Bletch and Douglas
[2011] FamCA 568
•22 July 2011
FAMILY COURT OF AUSTRALIA
| BLETCH & DOUGLAS | [2011] FamCA 568 |
| FAMILY LAW – CHILDREN – whether Australia is a clearly inappropriate forum for the determination of competing parenting applications – where a permanent stay should be granted |
| Family Law Act 1975 (Cth) |
| B v B (Re jurisdiction) (2003) FLC 93-136 Voth v Manildra Flour Mills (1990) 171 CLR 538 |
| APPLICANT: | Mr Bletch |
| RESPONDENT: | Ms Douglas |
| INDEPENDENT CHILDREN’S LAWYER: | Clyllyn Sperling |
| FILE NUMBER: | SYF | 2318 | of | 2003 |
| DATE DELIVERED: | 22 July 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 16 February 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litgant in person |
| SOLICITOR FOR THE RESPONDENT: | Beazley Singleton Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Barry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All applications in a case and originating Applications filed by the father in the Family Court of Australia be permanently stayed.
The orders made by this Court on 3 March 2008 be permanently stayed.
IT IS NOTED that publication of this judgment under the pseudonym Bletch & Douglas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2318 of 2003
| Mr Bletch |
Applicant
And
| Ms Douglas |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The present application before the Court relates to the application by Mr Bletch (“the father”) for the discharge and variation of the orders of Le Poer Trench J, made on 3 March 2008 in relation to parenting arrangements for B (“the child”). The mother’s response to the father’s application is that all applications filed by the father in this Court should be stayed.
The preliminary issue to be decided is whether this Court is a clearly inappropriate forum in which to determine any future parenting issues between the father and the mother, in relation to the child.
If the mother’s response is successful and this Court finds that Australia is a clearly inappropriate forum, the mother would seek to stay the enforcement of all orders that have been made here.
If the father’s application is successful and the court finds that Australia is not an inappropriate forum for the determination of competing parenting applications in relation to the child, the parties would then have the opportunity to put on further material in support of their respective proposals for a variation of the orders of Le Poer Trench J dated 3 March 2008 regarding the child’s parenting arrangements.
The effect of what each parent wants is a substantial variation of the orders Le Poer Trench J made on 3 March 2008. In short, the father is seeking orders having the effect that the child would be returned to Australia to live with him. The mother would seek orders which would have the effect that the child would remain living with the mother in State C in the Country D, and that order 6 of Le Poer Trench’s made on 3 March 2008, pertaining to the time to be spent by the father with the child, would be unenforceable and the current Country D orders would prevail.
ORDERS SOUGHT BY THE PARTIES
By Amended Application in a Case filed 14 February 2011, Mr Bletch (“the father”) sought the following Orders of the Court in relation to B (“the child”), born in 1998:
1.That this Court find that Australia is not an inappropriate forum for making further orders in relation to the welfare of [the child].
2.That this Court discharge the order suspending the orders of Le Poer Trench J and vary those orders so that [the child] be returned by his mother to Australia to live with his father.
3.That this Court deny the registration in Australia of the [Country D] Juvenile Court Orders dated 22 December 2011 [sic] – BD 537429.
4.That this Court order the Attorney General of Australia to facilitate the enforcement in the [Country D] of any new or varied orders via the Central Authority.
5.That this Court make orders suspending the passport of the child as preventing the mother from removing him from the [Country D] other than to return [the child] to Australia under the supervision of an officer of the Federal Police.
6.That this court make further orders that the mother undertake the appropriate counseling [sic] by a Court-appointed specialist in relation to her false sexual abuse allegations prior to reinstating physical contact with [the child]. The father will contribute to the payment of this counselling.
7.That [Dr E] be appointed as [the child’s] therapist and that he advise the Court as to the reccomended [sic] timing and nature of future contact and living arrangements with the mother.
8.That a cost order be made in favour of the father for legal costs and travel costs incurred over the past two years and 5 months in both Australian and [Country D] as a consequence of by [sic] the actions by the mother.
By Response to an Application in a Case filed 27 January 2011, Ms Douglas (“the mother”) sought the following order:
1. That all Applications in a case and Originating Applications filed by the father in these proceedings be stayed as the Family Cocurt [sic] of Australia is a clearly inappropriate forum.
The effect of the orders sought by the father is to reverse the primary effect of the orders of Le Poer Trench J, made in March 2008 and that there is an order that the child to be returned to Australia to live with him.
The effect of the orders sought by the mother is that the child continue to live with her and all proceedings in this Court be permanently stayed, leaving the Superior Court of the State of State C to have jurisdiction over parenting proceedings in relation to the child.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:
10.1.Orders of the Family Court of Australia:
(a)Orders of Le Poer Trench J of 3 March 2008;
(b)Orders of Le Poer Trench J of 2 April 2008;
(c)Orders of Judicial Registrar Loughnan of 2 September 2008; and
(d)Orders of Watts J of 7 April 2009;
10.2.Orders of the State Cn Court of 22 December 2010, marked Exhibit C;
10.3.Affidavit of Ms Douglas sworn 2 September 2010 and filed in Court on 3 September 2010;
10.4.Affidavit of Mr F sworn 10 February 2011 and filed on 11 February 2011;
10.5.Exhibit B to the Affidavit of Mr Bletch sworn 10 January 2009 and filed in Court on 9 February 2009, particularly pages 4 to 6 and 11 of Exhibit B;
10.6.Annexure H to the Affidavit of Dr E sworn 23 August 2010 and filed 25 August 2010 (Exhibit G); and
10.7.Annexure G to the Affidavit of Mr Bletch sworn and filed 25 January 2011 (Exhibit H).
