B v B (Re Jurisdiction)

[2003] FamCA 105

[2003] FamCA 105

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA 69 of 2002
  File No. CA1982 of 1998

IN THE MATTER OF:

B- and -B (Re Jurisdiction)

REASONS FOR JUDGMENT
(edited for publication)

BEFORE:                  Holden, Coleman and Warnick JJ
HEARD:  29th day of August 2002
JUDGMENT:           19th day of February 2003

APPEARANCES:              Mr Millar of counsel (instructed by Chris Crowley Associates, Solicitors, PO Box 1560, Canberra, ACT 2601) appeared on behalf of the appellant /wife

The respondent/husband was self-represented and his address for service is C/o Baker, Deane & Nutt, 260 Crawford Street, Queanbeyan, NSW 2620

JURISDICTION OF FAMILY COURT OF AUSTRALIA – Test to be applied when proceedings commenced in a foreign forum concerning the same matter - Whether best interests of child the paramount consideration – Parens patriae jurisdiction - Whether best interests of child a relevant matter in determining a question of jurisdiction

1. This matter comes before the Court by way of Case Stated by Faulks J filed 30 July 2002.

2. The questions for determination by this Full Court are expressed to be as follows:

   "1.In considering an application for a stay of proceedings in the Family Court of Australia to permit proceedings commenced (after the proceedings in the Family Court of Australia) in the District Court of another country (New Zealand) to proceed is the Court to exercise such a determination by reference to the:

   ·    "Clearly inappropriate forum" test; or

   ·    The "more appropriate forum" test; or

   ·    The "natural forum" test (as those terms were set out and considered in Voth v. Manildra Flour Mills Pty Ltd (1991) 71 CLR 538,557 and 538,558) (sic);

   or

   2.By reference to the paramountcy of the best interests of the children either as

   ·An exercise of the parens patriae jurisdiction of the Court?

   or

   ·By the express terms of the Family Law Act 1975 notwithstanding that the Family Law (Reform) Act 1995 substituted a different Part VII to the Family Law Act 1975 from that considered by the High Court in ZP v PS; re PS; ex parte ZP (1994) FLC 92-480 at 80,999?

   3.If the best interests of the children are not to be regarded as paramount, are such interests nevertheless to be taken into account in determining whether or not the Family Court of Australia is an inappropriate forum, or a natural forum or a more appropriate forum?

   4.If the answer to question 3. is yes

   then is a trial judge in considering such an application limited only to the matters set out in Section 68F(2) of the Family Law Act 1975 in determining the best interests of the children?

   5.If the answer to question 3. is no,

   are questions relating to the availability of evidence and convenience and cost to the parties, matters that might properly be regarded as relating to the welfare of the child and to be taken into account in a determination of a question of where the proceedings should continue?

   6.Is the husband's claim that because of the Registration of orders made in the Family Court of Australia in New Zealand Court, the New Zealand Court does not have jurisdiction to deal with the question of contact an appropriate matter to take into account for determination by the Family Court of Australia?

   7.Section 45 of the Family Law Act confers jurisdiction upon the Family Court of Australia to stay proceedings before the Court where proceedings are before another Court but only if the other Court has jurisdiction under this Act. A New Zealand Court does not appear to have jurisdiction under this Act and therefore, is there any statutory power conferred on the Family Court to stay the proceedings before this Court?"

3. This Court is asked to answer the above questions assuming the following facts:

   "1.The mother was born in New Zealand on the 11^th June 1955.

   2.The father was born in Australia on the 2^nd June 1955.

   3.Both parents are Australian citizens.

   4.The parties married in Australia on the 6^th October 1988.

   5.The husband ultimately left the family home on the 25^th September 1998.

   6.The marriage was dissolved by a Decree Nisi in the Family Court of Australia on the 26^th November 1999.

   7.The mother commenced proceedings for orders in the Family Court of Australia at Canberra on the 6^th November 1998.  That application sought, among other things, orders about the children and their potential relocation with her to New Zealand.

   8.There are three children of the marriage.

   9.A copy of the orders made by consent on the 30^th June 1999 are annexed and marked Document No. 1.  These orders were made by consent and included a provision that contact was to be reasonable as agreed between the parents.

   10.The mother and children moved to New Zealand in July 1999.

   11.The mother and the children have continued to live in New Zealand since that time.

