Lorde and Chu - [2014] FCCA 3035

FEDERAL CIRCUIT COURT OF AUSTRALIA

LORDE & CHU

[2014] FCCA 3035

Catchwords:
FAMILY LAW – Mother’s application to travel to her country of birth (China) with the two children of the relationship – application opposed by Father – Father had agreed in 2012 to the Mother and children travelling to China – the Mother and children had returned to Australia from that earlier trip – the Mother now an Australian citizen.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(2)(a), (3)(b)

Gin & Hing [2010] FamCA 617
Kaur & Kaur [2014] FCCA 2843
Kuebler & Kuebler (1978) FLC ¶90-434
Lorde & Chu [2014] FamCAFC 228
Line & Line (1997) FLC ¶92-792
Mazorski v Albright (2008) 37 Fam LR 518
Renton & Stapleton [2014] FCCA 1598
Thomason & Malhotra [2010] FamCAFC 85
Travis & Weaver [2014] FCCA 1279

Applicant:

MR LORDE

Respondent:

MS CHU

File Number:

CAC 478 of 2012

Judgment of:

Judge Neville

Hearing date:

Determined on submissions

Date of Last Submission:

15 December 2014

Delivered at:

Canberra

Delivered on:

19 December 2014

REPRESENTATION

Solicitors for the Applicant:

Self represented

Solicitors for the Respondent:

Self represented

Solicitor/Advocate for the Independent Children’s Lawyer:

Mrs C Naidu

Solicitors for the Independent Children’s Lawyer:

Claire Naidu & Co, Canberra

ORDERS

The children [X] (DOB [omitted] 2008) and [Y] (DOB [omitted] 2012) (“the children”) are permitted to travel with the Mother to the People’s Republic of China from 17 January 2015 to 17 March 2015.
The Mother pay a security bond to a solicitor’s trust account of $2,500 with the following to occur:
(a)The monies to be returned to the Mother upon her return to Australia on 17 March 2015 and confirmation that the children’s passports have been returned to the Family Law Courts Registry in Canberra; or
(b)If the Mother fails to return on 17 March 2015, the Father may apply to the Court for the monies to be released to the Father.
The Mother ensure that the Father is provided with:
(a)A detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travel, and details of accommodation for the entire period of travel (including, if applicable, the name of the accommodation venue, address and telephone and email contact details);
(b)A copy of the pre-booked tickets for the departure and return flights; and
(c)Details of an email address and telephone number at which the children can be contacted during the trip.
(d)Copies of updated immunisation records for both children showing compliance with immunisations for the children for travel to China as recommended by the children’s General Practitioner.
For the period the mother is away, that the Mother provide to the Father a telephone number for the Father to call the children on Mondays and Thursdays (or other such days as agreed between the Mother and Father.
Within 48 hours of the Mother’s return to Canberra, the Mother shall return the passports to the Canberra Registry of the Federal Circuit Court of…

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 Lorde and Chu

Details

AGLC: Lorde and Chu [2014] FCCA 3035
Case: [2014] FCCA 3035
Decision Date: 19 December 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Neville considered an application concerning the proposed international travel of two children, [X] and [Y], with their Mother to the People’s Republic of China. The Father opposed the travel, raising concerns that led to the court's intervention.

The central legal issue before the court was whether to grant permission for the children to travel overseas with the Mother, and if so, what conditions should be imposed to safeguard the Father's parental rights and the children's welfare. This involved balancing the Mother's desire to travel with the children against the Father's concerns about their return and ongoing contact.

Judge Neville ordered that the children be permitted to travel with the Mother to China from 17 January 2015 to 17 March 2015. To address the Father's concerns, the court imposed several conditions. These included the Mother paying a security bond of $2,500, providing a detailed itinerary and flight details, and supplying contact information for the children during the trip. Furthermore, the Mother was required to provide updated immunisation records and ensure the Father could contact the children on specific days. Crucially, the Mother was ordered to return the children's passports to the court registry within 48 hours of her return to Australia.

Orders

Orders of the court

The children [X] (DOB [omitted] 2008) and [Y] (DOB [omitted] 2012) (“the children”) are permitted to travel with the Mother to the People’s Republic of China from 17 January 2015 to 17 March 2015.

The Mother pay a security bond to a solicitor’s trust account of $2,500 with the following to occur:

(a) The monies to be returned to the Mother upon her return to Australia on 17 March 2015 and confirmation that the children’s passports have been returned to the Family Law Courts Registry in Canberra; or

(b) If the Mother fails to return on 17 March 2015, the Father may apply to the Court for the monies to be released to the Father.

The Mother ensure that the Father is provided with:

(a) A detailed written itinerary of the proposed trip, including the date of departure and return, flight details and times, all locations and destinations of travel, and details of accommodation for the entire period of travel (including, if applicable, the name of the accommodation venue, address and telephone and email contact details);

(b) A copy of the pre-booked tickets for the departure and return flights; and

(d) Copies of updated immunisation records for both children showing compliance with immunisations for the children for travel to China as recommended by the children’s General Practitioner.

For the period the mother is away, that the Mother provide to the Father a telephone number for the Father to call the children on Mondays and Thursdays (or other such days as agreed between the Mother and Father.

Within 48 hours of the Mother’s return to Canberra, the Mother shall return the passports to the Canberra Registry of the Federal Circuit Court of Australia.

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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