Bhasin & Bhasin
[2023] FedCFamC1F 96
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bhasin & Bhasin [2023] FedCFamC1F 96
File number: MLC 6473 of 2021 Judgment of: CARTER J Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – JURISDICTION – appropriate forum – where proceedings on foot in Australia and Country J – where Australian proceedings commenced first in relation to financial matters – where respondent subject to prior anti-suit injunction relating to property proceedings in Country J – where the father has commenced proceedings in Country J in relation to parenting and other non-financial matters – where child and mother reside in Australia – where father resides in Country J – child’s best interests. Legislation: Family Law Act 1975 (Cth) ss 60CA, 68B, 90C, 114
Family Law Regulations 1984 (Cth) Schedule 1A, rr 14, 23
Cases cited: EJK & TSL (2006) FLC 93-287
Henry v Henry (1996) FLC 92-685
Kent & Kent [2017] FamCAFC 157
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Pascarl & Oxley (2013) FLC 93-536
Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Zanda & Zanda [2014] FamCAFC 173
ZP v PS (1994) 181 CLR 639
Division: Division 1 First Instance Number of paragraphs: 106 Date of last submissions: 20 February 2023 Date of hearing: 20 February 2023 Place: Melbourne Counsel for the Applicant: Mr Johannes Schmidt Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Brian Kelly Solicitor for the Respondent: Croy Legal ORDERS
MLC 6473 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BHASIN
Applicant
AND: MR BHASIN
Respondent
order made by:
CARTER J
DATE OF ORDER:
24 February 2023
THE COURT ORDERS THAT:
Parenting proceedings anti-suit injunction
1.The husband immediately withdraw and/or discontinue all proceedings issued by him through petition filed in the Family Court, H City District, H City, Country J with file number … insofar as those proceedings are in relation to X born 2013 and thereafter be restrained by injunction personally, by his servants and/or agents from issuing and/or causing the commencement of any proceedings pertaining to parenting, in any jurisdiction other than Australia, including in Country J.
Adjournment
2.The wife’s Application in a Proceeding filed 8 February 2023 be otherwise adjourned to an interim defended hearing before a Senior Judicial Registrar on 14 March 2023 at 10.00 am.
File and serve material
3.Not less than seven days prior to the interim defended hearing, the husband file and serve a Further Amended Response to an Application in a Proceeding together with an affidavit in support.
4.On or before 10 March 2023, the husband file and serve a statement of claim, in relation to his assertion that the Financial Agreement is not binding and/or should be set aside.
5.The wife file and serve any defence within 14 days of being served with the husband’s statement of claim.
Costs application
6.In the event either party purses an application for costs in relation to the forum non conveniens dispute:
(a)on or before 27 March 2023 the wife file and serve an application for costs together with written submissions (of no more than five pages) and forward same to the Chambers of the Honourable Justice Carter;
(b)on or before 4 April 2023 the husband file and serve an application for costs/reply to the wife’s application for costs together with written submissions (of no more than five pages) and forward same to the Chambers of the Honourable Justice Carter; and
(c)the parties have leave to apply for a mention date for the purposes of brief oral submissions as to costs within seven days of the husband’s material being filed.
AND THE COURT NOTES THAT:
A.The anti-suit injunction made at Order 16 of the orders made by consent on 10 August 2021 restraining the parties, their servants and agents from issuing and/or causing the commencement of any proceedings pertaining to property settlement, spousal maintenance, or alimony, or continuing any such proceedings already issued in respect of same, in any jurisdiction other than Australia, including in Country J remains in full force and effect.
B.It is requested the Senior Judicial Registrar make such orders as are appropriate for the preparation of a Family Report.
C.In the event costs are sought by either party and no party applies for a mention date the matter will be dealt with by way of written submissions and on the papers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bhasin & Bhasin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION
In this matter the wife filed an urgent Application in a Proceeding on 8 February 2023 (“Application in a Proceeding”). She sought orders that the husband immediately withdraw or discontinue all proceedings issued by him through petition filed in the Family Court, H City District, H City, Country J (file number …) (“Family Court in H City”) and thereafter be restrained by injunction personally, by his servants and/or agents from issuing and/or causing the commencement of any proceedings pertaining to parenting, property and/or spousal maintenance in any jurisdiction other than Australia, including in Country J.
