Lam and Zeng - [2015] FCCA 2558

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAM & ZENG

[2015] FCCA 2558

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – travel – international travel – Application to take child out of Australia – where mother seeks to take child to visit family members in China – where father opposes proposal to take the child out of Australia – where mother claims maternal grandmother is terminally ill – best interests of child – passport – Australian passport – issue of Australian passport – where one parent does not consent to issue of passport – permission for child to travel internationally.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.60CA, 65Y

Line & Line (1996) 21 Fam LR 259; FLC 92-729
Time & Bailey [2014] FCCA 2094

Applicant:

MS LAM

Respondent:

MR ZENG

File Number:

SYC 2086 of 2014

Judgment of:

Judge Scarlett

Hearing date:

16 September 2015

Date of Last Submission:

16 September 2015

Delivered at:

Sydney

Delivered on:

17 September 2015

REPRESENTATION

Applicant:

In person

Respondent:

In person

Solicitor for the Independent Children’s Lawyer:

Ms Shea

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

The Applicant mother is permitted to remove the child X born (omitted) 1999 from the Commonwealth of Australia for the purposes of travelling to China from 1 October until 28 October 2015.
The mother is authorised to apply for and receive an Australian passport for the said child X born (omitted) 1999 without the need for the consent of the Respondent father.
The mother must forthwith provide the father with the following information prior to her departure from Australia:
(a)A copy of the child X’s travel itinerary showing the dates of departure from Australia and return to Australia and flight details;
(b)Details as to where X will be staying during his time in China; and
(c)A contact telephone number for X whilst he is in China.
The mother must ensure that X communicates with his father by telephone at least twice per week whilst he is in China and for this purpose the mother must assist X to telephone the father.
Order (1) above is conditional upon the mother providing to the Independent Children’s Lawyer and the father prior to her departure written permission from X’s school for X to be absent from 1 October until 28 October 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 2086 of 2014

MS LAM

Applicant

And

MR ZENG

Respondent

REASONS FOR JUDGMENT

The application before the Court is an application by the mother of a boy called X. X was born on (omitted) 1999. The mother wishes to take X out of the country on a visit to China. The mother and the father both come from China, but they now live in Australia.
The father opposes the mother’s application to take X…

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 Lam and Zeng

Details

AGLC: Lam and Zeng [2015] FCCA 2558
Case: [2015] FCCA 2558
Decision Date: 17 September 2015

CaseChat Overview and Summary

In the matter of *Lam and Zeng*, heard before Judge Scarlett, the dispute concerned an application by the mother for permission to remove the child, X, from Australia to travel to China for a period of approximately four weeks. The application also sought authorisation for the mother to obtain an Australian passport for X without the father's consent.

The court was required to determine whether to grant the mother's application for international travel for the child, and whether to dispense with the father's consent for the issuance of a passport. Implicit in these determinations was the need to consider the best interests of the child, X, in the context of the proposed travel and passport application.

Judge Scarlett granted the mother permission to remove X from Australia to China between 1 October and 28 October 2015, and authorised her to apply for and receive an Australian passport for X without the father's consent. These orders were made subject to several conditions designed to ensure the father remained informed and in contact with X during the travel period. Specifically, the mother was required to provide the father with X's travel itinerary, accommodation details in China, and a contact number. She was also mandated to ensure X communicated with the father by telephone at least twice weekly while in China, with the mother's assistance. Furthermore, the travel permission was conditional upon the mother obtaining and providing written permission from X's school for the absence during the specified dates.

Orders

Orders of the court

The Applicant mother is permitted to remove the child X born (omitted) 1999 from the Commonwealth of Australia for the purposes of travelling to China from 1 October until 28 October 2015.

The mother is authorised to apply for and receive an Australian passport for the said child X born (omitted) 1999 without the need for the consent of the Respondent father.

The mother must forthwith provide the father with the following information prior to her departure from Australia:

(a) A copy of the child X’s travel itinerary showing the dates of departure from Australia and return to Australia and flight details;

(b) Details as to where X will be staying during his time in China; and

The mother must ensure that X communicates with his father by telephone at least twice per week whilst he is in China and for this purpose the mother must assist X to telephone the father.

Order (1) above is conditional upon the mother providing to the Independent Children’s Lawyer and the father prior to her departure written permission from X’s school for X to be absent from 1 October until 28 October 2015.

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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