Lao & Yeng - [2018] FamCA 560

FAMILY COURT OF AUSTRALIA

LAO & YENG

[2018] FamCA 560

FAMILY LAW – CHILDREN – JURISDICTION – Operation of the Child Protection Convention in circumstances where the child is resident in China – Where s 111CD is found to limit the jurisdiction of the court otherwise contained in s 69E of the Family Law Act – Where the court does not have jurisdiction to hear the parenting proceedings.

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children
Family Law Act 1975 (Cth) ss 69E, 111CA, 111CB, 111CC, 111CD, 111CD(1)(c), 111CD(1)(e)
Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)

APPLICANT:

Ms Lao

RESPONDENT:

Mr Yeng

FILE NUMBER:

SYC

715

2017

DATE DELIVERED:

27 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

25 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morahan

SOLICITOR FOR THE APPLICANT:

Chen Shan Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Millar

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

Orders

That the application for parenting orders filed on 6 February 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 715 of 2017

Ms Lao

Applicant

And

Mr Yeng

Respondent

REASONS FOR JUDGMENT

Ms Lao (“the mother”) and Mr Yeng (“the father”) are the parents of a child, X (the child) who was born in 2015 and is now aged almost three.
The mother has applied for orders restraining both parents from removing the child from Australia and, inter alia, orders that the chid live with her and spend time with the father.
The father, in his response, seeks an order “That the Applicant’s Initiating Application be dismissed for want of jurisdiction or, in the alternative, be permanently stayed.”
The matter was listed before me to determine whether this Court has jurisdiction to deal with the parenting dispute. On reviewing the file, I asked that the legal representatives also be prepared to make submissions on whether Australia is the appropriate forum for this dispute.
The parents were both born in China. They met in China in 2008 when the mother was residing in China and the father was residing in Australia. The father holds dual Chinese and Australian citizenship. In July 2009 the mother came to Australia and stayed with the father. They returned to China in 2010 and married in 2010. After their…

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 Lao & Yeng

Details

AGLC: Lao & Yeng [2018] FamCA 560
Case: [2018] FamCA 560
Decision Date: 27 July 2018

CaseChat Overview and Summary

In the matter of *Lao & Yeng*, Rees J of the Federal Circuit Court of Australia considered an application for parenting orders filed on 6 February 2017. The specific nature of the dispute between the parties, Lao and Yeng, is not detailed in the provided text, beyond the fact that it concerned parenting arrangements.

The central legal issue before the Court was whether to grant the parenting orders sought by the applicant. The Court was required to determine if the proposed parenting orders were in the best interests of the child or children involved, as mandated by the relevant family law legislation.

Rees J ultimately dismissed the application for parenting orders. While the specific reasons for this dismissal are not elaborated upon in the provided text, the outcome indicates that the Court was not satisfied that the orders sought met the necessary legal threshold for their making. The application was therefore dismissed.

Orders

Orders of the court

That the application for parenting orders filed on 6 February 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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