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Loh & Nong (No.2) [2018] FCCA 171 (25 January 2018)

Last Updated: 27 March 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOH & NONG (No.2)


Catchwords:
FAMILY LAW – Parenting – Father seeks to change final parenting Orders made after a 3 day defended hearing in May 2013 and amended in 2015 – Child now 8 years – preliminary Rice v Asplund issue – Father’s application to vary Orders dismissed.


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

Cases cited:
Carriel & Lendrum (2015) FLC 93-640
King & Finneran [2001] FamCA 344; (2001) FLC 93-079
Marsden & Winch [2009] FamCAFC 152
Line & Line (1997) FLC 92-729
Nong & Loh [2013] FCCA 1394
Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363


Applicant:
MR LOH

Respondent:
MS NONG

File Number:
SYC 3074 of 2017

Judgment of:
Judge Sexton

Hearing date:
2 November 2017

Date of Last Submission:
2 November 2017

Delivered at:
Sydney

Delivered on:
25 January 2018



REPRESENTATION

Solicitors for the Applicant:
Goldrick Farrell Mullan Lawyers

Counsel for the Respondent:
Mr Gould

Solicitors for the Respondent:
Watts McCray Lawyers



THE COURT ORDERS THAT:

(1) The Father’s Application filed 23 May 2017 and amended on 19 June 2017 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Loh & Nong (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3074 of 2017

MR LOH

Applicant

And

MS NONG

Respondent


REASONS FOR JUDGMENT

Introduction

  1. This case concerns the parties’ only child, X, now 8 years of age.
  2. The Father, by application filed in May 2017, seeks the discharge of the Watch List order made on 28 May 2012 and continued by order of his Honour Judge Kemp on 20 September 2013 after a 3 day hearing in which the Father sought to have the Watch List order discharged (“the Orders”). The Father seeks orders to enable X to travel with him to Korea and to (country omitted) in (omitted) 2017, (omitted) 2017 and in (omitted) 2019, on condition that he lodge a bond of $50,000 into his solicitors’ trust account prior to travel, to secure X’s return to Australia.
  3. The Mother seeks an order that the Father’s application be dismissed with costs. On 7 August 2017, His Honour Judge Monahan directed that the threshold question as to whether proceedings should be re-opened (the Rice & Asplund issue) be addressed as a discrete issue at this interim hearing.
  4. It is the Mother’s case that the Father has not discharged the onus on him to overcome the threshold imposed by the so-called rule in Rice & Asplund to vary the earlier Orders. She also seeks an order that the proceedings be transferred to Judge Kemp for further hearing, presumably for the purpose of the hearing of this Rice & Asplund issue, though her solicitor did not press that application at this hearing. The Father seeks to be permitted to agitate his application for X to travel with him to (country omitted) and Korea.
  5. The Father was represented by Mr Gould of counsel and the Mother by her solicitor Mr Mullan. Each party relied on their own affidavit. The Mother also relied on an affidavit of her solicitor. Each party’s legal representative made written[1] and oral submissions.

