AKBAR & ODEMUT
[2015] FamCA 197
•25 March 2015
FAMILY COURT OF AUSTRALIA
| AKBAR & ODEMUT | [2015] FamCA 197 |
| FAMILY LAW – FORUM – Where the father seeks that proceedings in this court be dismissed or stayed pending judgment as to jurisdiction in a Country D Court – Where the mother seeks an anti-suit injunction to restrain the father from pursuing proceedings in that Country D Court – Consent orders were previously made in this court which finalised most issues – Where the parties intended to have two outstanding issues decided in this court on a final basis – Where the mother and children currently reside in Country D – Where the children are Australian citizens – It is found that this court is not a clearly inappropriate forum – Father’s application for a stay of these proceedings is dismissed – Considerations point to the proceedings in Country D being vexatious, oppressive and constituting a threat to processes and proceedings of this court – Anti-suit injunction granted on an interim basis. |
| Family Law Act 1975 (Cth) |
| CSR Limited & Signa Insurance Australia Limited & Ors 189 CLR 345 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| APPLICANT: | Ms Akbar |
| RESPONDENT: | Mr Odemut |
| FILE NUMBER: | SYC | 606 | of | 2013 |
| DATE DELIVERED: | 25 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 16 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Elliott |
| SOLICITOR FOR THE APPLICANT: | Reid Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE RESPONDENT: | Blanchfield Nicholls Partners |
Orders
The orders sought in the father’s Response to an Initiating Application filed 11 March 2015 be dismissed.
Pending further order, the father by himself or through others, be restrained from continuing to pursue any parenting orders in relation to B born … 2010 and C born … 2012 (“the children”) including:
2.1.Orders in relation to parental responsibility, the children spending time with their parents, or any associated injunctive orders (including any orders in an overseas jurisdiction for guardianship, custody, residence or access to the children);
2.2.The claims set out in paragraphs 2 and 3 of the Originating Summons filed in the Family Justice Courts of the Republic of D in proceedings numbered OSG 11/2014;
except to seek orders in similar terms to those made by this court in respect of the children so that those orders may be enforced in an overseas jurisdiction.
Further to paragraph 2, the father do all things necessary to cause the Country D proceedings referred to in paragraph 2.2 to be discontinued or dismissed.
This matter be listed for mention before Justice Le Poer Trench at 9.30am on 31 March 2015.
I note the mother’s lawyer should be prepared to discuss with Justice Le Poer Trench on 31 March 2015 any interim proposal that she would make for the children to spend time with their father in Country D.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Akbar & Odemut has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 606 of 2013
| Ms Akbar |
Applicant
And
| Mr Odemut |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to the parties’ two children, B born in 2010 (currently aged four years old) and C born in 2012 (currently aged two years old).
The father seeks that the mother’s pending application in this court for final orders be dismissed or in the alternative, the mother’s application for final orders in this court be permanently stayed pending a judgment of the Family Justice Courts of the Republic of D (“the Country D Court”), and that her application be dismissed in the event that the Country D Court decides to exercise its jurisdiction in relation to parenting matters.
The mother seeks an anti-suit injunction to restrain the father from pursuing proceedings he has instituted in the Country D Court so far as those proceedings seek orders that are different in substance from those final orders which have been made in this court, or are subsequently made in this court.
THE EVIDENCE
The evidence relied upon by both parties is set out in Schedule 1.
RELEVANT FACTS
The father was born in Country H in 1980 and is currently 34 years of age. The father currently resides in City E, Country F.
The mother was born in Country G in 1981 and is currently 33 years of age.
The mother came to Australia in 1982 as a baby and remained in Australia until about 2005 when she moved to Country D at the age of 24 years old.
The parties met in 2007 when the mother was on holiday in Country H. At the time she was employed and living in Country D.
In January 2008 the parties became engaged whilst on holiday in Thailand and were married in Country H in 2008.
After the marriage the parties began living in City E, Country F.
The first child of the marriage, B, was born in Country F in 2010 and is now almost five years of age.
The parties separated and reconciled on a number of occasions.
The second child of the marriage, C, was born in Country F in 2012 and is two and a half years of age.
The parties separated in early December 2012 when the mother left the former matrimonial home in City E on a final basis. She took the two children with her. Following the separation, the mother and the children moved to Australia. They commenced to reside in Australia. The father has not seen the children since that time. At that time, the elder child was aged two years old and the younger child was just over two months old.