   12.Subsequently a dispute arose about contact the children would have with their father.

   13.On the 28^th July 2000 the father commenced proceedings in the Family Court of Australia seeking orders for defined contact.  A copy of that application is annexed and marked Document No. 2.

   14.On the 11^th September 2000 an order for interim contact was made by Faulks J in the Family Court of Australia.

   15.On the 28^th September 2000 a response was filed on behalf of the mother in the Family Court.  That document is annexed and marked Document No. 3.

   16.A reply, dated the 10^th November 2000 was subsequently filed on the husband's behalf and is annexed and marked Document No. 4.

   17.On the 13^th October 2000 the mother commenced proceedings under the Guardianship Act in the District Court (Family Division) of New Zealand.  A copy of that document including the supporting affidavit is annexed and marked Document No. 5.

   18.The husband's New Zealand solicitors filed an appearance protesting jurisdiction.  There is some dispute about whether such protesting appearance was withdrawn.  The husband maintains before this Court his objection to the jurisdiction of the New Zealand Court.

   19.On the 27^th October 2000 the mother filed an affidavit in the Family Court of Australia seeking stay or dismissal of the Australian proceedings upon grounds that the proceedings had now been commenced in New Zealand and the issue of contact should be determined in New Zealand."

The General Law With Respect to Forum

1. Ordinarily in civil cases the test to be applied is well settled in deciding applications to stay proceedings on the grounds that the selected forum ought not to exercise its jurisdiction.  It was so settled by the decision of the High Court in Voth v Manildra Flour Mills Pty Ltd [1990] 171 CLR 538.

2. In that case the majority (Mason CJ, Deane J, Dawson J and Gaudron J) observed at 552

   "Moreover, the divergence of opinion manifest in Oceanic Sun makes it important that this Court by its decision in this case enunciate authoritatively the principles and criteria to be applied by Australian courts in future cases.  With that end in view, we have put aside individual differences of emphasis in order to participate in this majority judgment."

3. Their Honours then embarked upon a comparison between the "clearly inappropriate forum" test and the "clearly more appropriate forum" test, noting that the latter expression was interchangeable with the expression "natural forum".  In concluding that the "clearly inappropriate forum" test was to be preferred their Honours said at p 559:

   "In a context where the relevant test will fall to be applied in accordance with the individual perception of a primary judge, the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience."

4. For the sake of completeness we observe that Brennan J added his "acceptance of the test proposed by the majority" whilst Toohey J was "impenitent in adhering to the view that the doctrine of forum non conveniens" should determine the issue.

The Application of the Test to Cases Involving Children Prior to the Family Law Reform Act 1995

1. Before the Family Law Reform Act 1995 came into force on 11 June 1996, s 64(1)(a) of the Family Law Act 1975 provided:

   "64(1)  [Factors considered]  In proceedings in relation to the custody, guardianship or welfare of or access to a child:

   (a)the court must regard the welfare of the child as the paramount consideration. …"

2. ZP v PS (1994) FLC 92-480; 181 CLR 639 concerned the custody and welfare of a child who was born and brought up in Greece until his mother brought him to Australia in breach of a custody order made in her favour by a Greek court. The wife was an Australian citizen of Greek origin as was the child's father. The child was also an Australian citizen.

3. In May 1993 the wife applied to the Family Court of Australia for an order that she have sole custody and that access to the husband be reserved and that the husband be restrained from removing the child from the State of Victoria.  In June 1993, the husband applied to a Greek court for custody.  In September 1993, the Greek court revoked its earlier order and gave custody to the husband.  In the meantime, the Family Court had granted interim custody to the wife.

4. The wife appealed to the High Court against a number of orders made by the Family Court, the principal effect of which was that the husband and wife were to submit themselves to a Greek court for the determination of all issues relevant to the guardianship, custody and welfare of and access to the child.  In the Family Court the wife had indicated that she was prepared to return to Greece with the child in the event of a decision being made that custody and other arrangements concerning his upbringing should be determined in that country.  In the Full Court, however, the wife said that she no longer intended to return to Greece.

5. The High Court held that in custody proceedings the question whether to proceed to a full hearing or to make some other order, such as an order for summary removal of the child to another country, is governed by the principle then contained in s 64(1)(a), namely that the child's welfare must be regarded as the paramount consideration. The "clearly inappropriate forum" test, established in Voth v Manildra Flour Mills (supra) had no application in proceedings relating to custody and guardianship, because it was effectively displaced by the requirement of s 64(1)(a) that the court must regard the welfare of the child as the paramount consideration.

