details, accommodation itineraries, and a contact telephone number for the child, as well as a requirement for the mother to ensure the child telephones the father weekly. The child's name was also to be removed from the Family Law Watch List for the duration of the holiday.

Orders

Orders of the court

Order 10 made on 20 March 2012 is discharged.

The Applicant Mother is permitted to remove the child X born (omitted) 2008 from Australia for a holiday for the period 24 November 2014 until 22 December 2014.

The name of the child X born (omitted) 2008 is to be removed from the Family Law Watch List (also known as the Airport Watch List) maintained by the Australian Federal Police at all points of arrival and departure from the Commonwealth of Australia with effect from 23 November 2014.

By 4:00 pm on Friday 21 November 2014 the Mother is to provide to the Sydney Registry of the Court a signed transfer of ownership to the Respondent Father of her Mazda motor car registration number (omitted) together with its keys and a written notification of the location of the car as security for the Mother’s returning the child X to Australia AND IN THE EVENT THAT the Mother fails to return the child X to Australia by 22 December 2014 then fourteen (14) days thereafter the Father shall be entitled to take possession of the said motor car and register the said transfer.

By 4:00 pm on Friday 21 November 2014 the Mother is to pay an amount of $5,500.00 to the Sydney Registry of the Court to be held as security for the Mother’s returning the child X to Australia AND IN THE EVENT THAT the Mother fails to return the child X to Australia by 22 December 2014 then fourteen (14) days thereafter the Father shall be entitled to take possession of the said amount of $5,500.00.

The Mother must provide the Father with the following by 21 November 2014:

(a) A photocopy of departure and return airline tickets in the name of the child X;

(b) An itinerary indicating the addresses at which the child will be staying when out of Australia; and

(c) A mobile telephone number upon which the child may be contacted throughout the period when he is out of Australia in the care of the Mother.

Whilst the child is away from Australia in accordance with these Orders the Mother must do all things necessary to ensure that the child telephones the father on at least one occasion each week.

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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