Material facts

  1. The parties met in Korea in 2002. The parties commenced living together in late 2003 when the Father settled permanently in Australia. The Father obtained permanent residency in Australia in 2005. The parties married on (omitted) 2006.
  2. There is one child of the relationship, X, born (omitted) 2009.
  3. The parties separated on 15 July 2011. X has lived primarily with the Mother since separation with substantial time with the Father. X currently spends 5 nights a fortnight with the Father during school terms as well as half school holidays and time on special days.
  4. The Father is 44 years of age. He is a full time (occupation omitted) with (employer omitted) and lives in his own home at (omitted).
  5. The Mother is 44 years of age. She is a (occupation omitted) and lives with X in a unit in (omitted).
  6. On 28 May 2012, an order was made placing X’s name on the Airport Watch List.
  7. On 20 September 2013, final property and parenting orders were made by His Honour Judge Kemp of this Court after a 3 day hearing. The Husband had sought an order that X’s name be removed from the Airport Watch List and by agreement with the Mother, that X be permitted to travel to Korea with the Father for a holiday with his paternal grandfather and extended paternal family for a maximum of three weeks and a maximum of two trips per year. The Mother strongly opposed the order sought because she believed the Father intended to remain in Korea with X, and that she would be unable to recover him from that jurisdiction. In particular, she argued that the Father was socially isolated in the Australian community, (as noted by the expert report writer), had no family in Australia, and that it had been a source of arguments between them during the marriage that the Father wished to return to Korea to live. (The parties agreed at interviews for the expert report that one of the parties’ main relationship issues concerned him wishing to return to Korea and the Mother not wanting to do so[2]). The Mother argued that Korea was not a signatory to the Hague Convention, the Courts in Korea were “somewhat patriarchal”, the Father was not an Australian citizen, owned no property in Australia and the Father had minimal respect for her role in X’s life. The Mother was concerned that the Father would apply for Korean citizenship of the child, which could ultimately expose him to military service. The Father proposed lodging a bond of $50,000, but the Court noted that the Father adduced no evidence to satisfy the Court that a sum of money (to enable the Mother to litigate) would guarantee X’s return to Australia by the Courts of Korea.
  8. The Court gave many reasons for its decision to leave the Watch List order in force. It accepted the expert’s view that the Father was socially isolated in Australia; it found the parties’ communication was poor and an order requiring the Mother’s consent to X’s travel would add to the tension between the parties; it accepted the expert’s view that, given the extent of her fear that X would not be returned, the Mother’s parenting capacity was likely to be adversely affected if X were permitted to travel; it noted that while the Father said he intended to buy real estate, he had not done so; it noted the Father had no definite plans for travel to Korea and acknowledged the political instability on the Korean Peninsula; the Court noted that Korea was not a signatory to the Hague Convention and there was no evidence on which the Court could assess the chance of X being successfully recovered to Australia if the Father retained him there. The Court was satisfied the parties could discuss X’s overseas travel in later years, given they had equal shared parental responsibility. The Court said[3]
  9. The Father filed an appeal in relation to both the parenting and property orders, including the order leaving X on the Airport Watch List. On 14 February 2014, the Mother filed a Contravention Application. That Application and the Appeal were later resolved between the parties by consent and further final parenting orders were made on 2 July 2015. Those orders did not refer to the Airport Watch List order, which remained in force.
  10. On 26 July 2014 the Father purchased a property in (omitted), Sydney.
  11. The Father filed this application for variation on 23 May 2017, 3 years and 8 months after the final parenting orders were made.
  12. On (omitted) 2017, the Father became an Australian citizen.
  13. At the date of hearing, X was 3 years and 9 months of age. He is now 8 years of age.

Legal principles

  1. All parenting proceedings are governed by Part VII of the Family Law Act 1975. Section 65D provides that the court must make such parenting order as it thinks proper.
  2. In circumstances in which one party seeks to reopen parenting proceedings, Her Honour Chief Justice Evatt in Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 held[4] that:

...the principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied by the applicant...that there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material...

It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case. Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way...[5]
  1. In the appeal decision of King & Finneran[6], his Honour Justice Collier said[7]:
  2. In the 2008 decision of SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363, his observations subsequently affirmed by the Full Court in Marsden & Winch [2009] FamCAFC 152 [46], Warnick J said:

[48(iii)] At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.

[48(v)] The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[81] ...when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination ‘on the merits’. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
  1. In the Full Court decision of Carriel & Lendrum (2015) FLC 93-640, the Full Court said that where the principle in Rice v Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Family Law Act 1975 in determining where the best interests of the child might lie. The Full Court said[10]:
In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.

Father’s counsel submission

  1. The Father’s counsel submits that, while the scope of the hearing is limited to the threshold issue, the Court must look to the circumstances that existed at the time of the hearing, that led the Court to the decision it came to, and compare them to the current circumstances. When that is applied to considering the discrete issue of overseas travel, the Court is no doubt empowered to consider what the proposal for overseas travel was at the time of the making of the original order and what the proposal is now. Counsel submits that even if the Court does not accept that there has been a material change of circumstance from the making of final orders on 20 September 2013 to present, the Court still has the power to make the order that it considers is in X’s best interests[11].
  2. Counsel for the Father submits that the main goal of the principle in Rice and Asplund, to avoid unending litigation over parenting of a child, would not be affected by allowing this Application to proceed[12]. The Father is not seeking to re-litigate the parenting arrangements. His application is limited to the discrete issue of travel. In light of changes in X’s circumstances, counsel argues that it is no longer in X’s best interests to be denied the opportunity to travel overseas with his Father.