The mother and the children are Australian citizens. The mother’s family live in Australia and have done so for many years.
On 8 February 2013 the mother commenced proceedings in the Family Court of Australia seeking parenting orders in respect of the children.
The parenting orders sought by the mother included orders relating to:
17.1.Parental responsibility (the mother sought an order that she have sole parental responsibility);
17.2.Where and with whom the children would live (the mother sought an order that the children live with her and she be permitted to leave Australia with the children in order to take up employment opportunities if they arose);
17.3.The protection of the children from the risk of the father abducting or causing harm to them;
17.4.Supervised time between the father and the children.
On 24 June 2013 the father filed a Response. In that Response, the father agreed that the children should live with their mother. He disagreed that an order should be made in the mother’s favour for sole parental responsibility for decisions concerning the children’s long term care and welfare. He also disagreed with the orders proposed by the mother relating to the children spending time and communicating with him. He proposed an alternate set of orders.
He agreed with orders sought by the mother relating to the mother moving with the children from Australia for the purposes of overseas travel and to take up employment opportunities overseas, on the basis that he be given 30 days written notice of her intention to leave Australia. He agreed with other proposals in the mother’s application relating to the payment of the costs of travel for the children, information about accidents, injury and illness, information about the children’s schooling, and non-denigration orders.
In addition, the father sought orders that the children go to Country H language lessons, and that the mother, when considering overseas employment opportunities, take into account the visa requirements that apply to the father’s capacity to enter the country to which the mother intends to go to work. The father also wanted the orders reviewable after two years, particularly if both of the parties ended up living back in Australia.
On 11 December 2013 this court made a divorce order ending the parties’ marriage.
After the parenting proceedings commenced, there was a period of negotiation between the mother and the father. The result was a written agreement on terms reflected in signed consent orders sent by email, dated 21 March 2014, from the mother’s solicitors to the associate to Justice Le Poer Trench.
The orders submitted to the court reflected the fact that the parties had reached final agreement about many of the claims the subject of the proceedings, but that there remained two matters still to be determined on a final basis.
The final orders that the parties agreed could be made by this court included:
24.1.An order that the children live with the mother until they achieve adulthood;
24.2.An order permitting the mother to relocate from Australia with the children upon the provision of 30 days’ notice to the father;
24.3.An order that the father be restrained from attempting to remove the children from Australia, coupled with a request to the Australian Federal Police to place the children’s names on the airport watch list;
24.4.Particular orders pursuant to s 68B(1) and s 65Y(2) of the Family Law Act 1975 (Cth) (“the Act”);
24.5.An order restraining the father from denigrating the mother and permitting the mother to cease all time between the father and the children should that order be breached;
24.6.An order giving the registrar of this court power to undertake particular acts in the event of breaches of the orders.
Relevantly, paragraph 20 of the orders agreed to was in the following terms:
20. The parties agree that within fourteen days of receiving a written request from the other party, they shall do all things and sign all documents to ensure that these Orders are recognised and enforced in any other jurisdiction where the children may live, pursuant to the doctrine of comity of nations. In the event the parties’ application to have these Orders recognised does not succeed then the parties shall forthwith do all things and sign all documents necessary to amend, vary or enter into any further document that will be recognised by the appropriate jurisdiction, that has the same effect as these orders.
The parties agreed to interim orders for the children to spend time with their father when he was in Australia under the supervision of I Org.
The signed consent orders contained the following notation:
Notation
1. The outstanding issues to be determined on a final basis are:
a)Parental responsibility;
b)The father’s time with the children including any conditions on such time.
On 21 March 2014 the mother’s lawyer sent the following email to his Honour’s associate and to the father:
Dear Associate,
We refer to the above matter and confirm we act for the applicant mother, [Ms Akbar]. The respondent father is [Mr Odemut] who is self-represented.
This matter is listed before His Honour for the first day of Less Adversarial Trial on 30 April 2014.
The parties have reached an agreement and accordingly, the parties have signed interim and final consent orders. Please find attached a scanned copy of the signed consent orders. A typescript of the orders is also attached.
We respectfully request that these orders be made in chambers.
We note that there are two issues yet to be determined on a final basis:
1. The allocation of parental responsibility; and
2. The amount and frequency of time the children are to spend with their father and whether such time should be supervised.
We look forward to receiving the sealed orders in due course.
Yours faithfully,
On 24 March 2014 the associate to his Honour sent the mother’s solicitor and the father an email to confirm that the signed consent orders had been received and would be placed before the judge for his consideration.