In the wife’s Application in a Proceeding she sought further orders regarding the parties’ child, X born 2013, aged 9 (“X”). The orders sought include that the child be placed on the Family Law Watchlist, the wife have sole parental responsibility of X, that he live with her and spend time as agreed with his father and have electronic communication with him.
The wife is seeking injunctive relief at this stage. There is some urgency about this issue being resolved as the return date for the husband’s application in Family Court in H City is in early 2023.
The husband has now filed an Amended Response to an Application in a Proceeding (“Amended Response”) seeking that the wife’s application for discontinuance and restraint be dismissed, and that the wife be restrained from continuing parenting proceedings in any jurisdiction other than Country J.
Notwithstanding that orders were made for the husband’s Response to an Application in a Proceeding to be filed by 16 February 2023, it was not filed until the following day. Additionally, the affidavit that was uploaded was not sworn by the husband. I note further that on the morning of the hearing the husband filed an Amended Response.
It is not acceptable that documents are filed late and not in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). However, given the expenses already incurred by both parties, and to avoid the matter being adjourned, the husband was permitted to be sworn in and adopt the contents of his affidavit as true and correct. I note further that the affidavit contains many matters that have no relevance to the orders sought by either party in the interim applications currently before the court.
BACKGROUND
The wife is 45 years old. She lives in Suburb D with the parties’ child X and her two daughters from a previous relationship. They are 22 and 18 years old. The wife is engaged in full time home duties.
The husband is 37 years old. He is a professional sportsman, playing professional sport for Country J. According to his Financial Statement filed on 7 August 2021, he then earned in excess of $2 million dollars per annum.
The parties married in late 2012 in City K, Country J. They separated in August 2020.
During the relationship, the wife lived primarily in Australia. The husband said the wife had promised at the time of marriage that she would move to Country J, but she then did not do so.
It is common ground that during the parties’ marriage the husband travelled to Australia at least twice per year to spend time with X and the wife. It is also common ground that for periods of time the wife travelled with X to see the husband, in Country J, or wherever he was on tour around the world, for about one to two months each year.
I understand that for around eight months in 2020 the wife and X were in Country J, with the husband. However, following the parties’ separation in August 2020, the wife and X returned to Australia and have remained living here since that time.
During the course of the marriage, the parties purchased a property in Suburb G, which was subsequently sold in 2018. In 2017 the parties purchased some land in Suburb C and in 2019 they purchased another home in Suburb D in which X and the wife continue to reside. The husband also has property interests in Country J.
The vacant land in Suburb C has now been sold. It was sold for over $2,400,000.
Proceedings in this court were commenced by the wife on 11 June 2021. At that time the wife sought financial orders only – including spousal maintenance. She filed an Application in a Proceeding on 3 August 2021 seeking further financial relief, including urgent child maintenance or a child support departure order.
The husband filed a Response to the Initiating Application on 7 August 2021. At that time it is apparent that he consented to the jurisdiction of this court. He sought to be excused from particularising the final orders he sought, but proposed a raft of interim orders including distribution of the proceeds of sale of the Suburb C land and that the wife occupy the Suburb D property with the husband to pay the mortgage encumbering same. He further sought interim orders to pay the wife spousal maintenance, child support and school fees for X. He proposed further orders with respect to valuations and discovery.
The matter was listed for a first return in the Judicial Duty List before Williams J on 9 August 2021. That day the matter was adjourned to 26 August 2021 for interim defended hearing to determine the outstanding dispute between the parties with respect to spousal maintenance, part property payment and other issues.
The parties continued their discussions and came to a partial agreement. Interim orders were made by consent and in chambers on 10 August 2021. Those orders provided for the distribution of the proceeds of sale of the Suburb C property, including a payment of $150,000 to the wife as part property payment, and orders for the husband to pay $5,000 per month to the wife and meet the outgoings and mortgage expenses on Suburb D by way of child support and spousal maintenance. He was also to pay for X's school and associated expenses. Additional orders provided for discovery and the preparation of valuations of the property here and those in Country J.
Further and by consent, the orders included an anti-suit injunction. That order provided:
The parties personally, and by their servants and agents, be and are hereby restrained by injunction from issuing and/or causing the commencement of any proceedings pertaining to property settlement, spousal maintenance, or alimony or continuing any such proceedings already issued in respect of same, in any jurisdiction other than Australia, including [Country J].
On 9 September 2021, Williams J delivered her reasons for judgment and made orders with respect to the interim defended hearing on 26 August 2021. Those orders provided, inter alia, that:
(a)the previous orders with respect to child support and spousal maintenance be discharged;
(b)the wife receive a part property payment of $662,397.50 (being the proceeds of the Suburb C property sale);
(c)the husband by way of interim spousal maintenance pay the wife $8,750 per month;
(d)the husband pay the mortgage for the Suburb D property;
(e)the husband pay the wife a fixed amount of $500 per month for additional expenses regarding the upkeep of the Suburb D property; and
(f)the husband pay the wife $2,037 per month by way of child maintenance and for all school fees in respect of the child and associated school expenses.
When the matter next came before the court on 31 January 2022, the court was informed that the matter had resolved, and that the parties were drafting proposed consent orders. It was also noted that there were "certain issues relating to [the] finalisation of property matters and a divorce in [Country J] yet to be finalised".
The matter was further adjourned on 24 February 2022 – again with the court noting that the parties said there had been an agreement reached in principle, but there were proceedings in Country J for divorce by consent, and the preparation of documents there was causing some delays.
On 28 March 2022 the matter was listed again. Still the matter could not be resolved on a final basis. The matter was adjourned with a notation made on the order setting out that the parties had reached agreement on all issues, but there were some matters the husband was yet to confirm, and both parties still needed advice from their legal representatives in Country J as to proceedings there.
When the matter was next listed on 30 May 2022 before me, the matter remained allegedly settled, but needed a further adjournment. By consent, the matter was adjourned for the same reasons from July to August, then from October to December.
In August 2022, the parties executed a raft of documents including proposed consent orders, a parenting plan, a binding child support agreement and a Financial Agreement pursuant to s 90C of the Family Law Act 1975 (Cth) (“the Family Law Act”). That Financial Agreement is dated 29 August 2022. Pursuant to that agreement, the husband is required to pay the wife the sum of $2,636,500 on either the earlier of:
(a)the husband advising the wife of the second motion of the divorce pursuant to relevant marriage legislation (Country J) (“the relevant marriage legislation”); or
(b)the date eight months from the date of the Financial Agreement, being 29 April 2023.
At the hearing on 2 December 2022, I was informed there were still issues with the divorce being obtained in Country J, and that the matter may not have resolved. At that time I set aside three days for final hearing in August 2023, so that the matter could actually be meaningfully progressed and otherwise adjourned the matter to 10 February 2023.
In about early 2023, the husband filed a petition under the relevant marriage legislation in the Family Court in H City, seeking a divorce. He filed additional applications seeking permanent custody of X and restraints against the wife (“the proceedings in Country J”).
In early 2023, ex parte orders were made by the Family Court in H City that X speak with his father by videoconference on a daily basis. The following day, in 2023, the wife was served with that order and the petition and additional applications filed by the husband in the proceedings in Country J.
On 8 February 2023, the wife filed an Amended Initiating Application in this court to include parenting orders. She sought that she have sole parental responsibility for X, that he live with her and spend time as agreed with his father when visiting Australia and have electronic communication with him.
As I have already indicated on that day the wife filed an urgent Application in a Proceeding seeking an injunction preventing the husband from commencing proceedings in Country J including parenting proceedings, and to withdraw/discontinue all proceedings issued by him. The wife also sought interim parenting orders including that the child be placed on the Family Law Watchlist.
The matter was listed before me on 10 February 2023. At that time orders were made by consent for the husband to file his response to the wife’s Application in a Proceeding, together with an affidavit in support on or before 16 February 2023. There was some discussion on 10 February 2023 about whether the final hearing date in August 2023 of three days would be sufficient time to ventilate all issues if financial and parenting matters were to be litigated. I determined to maintain that trial date, as additional hearing dates could be arranged if the matter was unable to be concluded in those three days.
I adjourned the hearing to 20 February 2023 in relation to the forum dispute. I otherwise listed the matter for a final hearing on 23 August 2023, with a case management hearing before me on 5 June 2023.
The next hearing of the husband’s application in Country J is in early 2023.
THE WIFE’S POSITION
The wife said she did not expect the husband to commence parenting proceedings in Country J and she does not agree that parenting proceedings ought to be conducted outside of Australia. I note the parties executed a parenting plan on 29 August 2022, pursuant to which X was to remain living with the wife until he reaches 15 years old. He is now 9. At that time, the parties will take into consideration X’s views regarding where he will live. Time with the father was to be as agreed, with such time to include overnight visits.
Counsel for the wife clarified that the wife did not seek injunctive relief in relation to the divorce proceedings, or application for non-denigration commenced by the husband in the Family Court in H City. She was content for those discreet matters to remain before the court in Country J.
Accordingly, in addition to the injunction already made pursuant to Order 16 of the orders made 10 August 2021, she sought only that the husband be restrained from pursuing parenting proceedings outside Australia.
The court was informed as to the reasons her proposed Order 3 was drawn as it was:
(a)firstly, it was unclear whether the parenting proceedings could be excised from the proceedings in Country J, leaving only the petition for divorce and application for injunctive relief on foot. In circumstances where that was not clear, the wife proposed the entire proceedings ought be withdrawn or discontinued, leaving the husband free to refile applications in relation to divorce and/or other relief, but not parenting or financial matters, being matters that would remain to be determined by this court; and
(b)secondly, the injunction as drafted included the injunction in relation to financial matters so that the injunctive relief was conveniently contained in one order, rather than spread between the order that I now am being asked to make and the earlier order made by Williams J by consent. That is, it was not a fresh injunction in relation to financial matters, but a re-statement of the earlier anti-suit injunction already made, combined with an anti-suit injunction in relation to parenting.
In those circumstances, where the forum question related only to parenting issues, counsel for the wife submitted that the relevant test is X’s best interests. For completeness, he also addressed me in relation to the relevant considerations in determining whether Australia is a clearly inappropriate forum. Counsel for the wife said whatever test is applied, the granting of the anti-suit injunction is irresistible.
In relation to the balance of the financial matters, I note the wife said until recently, she had understood all matters were resolved between the parties and they were simply awaiting the finalisation of the mutual divorce petition, which was completed but the parties, and submitted a number of months ago. She said the Financial Agreement was binding, and she did not consent to it being set aside. She sought an order that the husband articulate by way of statement of claim his argument in relation to this aspect of the dispute.
THE HUSBAND’S POSITION
The husband seeks that the wife’s application to injunct him be dismissed.
He seeks an additional order restraining the wife from issuing, commencing or continuing any proceedings regarding parenting in any jurisdiction outside Country J. Although he did not formally seek it, it is implicit that the husband also seeks this court permanently stay the parenting proceedings.
The order the husband seeks in the proceedings in Country J is that he have permanent custody of X. His counsel was somewhat vague about what that actually meant. As best as I could understand it, the husband wants X to live with him in Country J. He also sought interim measures including that he could take X on holidays “whether in Australia or internationally”.
In relation to financial matters, I understand the husband asserts the Financial Agreement entered into between the parties on 29 August 2022 is either not binding, or it should be set aside. He said his agreement to that settlement was on the basis that the parties were simultaneously obtaining a divorce pursuant to the relevant marriage legislation and he had understood the wife had signed the requisite petition seeking divorce under the relevant marriage legislation when he executed the Financial Agreement and accompanying documents. He said he has now discovered she has not done so. He said that is why he has commenced proceedings in Country J seeking a divorce.
I understand the husband says the wife has denigrated him, and affected his reputation, and this is why he has sought restraints against the wife in the proceedings in Country J.
Whether the wife has or has not signed the divorce petition under the relevant marriage legislation remains in issue. Counsel for the wife asserted she has done so. Counsel for the husband said they have not been provided with evidence that she has, in fact, done so. The husband remains very critical of the wife, essentially asserting that she had deliberately mislead him to draw out proceedings and gain a financial advantage.
Notably, the husband deposed that his consent to the earlier anti-suit injunction was provided “under threat and extortion” and that his “consent stands vitiated for that reasons. It is my categorical stand that it is the Family Court at [H City] that has the jurisdiction in all matrimonial disputes between us”.
Notwithstanding that statement, there was no application made for the discharge of the order made on 10 August 2021. Further, the only anti-suit injunction sought by the husband against the wife was in relation to parenting proceedings only.
THE RELEVANT LEGAL PRINCIPLES
The competing applications by the parties for anti-suit injunctions require me to first consider whether the proceedings (or more particularly the parenting proceedings) before this court ought be stayed. I note further that the power to grant a stay should only be exercised in a clear case; Kent & Kent [2017] FamCAFC 157 at [36] (“Kent”) quoting with approval the observations of Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at [7].
The High Court of Australia (“the High Court”) in Voth & Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) held that a party who has properly instituted proceedings in Australia has a prima facie right to have the proceedings determined by an Australian court unless Australia is the clearly inappropriate jurisdiction. That is, when an issue arises as to whether a foreign court, or an Australian court is the most convenient forum to determine a dispute, the Australian court ought hear the matter unless it is satisfied that it is a clearly inappropriate forum.
Accordingly, the appropriate test in most cases for determining whether this court should permanently stay proceedings before it, is whether Australia is a “clearly inappropriate forum”. However, the case law suggests that there may be a different test to determine a forum dispute in relation to the issue of parenting only.
In ZP v PS (1994) 181 CLR 639 at [8] (“ZP”) the High Court determined that the rule in Voth applied to all matrimonial proceedings except parenting matters. Their Honours Mason CJ, and Toohey and McHugh JJ held that:
It is now established that Pt VII has invested the Family Court with a welfare jurisdiction that is similar to the parens patriae jurisdiction exercised by the Court of Chancery but which is freed from the preliminary requirement of a wardship order. In the exercise of the parens patriae jurisdiction, the Court of Chancery has always been guided by the principle that the welfare of the minor is the first and paramount consideration.
In exercising the parens patriae jurisdiction or a statutory jurisdiction which makes the welfare of the minor the first and paramount consideration, that 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. Its 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 conveniens 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 relevant issues when 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. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.
(Footnotes omitted)
Similarly, Brennan and Dawson JJ noted that once the parenting jurisdiction of the court has been properly invoked:
[Section] 64(1)(a) of the [Family Law Act] requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court's power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country.
That section is, of course, no longer in force and there have been significant changes to the Family Law Act since that time.
The decision of ZP was followed by the Full Court of the Family Court in Pascarl & Oxley (2013) FLC 93-536. In that case the Full Court said at [65] and [67]:
The question of which forum of two competing fora might be the appropriate place for the matter to be determined is subject to a number of now well-settled authorities.
…
The High Court had cause to consider whether the Voth ‘clearly inappropriate forum’ test had application in relation to proceedings in the Family Court of Australia on the question of whether a child residing in Australia should be returned to a foreign jurisdiction so that the foreign court could determine issues concerning custody of the child (ZP v PS (1994) 181 CLR 639). The High Court, comprising Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, held that the doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction. Instead, in exercising the jurisdiction which has been conferred upon it, the Family Court must determine what is in the best interests of the child.
Their Honours went on to consider the authorities and said at [86]:
…the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the [Family Law Act] which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
However, I note also the observations made by the Full Court in EJK & TSL (2006) FLC 93-287 at [79] (“EJK”), in which their Honours said that a careful reading of ZP suggests the principles in that case appear to be more properly confined to circumstances in which a child is present in Australia and the court is being asked to consider making a summary order that the children return to another jurisdiction.