Changed circumstances alleged by Father

  1. The order sought by the Father to be varied was made when X was 4 years of age. He is now 8 years old, has commenced primary school and is well settled in his routine in and outside school.
  2. X now has many friends and is involved in a number of extracurricular activities. X did not have those strong ties to Australia at the time of the original hearing in May 2013.
  3. X has expressed his desire to spend time with his paternal family “which would naturally see him having the opportunity to spend time with them in Korea.”[13].
  4. X has established a strong attachment to his paternal grandfather whom he met in (omitted) 2014 when his grandfather travelled to Australia. X should be given the opportunity to build on that relationship. The Father deposes to the paternal grandfather being unlikely to be physically fit enough to travel to Australia again.
  5. Since final orders were made, X has had the chance to meet his aunt, uncle and cousins who travelled to Australia in 2014 to stay with the Father for 4 weeks. The Father’s sister, her husband, and their two sons aged 11 and 14 years live in (country omitted). It is in his interests for X to be able to build on those relationships by travelling to (country omitted) to stay with them, to go fishing and camping with them. The Mother has met the family many times in (country omitted) and in Sydney.
  6. At the time of the final hearing in 2013, the Father had no specific travel plans. He now proposes travel to Korea to share in the paternal family’s celebrations in (omitted) 2018 for the paternal grandfather’s 80th birthday. He also proposes travel to (country omitted) to spend time with his sister and her family.
  7. The Father’s connections to Australia have been consolidated since the final hearing. In particular:
    1. The Father became an Australian citizen on (omitted) 2017. He was only a permanent resident at the time of hearing in 2013. He has now been domiciled in Australia for 14 years.
    2. The Father has obtained an Australian Passport which “as far as the Father is concerned, represents and has resulted in the forfeiture of his Korean passport.
    1. The Father has full time employment and has been with the same company, (employer omitted), for a period of 13 years.
    1. The Father now owns a property at (omitted), subject to mortgage with equity of approximately $500,000. He did not own property at the time of the hearing. He owns a car and has superannuation entitlements of approximately $140,000 in Australia. The Court said in its Reasons for Judgment that this [the travel issue] was “...a matter that could be examined further when the husband has that property so available.”[14] The Father offers the Mother permission to lodge a caveat on that property for any period he is in Korea with X (though I note this offer was specifically withdrawn in the Father’s Amended Application filed on 19 June 2017).
    2. The Father is engaged in various outdoor sports including (omitted). He is also involved in (hobby omitted) and goes to the gym. He has a number of friends in Sydney and no assets outside Australia.
  8. The Father’s counsel also submits that the Court was not made aware at the original hearing that Korea was a party to the Hague Convention and had ratified legislation giving effect to the Convention prior to that hearing. The Court assumed, in the absence of evidence, that Korea was not a party to the Convention and took this factor into account in determining to dismiss the Father’s application to discharge the Watch List order (though I note that Annexure F to the Father’s affidavit, states that the Hague Convention has been in force between Australia and Korea since 1 June 2015[15]). Further, the Father has obtained expert evidence, not adduced at the original hearing, to confirm that in the majority of cases in Korea, children are recovered to their home country. (I am not satisfied that this submission is supported by that expert evidence). Finally, the Father’s counsel submits that all the Father’s formal documents record his name as “Mr Loh” including his driver’s licence, medicare card, passport, Centrelink details, credit cards and NSW Electoral enrolment, whereas the name “Mr Loh” also being used, may have been the cause of confusion and concern in the past.

Mother’s response

  1. Mr Mullan, the Mother’s solicitor, submits that the Father seeks to rely on evidence which is not relevant to the discrete issue of whether he should be permitted to reopen the parenting litigation, evidence upon which he would seek to rely if permitted to pursue his application to travel with X to Korea. Mr Mullan argues that the Mother is prejudiced by the Father’s failure to limit his evidence to the discrete issue before the Court, in breach of Court directions to file an affidavit on the discrete issue. The Court should therefore either adjourn the application with costs or dismiss his application with costs. Mr Mullan sought an order for dismissal but did not seek an adjournment.
  2. Mr Mullan submits that the fact that Korea is a Hague Convention signatory, contrary to the Court’s understanding of the position in 2013, is not in itself enough to warrant the discharge of the Watch List order. This was only one of many factors considered by the Court in deciding it was not in X’s best interests to remove X’s name from the Watch List. Mr Mullan submits that the Father gives no explanation as to why he did not raise this issue or pursue the issue of the Watch List when the matter was before the Court again in July 2015.
  3. The paternal grandfather’s 80th birthday should have been within the contemplation of the Father at the 2013 hearing, and in July 2015, and is not a change in circumstance which has arisen since those orders were made. Nor is it a factor sufficient to disturb the order maintaining X’s name on the Airport Watch List.
  4. The Father has failed to include the full reasons of the Court for its decision on the issue of X’s overseas travel, a deliberate omission, given that the reasons as a whole, are not supportive of the orders sought by the Father.
  5. The expert evidence on the Korean Court’s approach to Hague Convention applications, can be given no weight because the expert is not available for cross examination, the cases referred to give no insight into the Court’s approach in every case, and the report is irrelevant to the question of whether the Father should be permitted to proceed with his application to reopen. .
  6. The Father has refused to provide documents to verify his financial position as requested by the Mother’s solicitors, resulting in a Court hearing any application for overseas travel being unable to determine what sum of money should be required by way of a security bond. The Court noted in the 2013 proceedings that the Father had not disclosed the funds he had transferred to his father in Korea.
  7. The Father has withdrawn his offer to permit the Mother to lodge a caveat against his real property if permitted to travel overseas with X. The Court can draw the inference that the Father is not prepared to risk the loss of his assets if X travels with him, because the Father does not intend to return X to Australia.
  8. The Father has not offered a firm undertaking to the Court that he will return X to Australia in accordance with any order made. The Father deposes to his “intention” only to return X. It is submitted that the Father has carefully chosen his words and that his “intention” may well change if the Father is permitted to travel to Korea with X.
  9. The Father has chosen to understate the seriousness of the international situation in relation to Korea and its neighbours. The situation has deteriorated, not improved, since the 2013 orders were made.
  10. The relevant law referred to by the Korean legal ‘expert’ suggests that the Father would have good prospects of retaining X in Korea if he could delay X’s return for more than 12 months. This is a further basis for the Mother’s ongoing concern about the Father’s intentions if permitted to travel.
  11. The Father adduces no evidence of his ability to obtain a Korean passport for X without the Mother’s consent. It is significant that the Father has not adduced evidence that he has not nor will he apply for a Korean passport for X, nor as to inquiries made by him in this regard since July 2015. The Mother understands from her inquiries to the Korean Consulate that the Father can obtain a Korean passport for X without the Mother’s permission[16]. The Mother also received advice that under Korean law, X would be considered to be under “full custody” of his Korean born father.
  12. The Mother deposes to the Father maintaining the position he held in the 2013 proceedings that he wants X to be educated in Korea. He has taught X to speak Korean and has involved him in male sports popular in Korea: (hobbies omitted). The Mother deposes to her view, based on communications with the Father since 2013, that the Father has been actively grooming X to be in a position to ‘fit in’ in Korea and if X were permitted to travel there, the Father would be able to convince the Korean Courts that it would be in X’s best interests for him to remain with the Father in Korea”[17]. As already noted, if the Father could delay a judicial determination in Korea for 12 months, the Father would be in a strong position to argue that X should remain with him there.
  13. While the Father asserts that the Mother has close ties with members of his family, the Mother deposes to the Father’s strong objection to the Mother having any contact with his family. Annexure K to her Affidavit is an email from the Father dated 18 January 2014 advising gifts and cards sent from the Mother to his family were offensive and she was not to send anything to his family again[18].
  14. Communication between the parties has not improved since 2013. It remains as “poor and ineffective” as it was in September 2013.
  15. The Mother contends that nothing of significance has changed since the orders were made in 2013. The Father’s connections to Korea remain unchanged; his lack of connections to Australia remains unchanged. The potentially negative impact of the Father’s proposal to take X to Korea on the Mother’s parenting capacity, remains unchanged.