6. Mason CJ, Toohey and McHugh JJ said at (1994) FLC 80,999; CLR 647:

   "… [The court's] duty is to make such order as will "best promote and protect the interests of the child".  It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child.  Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniences case are not relevant issues in a custody application.  In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves issues and the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum."

7. Brennan and Dawson JJ said at FLC 81,008; CLR 663 :

   "The Family Court's attempt to meld the paramount consideration of the welfare of the child with the test of "clearly inappropriate forum" is misconceived.  The latter test determines whether in certain classes of case, a court should decline to exercise its jurisdiction;  the former consideration governs the manner in which the Family Court must exercise the jurisdiction which has been conferred upon it by s 63.  The test of "clearly inappropriate forum" is not an alternative test to the welfare of the child in determining the order to be made when the custody jurisdiction conferred by s 63 is to be exercised."

8. We accept that it is arguable that the principles enunciated in ZP v PS are limited to cases such as that one, in which a child has been abducted from a foreign country and is present within the jurisdiction.  It is, however, unnecessary in our view given the significant changes made by the 1995 amendments to debate that issue.

The Family Law Reform Act 1995

1. As we have already observed the Family Law Reform Act 1995 came into force on 11 June 1996.

2. The most significant aspect of the amendments was that Part VII of the Act containing provisions relating to children was repealed and remade.  The new Part VII contains no section equivalent to the former section 64 which extended the paramountcy principle across all proceedings relating to the custody, guardianship, or welfare of or access to a child.  Rather, the paramountcy principle is now expressed to apply in respect of particular types of orders referred to in particular sections. 

3. Section 65E now provides:

   “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”

and in summary, the other sections are:

·S 63H(2) - setting aside parenting plan under 63H(1)(c)

·S 65L(2) - assistance or supervision of parenting orders

·S 67L - location orders

·S 67V - recovery orders

·S 67ZC(2) - welfare orders.

1. Other sections of the Act mention the best interests of the child without expressly making those interests paramount.  These are as follows:

• S 60B(2) - principles "except when it is or would be contrary to the child's best interests"

• S 63E(3) - court to register parenting plan if it considers it appropriate to do so "having regard to the best interests of the child to which the plan relates"

• S 63F(2) and (6) - varying child welfare provisions of parenting plan, enforcing parenting plan

• S 60G(2) - court to consider whether granting leave for adoption proceedings to be commenced would be in the child's best interest

• S 68B - court may "make such order or grant such injunction as it considers appropriate for the welfare of the child"

• S 68Q(c)(ii) - reference to child's best interests

• S68T(2)(b) - varying contact orders in family violence proceedings - court to have regard to purposes, and to the best interests of the child

1. As is demonstrated by this case, the above lists do not cover all matters on which the court can make orders having something to do with children.

2. It is convenient at this point to deal with the submission made by counsel for the applicant wife that in considering the application for a stay the court is, in effect, deciding whether to make a particular parenting order in relation to a child.  It is said that this is because:

   "… the nature of the stay sought by the wife is a permanent stay which would bring the proceedings in this court to an end in the face of the continuation of the proceedings in New Zealand.  If the court decides to grant the stay this will amount to a determination not to make the parenting order sought by the husband.  Accordingly, as s 65E makes clear, this must result from a determination that the best interests of the child require that result since they are the paramount consideration in deciding the matter."  

We do not agree with that submission.

1. Parenting order is defined by s 64B(1) of the Act as follows:

   "64B(1)  A parenting order is:

   (a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

   (b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a)."

1. Section 64B(2) provides as follows:

   "64B(2)  A parenting order may deal with one or more of the following:

   (a)      the person or persons with whom a child is to live;

   (b)contact between a child and another person or other persons;

   (c)      maintenance of a child;

   (d)      any other aspect of parental responsibility for a child. "

2. We are not persuaded that there is sufficient elasticity in the language of the Act for us to conclude that an application with respect to the exercise of jurisdiction is in fact an application for a parenting order nor is it an application made under any other section of the Act in respect of which an order is required to be made having regard to the paramountcy principle.