When asked by the Court to provide a list of the documents relied upon by him, the father seemed to confuse the distinction between the body of affidavit evidence filed in the previous proceedings before this Court (going back as far as 2003) and evidence to be relied upon by the father in support of his present application. Consequently, the father tendered in evidence numerous documents and sought to rely upon them in support of his present application. The father submitted that the further evidence would help the Court to decide the likelihood of the abuse alleged to have been committed on the child by the father. The father said the further evidence also revealed the truth of statements made by the child in early 2009, providing the court with an “alternate view” of the “likelihood” of those statements being true. The father also wished to tender further evidence that would illustrate to the Court the presence of the supportive extended family of the child that is present in Australia, evidence which the father said supported the Court finding that the best interests of the child were supported by the child living in Australia with the father.
The documents relied upon by the father include the following:
12.1.Affidavit of Mr Bletch sworn and filed 14 February 2011;
12.2.Transcript of proceedings before Judge Cowan in the Superior Court of State C on 24 July 2009 (Exhibit 2), pages 141-146;
12.3.Request for Restraining Order sought by the mother against the father, dated 10 April 2009 (Exhibit 3), paragraph 5 DV-101, and description of abuse;
12.4.The father’s submissions to the Superior Court of State C on the Court’s jurisdiction to enforce Australian Court Orders dated 3 March 2008, dated 7 July 2009 (Exhibit 4);
12.5.Restraining Order After Hearing, dated 30 July 2009, specifically, Cowan J’s handwritten notes in relation to jurisdiction (Exhibit 5);
12.6.Letter from Mr F of Beazley Singleton Lawyers (the mother’s lawyers) to Kaplan Simon Lawyers dated 7 July 2009, from page 2, paragraph 3 (Exhibit 6);
12.7.The father’s submissions in Response to Memorandum of Points and Authorities and Response to Ms Douglas Declaration, dated 9 July 2009 (Exhibit 7);
12.8.Affidavit of Mr F dated 6 April 2009, paragraphs 10 & 14 (Exhibit 8);
12.9.Email from Mr G dated 29 October 2008 (Exhibit 9);
12.10.Affidavit of Ms Douglas sworn 24 April 2009 (Exhibit 10);
12.11.Photographs tendered by the mother in the Juvenile Dependency Case in the Superior Court of State C as evidence of sex abuse dated 4 September 2010 (Exhibit 11);
12.12.Photographs of the father and the child between 3 and 12 April 2009 in Country D, showing the child without a black eye (Exhibit 12);
12.13.Letter from Mr F of Beazley Singleton Lawyers (the mother’s lawyers) to the State C Police Department dated 4 April 2009 (Exhibit 13);
12.14.First Amended Petition dated 9 December 2009, including the handwritten notes of Hahn J on 8 April 2010 (Exhibit 14);
12.15.Reasons for No or Supervised Visitation dated 22 December 2010 (Exhibit 15);
12.16.A Comparison of Inconsistencies, Factual Errors, Negligence and Improper Conclusions contained in Ms H’s Reports, prepared by the father, including other comparison tables and supporting emails and correspondence (Exhibit 16);
12.17.Email from Dr I, Consultant Paediatrician, to the father dated 16 October 2008 (Exhibit 17);
12.18.Email from the mother forJed to the father by the mother’s lawyers, dated 27 January 2011 and annexed Child Support Agreement, undated (Exhibit 18);
12.19.Emails from Mr J to the father dated 11 September 2009 and 18 November 2010 and annexed Affidavit of Ms Douglas sworn 11 January 2008 and filed 18 January 2008 (Exhibit 19);
12.20.Report by Dr K dated 4 October 2010 (Exhibit 20);
12.21.Transcript of Skype conversation between the father and the child dated 28 January 2011 (Exhibit 21);
12.22.Section 726.5 of the State C Welfare and Institutions Code (Exhibit 22);
12.23.Family Report in proceedings between the mother’s parents, dated 6 October 1989 (Exhibit 23);
12.24.Transcript of proceedings before Hahn J in the Superior Court of State C on March 5, March 8, March 15, April 5 and April 8 2010, volumes 1 and 2 (Exhibit 24); and
12.25.Affidavit of Mr Bletch sworn and filed 25 January 2011 (Exhibit 25).
HISTORICAL MATTERS
This family has been involved in litigation in the Family Court since proceedings were initiated in 2003 by the mother. The mother made allegations of sexual abuse of the child at the hands of the father. In addition, the family has been involved in litigation in the Local Court of NSW in relation to an Apprehended Violence Order (AVO) sought by the police against the father. This earlier litigation between the parties has been detailed in earlier judgments of this Court and need not be restated, save to note that no orders were made which would lead to an inference of any adverse finding against the father in either of those proceedings.
I will briefly detail the history of the various proceedings in this Court and in the Superior Court of State C, in order to give context to the evidence and submissions of the father, in support of the father’s application. That material related primarily to: first, what the father asserts the Superior Court of State C said in relation to the question of jurisdiction in relation to this matter; and second, to the father’s contention that he did not sexually abuse the child and that such assertions made by the mother were entirely without foundation.
SHORT HISTORY
The father was born in 1959 and is 52 years old. The mother was born in 1974 and is 37 years old. The child was born in 1998 and is currently 13 years old.
The parties commenced cohabitation in 1996 or 1997 and separated in November 2002 when the child was 4 years old.
In 2003 there were allegations of assault perpetrated by the father on the child. This was investigated and found to be unsubstantiated. Barry J noted in his judgment that notwithstanding such allegations, the mother still allowed the father unsupervised time with the child.
On 10 June 2003 Dr L’s family report was released. The child psychiatrist opined that there was no risk of abuse to the child and classified the mother’s allegations as ‘spurious’.
On 7 August 2003, Barry J made orders appointing a child representative and that the mother undergo a psychiatric evaluation. He did not assess the mother’s credit in positive terms and highlighted a number of significant inconsistencies in her evidence.
On 31 October 2003, it seems there were proceedings in the Local Court of New South Wales, although I do not have particulars about them.
On 7 November 2007, it seems one of the parties made an application for a domestic violence order. Again, I have no details.
In 2008 there was a full defended final hearing before Le Poer Trench J.
On 3 March 2008 final parenting orders were made by Le Poer Trench J. The father appealed those orders, but withdrew his appeal on the day of the hearing. The most significant orders were that:
23.1.the mother have sole parental responsibility and allowed her to relocate to the Country D; and
23.2.the father spend time with the child during school holidays, and have telephone contact once a week.
On 2 April a recovery order was made so that the father return the child and the mother have care of the child until their departure from Australia.
On 6 April 2008 the mother and the child relocated to Country D.
On 2 September 2008 recovery orders were made by consent for the father to return the child.
The child has been receiving regular counselling in the Country D since September 2008, following an allegation of sexual abuse made by the child or the child’s mother. A number of emotional and sexual abuse allegations and mandatory reports were made in October and December 2008 and investigated. As a result of the allegations the mother has not made the child available to the father at the times which had been ordered in various holiday periods in October 2008, Christmas 2008, and Spring 2009. The relevant department in the Country D has found the allegations are unfounded.
In October 2008 the father went to the Country D and on 27 October 2008 the father attended upon the child’s then current school, demanding to see the child. He was refused and left the premises.
Enforcement proceedings were initiated by the father in this court in April 2009.
However, on Friday 3 April 2009 the father, who had again gone to the Country D, forcibly took the child from his school. There are a number of eye-witness testimonies of this event. The events of this day were referred to in my judgment of 7 April 2009. The father kept the child with him until 15 April 2009 when he returned him, via a chaperone, to the police station. No criminal charges were laid against the father.
On 7 April 2009 I suspended specific orders of 3 March 2008 in the Family Court of Australia (Orders 6(a)-(d) and (g)), pending the outcome of proceedings which were in train in the Country D. I also made recovery orders against the father. It is an agreed fact that the father had notice on or about 8 April 2009 of an order I had made on for him to return the child to his mother but he chose to ignore it.
In May 2009, following the alleged ‘kidnapping’ the mother began proceedings to obtain a restraining order for both herself and the child against the father. On 3 July 2009 a 6 month temporary restraining order was issued. Later, on 1 February 2010 the mother returned to the court in the father’s absence and secured a restraining order for a period of 5 years.
The Child Protective Service in the Country D initiated proceedings shortly after the ‘kidnapping’ in the Children’s Court. The child was made a ward of the State.
In July 2009 proceedings were commenced in the Superior Court of State C, Family Court of State C seeking restraining orders in favour of the mother against the father. On 30 July 2009 the court granted the restraining orders but made it clear that was not, except for the extent of any inconsistency, seeking to interfere with any effect the then current Australian orders might have (by way of their ability to be registered and enforced in Country D).
Proceedings were commenced in the care jurisdiction. Over eight days in February to April 2010, Judge Hahn from the Children’s Court, the Superior Court of State C (“Hahn J”) heard evidence about the abuse allegations. The child gave evidence and was questioned. It appears from Exhibit 14 that the sexual abuse allegations were dismissed, as were the allegations of abuse that allegedly occurred on 3 April 2009, the day the child was taken from the school (including acquiring a black eye and having his wrists strapped). The act of the father forcibly taking the child from the school with excessive physical force, and the emotional health risks associates were sustained. Also sustained was the ‘emotional abuse’ from both the mother and father in the context of their conflict over the child. Judge Hahn ordered mandatory ‘family re-unification services’ which included a 6 month therapy program for the child. Specifically the orders made were:
35.1.the appointment of a therapist who saw the child weekly and of a social worker who saw the child monthly;
35.2.contact between the father and child to be at the recommendation of the therapist;
35.3.that contact to be supervised; and
35.4.interim contact to be via email, provided to the child’s therapist to assess its appropriateness.
In May 2010 Hahn J ordered that issues in relation to the child remain under the jurisdiction of his court for the period of six months.
On 22 December 2010, Hahn J made orders that:
37.1.the mother have legal and physical custody of the child, and primary residence;
37.2.the father have monitored Skype contact with the child;
37.3.the mother to keep the father informed about the child; and
37.4.the juvenile court has terminated their jurisdiction over the child, with the jurisdiction now applicable being the family court.
These orders were stamped “This order shall not be modified unless the Court finds that there has been a significant change in circumstances and the modification is in the best interest of the child…” The last page of those reasons included a checklist as to why minimum visitation was ordered, in which the father’s failure to attend parenting classes and counselling is ticked, but not the boxes relating to abuse.
THE LAW TO BE APPLIED
In discussing the law to be applied in parenting proceedings when there are competing forums, I shall first deal with the general test and then consider how considerations about a child’s best interests are applied.
The “clearly inappropriate forum” test has been adopted instead of the “more appropriate forum” or “natural forum” test[1]. 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.
[1] See Voth v Manildra Flour Mills (1990) 171 CLR 538 which adopted the test in Oceanic Sun Line Special Shipping Co. Inc. v Fay (1988) 165 CLR 197 in favour of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corp v Casulex Ltd [1987] 1 AC 460.
The principles to be applied in considering an application for a stay in the context of family law proceedings were considered by the High Court in Henry v Henry (1996) 185 CLR 571; (1996) FLC 92-685. Their Honours (Dawson, Gaudron, McHugh and Gummow JJ)) held that when considering whether it is a clearly inappropriate forum the relevant question will be whether a continuation of the proceedings could be “oppressive” in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, “vexatious”, in the sense of being “productive of serious or unjustifiable trouble and harassment”. Their Honours said (at [25]):
In Voth this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or vexatious in the sense of “productive of serious and unjustified trouble and harassment”. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being “where the case may be tried ‘suitably for the interests of all the parties and for the ends of justice.’” (footnotes omitted)
The High Court in Henry further said (at [35-6]):
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. 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, 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.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of ''seriously and unfairly burdensome, prejudicial or damaging'', or, vexatious, in the sense of ''productive of serious and unjustified trouble and harassment''. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation (footnotes omitted).
In B v B (Re jurisdiction) (2003) FLC 93-136 the Full Court held that with respect to the issue of appropriate forum in parenting proceedings, the test to be applied is the clearly inappropriate forum test, however, in relation to stay proceedings concerning children one of the matters to be taken into account in determining whether a forum is clearly inappropriate is the best interests of the children (see 78,271-272, especially at paragraph 37).
The place of the “best interests” test when considering competing forums was considered by the Full Court (Holden, Coleman and Boland JJ) in EJK & TSL (2006) FLC 93-287; (2006) 35 Fam LR 559; [2006] FamCA 730 (at Fam LR 569) which said:
52.Under the present legislation, in contrast to the Act prior to the introduction of the Family Law Reform Act1995 (Cth) (‘the Reform Act’), not all orders made under Part VII are subject to the ‘best interests’ test, for example, the power to make orders in respect of child maintenance and/or injunctions concerning a child (see Bennett v Bennett (2001) FLC 93-088 and Flanagan and Handcock (2001) FLC 93-074, and in the High Court S258/2000).
53.In 1994, in ZP v PS; Re PS; Ex parte ZP (1994) 181 CLR 639; (1994) FLC 92-480 the High Court heard and determined the issue of how proceedings involving competing forums to hear and determine proceedings relating to children should be resolved. Mason CJ, Toohey and McHugh JJ said the Court under Part VII (as drafted before the Reform Act) was invested with a welfare jurisdiction similar to the parens patriae jurisdiction exercised by the Court of Chancery, but freed of the preliminary requirement of a Jship order. Their Honours further said at 647 - 648:
‘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 [our emphasis] 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.
However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction.’ (footnotes omitted)
54.Brennan and Dawson JJ in their joint judgment said at 660:
Once the jurisdiction conferred by s 63 of the Family Law Act 1975 (Cth) (“the Act”) on the Family Court in custody proceedings is effectively invoked — and there is no doubt that both parties invoked that jurisdiction in this case — s 64(1)(a) of the 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.
55.Their Honours further held at 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.
Their Honours acknowledged, in an appropriate case, there could be a speedy hearing to determine whether an order should be made for the return of the child to the country from which he or she had been abducted.
56.In April 1996 (shortly prior to the commencement of the Reform Act which substantially came into operation on 11 June 1996), in Henry v Henry (supra) the High Court considered the question of forum in respect of a divorce application commenced by a husband in Australia, when the parties had, during their marriage, never lived in Australia, but rather lived overseas, including in Monaco, where the mother had commenced proceedings following the breakdown of the marriage by filing a petition for divorce.
57.Senior counsel for the appellant argued before the High Court that the clearly inappropriate forum test should not be applied to matrimonial disputes. Senior counsel for the respondent submitted (at 574) that in principle Voth v Manildra Flour Mills Pty Ltd (supra) should apply in matrimonial proceedings, whilst noting that ZP v PS; Re PS; Ex parte ZP (supra) determined the overriding principle (best interests of the child) took precedence over Voth v Manildra Flour Mills Pty Ltd (supra).
58.The majority, Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry (supra) upheld the clearly inappropriate forum test as set out in Voth v Manildra Flour Mills Pty Ltd (supra) as applicable to an application for divorce. Their Honours did not refer to ZP v PS; Re PS; Ex parte ZP (supra) however in approving the clearly inappropriate forum test in the case of divorce proceedings they said at 591 – 592; 83,124:
In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.
59.Although the High Court adopted the clearly inappropriate forum test for matrimonial proceedings where a marriage still subsists, their remarks at 591 - 592 appear apposite to matters where ancillary relief is tied to principal relief, and do not directly address issues relating to proceedings in respect of ex-nuptial children, or the situation where parenting orders can be, and are, made independently of divorce proceedings as is frequently the case in this Court. We note parenting proceedings do not fall into the definition of ‘matrimonial cause’ in s 4(1), but Part VII itself contains conferrals of jurisdiction (see Minister for Immigration and Multicultural and Indigenous Affairs v B and B (supra) at 384 – 385; 78,909).
60.In markedly different factual circumstances to those pertaining in this case, the Full Court in B v B (Re Jurisdiction) (supra) was dealing with a case stated by Faulks J (as he then was). Prior to the commencement of the proceedings before Faulks J, the mother and children had been living in New Zealand for some time. The father commenced proceedings in Australia seeking defined contact to the children. Proceedings were also regularly instituted by the mother in the New Zealand court. The mother sought either dismissal or stay of the Australian proceedings. None of the questions posed to the Full Court in the case stated required consideration of the Court’s powers to make, or principles applicable to, parenting orders (see 78,266 - 78,267).
61.The case stated assumed the relevant question to be determined was the correct test to be applied in respect of a stay, and not whether a determination of an application for a parenting order, including, if appropriate, a determination on a summary basis, or dismissal, was appropriate. The Court was not asked to consider whether the principles espoused in Henry v Henry (supra) were limited to matrimonial proceedings for principal relief, and/or ancillary relief dependent upon principal relief, rather than parenting proceedings, and/or if the provisions of the Reform Act negated the reasoning underpinning ZP v PS; Re PS; Ex parte ZP (supra). The majority held at 78,269, at [15]:
15. 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.
62.Their Honours also noted that the mother argued the application for a stay was ‘in effect, deciding whether to make a particular parenting order’ and found, having regard to the specific language of s 64B, there was not ‘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.’ Additionally, their Honours said at 78,274 at [50] – [51]:
50. 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.
51. 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.
In EJK and TSL, their Honours concluded (at Fam LR 577):
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 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.
THE TEST IN THIS CASE
B is in the Country D. The mother’s application for the court to grant a stay of proceedings in Australia should be based on common law principles. When applying those principles, the child’s best interests are a significant and weighty matter. The mother’s application that the proceedings be stayed should be dealt with prior to a consideration of the orders that the father seeks which rely upon, inter alia, s 64B(1)(b) Family Law Act 1975(Cth) (an order suspending and varying a previous order of this court), which order is clearly subject to the provisions that the paramount consideration of the court would be the child’s best interests (see s 65AA and 60CA Family Law Act 1975(Cth)).
THE FATHER’S EVIDENCE
As detailed earlier, the father put before the Court on 16 February 2011 numerous pieces of evidence, information and statements which he says support his present application. As also indicated earlier, much of the evidence tendered by the father is more accurately categorised as further evidence that would be relevant to a determination of competing applications between the parties that would follow subsequent to a determination in the father’s favour by this Court that this Court is not an inappropriate forum. The father asserts that much of this evidence tendered by him is relevant to this Court’s determination of the best interests of the child. However as just stated, whilst the best interests of the child are a relevant consideration in the Court’s present task in relation to determining whether this Court is an inappropriate forum, it is not, as the authorities make clear, the paramount consideration.
I have earlier outlined briefly what the further evidence was that the father sought to adduce. It should be noted that counsel for the mother objected to most of the evidence tendered by the father, largely on the basis of relevance. Objections were also made on the basis that some of the evidence was hearsay evidence and other parts of the material were in fact submissions. When discussing particular material, I will note any objection raised, however, I allowed all of the material to be tendered, indicating that the evidence and information would be given the appropriate weight on any issue going to best interest but I will ignore it if it is entirely objectionable. Some of the material will be treated as submissions rather than evidence.
It should be noted at the outset that the father sought, at the commencement of the proceedings, to adduce further evidence by calling witnesses. The father said that one third of the evidence sought to be called pertained to the presence of an extended family, on the child’s father’s side, in Australia.
The father said that the remainder of the evidence pertained to the likelihood of abuse occurring when the child spent time with his father in Australia. The father indicated that the evidence, at least in part, took the form of alibi evidence.
There are various problems with the evidence sought to be adduced by the father. One problem with the evidence is that, as the father conceded before the Court, it concerned matters that occurred prior to the Superior Court of State C’s final determination on 22 December 2010. The father asserts that certain evidence sought to be adduced by the father in those proceedings and presumably to which the oral evidence sought to be adduced on 16 February 2011 related, was, on the father’s account, rejected by the Judge determining those proceedings (Hahn J). The father did not appeal against the outcome of those proceedings. As to why the father did not appeal the outcome of those proceedings, the father told this Court that it was due to a decision made by him to focus on the Australian proceedings. Whatever the reason for not appealing that decision, the Court cannot help but observe that such an appeal would have been the appropriate way to contest the findings and outcome of those proceedings, and to apply to have rejected evidence accepted. There is little utility of adducing such evidence in these proceedings (being proceedings about forum), which evidence the father hopes will reopen matters which have been the subject of recent inquiry in the Superior Court of State C.
Counsel for the mother opposed the father calling witnesses to present oral evidence of the nature outlined. Counsel for the mother submitted that, firstly, the evidence was not relevant to the preliminary issue as to forum and, secondly, that, absent notice to the mother that such evidence was to be called, allowing the evidence would be prejudicial to the mother, as the mother could not, on the date of the hearing, meet the evidence.
Accordingly, I explained to the father that any attempt to adduce alibi evidence or the like was not a process that the Court could embark on that day. In view of this, the father said that he was content to confine his evidence and submissions to those relating to the forum issue, with such oral evidence to be called if the Court’s decision on the that issue is decided in the father’s favour and the Court therefore embarks upon a fuller enquiry.
The father explained to the court what each part of his documentation was and then explained why he said it was relevant to the matters presently to be determined.
The first document that the father directed the Court to, in support of his present application, was his own affidavit sworn and filed 14 February 2011. The father directed the Court to annexures to that affidavit, including a reference to a provision of Country D legislation on the Orders made on 22 December 2010 that the father asserts is relevant to the question of the ability of this Court to exercise its discretion to modify the orders “as it sees fit”. The father asserted that the legislative provision should provide this Court with assurance that, if it varies the orders of Le Poer Trench J in the terms sought by the father, to provide for the child to return to Australia to live with the father, there is “a mechanism” that would allow the father to enforce the orders to ensure that the child could “get home” to the father.
The father also referred the Court to paragraph 22 of his 14 February 2011 affidavit, which sets out other affidavits the father wants this Court to consider and which contain more detail regarding the documents the father submitted on the day of the hearing.
The next document relied upon by the father was the transcript of the proceedings before Judge Cowan in the Superior Court of the State of State C on 24 July 2009 (Exhibit 2), pages 141-146. The father directed the Court to what he asserted were Judge Cowan’s conclusions in relation to the jurisdiction of this Court.
The next document relied on by the father in support of his application was a Request for Restraining Order sought by the mother against the father, dated 10 April 2009 (Exhibit 3), par 5 DV-101, and a description of abuse.
The father submits that the Request for Restraining Order and description of abuse, read in conjunction with the father’s affidavits, makes clear why the mother’s statements in those documents are necessarily false.
The father referred to the submissions made by him dated 7 July 2009 to the Superior Court of State C on the Court’s jurisdiction to enforce Australian Court Orders dated 3 March 2008, (Exhibit 4). The father submits that the document summarises the Country D legislation that he says Judge Cowan accepted as the basis for this Court’s authority. The mother objected to the evidence on the basis of relevance, it being a submission.
The next piece of evidence relied on by the father was the Restraining Order After Hearing, dated 30 July 2009, and specifically, Cowan J’s handwritten notes in relation to jurisdiction (Exhibit 5). The father asserts that Cowan J’s handwritten notes explain his Honour’s view of this Court’s jurisdiction in relation to the matter between the parties. The husband said that Cowan J was willing to call the Court to discuss this, which would also prove that the handwriting was in fact that of Cowan J. Counsel for the mother objected on the basis that the handwriting was unable to be identified with any reliability.
The father referred to the letter from Mr F of Beazley Singleton Lawyers (the mother’s lawyers) to Kaplan Simon Lawyers dated 7 July 2009, from page 2, paragraph 3 (Exhibit 6).
The father then relied on his submissions in Response to Memorandum of Points and Authorities and Response to Ms Douglas Declaration, dated 9 July 2009 (Exhibit 7). Counsel for the mother objected to the material, again on the basis that it is a submission.
The father read the Affidavit of Mr F dated 6 April 2009, paragraphs 10 and 14 (Exhibit 8), and an email from Mr G dated 29 October 2008 (Exhibit 9).
The father also relied upon the affidavit of Ms Douglas, sworn 24 April 2009 (Exhibit 10). The father referred the Court to the mother’s affidavit in the context of allegations made that he had sexually abused the child, allegations that the father says were later contradicted by the child and found to be untrue.
The father then tendered to the Court the photographs tendered by the mother in the Juvenile Dependency Case in the Superior Court of State C as evidence of sex abuse of the father, dated 4 September 2010 (Exhibit 11). The father took the Court to the Judge’s unfavourable comments regarding the mother having adduced these photos as asserted evidence of sexual abuse. Counsel for the mother objected to this evidence being tendered on the basis of relevance.
The father then tendered the photographs of the father and the child between 3 and 12 April 2009 in State C, showing the child without a black eye (Exhibit 12). The father says that these photos were taken at the time when it was alleged that the father had hit the child whilst he was staying with him, resulting in the child having a black eye. The photos are thus submitted as further evidence of the falsity of the mother’s claims that the father abused the child. Again, Counsel for the mother objected to this evidence being tendered on the basis of relevance.
The father then took the Court to the letter from Mr F of Beazley Singleton Lawyers (the mother’s lawyers) to the State C Police Department dated 4 April 2009 (Exhibit 13). The father says that this letter was the first to alarm the police of the likelihood that the father had sexually abused the child, beginning the “media circus” and the “blameless accusations” that there were investigations underway at that time, which the husband says there were not.
Next, the father sought to rely on the First Amended Petition dated 9 December 2009, including the handwritten notes of Hahn J on 8 April 2010 (Exhibit 14). The father says that in these documents, Hahn J dismissed the majority of allegations against the father, except for the incident whereby the father took the child from his school. The father says that the handwriting of Hahn J shows what his Honour dismissed in those proceedings, including a document of initial allegations to the Department which the father says were crossed out by Hahn J.
The father then took the Court to the Reasons for No or Supervised Visitation dated 22 December 2010 (Exhibit 15). The father asserted that the last pages of the orders explain the reasons why minimal contact was ordered. The father says that the fact that the box regarding lack of attending parenting sessions is ticked, whilst none of the boxes regarding abuse have been ticked, is further proof that the concerns regarding child abuse were without foundation.
The father then sought to rely upon the Comparison of Inconsistencies, Factual Errors, Negligence and Improper Conclusions contained in Ms H’s Reports, prepared by the father, including other comparison tables and supporting emails and correspondence (Exhibit 16). This, as the father explained, is a document prepared by him. The father says it provides a summary of the evidence contained in Ms H’s reports and shows the inconsistencies contained within them. The father says these inconsistencies illustrate that the “cascading effect” of the abuse allegations was “baseless”.
The next document was the email from Dr I, Consultant Paediatrician, to the father dated 16 October 2008 (Exhibit 17). Counsel for the mother objected to the email being tendered on the basis that it was hearsay evidence and not evidence of what he purports to say.
Next, the father sought to tender an email from the mother forwarded to the father by the mother’s lawyers, dated 27 January 2011 and annexed Child Support Agreement, undated (Exhibit 18). This email correspondence relates to child support. The father asserts that the mother now lacks financial stability and submits that therefore, since the father’s financial position is, on his account, more stable than the mother’s, the child’s best interests would be better served by living with the father in Australia.
The father then took the court to emails from Mr J to the father dated 11 September 2009 and 18 November 2010 and annexed Affidavit of Ms Douglas sworn 11 January 2008 and filed 18 January 2008 (Exhibit 19). This email is from the mother’s previous business manager and says things to the effect that the mother is no longer managed by the writer as she did not prove to be successful in the way they had hoped. The father submits that this email shows two things: first, it highlights that the mother has not had career and/or financial success in the Country D, in the face of the significance that factor took in the proceedings before Le Poer Trench J’s and which were outlined in his Honour’s reasons for judgment of 3 March 2008. The father also submits that it is a further illustration of the mother’s “financially precarious position” and her need for financial support, and that the child may not be being financially supported in the way that Le Poer Trench J thought he would be when his Honour made the orders. Counsel for the mother objects to the emails being tendered on the basis that the email purports to reply to the father’s email but the father’s email is not included, and therefore the email being tendered is without any context.
The father then relied on the Report by Dr K dated 4 October 2010 (Exhibit 20).
The father next tendered the transcript of Skype conversation between the father and the child dated 28 January 2011 (Exhibit 21). The father asserts that this transcript (supported by a USB with QuickTime movies of the Skype call) demonstrates the inconsistency between the mother’s assertion that the child hung up on the father due to the father’s abusive behaviour during the call, and the true nature of that call as shown in the transcript. The father submits that this is further evidence of the “continued misleading statements” made by the mother in relation to the father’s behaviour over the last few years.
The father then tendered a printout of Section 726.5 of the State C Welfare and Institutions Code (Exhibit 22) which he asserts is relevant to the making of any modifications to the orders in the Country D.
The father then relied upon the Family Report in proceedings between the mother’s parents, dated 6 October 1989 (Exhibit 23). This is a copy of a report by a psychologist, Mr G, which had been prepared on 21 July 1994 in the course of proceedings between the mother’s parents in this Court. The report detailed matters told to Mr G, by the mother, of the history of sexual abuse and cruelty occurring during her own upbringing and the conflict she was exposed to during the breakdown of her parents’ relationship. The father submits that he sought to adduce the evidence before Le Poer Trench J to show that the current behaviour of the mother was referrable to the similarities in her own childhood. The father submitted that it also provided support for this Court to conclude that the best interests of the child are not served by him living with the mother who, against this background, the father submits, is likely to continue to exhibit the same behavioural patterns in damaging the child’s relationship with the father. It should be noted that order 15 of Le Poer Trench J’s orders made on 3 March 2008 provided:
The father is to forthwith return to the mother’s solicitors, all copies in his possession or control, of a report by Mr G dated the 21st July 1994 relating to the mother, a copy of which was annexed to the fathers’ affidavit filed in the proceedings.
It is consequently unclear to me as to how the father retained a copy of this report.
The father then sought to rely on the transcript of proceedings before Hahn J in the Superior Court of State C on March 5, March 8, March 15, April 5 and April 8 2010, volumes 1 and 2 (Exhibit 24). The father says that the transcript allows this Court to see the distressing cross examination the child went through in the course of those proceedings.
Finally, the father sought to rely upon affidavit of Mr Bletch sworn and filed 25 January 2011 (Exhibit 25).
SUBMISSIONS
The father’s submissions
The course which the oral submissions of the father took has been outlined above in the context of the evidence sought to be tendered by him. As has been noted, the father’s submissions in this application have been directed, in substantial part, by a consideration of the further evidence tendered by him and his explanation as to what these pieces of evidence should lead this Court to conclude.
Without intending to simplify the submissions of the father made in support of his application, the following main points appear from the material submitted by the father and his discussions of what the Court should take from each piece of material:
82.1.The “baseless” allegations of abuse made against the father by the mother (or if not instigated by her, continued by her in that she failed to stop the “cascading effect” of the allegations), demonstrate that the mother has a propensity to make false allegations against the father that are damaging to his relationship with the child. The father submits that if the child continues to live with the mother in State C she will not facilitate any contact between the child and his father, whether by Skype or face to face contact either in Australia or in State C. The father submits that the mother’s failure to abide by the earlier orders of Le Poer Trench J in relation to the time the child is to spend with the father (under order 6 made 3 March 2008) is illustrative of this. The father submits that the mother’s own history of child abuse and estrangement from her parents is further illustrative of the likelihood of this behaviour continuing into the future. The father points to the judgment made on 3 March 2008, where Le Poer Trench J noted the father presented evidence of the allegations of child abuse made against him and investigations made by the authorities in relation to such concerns, despite there being no references were made to this issue in the mother’s material. Le Poer Trench J noted that “the reason the father had sought to pursue the earlier allegations of child abuse made against him was made clear. I was told it was because he wanted to establish a case that the mother had a propensity to lie and to fabricate allegations of the most serious nature against him”.
82.2.There are changes in circumstances since the making of the orders of Le Poer Trench J on 3 March 2008 that warrant a reconsideration of those orders. In addition to matters regarding contravention of those orders, and unfortunate events that have occurred in that regard, the father also points to the asserted change in the mother’s financial circumstances such that the mother is no longer in a stable financial position. In this respect, the father asserts that, first, much of the basis for allowing the mother to move to State C in pursuit of her career is no longer relevant and, second, that the child’s best interests would be better served living with the father, who says that his financial situation is more stable than the mother’s.
82.3.The Country D legislation is such that if this Court varies the orders of Le Poer Trench J in the terms sought by the father, to provide for the child to return to Australia to live with him, it will be possible for the father to enforce those orders in the Country D in order to ensure that the child can relocate to Australia to live with the father.
82.4.The father also seems to imply, by raising evidence which he asserts the Superior Court of State C failed to take into account and which would have prevented that Court from making findings which it did, that the final decision of the Superior Court of State C is incorrect.
The mother’s submissions
The mother’s submissions as to why Australia is a “clearly inappropriate forum for proceedings involving the child” can be summarised as follows:
83.1.The Court of State C have jurisdiction and have exercised that jurisdiction;
83.2.Both the mother and the child are lawfully resident of the Country D having had the benefit of an order of this Court to relocate to State C in 2008;
83.3.Both the Mother and the child intend to remain in Country D;
83.4.The Family Court of Australia made orders giving the mother full parental responsibility for the child. The father appealed those orders then withdrew his appeal on the first day of the hearing of that appeal;
83.5.The State C Superior Court made orders on 22 December 2010 granting legal and physical custody and primary residence to the Mother following a lengthy hearing (over eight days).
83.6.The proceedings were defended proceedings and the father was given a proper opportunity to put his case and to test evidence;
83.7.The orders of the State C Superior Court may be registered in Australia under s 70G of the Family Law Act 1975; and
83.8.Both parties have been put to great expense in proceedings concerning the child. To continue to litigate in two jurisdictions would be oppressive.
The solicitor for the mother further submitted the following reasons why “it is in the child’s best interest that the proceedings be stayed”:
84.1.The State C Superior Court after a lengthy hearing restricted the father’s contact;
84.2.The child has now been subjected to hearings in this Court and in Country D;
84.3.Further hearings would only subject the child to further examination by experts and lawyers;
84.4.Whatever the real truth of what happened in State C when the father kidnapped the child, the father’s acts which are admitted by him are sufficient that the Court could not be satisfied at this time it is in the best interest of the child to be returned to his father’s primary care;
84.5.The better forum to determine what in fact happened when the child was kidnapped and what is in the best interests of the child is the State C Superior Court, which it did;
84.6.The State C Superior Court saw fit as a consequence of a defended hearing where the interest of the child’s welfare are paramount, to only give the father supervised skype access once per month;
84.7.The child is settled in State C in a new life with a new school; and
84.8.The child’s relationship with his father is not good and it is not in the child’s interest for the primary care of the child to be returned to the father.
The solicitor for the mother further submitted:
85.1.The father seeks to set aside both the order of the Family Court of Australia and the State C Superior Court without any proper basis for doing so. His basis is that he does not agree with the orders of the Court;
85.2.The father’s applications are an abuse of process and furthering the father’s threat contained in his email to the mother dated 23 November 2010 (see annexure G to the father’s affidavit sworn 25 January 2011) “… I will pursue you legally both in Australia and [Country D] until [the child] has his father an [sic] family in his life again. Starting with 16 December in LA, 27 January in Sydney and whatever steps I must take next to see my son again”;
85.3.The order of the State C Superior Court is stamped that “the order shall not be modified unless the Court finds there has been a significant change in the circumstances and the modification is in the best interests of the child pursuant to Welfare & Institutions code section 302(d).” The State C Superior Court uses the same tests as the Family Court of Australia when deciding whether or not to change a parenting order; and
85.4.The father has not and cannot demonstrate any change in circumstances since the making of the orders of the State C Superior Court on 22 December 2010 which would warrant the modification of those orders.
The Independent Children’s Lawyer’s submissions
The submissions of counsel for the Independent Children’s Lawyer were substantially similar to those of the solicitor for the mother.
Counsel for the Independent Children’s Lawyer referred the Court to the decision of the High Court in Henry (supra), emphasising, in particular, those parts of the judgment in which the majority of the High Court discussed the decision in Voth (supra) in relation to proceedings which are “oppressive”. That part referred to by the Independent Children’s Lawyer has been set out earlier in these reasons, and reads:
In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment”. (footnotes omitted)
Counsel for the Independent Children’s Lawyer submitted that the present application of the father was “oppressive” in the sense discussed by the High Court in that passage. In support of this, counsel for the Independent Children’s Lawyer said:
There have been completed proceedings before Le Poer Trench J. There was an appeal launched by the father. That appeal was withdrawn on the day it was to be heard, and dismissed. There have been completed proceedings, in a competent court in [State C], dealing with the same subject matter. There has been no appeal against that decision. The father now comes here, continuing, this year, and last year, to continually agitate this matter without any sense of a change of circumstances warranting a re-opening of this matter. In that sense, these proceedings are oppressive.
Counsel for the Independent Children’s Lawyer then referred the Court to part of the remainder of paragraph 25 in Henry, which says:
It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant ‘connecting factors’ and ‘a legitimate personal or juridical advantage’ provides valuable assistance”. (footnotes omitted)
In relation to this, Counsel for the Independent Children’s Lawyer submitted:
Legitimate personal or juridical advantage would appear to be of limited relevance in parenting proceedings, where it be interests of a child is a factor – the best interests of a child is a factor to be taken into account. But the connecting factors here, from the father’s – in the father’s affidavit, the only evidence of a connecting factor is his presence in the jurisdiction, and the presence of his family.
In relation to the father’s submissions, Counsel for the Independent Children’s Lawyer asserted that “There’s nothing in the submissions, or in the documents tendered to your Honour today, which does anything other than canvass past litigation.”
In relation to the submissions made on behalf of the mother, Counsel for the Independent Children’s Lawyer agreed with the submissions as set out in paragraphs 83.1 to 83.6 above. Counsel for the Independent Children's Lawyer said that paragraph (83.7) “may or may not be relevant to the determination of this forum, whether this is an appropriate forum for this application” and said nothing as to paragraph (83.8).
In relation to the best interests of the child, Counsel for the Independent Children’s Lawyer noted that regrettably, as the previous litigation was conducted by a different Independent Children’s Lawyer to the current one providing instructions to him, and the current Independent Children’s Lawyer has not had any contact with the child and therefore was not in a position to assist the court with an assessment of matters under section 60CC, he therefore did not have instructions as to the best interests of the child.
Notwithstanding, Counsel for the Independent Children’s Lawyer did make reference to the effect of continued litigation in relation to the best interests of the child in the following terms:
But it would be, in my respectful submission, self evident that the prolonged litigation involving this child, that commenced in 2003, cannot be in the best interests of this child.
I read – I think it was in your Honour’s reasons for judgment, on a prior occasion – that your Honour noted there have been some 35 social workers and detectives who have interviewed this child, in the past couple of years, in [Country D]. In those circumstances, your Honour, it would be clearly self evident that the continuation of proceedings in this forum would be inappropriate, in fact, it would be oppressive, burdensome, and particularly burdensome to the child.
CONCLUSIONS
Having considered the material presented by the father, I conclude that there is substantial force in the submissions made by the mother and by the Independent Children's Lawyer.
Both the child and his mother were allowed to go to the Country D by this court in 2008. They undoubtedly intend to remain there. The father, had he chosen to do so, could have accessed the State C courts to obtain enforcement of the Australian orders prior to the State C courts seizing jurisdiction to in effect vary the Australian orders based on circumstances that had arisen in State C after the orders in Australia were made.
The father did not pursue an appeal against the Australian orders. In 2009 the father took the law into his own hands and abducted the child. Proceedings flowed from that event, including proceedings being taken by State authority in State C under the child welfare laws of that state. At that point, the Juvenile Court not only seized itself of jurisdiction but also retained jurisdiction to the exclusion of the Family Court in State C. That was the position up until 22 December 2010 when the matter was finalised in the Juvenile Court after a hearing that extended over a period of eight days.
The current order in relation to the child has been filed in the State C Superior Court. I accept that that order cannot be modified in that court unless that court finds that there has been a significant change in circumstances and that the modification is in the best interests of the child.
Although the father chose not to appeal the decision of the Juvenile Court, it remains the case that he has a forum to pursue a variation of the State C orders if he is able to meet the significant change in circumstance test. That forum is in the State C Superior Court.
I take into consideration (not as a paramount consideration but as a weighty consideration) what is in the child’s best interests. The child has been the subject of ongoing litigation between his parents for most of his life which he remembers. The child has been the subject of numerous interviews from professionals from different disciplines and has had extensive therapy. He is settled in school in State C. I find that it is in his best interests, if there are to be any future legal proceedings about parenting orders or the enforcement of parenting orders, that they take place where he is settled.
For these reasons, I will order that all applications in a case and originating applications filed by the father in the Family Court of Australia be permanently stayed and I will order that the orders of Justice Le Poer Trench made on 3 March 2008 be permanently stayed.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 22 July 2011.
Associate:
Date: 22.7.2011
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