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XIONG & YOO

XIONG & YOO

Case [2019] FCCA 1650 4 July 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

XIONG & YOO

[2019] FCCA 1650

Catchwords:
FAMILY LAW – Parenting – whether the mother is permitted to take the child on an overseas holiday to a non-Hague Convention country – whether there is an unacceptable risk of the child being retained in a non-Hague Convention country – whether the child will maintain a meaningful relationship with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65X, 65Y
Evidence Act 1995 (Cth), ss.131, 135

Cases cited:

In the Marriage of Kuebler, P. and Kuebler, J.A. (1978) FLC 90-434
Calverley v Green (1984) HCA 81
In the Marriage of Line SJ and Line DG (1997) FLC 92-729
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
M & S (formerly E) (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Tait & Densmore [2007] FamCA 1383
McCall & Clark [2009] FamCAFC 92
Marvel & Marvel (No.2) (2010) Fam LR 348
Thompson and Malhotra [2010] FamCAFC 85
Deiter & Deiter [2011] FamCAFC 82
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Cape & Cape [2013] FamCAFC 114
Banks & Banks [2015] FamCAFC 36
Rashid and Hijaz [2018] FamCA 619

Applicant:

MS XIONG

Respondent:

MR YOO

File Number:

SYC 7477 of 2017

Judgment of:

Judge Morley

Hearing date:

10 May 2019

Date of Last Submission:

10 May 2019

Delivered at:

Sydney

Delivered on:

4 July 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Hydes of Korn Macdougall Legal

Solicitors for the Respondent:

Ms Leung of Accuro Legal (Sydney)

ORDERS

That the Application in a Case filed by the wife on 30 April 2019 is dismissed.
That the Response to Application in a Case filed by the father on 8 May 2019 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Xiong & Yoo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7477 of 2017

MS XIONG

Applicant

And

MR YOO

Respondent

REASONS FOR JUDGMENT

Introduction

The issues in this interim hearing are the Application by the mother, Ms Xiong, (‘the mother’) for orders that the parties’ child, [X], born … 2016 (‘the child’), be permitted to travel outside of the Commonwealth of Australia and to China for a period of six weeks, and that the mother be permitted to apply for and obtain a passport for the child without the father’s consent. These orders are opposed by the father.
The Application by the father, Mr Yoo, ("the father") is for further interim orders to increase the time that he spends with the child.
The parties were both born in China. The mother first came to Australia in 2008 to study and returned to China in 2011 following completion of her studies.
The father was in Australia in … 2008 when the parties met at an English language school, though there is no evidence…

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 XIONG & YOO

Details

AGLC: XIONG & YOO [2019] FCCA 1650
Case: [2019] FCCA 1650
Decision Date: 4 July 2019

CaseChat Overview and Summary

In the matter of *Xiong & Yoo*, heard before Judge Morley, the dispute concerned an application by the mother for permission to take the child on an overseas holiday to a country not party to the Hague Convention. The father opposed this application, raising concerns about the potential for the child to be retained in the non-Hague Convention country and the impact on the child's meaningful relationship with him.

The court was required to determine two primary legal issues: firstly, whether permitting the child to travel to the non-Hague Convention country would create an unacceptable risk of the child being retained there; and secondly, whether the proposed travel would jeopardise the child's ability to maintain a meaningful relationship with the father.

Judge Morley considered the evidence presented by both parties in relation to the risks of retention and the importance of the child's relationship with the father. The court applied principles of family law concerning international travel by children, focusing on the paramountcy of the child's welfare and the need to assess any potential risks to their safety and well-being. After careful consideration of the submissions and evidence, the court found that the mother's application should be dismissed.

Consequently, the court ordered that the Application in a Case filed by the wife on 30 April 2019 be dismissed, and further ordered that the Response to Application in a Case filed by the father on 8 May 2019 be dismissed.

Orders

Orders of the court

That the Application in a Case filed by the wife on 30 April 2019 is dismissed.

That the Response to Application in a Case filed by the father on 8 May 2019 is dismissed.

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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Citations

XIONG & YOO [2019] FCCA 1650

Cases Citing This Decision

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Cases Cited

RASHID & HIJAZ [2018] FamCA 619
Citation 1 (Para 5)

…cision of McClelland J in Rashid and Hijaz[19] at paragraphs 227 to 233, after referring to the judgment of Cronin J in Doyle : [19] Rashid and Hijaz [2018] FamCA 619. [227]I respectfully agree with his Honour’s approach and note that the Court has a similar task in this case. That is, it is necessary to consider t…
Doyle and Rusedski [2016] FamCA 317
Citation 2 (Para 4)

…In Doyle and Rusedski[18] (“Doyle”) Cronin J said: [18] Doyle and Rusedski [2016] FamCA 317. [168] Decisions about international travel are difficult to make because no-one can foretell the future. Albeit there is no specific proposal for international travel in this case, the mother has cultural and family connect…
Blinko & Blinko [2015] FamCAFC 146
Citation 3 (Para 5)

…ential weight must be attached to the magnitude of the harm to which the risk relates”. [232]In Blinko & Blinko [2015] FamCAFC 146 at 83, the Full Court confirmed that having identified a risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”. [233]Acc…
Banks & Banks [2015] FamCAFC 36
Citation 4 (Para 5)

…factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors. [7] Banks & Banks [2015] FamCAFC 36.…
Lorde & Chu [2015] FamCAFC 3
Citation 5 (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…
Cape & Cape [2013] FamCAFC 114
Citation 6 (Para 16)

…hat relevant orders of the Full Court had been recognised in, and were enforceable by, a Court of relevant jurisdiction in Germany. [5] Cape & Cape [2013] FamCAFC 114.…
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Citation 7 (Para 21)

…efore subject to the same legal requirements as any expert opinion evidence.[21] [21] See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.…
Gin & Hing [2010] FamCA 617
Citation 8 (Para 4)

…decision would be a leap of faith but 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). [171]Part VII of the Act governs the exercise of the Court’s power. Whether or not a parent agrees to internatio…
Thomason & Malhotra [2010] FamCAFC 85
Citation 9 (Para 3)

…tside Australia with a child has no assets or family ties in Australia is a relevant consideration, but is not definitive. [17] Thompson and Malhotra [2010] FamCAFC 85.…
Tait & Densmore [2007] FamCA 1383
Citation 10 (Para 5)

…and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. [11] Tait & Densmore [2007] FamCA 1383.…
Mazorski & Albright [2007] FamCA 520
Citation 11 (Para 2)

…or time with children to be, where possible and in their best interests, substantial and significant. [8] Mazorski & Albright [2007] FamCA 520.…
Godfrey & Sanders [2007] FamCA 102
Citation 12 (Para 3)

…ut it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case. [9] Godfrey & Sanders [2007] FamCA 102. [10] M & S (formerly E) (2007) FLC 93-313.…
Goode & Goode [2006] FamCA 1346
Citation 13 (Para 1)

…utes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed. [6] Goode & Goode [2006] FamCA 1346. [82] In an interim case that would involve the following: (a) Identifying the competing proposals of the parties; (b) Identifying the issues in disp…
Fardon v Attorney-General (Qld) [2004] HCA 46
Citation 14 (Para 4)

…must be answered by reference to whether the risk is unacceptable. In Fardon v the Attorney-General for the State of Queensland [2004] HCA 46, the High Court considered what those words meant. They cannot be defined with precision but a court should have regard to a risk established “according to a high degree o…
U v U [2002] HCA 36
Citation 15 (Para 4)

…mplated. [175]Albeit in the context of an international relocation case, some helpful observations were made by various judges in U v U [2002] HCA 36. [176]Kirby J observed that it was recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of…
M v M [1988] HCA 68
Citation 16 (Para 5)

…ination of the child’s relationship with her primary carer and maternal relatives, with whom she has lived for the past five years. [228]In M v M (1988) 166 CLR 69 (“M v M”), the High Court noted that the Family Court “is frequently called upon to assess and evaluate the likelihood or possibility of events or occurr…
Calverley v Green [1984] HCA 81
Citation 17 (Para 2)

…Green ,[20] absent an application of the presumption of advancement, she would hold any interest thereunder on a resulting trust for her mother. [20] Calverley v Green (1984) HCA 81.…
Deiter & Deiter [2011] FamCAFC 82
Citation 18 (Para 20)

…vailable of the likelihood of the occurrence of a risk event, and in this case, the risk of [X] being retained in China.[14] [14] See Deiter & Deiter [2011] FamCAFC 82 at [61]; Banks & Banks (2015) FamCAFC 36; Marvel & Marvel (No.2) (2010) Fam LR 348 at paragraphs [120]-[123].…
McCall & Clark [2009] FAMCAFC 92
Citation 19 (Para 6)

…In McCall & Clark ,[12] after referring to the matters quoted above from Kay J in Godfrey & Sanders , the Court said: [12] McCall & Clark [2009] FamCAFC 92. [118] It appears to us that there are three possible interpretations of s 60CC(2)(a): (a) one interpretation is that the legislation requires a court to conside…
[2001] 2 WLR 1826 [2001] 2 WLR 1826
Citation 20 (Para 4)

…t . The same observations were made by Hayne J [at 176] [177] Kirby J referred to the judgment of Thorpe LJ Payne [2001] EWCA Civ 166 ; [2001] 2 WLR 1826 where his Lordship referred to fractured family units having connection with two or more national jurisdictions being much more common today than in earlier times…
Pty Ltd v Sprowles 636 F Supp 1419
Citation 21 (Para 21)

…the nature of Expert Reports and are therefore subject to the same legal requirements as any expert opinion evidence.[21] [21] See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 ; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.…

Legislation Cited

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA,...
10 mentions (from Para 9)
Evidence Act 1995 (Cth) 131, 135
3 mentions (from Para 1)
Family Law Regulations 1984 (Cth)
1 mention (from Para 9)