3. In determining the issue, given that the application for a stay is not an application for a parenting order, the question becomes, is the child's best interest the paramount consideration?  If it is not, are the child's best interests a relevant matter?

4. It seems to us from a reading of the Family Law Act 1975 after the 1995 amendments that the best interests of the children is not the paramount consideration in determining an application of the sort that we are now dealing with. The paramount consideration principle now applies, in our view, only to decisions to which the Act expressly says it applies. The Act nowhere provides expressly that the paramountcy principle applies to an application to stay proceedings concerning children.

5. Passages in ZP and PS (supra) might arguably support the proposition that because the jurisdiction of the Family Court in respect to children is similar to the parens patriae jurisdiction of the Court of Chancery, notwithstanding that there is no express statutory provision that says so, in applications having connection with the welfare of children, the paramountcy principle applies. We refer in particular to the passage in the judgment of Mason CJ, Toohey and McHugh JJ (1994) FLC 92-480 at 80,999:

   "In exercising the parens patriae jurisdiction or a statutory jurisdiction which makes the welfare of the minor the first and paramount consideration, the Court always makes an independent judgment on any question concerning the custody of a child and cannot blindly follow an order made by a foreign court.  Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court.  Moreover, proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access. ..."

6. However, the decision in ZP and PS (supra) was clearly based on the then existing statutory provisions.  It is not possible to draw any conclusions from the observations in that case about the similarity of the jurisdiction of the Court in respect to children to that of the Court of Chancery that in the event the statutory structure altered, as it did, the paramountcy principle would continue to apply to particular applications notwithstanding it was not expressed by statute to do so.

7. In our view, whatever the similarity between the parens patriae jurisdiction of the Court of Chancery and that exercised by the Family Court, the clear legislative intention of the 1995 amendments was to limit the reach of the paramountcy principle.

8. Since the 1995 amendments, there have been several cases in which the opportunity to find some pervasive general principle of the paramountcy of the child's interests in any decision about any matter involving a child's interests arose, but was not taken up.  We refer to the decision of the High Court in CDJ v VAJ which we later discuss.

1. In Bennett and Bennett (2001) FLC 93-088 the Full Court said at 88,590:

   "However the current power in s 68B to grant an injunction in relation to a child is not subject to the express legislative requirement that the court must regard "the best interests of the child as the paramount consideration", and in this regard is to be contrasted with the powers, for example in s 65E to make a parenting order, or in s 67ZC to make an order in relation to the welfare of a child."

(See also Northern Territory of Australia v GPAO (1999) FLC 92-838 and Flanagan and Hancock (2001) FLC 93-074 and, in the High Court S258/2000).

1. Having found that the paramountcy principle does not govern the determination of stay applications, we can see no reason why the principles upon which those applications are determined should be any different from those applicable to determinations of forum issues in the ordinary run of civil cases.

2. Do the best interests of the children nevertheless remain relevant in determining the question of jurisdiction?  In our view, they do.  Support for that view is to be found in the Full Court decision of VJ and CJ (1997) FLC 92-772 and the High Court decision of CDJ v VAJ (1998) FLC 92-828.

3. In VJ v CJ (supra) the Full Court of the Family Court (Lindenmayer, Kay and Maxwell JJ) were considering an application to admit further evidence in the course of the hearing of an appeal.  The Full Court said, at 84,516:

   "Is an appellate court when deciding whether to admit fresh evidence in the course of hearing an appeal against an order concerning the person with whom a child is to live deciding whether to make an order as to the person with whom a child is to live?  It seems to us that we would be required to find significant elasticity in the language to achieve a positive answer to that question.  Assuming that we cannot stretch the language that far, then, in our view, the constant shadow of the paramountcy principle in child welfare cases is such that at the very least, the best interest considerations are powerful matters to be weighed up against a competing principle such as finality."

4. In CDJ v VAJ (supra) the High Court commented upon what the Full Court had said.  McHugh, Gummow and Callinan JJ said as follows at FLC 85,444:

   "87.  An order admitting or rejecting further evidence is not a parenting order within the terms of s 64B and therefore does not directly invoke the application of the paramountcy principle.  Nevertheless, their Honours were plainly right in concluding that that principle was relevant to the questions whether further evidence should be admitted by the Full Court and whether the orders made by Baker J should be set aside.  In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance.  Consequently, the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal.  It necessarily follows that, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order. 