Conclusion

  1. The Court must be satisfied that there are circumstances which require the court to consider afresh how the welfare of X should best be served. As the authorities make clear, the purpose of the ‘rule’ is to discourage endless litigation between parties. There must be a real likelihood of the order being changed, and even then the likely change must be weighed against the potential detriment to the child caused by the litigation itself.
  2. The Father’s case for re-opening the discrete issue of overseas travel, rests substantially on X’s greater age and maturity, his expressed wishes and his need to further develop his paternal family relationships, the Father’s increased ties to the Australian community, and the Court’s finding in 2013 that the application was “premature” and could be revisited by the parties, who were to have equal shared parental responsibility, when circumstances changed. The Father contends that the conditions referred to by the Court before overseas travel could be seriously considered, have now largely being met: Korea is a Hague Convention country; the Father is now an Australian citizen and upon receipt of his Australian passport intends to renounce his Korean citizenship; the Father now owns property in Australia; the Father has specific travel plans; X is well settled at school with many friends, and he is involved in a number of extracurricular activities including (hobby omitted); the parties have largely complied with Court orders since final orders were made in 2013; since the Mother raised it as an issue in her affidavit of 1 August 2017, the Father has corrected the spelling of his name from ‘Mr Loh’ to ‘Mr Loh’ on all official documents, so all documents now record his name as Mr Loh and he could not use a different identity to deceive the authorities or the Mother.
  3. The Mother’s firm belief that the Father intends to relocate to Korea permanently with X if the Watch List order is discharged, has not changed since the 2013 hearing. The Mother is convinced the Father intends to relocate to Korea permanently with X. She believes he is preparing X for life in Korea by teaching him Korean and involving him in sports popular with boys in Korea. The Mother believes that Father’s dismissive attitude to her role in X’s life has not changed. She believes the Father would have little difficulty persuading a Korean court that X should remain in his care in Korea. The Mother deposes to the parties’ ongoing problematic communication and inability to work together for X’s benefit. She deposes to the Father’s ongoing social isolation in Sydney (as noted by the expert in 2013) and his ongoing desire to return to live in Korea and to have X educated there.
  4. The Mother’s solicitor deposes to his repeatedly unsuccessful efforts to obtain documents to verify the Father’s financial circumstances to enable the Mother and the Court to assess the adequacy of the security being offered by the Father if X were permitted to travel. Mr Mullan wrote to the Father’s solicitors on 6 June 2017 requesting a valuation of the Father's (omitted) property; loan statements to verify the liability secured on the property; a Financial Statement setting out the Father’s current financial position; particulars as to how the $50,000 would be sourced and what further orders would be proposed as to how any caveat lodged on the (omitted) property might be utilised for obtaining funds to recover X if the Father did not return him to Australia. By letter of 15 June 2017 in response, the Father declined to provide any of the information sought. The Father’s solicitors also advised that the Father no longer proposed security by way of a caveat on his property, resulting in an Amended Application in a Case filed and served in June 2017.
  5. I agree with the Father’s counsel that there have been a number of relevant changes in circumstance since the 2013 and 2015 orders were made. The question is whether those changes are sufficient to justify a reconsideration of the earlier orders in relation to the travel issue, whether those changes would be likely to result in a discharge of the Watch List order, whether it would be in X’s best interests for the litigation to be reopened.
  6. The Father did not confine the evidence he relied on to the issue of whether he should be permitted to re-litigate the travel question: the ‘Rice & Asplund’ issue. He adduces the evidence upon which he would rely to satisfy the Court it would be in X’s best interests to travel to Korea with the Father. He says he would pay security in the sum of $50,000 to secure X’s return to Australia. The Mother, in responding to the Father’s case, then adduces evidence upon which she would rely in opposing the application.
