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Lorde & Chu

Lorde & Chu

Case [2014] FamCAFC 228 27 November 2014

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FAMILY COURT OF AUSTRALIA

LORDE & CHU

[2014] FamCAFC 228

FAMILY LAW – APPEAL – where orders were made in the absence of the father permitting the mother to take children on a visit to China – where the father appealed that order – where the Full Court found that the father had been denied procedural fairness and that the court could not be confident that had the father been heard a different order might not have been made – no order for costs – costs certificates granted – appeal allowed – matter remitted for rehearing in the Federal Circuit Court.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit Court Rules 2011 (Cth)

Stead v State Government Insurance Commission (1986) 161 CLR 141
Wilkes and Wilkes (1981) FLC 91-060

APPELLANT:

Mr Lorde

RESPONDENT:

Ms Chu

INDEPENDENT CHILDREN’S LAWYER:

Ms Naidu

FILE NUMBER:

CAC

478

2012

APPEAL NUMBER:

135

2014

DATE DELIVERED:

27 November 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland & Austin JJ

HEARING DATE:

25 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Naidu

Orders

The appeal be allowed.
Orders 4 and 5 of the orders made by the Federal Circuit Court on

3 September 2014 be set aside.
The mother’s application in a case filed on 3 April 2014 be remitted for rehearing by the Federal Circuit Court with all possible expedition.
The father be granted an extension of time to file the appeal books until

18 November 2014 and to serve the appeal books until 25 November 2014.
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the

Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
The Court grants to each party including the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in…

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 [2014] FamCAFC 228
Case: [2014] FamCAFC 228
Decision Date: 27 November 2014

CaseChat Overview and Summary

The appeal in Lorde & Chu concerns a dispute over orders that were made in the absence of the father, allowing the mother to take the children on a visit to China. The father, dissatisfied with this decision, appealed to the Full Court. The central legal issue was whether the father had been denied procedural fairness, and if so, whether this affected the outcome of the orders. The court had to determine if the father's absence during the decision-making process warranted a rehearing and whether a different result might have been reached had he been heard.

The Full Court found that the father had indeed been denied procedural fairness, which is a critical principle in family law proceedings. The court could not be confident that had the father been heard, a different order might not have been made. This finding was significant as it pointed to a fundamental flaw in the initial decision-making process. Consequently, the appeal was allowed, and the orders made by the Federal Circuit Court on 3 September 2014 were set aside. The mother's application, filed on 3 April 2014, was remitted for rehearing by the Federal Circuit Court with urgency. The father was granted an extension to file and serve the appeal books, and there was no order for costs in relation to the appeal.

In addition to setting aside the orders, the court issued several costs certificates. These certificates recognised the costs incurred by the father, the Independent Children's Lawyer, and each party in relation to the appeal and the new trial. The certificates were issued under the Federal Proceedings (Costs) Act 1981 (Cth), indicating that it would be appropriate for the Attorney-General to authorise payments to cover these costs. The court's decision not only addressed the procedural issues but also provided a framework for managing the financial implications of the litigation.

Orders

Orders of the court

The appeal be allowed.

Orders 4 and 5 of the orders made by the Federal Circuit Court on

3 September 2014 be set aside.

The mother’s application in a case filed on 3 April 2014 be remitted for rehearing by the Federal Circuit Court with all possible expedition.

The father be granted an extension of time to file the appeal books until

18 November 2014 and to serve the appeal books until 25 November 2014.

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

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the

Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

The Court grants to each party including the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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.

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Citations

Lorde & Chu [2014] FamCAFC 228

Most Recent Citation

Fierro & Fierro (No 8) [2023] FedCFamC1A 28

Cases Citing This Decision

Daalman & Daalman [2025] FedCFamC1A 33
Citation 1 (Para 16)

…As was said in Lorde & Chu [2014] FamCAFC 228: [36]… it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an a…
Poirier & Poirier (No 2) [2024] FedCFamC1A 231
Citation 2 (Para 7)

…he proper course, being to exhaust remedies available in the original court, is open (see Cooke & Morton (2018) FLC 93-820 at [13] citing Lorde & Chu [2014] FamCAFC 228, endorsed by the Full Court in Saha & Lahiri (No 3) (2023) FLC 94-158). Significant public policy reasons are self-evident requiring parties to take…
Hopkins & Shorley [2024] FedCFamC1A 221
Citation 3 (Para 22)

…Further, the Full Court in Lorde & Chu [2014] FamCAFC 228 observed as follows: 36.Finally, it might be useful if we take this opportunity to draw attention to the fact that has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for…
Judd & Romijn [2024] FedCFamC1A 216
Citation 4 (Para 17)