   88.  It is not to the point that the Full Court in this case was not asked to make a parenting order as such.  An order admitting or rejecting further evidence is part of the appeal process in which the best interests of the child are the paramount consideration.  In determining whether or not to admit that evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight.  It will be one of the most important discretionary considerations to which the Full Court must have regard."

5. Kirby J said at 85,469:

   "191.  …The Full Court recognised, in terms, that the statutory expression of the paramountcy principle did not govern either the performance of appellate functions generally or the particular decision to admit further evidence in this appeal.  It recognised that it "would be required to find significant elasticity in the language to achieve a positive answer" to the question whether the statutory paramountcy principle governed the Full Court for such purposes.  Their Honours went on:

   "Assuming that we cannot stretch the language that far, then, in our view, the constant shadow of the paramountcy principle in child welfare cases is such that at the very least, the best interest considerations are powerful matters to be weighed up against a competing principle such as finality."

   192.  In this approach, there is no error.  Although the statutory expression of the paramountcy principle is particularly emphatic in respect of the cases to which it applies, the general obligation to approach any judicial decision which might impinge on the welfare of a child with at least a broad appreciation of the implications of the decision for that child's welfare is consistent with the longstanding parens patriae jurisdiction of the courts which have successively been involved in such cases.  The mention of this consideration in relation to particular provisions of the Act does not exclude it totally from relevance to other decisions under the Act.  The principle is founded upon a universal rule common to most legal systems and now expressed in international law.  In deciding whether to admit further evidence, a Full Court would necessarily have had to consider whether such evidence, if taken into account, would have been relevant to the ultimate question in issue at the trial.  In the case of an appeal against a parenting order that would require consideration of the paramountcy principle stated in the Act.  In this way, testing the available hypotheses, it would be inevitable that a Full Court would consider the proffered evidence as it was, or might well be, relevant to the matters that would arise on a retrial.  It would be completely artificial to dissect the issues and to require that the welfare of the child or children should be completely ignored.  The metaphor of the "shadow" was an apt one.  Whilst not governing the decision on the admission of further evidence or on the appeal as it was conducted, the welfare of the children, as the ultimate issue, was properly kept in mind.  This complaint too should be rejected."

6. It is our view that as a result of the 1995 amendments the test is no longer that propounded by the High Court in ZP v VS; re PS; ex parte ZP (supra).  The test to be applied is the "clearly inappropriate forum" test.  In determining, however, whether or not a forum is "clearly inappropriate" one of the matters to be taken into account is what is in the best interests of the children.

7. The importance to be attached to what is in the children's best interests will vary according to the facts of the case.  For instance, in the case of an abduction from a non-Hague Convention country, what is in the best interests of the children may be a very important consideration.  In a case such as this, what is in the best interests of the children may be of little importance.

8. In general, therefore, it may be said that the best interests principle does not govern various procedural and jurisdictional matters that arise prior to and in the course of parenting proceedings but that the child's interests will normally be a relevant matter in exercising discretion on such matters and may, in many situations, be the most important matter.

9. Having arrived at that conclusion, it is necessary for us to turn to question 4 which is, "… is a trial Judge in considering such an application limited only to the matters set out in s 68F(2) of the Family Law Act 1975 in determining the best interests of the children?". With the greatest respect to his Honour, we have some difficulty with that question. Section 68F(1) provides that subject to subsection (3), in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2).

10. Section 68F(2)(l) provides that the Court must consider "any other fact or circumstance that the Court thinks is relevant". There is, therefore, by express provision of the legislation no limit to the matters that may be taken into account in determining what is in the best interests of the children.

11. Because we have answered yes to question 3 it is not strictly necessary to answer question 5 which asks, "if the answer to question 3 is no, are questions relating to the availability of evidence and convenience and cost to the parties, matters that might properly be regarded as relating to the welfare of the child and to be taken into account in a determination of a question of where the proceedings should continue?"  However, as the question might also have been asked (and perhaps more understandably asked) if the answer to question 3 was, as it is, “yes”, we express the following view.  We have no doubt that depending upon the particular facts of the case the matters referred to in the question are matters that may be regarded as relating to the welfare of the child.  Equally however, in our view, they are relevant considerations to be taken into account in the application of the Voth test.

