S & D

This matter concerned an appeal by the mother against a decision of a Magistrate. The dispute revolved around the father's claims regarding the Chinese legal system and its implications for his ability to have contact with his children in China. The mother argued that the father's assertions about Chinese law were unsubstantiated and racially motivated, and that the Magistrate had erred in accepting these claims.

The central legal issue before the court was the admissibility and proper treatment of claims concerning foreign law, specifically Chinese law, in family law proceedings. The court was required to determine whether the father had adequately proven the content of Chinese law regarding parental contact, and if not, what the consequences of such a failure of proof should be for the proceedings. This included considering the general principles of evidence concerning foreign law and the onus of proof.

Warnick J reasoned that the content of foreign law is a question of fact that must be proven by evidence, typically requiring expert testimony, unless otherwise agreed. The court noted that in the absence of such proof, the general rule is to assume foreign law is the same as Australian law, with the onus on the party asserting otherwise. The learned judge found that the Magistrate had erroneously accepted the father's unproven claims about the Chinese legal system, which directly influenced the outcome of the proceedings by focusing on the mother's attitude to contact and leading to an adjournment. This erroneous approach, in the view of Warnick J, meant the mother's plans to move to China were temporarily frustrated.

Accordingly, Warnick J allowed the appeal. The mother was permitted to adduce further evidence, including a report from a professor of jurisprudence concerning Chinese law on parenting and contact issues.