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Yaling & Tsen (No 2)

Yaling & Tsen (No 2)

Case [2022] FedCFamC1F 676 7 September 2022

Jurisdiction

Best Interests of the Child

Forum Non Conveniens

Summary Judgment

Admissibility of Evidence

Expert Evidence

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 1)
Yaling & Tsen (No 2) [2022] FedCFamC1F 676

File number(s): SYC 6940 of 2019

Judgment of: HARPER J

Date of judgment: 7 September 2022

Catchwords: FAMILY LAW – JURISDICTION – Where child is habitually resident in China with mother – Mother commenced property proceedings in this Court and father seeks parenting orders in this Court – Previous judgment found that this Court had jurisdiction the exercise of which was not prevented by the application of Subdivision B of Division 4 of Part XIIIAA of the Family Law Act – Mother seeks summary dismissal of father’s parenting application – Where mother has commenced parenting proceedings in China– Father seeks anti-suit injunction – Where there was previously no evidence of Chinese law – Expert evidence tendered – Mother seeks orders permitting her to renew child’s Australian passport – Where child may otherwise be deported from China– Welfare power under s 67ZC invoked – The best interests of the child are the paramount consideration in exercising the welfare power – Deportation would likely be traumatic for the child – Forum non conveniens – Mother’s application for summary determination invokes Court’s inherent jurisdiction – Mother argues Australia is a clearly inappropriate forum – Paramountcy principle only applicable where prescribed by the Act – Where forum non conveniens test applies, best interest of the child remain a weighty consideration, but not paramount – Where nature of orders sought means best interests of the child remain the paramount consideration – Australian proceedings would not be in child’s best interests – Father’s application for parenting orders and anti-suit injunction dismissed.

Legislation: Family Law Act 1975 (Cth) ss 60CC, 64B(1), 67ZC, 111CC

Cases cited:
B v B (Re jurisdiction) (2003) FLC 93-136; [2003] FamCA 105

Bletch & Douglas [2011] FamCA 568

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33

Dickson & Dickson (2015) FLC 93-632; [2015] FamCAFC 11

EJK & TSL (2006) 35 Fam LR 559; [2006] FamCA 730

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Joubert & Verhoeven [2020] FamCA 53

Mohan & Modi [2017] FamCA 5

Mosman & Taylor-Mosman [2018] FamCA 842

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32

Pascarl & Oxley (2013) FLC 93-536; [2013] FamCAFC 47

Re Golding (2020) 384 ALR 204; [2020] HCA 38

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Vallans & Vallans (2019) 60 Fam LR 193; [2019] FamCAFC 260

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55

Withers & Russell (2016) 55 Fam LR 447; [2016] FamCA 793

Yaling & Tsen [2022] FedCFamC1F 347

Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173

ZP & PS (1994) 181 CLR 639; [1994] HCA 29

Division: Division 1 First Instance

Number of paragraphs: 59

Date of hearing: 17 August 2022

Place: Sydney

Counsel for the Applicant: Ms Cotter-Moroz

Solicitor…

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 Yaling & Tsen (No 2)

Details

AGLC: Yaling & Tsen (No 2) [2022] FedCFamC1F 676
Case: [2022] FedCFamC1F 676
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to decide whether it had jurisdiction to hear a parenting application by the father, Mr Tsen, against the mother, Ms Yaling. The child, X, was habitually resident in China with the mother. The mother had commenced property proceedings in the Court, and the father sought parenting orders. The Court had previously found that it had jurisdiction, and the mother sought summary dismissal of the father's parenting application. The mother had also commenced parenting proceedings in China, and the father sought an anti-suit injunction. The Court found that the best interests of the child were the paramount consideration in exercising the welfare power. Deportation from China would likely be traumatic for the child, so the Court made orders permitting the mother to renew the child's Australian passport. The Court found that Australia was a clearly inappropriate forum, and the nature of the orders sought meant the best interests of the child remained the paramount consideration. Australian proceedings would not be in the child's best interests, so the father's application for parenting orders and anti-suit injunction were dismissed.

Orders