12. The next question to be answered is whether or not the husband's claim that because of the registration of orders made in the Family Court of Australia in a New Zealand Court, the New Zealand Court does not have jurisdiction to deal with the question of contact, is an appropriate matter to take into account for determination by the Family Court of Australia.  We treat this as asking whether an issue about the jurisdiction of the New Zealand Court is a matter which it is appropriate the Family Court determine in such applications.

13. Clearly the jurisdiction of the foreign tribunal is material.  In Henry v Henry (1996) FLC 92-685 Brennan CJ said at 83,116:

"That is not to say that the jurisdiction of the foreign tribunal is immaterial. As the majority judgment said [(1990) 171 CLR 538 at 558]:

"The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one."

If the alternative source of relief were not a relevant factor, the declining of jurisdiction by the selected forum would deny the prospect of any relief to the party seeking to enforce a legal right.  That could be contemplated only in an extreme case.

It follows that, before proceedings instituted under s 39(3) of the Family Law Act are stayed, two conditions must be satisfied: first, that the Family Court is a clearly inappropriate forum in which to determine proceedings for a decree of dissolution of the marriage in question; secondly, that there is some forum in another country which has and can exercise jurisdiction in proceedings for a decree of dissolution of marriage."

1. As expressed in the summary of argument of the husband, the challenge to the New Zealand Court’s jurisdiction was not on the basis that there was a complete absence of jurisdiction but rather that, because of s 22C(1) of the Guardianship Act 1968 (New Zealand) which mirrors section 70J of the Family Law Act 1975, the New Zealand Court had to refrain from exercising jurisdiction unless it was satisfied of a certain situation one of which might have been that there were substantial grounds for believing that the child’s welfare required that the court exercise jurisdiction.

2. Section 22C(1) provides as follows:

   "22C. Exercise of jurisdiction in respect of child subject to registered overseas custody order

   (1)      Where an overseas custody order is registered in New Zealand under section 22A of this Act and that order relates to custody or access or both, no Court in New Zealand (other than in proceedings under any of sections 19, 19A, 19B, or 19C of this Act), shall in respect of any matter determined by the overseas custody order, exercise jurisdiction in relation to the child who is the subject of the order unless -

   (a)      Every person having rights of custody or access in relation to the child pursuant to the overseas custody order consents to the exercise of jurisdiction by the Court I the proceedings; or

   (b)      The Court is satisfied that there are substantial grounds for believing that the welfare of the child will be adversely affected if the Court does not exercise jurisdiction in the proceedings."

3. In these circumstances in our view, the appropriate course of action is to adjourn the proceedings in the Family Court of Australia pending a determination by the New Zealand Court as to whether or not it has jurisdiction.  In Henry (supra) the majority said, at 83,124:

   "Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written.  To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.  And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question.  However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees.  If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue.  However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.  [Note, however, the statement in the majority judgment in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 558, to the effect that Australian courts should not concern themselves with "… an assessment of the comparative procedural or other claims of the foreign forum …"]. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy."

4. The final question that we are asked to answer is whether or not there is any statutory power conferred on the Family Court to stay the proceedings before his Honour.

5. The case as stated raises the possibility that a statutory source of power is to be found in s 67ZC of the Family Law Act 1975. Section 67ZC(1) provides as follows:

   "67ZC(1)  [Child welfare orders]  In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children."

6. In our view, the making of an order to stay proceedings in circumstances such as exist in this case is not an order relating to the welfare of children.  In our opinion, the fact that such an order may be made with respect to proceedings, which proceedings are with respect to the welfare of children, does not make the order itself an order relating to welfare of the children. 

7. The distinction is significant because if an order granting a stay was an order relating to the welfare of children then s 67ZC(2) provides that the court must regard the best interests of the child as the paramount consideration.

8. There is no doubt that the court has an inherent power to order a stay.  In Gilmore and Gilmore (1993) FLC 92-353 Fogarty J said at 79,727:

   "Briefly summarized for the purposes of the present appeal the Voth principles establish that where an action has been commenced in an Australian Court which has jurisdiction to hear the action, that Court has the power to stay the proceedings only where the respondent satisfies the Court that it is so inappropriate a forum for their determination that their continuation in that Court would be "oppressive" or "vexatious" to him or her or "an abuse of process" of the court. However, those words are construed more expansively than under the traditional test and are not to be narrowly construed. "Oppressive" is to be understood as meaning "seriously and unfairly burdensome, prejudicial or damaging", whilst "vexatious" should be understood as meaning "productive of serious and unjustified trouble and harassment".