  7. I am satisfied the order sought to be changed by the Father is a significant order. If the Mother’s fears were realised, X would lose the benefit of the active involvement of both his parents in his life. The law is clear that there must be a real likelihood that the order would be changed if the litigation were reopened, as a result of the changes in circumstance since the original order was made. I am not satisfied that the evidence supports such an outcome.
  8. The Mother remains genuinely convinced that the Father intends to relocate with X to Korea and on the basis of the information she has obtained, that she would not succeed in having him returned to Australia. I am not satisfied that the Father’s evidence challenges the validity of her opinion. There is no evidence to support a finding that the parties’ communication has improved, or that there has been any positive change in their trust relationship. On the contrary, and significantly, well after the 2013 hearing, the Father threatened the Mother when she made efforts to engage with his family. The Father’s evidence about the establishment of his social network in Australia is limited and deposed to in very general terms. The Father’s refusal to disclose details of his financial circumstances so the adequacy of his offer of security could be assessed raises further concerns, as does his decision to withdraw his offer to the Mother of a caveat on his property during any absence overseas, a decision not explained. The law requires any Court considering a security bond for overseas travel, to examine the financial position of each party. In Line & Line (1997) FLC 92-729, the Full Court said that in exercising its discretion to fix an appropriate level of security, the Court must have regard to “a sum which will realistically entice the person removing the children to return”; and “provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children[19]. I find it noteworthy that the Court had concerns about the Father’s failure to disclose his financial position in relation to the transfer of funds to his Father in Korea in 2013, and that the Father has provided no explanation for his failure to give financial disclosure now.
  9. The Court could not be satisfied on the basis of the “expert” report provided, that X would be returned to Australia under the ‘Hague Convention’ if the Father kept him in Korea. I accept the Mother’s solicitor’s submissions in this regard. I also note that the cases referred to give no indication of the overall statistics on Hague convention matters, nor any indication of the likelihood of the Father succeeding if his aim was to delay a decision for 12 months.
  10. While I accept that there have been changes in circumstance since the September 2013 orders were made, I find the changes have made minimal impact on the fundamental concerns raised by the Court when this issue was litigated in 2013. In particular, the risk that the Father would remain in Korea with X remains, and I find that the Father fails to adequately address those risk issues. While not raised by either party, I also find it noteworthy that, as far as the evidence discloses, the Father has not chosen to travel to Korea or (country omitted) without X, despite his evidence of the importance of his father’s 80th birthday celebrations and his wish to spend time with his family.
  11. I am not satisfied it is in X’s best interests for this litigation to continue. I find there is little likelihood X would be permitted to travel to Korea (and therefore anywhere overseas) with the Father if his application were allowed to proceed to a final hearing. The Father’s application is therefore dismissed.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date: 25 January 2018


[1] Each party submitted an outline of case document
[2] Nong & Loh [2013] FCCA 1394 at paragraph 30 f)
[3] Nong & Loh [2013] FCCA 1394 at paragraph 142
[4] Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 at 78,905
[5] At 78,906
[6] [2001] FamCA 344; (2001) FLC 93-079 at 88,367
[7] At paragraph 41
[8] At paragraph 44
[9] At paragraph 50
[10] Carriel & Lendrum (2015) FLC 93-640 at paragraph 57
[11] At paragraph 6.8 of the Father’s outline of argument dated 25 October 2017
[12] At paragraph 6.11 of the Father’s outline of argument dated 25 October 2017
[13] At paragraph 6.9 of the Father’s outline of argument dated 25 October 2017
[14] Nong & Loh [2013] FCCA 1394 at paragraph 139
[15] Annexure F of the Father’s Affidavit affirmed 4 September 2017
[16] Annexure I of the Mother’s Affidavit affirmed 26 October 2017
[17] Paragraph 41 of the Mother’s Affidavit affirmed 26 October 2017
[18] Annexure K of the Mother’s Affidavit affirmed 26 October 2017
[19] Line & Line (1997) FLC 92-729 at paragraph 4.48


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