On 4 April 2014 his Honour made the orders described above in accordance with the signed consent orders of the parties. This was done in chambers and without the parties in attendance. His Honour did not note the matters contained in the notation of the signed consent orders as set out above. Rather, in the third paragraph of the separate form of order his Honour noted:
I note that now concludes this proceeding in the court.
It seems that both parties agree that that notation made by his Honour was inconsistent with both the notation in the consent orders that the parties had signed and the email enclosing the consent orders that had been sent to his Honour’s associate on 21 March 2014.
Subsequent to the making of the orders on 4 April 2014, and presumably by reference to the notation in paragraph 3 of the separate order sheet created by his Honour, staff at the court registry took steps in the administration of the court records to close the court file.
The question arises as to whether or not the notation made by Justice Le Poer Trench on 4 April 2014 had the effect of concluding the proceedings. His Honour’s notation is not an order. The effect of the actual orders his Honour made on that day did not conclude the proceedings. At the time his Honour made the orders, there were extant applications for final orders relating to parental responsibility and the father’s time with the children. Consequently I find that the proceedings remained alive.
The mother says that on 4 April 2014 (the same day the orders were made but after the orders were made and pursuant to the orders), she gave the father 30 days’ notice that she intended to relocate with the children to Country D in order to take up a job opportunity there. The father says that he believes that the mother’s solicitor wrote to him giving him the notice, although he can’t locate the correspondence. His memory is that the mother gave him notice of her intention to move to Country D before the consent orders were made but there has been no testing of that assertion by the father and I accept the mother’s evidence that she gave the requisite notice after the orders were made.
On or around 4 May 2014 the children and the mother relocated from Australia to live in Country D. Although the father acknowledges that the orders anticipated a possible relocation, he says he was surprised at the speed at which the mother had moved.
The father did not get to Australia between 4 April 2014 and 4 May 2014 to spend any time with the children as provided by the interim orders. The interim orders only related to supervised time “in Australia” and the father has not seen the children since the orders were made. So far as I am aware, to this date, the mother has not filed any proposed order for the children to spend time with their father in D.
On 22 April 2014 the father contacted the Family Court of Australia and was advised that the file had been closed and that all future court dates had been vacated. I accept that as a result of what happened in this court, the father was informed that the proceedings were being treated as concluded in this court. Accordingly, it is unremarkable that he filed an application in the jurisdiction where the children were currently living. No criticism in my view can be made of the father for “forum shopping”. The fact was however, the proceedings were not concluded in this court.
The father says he attempted, over a period of approximately five months, to make arrangements directly with the mother to see the children once the mother and children had arrived in Country D. The father says that the mother has refused to allow him to see the children in Country D.
On 14 October 2014 the father made an application to the Country D Court for the following orders:
1. That the court make orders mirroring the terms of the orders of the Family Court of Australia on 4 April 2014.
2. That the court makes orders as to the following:
a.The parties shall have joint custody to the children.
b.That I be granted reasonable access to the children including overnight and overseas access provided at least two weeks’ notice is provided to [Ms Akbar] to facilitate such access.
c.All access should be subject to the children’s schedule (eg classes, extra curricular activities and social events). In the event that the children are unavailable to exercise access on the dates and times provided in my notice to [Ms Akbar], [Ms Akbar] shall provide one weeks’ notice of the children’s unavailability and propose reasonable alternative arrangements.
d.That [Ms Akbar] shall not arrange for any new activities upon receiving my notice of my intention to exercise access without my prior knowledge and approval.
On 20 November 2014 the mother filed a further application for parenting orders in this court where she renewed and amplified her application for sole parental responsibility for major long term decisions concerning the children and set out the order that she sought be made for the children to spend supervised time with their father, but only when the children were present in Australia. Other orders were sought relating to how the children’s names would be placed on an Australian watch list and some variations the mother wanted made to the orders of 4 April 2014. As part of this application, the mother sought that this court make an anti-suit injunction restraining the father from proceeding with the proceedings in Country D.
The mother has continued to seek those final orders in her Amended Initiating Application filed 13 March 2015.
On 26 November 2014 the mother filed a stay application in the Country D Court which is listed for final hearing on 8 April 2015.
LEGAL PRINCIPLES
The test which governs a stay of proceedings in favour of proceedings in another country is that a stay is only to be granted if the Australian court is a clearly inappropriate forum (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”)).
In CSR Limited & Signa Insurance Australia Limited & Ors 189 CLR 345 at pages 389 to 394 (“CSR”), the High Court discusses the principles governing stay of proceedings on forum non conveniens grounds and the grant of anti-suit injunctions. The High Court identifies two separate sources of power to make an anti-suit injunction. The first is an inherent power to be exercised when the administration of justice so demands, or when necessary for the protection of the court’s own proceedings or processes (at page 392). The second power is to restrain unconscionable conduct or unconscientious exercise of legal rights. The limits of that power are dictated only by equity and good conscience (page 394). Unconscionable conduct includes the pursuit of proceedings in another forum in circumstances which the court would regard as vexatious or oppressive (at page 393).
In addition to the court’s implied or inherent powers, s 34 of the Act allows the court to make an anti-suit injunction (see [42] of In the Marriage of Dobson & Van Londen (2005) FLC 93-225).
The High Court in Henry v Henry 185 CLR 571 at 591 observed:
35. It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue (48). And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries (49), the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
The High Court in CSR comments at 393 that proceedings are vexatious and oppressive if there is a complete correspondence between the proceedings or “complete relief” available in the local proceedings. As was pointed out in Henry, in order for there to be the “same controversy” it is not necessary to analyse discrete areas of dispute between the mother and the father. The matter is viewed more broadly (see Henry v Henry at 591 – 2 and In the marriage of Dobson & Van Londen at 37).
Another example of unconscionable conduct deserving of restraint by way of an anti-suit injunction is an attempt by a party to sue in a particular forum in breach of an agreement he has with the other party (see Alkimos Shipping v Hind Lever [2004] FCA 969.
The Full Court in EJK v TSL (2006) 35 FamLR 559 at [83] emphasised that generally the principles to be applied in respect of an application for a stay or anti-suit injunction are those applicable at common law. The granting of relief by way of stay is more likely to be appropriate if the children are resident in the foreign forum and there is no necessity to make any other order than a stay to determine the application before the court. Where a stay or anti-suit injunction is sought in relation to parenting proceedings the Act does not prescribe a “best interests” requirement, but the child’s best interests will often be a significant and weighty matter to be taken into account. Litigation involving children is also not strictly inter partes litigation and the children’s best interests will almost inevitably be a significant matter.
DISCUSSION
I will first consider whether or not the father’s application to stay the current proceedings should be granted.
Counsel for the father submits that Australia is a clearly inappropriate forum.
The father argues that the children are not now present or resident within the jurisdiction and that a determination on the merits of the case would require evidence in the form of an expert report given that:
52.1.The mother makes allegations of family violence;
52.2.The mother makes allegations of sexual abuse;
52.3.The father denies the mother’s allegations;
52.4.There are potentially complex issues to be determined in relation to differing cultural expectations of the parties.
The allegations of sexual abuse and family violence are detailed with some specificity in the mother’s affidavit. The father has, in the context of this jurisdictional argument, sought not to respond specifically to those allegations but rather reserved his rights to address these allegations pending the outcome of jurisdictional arguments.
The need for expert evidence and how that expert evidence will be obtained will be a matter for the trial judge, and I take into account the fact that the mother and children are currently in Country D might make that process more difficult than if they lived in Australia.
Counsel for the father also points to the fact that the mother and children currently reside in the jurisdiction in which the father has commenced proceedings. The father has the ability to freely enter that foreign jurisdiction but his ability to enter Australia may be circumscribed.
Counsel for the father also says that any stay that is granted can be revisited if the Country D Court chooses not to exercise jurisdiction.
The children are Australian citizens. There are existing parenting orders made in Australia and the mother has properly invoked the jurisdiction of the Australian court. The father sought orders in this jurisdiction and has not withdrawn that application. The proceedings in this jurisdiction have not been finalised.
There is no issue that the proceedings that the parents are involved in in this court and in the Country D Court, arise out of their marriage and require determination of “the identical issue or the same controversy”, namely, what proper parenting orders should be made particularly in relation to parental responsibility and the father’s time with the children.
As was said in CSR at 399, “prima facie the continuation of one or other [in this case, either the Australian or Country D proceedings] should be seen as vexatious or oppressive within the Voth sense of those words”.
I accept there is a legitimate personal or juridical advantage for the father in having his proceedings heard and determined in Country D while the mother lives there, particularly to pursue the enforcement of orders in circumstances where the father would say the mother has shown herself reluctant to cooperate in making the children available. However, as discussed below, the evidence from the mother’s lawyer in Country D is that the Country D Court will likely make mirror orders.
The continuation of proceedings in this court, which is where the parties first choose to litigate their dispute, would not be oppressive or vexatious as those terms have been interpreted in Voth.
I find that this court is not “a clearly inappropriate forum”.
Accordingly, the father’s application for a stay of these proceedings shall be dismissed.
AN ANTI-SUIT INJUNCTION
The anti-suit injunction sought on behalf of the mother will be granted, but only on an interim basis, for the following reasons.
I have found that this court is not a clearly inappropriate forum.
A number of considerations point in the direction of the proceedings in Country D being vexatious and oppressive and constituting a threat to the processes and proceedings of this court.
As already discussed, the mother commenced her application in this court. The father joined in those proceedings by filing a response on 24 June 2013. The parties partly compromised the proceedings which led to orders that partly resolved some but not all of the competing applications in relation to parenting. The proceedings which remain in this court raise for determination the very matters the father has sought to raise in the proceedings in Country D. The subject matter is identical. It is also vexatious to seek to have a foreign court, applying the law of that jurisdiction, complete an exercise which has been significantly started by this court applying the laws of this country.
In the document that was signed in April 2014, the parties agreed that certain orders that the court made would be only of an interim nature and that certain issues which had not been agreed between them or determined by the court remained outstanding and were to be determined by this court on a final basis. The commencement of the action in Country D represented a departure from that agreement. As mentioned, breach of an agreement which chooses forum can be an example of unconscionable conduct deserving of restraint by way of an anti-suit injunction (see Alkimos Shipping v Hind Lever [2004] FCA 969 at page 5.
The mother and the children have lived in Country D for the last nine months, however, they are Australian citizens and the mother says her residence in Country D is only temporary. She says that she continues to consider employment possibilities in other countries, including Australia, the United States and in Europe. She said that she would be prepared to move to a job in such a location if the right opportunity presented itself. The mother lived in Australia from when she was a baby until she was 24 years of age. The mother’s parents live in Australia as does her sister and her partner and their child.
I have discussed the forensic advantage the father might gain from having the proceedings continue in Country D.
Although she has not complied with the orders to date, the mother, through her counsel, tells the court she understands she is bound by order 20 of the orders made in this court on 4 April 2014, to join with the father in seeking that the Country D Court make orders mirroring those orders made by this court on 4 April 2014. She also indicated she will seek that mirror orders be made in any overseas jurisdiction in which the children reside in respect of any other orders this court may make relating to the children.
The mother has filed evidence from Mr J, a partner in a law firm in Country D, that professes to have expertise in family law and divorce matters in that jurisdiction. Mr J is cognisant of the outstanding issues that are to be determined on a final basis in Australia as detailed in the original consent orders. Mr J gives evidence that in his experience, if the Family Court of Australia went on to determine the balance of outstanding issues on a final basis and made orders, the Country D Court would, consider, and if it thought appropriate pursuant to its laws and on application by one of the parties and upon provision of proof that the orders were made, make orders in Country D to reflect and/or mirror and/or be parallel and/or be consistent with the orders that have been made in Australia to the extent possible so as to enable those orders to be enforced in Country D.
This court can make orders requiring that the parties seek consistent orders from the court in Country D.
I find that the administration of justice requires that an anti-suit injunction be granted but I will not do so as a final order. The mother has given the court an assurance she will seek that similar order to those made by this court be made in the Country D Courts or in any other jurisdiction to which she may take the children. In the event that she fails to do that or in the event that the overseas jurisdiction declines to make mirror orders, the father may wish to apply for a discharge of this interim injunction and to make another application for a stay of these proceedings.
PROCEDURAL ORDERS
This matter should be relisted at 9.30am on 31 March 2015 before Justice Le Poer Trench and reinstated to his docket. I note that the mother’s Amended Initiating Application filed 13 March 2015 repeats a previous application setting out the arrangements the mother would agree to for the father to spend time with the children when they are in Australia. The children and the mother of course currently live in Country D. The mother’s lawyer should be prepared to discuss with Justice Le Poer Trench on 31 March 2015 any interim proposal that the mother would make for the children to spend time with their father in Country D.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 25 March 2015
Associate:
Date: 25.3.2015
SCHEDULE 1
Mother
Affidavit of mother sworn 19 November 2014
Affidavit of mother sworn 13 March 2015
Affidavit of Mr J sworn 13 March 2015
Father
Affidavit of father filed 11 March 2015
2
1