9. Later in his judgment, when identifying the five elements of the test to be applied in Australia, he said (at 79,728):

   "2.  The power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are "oppressive", "vexatious" or an "an abuse of process". Those adjectives are to be construed liberally, in the sense already referred to."

10. The five elements identified by his Honour were considered by the High Court in Henry (supra).  Brennan J expressed himself to be "in respectful agreement with these points provided the fifth point is understood in the context in which it appears in the judgment".

11. In their separate judgment, Dawson, Gaudron, McHugh and Gummow JJ said, at 83,122:

    "The quoted passage may be misleading in three important respects.  First, the substance of the test in Voth is simply whether the chosen forum is a clearly inappropriate forum.  And, as already indicated, that is to be determined by considering whether continuation of the proceedings would be "oppressive" or "vexatious", in the extended sense in which those words were used by Deane J in Oceanic Sun."

12. In their judgment their Honours did not otherwise criticise the statement made by Fogarty J with respect to the power of the Family Court of Australia to stay proceedings. 

13. In Bennett and Bennett (supra) the Full Court said at 88,589:

    "Although we have not had the benefit of argument on the matter, we would suggest that the power to grant an anti-suit injunction is an aspect of the inherent, or perhaps more correctly, implied power which this court clearly has (and which was recognised in the High Court decision of Henry v Henry (1996) FLC 92-685; (1996) 185 CLR 571) to stay its own proceedings on the grounds that proceedings are pending in a foreign court concerning the same matter."

The questions answered

1. We have considerable reservations concerning the appropriateness of some of the questions stated but have nevertheless decided to answer all of them.  We answer the questions as follows:

Questions 1 and 2

"1.In considering an application for a stay of proceedings in the Family Court of Australia to permit proceedings commenced (after the proceedings in the Family Court of Australia) in the District Court of another country (New Zealand) to proceed is the Court to exercise such a determination by reference to the:

·    "Clearly inappropriate forum" test; or

·    The "more appropriate forum" test; or

·    The "natural forum" test (as those terms were set out and considered in Voth v. Manildra Flour Mills Pty Ltd (1991) 71 CLR 538,557 and 538,558);

or

2.By reference to the paramountcy of the best interests of the children either as

·An exercise of the parens patriae jurisdiction of the Court?

or

·By the express terms of the Family Law Act 1975 notwithstanding that the Family Law (Reform) Act 1995 substituted a different Part VII to the Family Law Act 1975 from that considered by the High Court in ZP v PS; re PS; ex parte ZP (1994) FLC 92-480 at 80,999?”

Answer         Clearly inappropriate forum test.

Question 3

“3.If the best interests of the children are not to be regarded as paramount, are such interests nevertheless to be taken into account in determining whether or not the Family Court of Australia is an inappropriate forum, or a natural forum or a more appropriate forum?”

AnswerYes.

Question 4

“4.If the answer to question 3. is yes

then is a trial judge in considering such an application limited only to the matters set out in Section 68F(2) of the Family Law Act 1975 in determining the best interests of the children?”

AnswerBy virtue of s 68F(2)(l) there is no limit to the matters that may be taken into account.

Question 5

“5.If the answer to question 3. is no,

are questions relating to the availability of evidence and convenience and cost to the parties, matters that might properly be regarded as relating to the welfare of the child and to be taken into account in a determination of a question of where the proceedings should continue?”

AnswerThey may be depending on the facts of the case.  They are in any event relevant in applying the clearly inappropriate forum test.

Question 6

“6.Is the husband's claim that because of the Registration of orders made in the Family Court of Australia in the New Zealand Court, the New Zealand Court does not have jurisdiction to deal with the question of contact an appropriate matter to take into account for determination by the Family Court of Australia?”

AnswerThe availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one.

Question 7

“7.Section 45 of the Family Law Act confers jurisdiction upon the Family Court of Australia to stay proceedings before the Court where proceedings are before another Court but only if the other Court has jurisdiction under this Act. A New Zealand Court does not appear to have jurisdiction under this Act and therefore, is there any statutory power conferred on the Family Court to stay the proceedings before this Court?"

AnswerNo.  However, the court has an implied power to order a stay.

I certify that the preceding 58 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate