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Lorde & Chu

Lorde & Chu

Case [2015] FamCAFC 3 15 January 2015

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FAMILY COURT OF AUSTRALIA

LORDE & CHU

[2015] FamCAFC 3

FAMILY LAW – APPEAL – where the trial Judge allowed the mother to take the children to China for a 2 month visit – where the father did not establish an error on the part of the trial Judge when exercising his discretion to allow the children to go to China – no order for costs – appeal dismissed.

House v The King (1936) 55 CLR 499
Line & Line (1997) FLC 92-792
Lorde & Chu [2014] FamCAFC 228
Mazorski v Albright (2008) 37 Fam LR 518
Travis & Weaver [2014] FCCA 1279

APPELLANT:

Mr Lorde

RESPONDENT:

Ms Chu

INDEPENDENT CHILDREN’S LAWYER:

Ms Naidu

FILE NUMBER:

CAC

478

2012

APPEAL NUMBER:

2015

DATE DELIVERED:

15 January 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne by video link to Canberra

JUDGMENT OF:

Bryant CJ, Finn & Strickland JJ

HEARING DATE:

14 January 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2014

LOWER COURT MNC:

[2014] FCCA 3035

REPRESENTATION

THE APPELLANT:

In person by video link from Canberra

THE RESPONDENT:

In person by video link from Canberra

Orders

The appeal be dismissed.
There be no order for costs in relation to the appeal.
The mother be relieved from the obligation to lodge the children’s passports with the Canberra Registry of the Federal Circuit Court prior to the children travelling to China on 17 January 2015.
The Court requests the Australian Federal Police to remove from, or otherwise amend or note, the airport watch list at all points of international arrivals and departures in Australia, the entry on the watch list relating to R (dob … 2008) and C (dob … 2012) for the purpose of permitting those children to travel to China in the period from midnight on 16 January 2015 until 17 March 2015.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: EA 1 of 2015

File Number: CAC 478 of 2012

Mr Lorde

Appellant

And

Ms Chu

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal filed on 5 January 2015 by Mr Lorde

(“the father”) against certain orders made by Judge Neville of the Federal Circuit Court on 19 December 2014, including an order that the two children (aged about seven and three years respectively) of the father’s marriage to Ms Chu (“the mother”) be permitted to travel with the mother to China from

17 January 2015 to 17 March 2015.
Because of the imminent date on which the orders appealed permit the children to depart for China, this appeal has had to be dealt with as a matter of urgency.
The appeal is opposed by the mother (who like the father is without legal representation). The Independent Children’s…

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 & Chu

Details

AGLC: Lorde & Chu [2015] FamCAFC 3
Case: [2015] FamCAFC 3
Decision Date: 15 January 2015

CaseChat Overview and Summary

The appeal was brought by the father, seeking to overturn a decision that permitted the children to travel to China with the mother. The case was heard in the Family Court of Australia. The primary concern was whether the mother could travel with the children to China without the father's consent, as well as the implications for the children's passports and the airport watch list maintained by the Australian Federal Police.

The court needed to determine whether the mother's proposed travel with the children to China was in their best interests, and if the children's passports could be lodged with the registry without the father's consent. Additionally, the court had to decide on the necessity of removing or amending the airport watch list entry to allow the children to travel.

The court dismissed the father's appeal, finding that the mother's proposed travel with the children to China was in their best interests. The court concluded that the mother could lodge the children's passports with the registry without the father's consent, and that it was necessary to remove or amend the airport watch list entry to permit the children to travel. The court also made orders relieving the mother from the obligation to lodge the children’s passports with the registry and requesting the Australian Federal Police to amend the watch list for the specified period.

Orders

Orders of the court

The appeal be dismissed.

There be no order for costs in relation to the appeal.

The mother be relieved from the obligation to lodge the children’s passports with the Canberra Registry of the Federal Circuit Court prior to the children travelling to China on 17 January 2015.

The Court requests the Australian Federal Police to remove from, or otherwise amend or note, the airport watch list at all points of international arrivals and departures in Australia, the entry on the watch list relating to R (dob … 2008) and C (dob … 2012) for the purpose of permitting those children to travel to China in the period from midnight on 16 January 2015 until 17 March 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Lorde & Chu [2015] FamCAFC 3

Most Recent Citation

Chinasa & Ekwueme [2023] FedCFamC1F 79

Cases citing this decision · 7 of 7 shown

Chinasa & Ekwueme
[2023] FedCFamC1F 79 Para 13

…uebler [1978] FamCA 26; (1978) FLC 90-434, [15]. 2 [2010] FamCAFC 85 at [49] – [50]. 3 [1996] FamCA 145. 4 Gin & Hing [2010] FamCA 617; Lorde & Chu [2015] FamCAFC 3 at [10]. 5 Cales & Cales [2010] FamCAFC 237 at [80]. (Footnotes as per the original)…
HARSHANI & DARNITH
[2019] FamCAFC 213 Para 2

…His Honour referred to authorities including Gin and Hing [2010] FamCA 617, Lorde and Chu [2015] FamCAFC 3, Line and Line (1997) FLC 92-729 and legislation for relevant principles. We note that there is no challenge to the principles that the primary judge applied.…
XIONG & YOO
[2019] FCCA 1650 Para 4

…discretion must be exercised within the framework of the evidence that it is presented. (Gin and Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3). [171]Part VII of the Act governs the exercise of the Court’s power. Whether or not a parent agrees to international travel would normally be determinativ…
Harshani and Darnith
[2019] FamCA 89 Para 34

…In previous decisions ( Gin and Hing [2010] FamCA 617 approved in Lorde and Chu [2015] FamCAFC 3), reference was made to the discretionary nature of the orders that are sought here bearing in mind the reference in s 60B of the Family Law Act 1975 (Cth) (“the Act”) that whatever parenting order is made by the court…
Conlan and Tomlinson (No 2)
[2018] FamCA 889 Para 2

…faith but it also must be one that is exercised within the framework of the evidence presented ( Gin & Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3).…
BENDON & BENDON
[2018] FamCA 722 Para 6

…In other words, it is a leap of faith on the part of the court exercising the discretion (see Gin and Hing [2010] FamCA 617 approved in Lorde and Chu [2015] FamCAFC 3).…
Doyle and Rusedski
[2016] FamCA 317 Para 3

…the discretion must be exercised within the framework of the evidence that it is presented. ( Gin and Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3).…

View all 7 citing cases →

Cases cited in this decision · 9 of 9 shown

Lorde and Chu
[2014] FCCA 3035

…[2014] FCCA 3035…
Kaur & Kaur
[2014] FCCA 2843 Para 2

…as the reasons of the Court. In addition to those submissions, I would only note and adopt also the comments of Judge Brown in Kothari & Kothari [2014] FCCA 2843 at paragraph 78 to 84, where his Honour refers, in particular, to the benefits to children of being able to travel to the cultures of their parents. 25.T…
Lorde & Chu
[2014] FamCAFC 228 Para 1

…t they could visit relatives in China), is to be found in the reasons for judgment of the Full Court delivered on 27 November 2014 (see Lorde & Chu [2014] FamCAFC 228). Those reasons related to an appeal by the father against earlier orders made by Judge Neville on 3 September 2014, which also permitted the mother to…
Renton and Stapleton
[2014] FCCA 1598 Para 3

…munisations for the Rotavirus; and she has health insurance and has travel insurance. 16. In the matter of Renton & Stapleton [2014] FCCA 1598 (24 July 2014) , Your Honour noted at paragraph 135 that there is a degree of risk of the mother not returning to Australia with the children. There is risk of the mother no…
Travis and Weaver
[2014] FCCA 1279 Para 1

…ough it is unnecessary to set out the discussion of various relevant authorities (being Mazorski v Albright (2008) 37 Fam LR 518, Travis & Weaver [2014] FCCA 1279 and Line & Line (1997) FLC 92-792) which appears at the commencement of the submissions.…
Gin & Hing
[2010] FamCA 617 Para 3

…k of their right to enjoy their cultural background with other relatives who share that culture with them. 10. Relevantly in Gin & Hing [2010] FamCA 617 (20 July 2010), Cronin J said at 66: “China is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction but that does not mean…
House v R
[1936] HCA 40 Para 6

…ion is so unreasonable or plainly unjust that the appeal court concludes that the discretion must have been wrongly exercised. ( House v The King (1936) 55 CLR 499 at 504-5). A person who seeks to appeal successfully a discretionary judgment must establish such an error on the part of the trial Judge.…
House v The King
63 WN 176 Para 6

…, or if the decision is so unreasonable or plainly unjust that the appeal court concludes that the discretion must have been wrongly exercised. ( House v The King (1936) 55 CLR 499 at 504-5). A person who seeks to appeal successfully a discretionary judgment must establish such an error on the part of the trial Judge.…
Mazorski v Albright
(2007) 37 FLR 518 Para 1

…us to set out the greater part of those submissions, although it is unnecessary to set out the discussion of various relevant authorities (being Mazorski v Albright (2008) 37 Fam LR 518, Travis & Weaver [2014] FCCA 1279 and Line & Line (1997) FLC 92-792) which appears at the commencement of the submissions.…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention (from Para 1)