Their Honours said at [83]:
…We consider the following principles can be distilled from authority:
(i) where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;
(ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti suit injunction based on common law principles;
(iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;
(iv) in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA);
(v)if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the [Family Law Act] and determined in accordance with s 60CA;
(vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;
(vii)in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and
(viii)that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.
More recently, the Full Court in Zanda & Zanda [2014] FamCAFC 173 at [114] has said that the appropriate test when determining a forum dispute regarding parenting is that of the child’s best interests.
In the extant case, the parties have already agreed to submit to the jurisdiction of this court in relation to financial matters. The only dispute properly before me in relation to competing fora arises in relation to parenting matters.
Relevantly, s 60CA of the Family Law Act 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.
The application by the wife in relation to X seeks orders for sole parental responsibility, that he live with her and that he spend time with the father. Orders of that sort are undoubtedly parenting orders. Accordingly, the resolution of those matters requires X’s best interests to be the paramount consideration of the court. However, those matters are not currently being agitated before me. Nor was there a necessity for me to make such any such parenting order when the matter was before me on 20 February 2023. Whilst X is present in Australia, the husband had not sought an order from this court for his immediate return to Country J.
It is less clear that an order seeking to injunct one parent from pursuing parenting orders in one or other court could be described as a parenting order, requiring a consideration of X’s best interests. Was I being asked to make the injunction pursuant to s 114 or s 68B of the Family Law Act? Neither counsel made submissions as to the source of power for the injunction sought.
I note that the Full Court in EJK held that a stay of proceedings (which is in reality what is being sought) is an exercise of the inherent power of the court, and cannot be categorised as a parenting order. Their Honours said at [74]:
…then the best interests principle is not the paramount consideration, although the best interests of a child may, in a particular factual situation, be highly relevant or deserving of the greatest weight in considering whether the Court is a clearly inappropriate forum.
In those circumstances, I will consider the raft of matters relevant to a determination of whether Australia is an inappropriate forum, as well as X’s best interests, which are a significant matter to be taken into account in considering the injunctions sought and the implicit stay application. For the reasons which follow, whichever test is adopted, a stay of the parenting proceedings in this court would not be appropriate.
Clearly inappropriate forum
In determining whether Australia is a clearly inappropriate forum I now turn to a consideration of the non-exhaustive list of factors as approved in Voth and added to by Henry v Henry (1996) FLC 92-685.
Convenience and expense and location of witnesses
I note that the wife and the child reside here. The child’s older siblings who may be required to give evidence also reside in Australia. Any teachers, or treators for the child who may be required to give evidence will also live here.
The husband lives overseas, and accordingly, it will be less convenient and more expensive for him to participate in proceedings here. However, on the basis of the location of the child, the wife, and potential witnesses, it could not be said that Australia is a clearly inappropriate forum.
Ability to participate in the respective proceedings
I understand both parties are fluent in English. Both appear able to participate in these proceedings on an equal footing. There were no submissions advanced by the husband to indicate that he could not participate properly and fully in proceedings in this court. Many matters before this court can proceed via Microsoft Teams which further increases the ability of those residing outside the jurisdiction to participate in the proceedings.
I do not know of the wife’s ability to participate in the proceedings in Country J, either in person or by electronic means.
Connection to jurisdictions and issues on which relief may depend
Both parties were born in Country J and they were married there. The wife lives in Australia and has done so throughout the parties’ marriage.
X was born in Australia. He has lived almost entirely in Australia, save for periods he has travelled overseas, including for around 8 months in 2020. He has lived in Australia continuously since returning in mid-2020. He attends school in Australia. In light of X’s close and strong connection to Australia it is difficult to see how Australia could be said to be a clearly inappropriate forum to determine the parenting dispute.
Pursuant to Australian law, this court would make such parenting orders as considered appropriate having X’s best interests as its primary consideration. I did not have any persuasive evidence before me as to how parenting disputes are determined in Country J.
Recognition of orders by both jurisdictions
Counsel for the wife submitted that there is no capacity for parenting orders made by a court in Country J to be registered and therefore recognised and enforced in Australia. Regulation 23 of the Family Law Regulations 1984 (Cth) sets out the mechanism for the registration of parenting orders from prescribed overseas jurisdictions. Regulation 14 specifies that those countries, or parts of countries in Schedule 1A are prescribed overseas jurisdictions for the purposes of overseas child orders. Country J is not included on that Schedule as a prescribed overseas jurisdiction.
I note that the Full Court in Kent at [31] adopted with approval the observations of the trial Judge in that matter as follows:
…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.
Counsel for the husband made no meaningful submissions regarding this consideration as to how any orders that this court makes might be recognised or enforced in Country J.
In light of the Full Court’s observations to which I have just referred, it seems it would not be appropriate to grant a stay of the parenting proceedings before this court.
Which forum may provide more effectively for a complete resolution of the parties’ controversy
The parties agree that their divorce will proceed in Country J, pursuant to the relevant marriage legislation. The wife will also need to participate in the proceedings in Country J in relation to the husband’s application regarding alleged defamation/denigration of him.
Otherwise, all financial issues are to be determined by this court.
As already set out, on 10 August 2021, the husband consented to this Court being the forum in which a determination of those matters would be made. Moreover, the husband consented to a restraint on him bringing or pursuing any legal proceedings regarding the parties’ finances in any other jurisdiction. The husband has not sought to discharge that order.
This court is well placed to determine the parenting dispute given the location of the child, and the wife (as his primary carer). If there are issues regarding schooling or treators, it is likely that information will be easily provided to this court from those in Australia involved in his care and development.
The order proceedings were instituted and the stages reached and costs incurred
The wife issued proceedings in Australia seeking financial relief on 11 June 2021. The husband filed his parenting application in the Family Court in H City in early 2023. The wife filed her Amended Initiating Application, seeking parenting orders on 8 February 2023.
This matter is listed before me for a final hearing to commence 23 August 2023. I do not know when a final hearing could be accommodated by the court in Country J. There has only been one ex parte hearing there so far. Whilst counsel for the husband asserted that the Family Court in H City might be able to hear a final determination of the parenting proceedings before mid-2023 when the matter is listed in this court, he made that submission without any corroborative evidence.
According to their respective costs notices recently filed, both parties have expended significant funds on legal fees in Australia.
I do not know what costs each party has incurred in Country J.
The governing law
The determination of the parenting issues in Australia will require the court to have regard to X’s best interests as the paramount consideration.
I was not provided with any persuasive evidence as to the law governing the determination of the controversy if the parenting dispute is decided by the Family Court in H City. I note that in his affidavit the husband deposed:
The assumption of jurisdiction by any Court and grounds on which the relief is granted must be in accordance with the [relevant marriage legislation] applying principles of [religious] law, such as those in the [relevant guardianship legislation] that gives me a preferential right over [Ms Bhasin] to my minor son, [X].
(Emphasis added)
He does later depose that the paramount consideration is the welfare of X. I do not know how these two assertions fit together.
The place of residence of the parties
The husband lives in Country J. The wife lives in Australia.
The availability of an alternative forum
I understand both this court and the Family Court in H City have jurisdiction. As far as I am aware, both courts are able to hear and determine the parenting dispute.
Any legitimate juridical advantage to litigating in either jurisdiction
There were no meaningful submissions made on this point.
Other considerations
I note further the concept that resolution of matters between parties following the breakdown of a marriage is to be viewed as a single controversy arising out of the same substratum of fact. The proceedings regarding financial matters are well advanced. The husband consented to this court determining those matters. In those circumstances it could not be said that adding parenting matters to the issues for determination by this court could be regarded as vexatious or oppressive in the relevant sense. Rather, it seems far more practical and less burdensome for this court to hear all matters requiring determination, save for the discrete applications for divorce, and denigration which the parties agree will be determined in Country J.
Best interests
In relation to X’s best interests, I note he was born in Australia. He is an Australian citizen. He lives here and attends school here. He has lived most of his life here. He has spent some time in Country J, including a number of months in 2020, but it is plain he is significantly and deeply connected to his life here in Australia.
His mother who has been his primary carer throughout his life lives here, as do his older sisters and his maternal grandparents. It is likely most witnesses involved in X’s life and care reside in Australia. That makes it easier for this court to be properly and fully informed about X and therefore well placed to make decisions regarding arrangements for his care.
If my consideration in determining the competing “fora” dispute is limited only to X’s best interests, these matters make it plain that a stay of proceedings in this court would not be appropriate.
If the relevant principles to be applied in relation to the application for the stay are those applicable at common law, then these considerations also provide significant additional weight in considering whether Australia is a clearly inappropriate forum.
ORDERS TO BE MADE
Taking all these matters into account, I am satisfied both that:
(a)it could not be said that Australia is a clearly inappropriate forum to determine parenting matters; and
(b)X’s best interests will be met by an Australian court determining the dispute between the parents as to where he should live, with whom he should live, what time he should spend with the other parent, and all other matters connected to his care, welfare and development.
Accordingly, I am not satisfied it is appropriate for the parenting proceedings brought by the wife in this court should be stayed.
I now consider whether I should make the anti-suit injunction sought by the wife. I note that had I formed the view that the parenting aspect of the proceedings in this court ought be stayed, the husband sought an anti-suit injunction against the wife.
It seems to me it would be oppressive and vexatious in the relevant sense for the husband to be permitted to pursue parenting matters in the Family Court in H City in circumstances where this court has declined to stay the parenting proceedings. If that part of the husband’s application before the court in Country J is not enjoined, I am concerned that the husband’s continuation of that application for permanent custody of X could be construed as a challenge to the integrity of the proceedings before this court.
I note the observations of the Full Court in Kent at [67] and [68]:
For reasons explained in Teo & Guan¸ the Family Court has power to grant an injunction to protect its own processes, and one manifestation of the exercise of that power is the granting of an injunction to enjoin, as being vexatious or oppressive, foreign proceedings “which have a tendency to interfere with the due process of the domestic court”.
…we would, in the re-exercise of [the] discretion, grant an injunction preventing the husband from pursuing any application in PNG designed to prevent the continuation of the proceedings in Australia. By this means the integrity of the processes of the Family Court will be protected.
(Footnotes omitted)
(Emphasis altered)
I make the same observation in this matter – and accordingly will make the anti-suit injunction order as sought by the wife but only in so far as it relates to X and parenting proceedings, to protect the integrity of the processes of this court.
If the husband can extricate parenting proceedings from the other relief he seeks in the proceedings in Country J, he can do so. If that is not possible, he may need to withdraw his applications entirely in the proceedings in Country J and start again without including parenting issues.
In relation to the wife’s interim applications regarding parenting, those matter will be heard by a Senior Judicial Registrar on 14 March 2023. I have included orders for the husband to file material in relation to that aspect of the dispute. Consideration will be given at that time to the preparation of a Family Report.
I note the parties are no longer in agreement regarding whether the Financial Agreement is binding and/or whether it should be set aside. If it is not binding or is set aside, the parties appear no longer to be in agreement as to an appropriate division of matrimonial funds. Those matters can be ventilated at the hearing before me commencing 23 August 2023. To ensure that the wife understands the husband’s assertions as to the status of the Financial Agreement I am requiring him to file a statement of claim on or before 10 March 2023. The wife will then be required to file a defence to that statement of claim.
The matter otherwise remains listed for a case management hearing on 5 June 2023. At that time, the parties will have clarified the matters that remain in dispute and require a judicial determination. Trial directions will then be issued.
Lastly, I note that I have made directions for the filing of written submissions in relation to costs, should they be pursued. To be clear, I am not inviting any application for costs. I am simply including orders in this regard at the request of counsel for the wife so that if an application is made, a further appearance is hopefully unnecessary. I note further that there is considerable heat and animosity between the parties currently. It may be more prudent for the parties to focus on finalising their overall dispute, as they were apparently relatively close to doing so a number of months ago.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 24 February 2023
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