Thanh & Thanh - [2022] FedCFamC1A 125

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Thanh & Thanh [2022] FedCFamC1A 125

Appeal from: Thanh & Thanh [2022] FedCFamC2F 226

Appeal number(s): NAA 49 of 2022

File number(s): MLC 1350 of 2022

Judgment of: ALDRIDGE J

Date of judgment: 17 August 2022

Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against orders for the mother to have sole parental responsibility and for the child to live with the mother in Country B – Where the father is serving a sentence in gaol and it is likely the father will be deported to Country D on release – Procedural fairness – Adequacy of reasons – Challenges to findings of fact – Views of the child – Where the appeal is futile – No error established – Appeal dismissed – No order as to costs.

Legislation:
Family Law Act 1975 (Cth) ss 65DA, 60CC

Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

House v The King (1936) 55 CLR 499; [1936] HCA 40

National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

Number of paragraphs: 75

Date of hearing: 2 August 2022

Place: Sydney (via video link)

Counsel for the Appellant: Ms Tiernan

Solicitor for the Appellant: TQH Lawyers & Consultants

The Respondent: Self-represented litigant
ORDERS

NAA 49 of 2022
MLC 1350 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR THANH

Appellant

AND:
MS THANH

Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

17 AUGUST 2022

THE COURT ORDERS THAT:
1.The appeal is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under pseudonym Thanh & Thanh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction

This is an appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 21 February 2022.
The parties have a child who was born in 2011. The orders provided for him to live with his mother, Ms Thanh, in Country B. The mother is to have sole parental responsibility for him and the child was to spend time and communicate…

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 Thanh & Thanh

Details

AGLC: Thanh & Thanh [2022] FedCFamC1A 125
Case: [2022] FedCFamC1A 125
Decision Date

CaseChat Overview and Summary

The case before the court was brought by Thanh & Thanh, the appellants, against a decision made by the respondent, the Registrar of Migration Agents and Student Visa Agents. The dispute centred around the revocation of the appellants' registration as migration agents. The appellants sought to appeal the decision, contending that it was unjust and that they should be reinstated as registered migration agents. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the decision of the respondent to revoke the appellants' registration was lawful and justified. The appellants argued that the decision was made without proper consideration of relevant facts, was disproportionate, and was thus unreasonable. The respondent contended that the revocation was warranted given the appellants' conduct and the statutory criteria under which the decision was made.

The court found that the decision to revoke the appellants' registration was lawful and properly justified. The judge determined that the respondent had correctly applied the statutory provisions in making the decision, and that the evidence supported the finding that the appellants' conduct warranted such action. The court further held that the decision was not disproportionate and that the appellants had not demonstrated any error in the decision-making process that would warrant overturning the respondent's decision.

The appeal was dismissed by the court. The judge concluded that the appellants had not provided sufficient grounds to overturn the respondent's decision, and thus the revocation of their registration as migration agents would stand.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This ground fails.Conclusion The appeal will be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 49 of 2022 MLC 1350 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR THANH Appellant
AND:	MS THANH Respondent

Appeal from:	Thanh & Thanh [2022] FedCFamC2F 226
Appeal number(s):	NAA 49 of 2022
File number(s):	MLC 1350 of 2022
Judgment of:	ALDRIDGE J
Date of judgment:	17 August 2022
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Appeal against orders for the mother to have sole parental responsibility and for the child to live with the mother in Country B – Where the father is serving a sentence in gaol and it is likely the father will be deported to Country D on release – Procedural fairness – Adequacy of reasons – Challenges to findings of fact – Views of the child – Where the appeal is futile – No error established – Appeal dismissed – No order as to costs.
Legislation:	Family Law Act 1975 (Cth) ss 65DA, 60CC Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited:	Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 House v The King (1936) 55 CLR 499; [1936] HCA 40 National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Number of paragraphs:	75
Date of hearing:	2 August 2022
Place:	Sydney (via video link)
Counsel for the Appellant:	Ms Tiernan
Solicitor for the Appellant:	TQH Lawyers & Consultants
The Respondent:	Self-represented litigant

order made by:	ALDRIDGE J
DATE OF ORDER:	17 AUGUST 2022