…he proper course, being to exhaust remedies available in the original court, is open (see Cooke & Morton (2018) FLC 93-820 at [13] citing Lorde & Chu [2014] FamCAFC 228 (“ Lorde & Chu ”)). The Full Court in Saha & Lahiri (No 3) (2023) FLC 94-158 endorsed the approach in Lorde & Chu : 143We consider the reasons provid…
Nellie & Nellie [2024] FedCFamC1A 171
Citation 5 (Para 30)

…The appellant did not follow the proper procedural steps before filing his Notice of Appeal in respect to the question of costs. In Lorde & Chu [2014] FamCAFC 228 at [36], the Full Court stated: … it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence…
Beale & Harvie [2023] FedCFamC1A 181
Citation 6 (Para 15)

…he Rules”) to set aside Order 1 due to it being made in her absence, which is the course she should take before launching an appeal ( Lorde & Chu [2014] FamCAFC 228 at [36]).…
Saha & Lahiri (No 3) [2023] FedCFamC1A 144
Citation 7 (Para 8)

…side, which the Full Court in Lorde & Chu [66] endorsed as the appropriate course before a party appeals against an order made in their absence. [66] [2014] FamCAFC 228 at [36].…
Darley (No 2) [2023] FedCFamC1A 112
Citation 8 (Para 18)

…effect a “substantial injustice” and therefore does not warrant a grant of leave to appeal (See Wilkes and Wilkes (1981) FLC 91-060; Lorde & Chu [2014] FamCAFC 228; Singam & Moffrey [2015] FamCAFC 42; and Fierro & Fierro (No 8) [2023] FedCFamC1A 28).…
Fierro & Fierro (No 8) [2023] FedCFamC1A 28
Citation 9 (Para 2)

…In that respect, I have regard to authorities of the Court, including Lorde & Chu [2014] FamCAFC 228 at [36] which, in turn, was cited with approval by Murphy J sitting as a single judge of the appeal division in Singam & Moffrey (2015) FLC 93-641 as follows: Finally, it may be useful if we take this opportunity to d…
ALFRED and ALFRED [2021] FCWA 137
Citation 10

…[2021] FCWA 124 Alfred and Alfred [2021] FCWA 59 Gallo v Dawson (1990) 93 ALR 479 Jensen v Nationwide News Pty Ltd [No 7] [2019] WASC 166 Lorde & Chu [2014] FamCAFC 228 Talbot & Talbot (2015) FLC 93-660 Wao & Chou [2018] FamCA 541…
Cooke & Morton [2018] FamCAFC 9
Citation 11 (Para 13)

…The approach adopted by the father in this respect is contrary to long established practice in this jurisdiction. In Lorde & Chu [2014] FamCAFC 228, this Court said (at [36]), cited with approval by Murphy J sitting as a single judge of the appeal division in Singam & Moffrey (2015) FLC 93-641: Finally, it may be use…
BEST & TYERS [2016] FamCA 1093
Citation 12 (Para 4)

…in 28 days of the order being sent to him, to vary or set aside the orders. This is in accordance with comments made by the Full Court in Lorde & Chu [2014] FamCAFC 228 at [36] that where a judge makes an order in the absence of a party who will be affected by the order, it is desirable that the judge expressly provi…
Talbot & Talbot [2015] FamCAFC 132
Citation 13 (Para 3)

…In Lorde & Chu [2014] FamCAFC 228, this Court said (at [36]): Finally, it may be useful if we take this opportunity to draw attention to the fact that it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply…
Singam & Moffrey [2015] FamCAFC 42
Citation 14 (Para 3)

…In Lorde & Chu [2014] FamCAFC 228, this Court said (at [36]): Finally, it may be useful if we take this opportunity to draw attention to the fact that it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply…
Lorde & Chu [2015] FamCAFC 3
Citation 15 (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…
Lorde and Chu [2014] FCCA 3035
Citation 16 (Para 7)

…are of the court date when the impugned orders were made. The Full Court’s reasons and orders are dated 27 th November 2014.[3] [3] See Lorde & Chu [2014] FamCAFC 228.…

See all citing cases →

Cases Cited

Stead v State Government Insurance Commission [1986] HCA 54
Citation 1 (Para 9)

…ably result in the making of the same order as that made by the primary judge at the first trial” ( Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).…

Legislation Cited

Federal Proceedings (Costs) Act 1981 (Cth)
2 mentions (from Para 3)
Family Law Act 1975 (Cth)
1 mention
Federal Circuit Court Rules 2011 (Cth)
1 mention (from Para 12)