FAMILY COURT OF AUSTRALIA
| BUNYON & LEWIS (NO. 3) | [2013] FamCA 888 |
| FAMILY LAW – JURISDICTION - Whether this Court is constrained from making parenting orders about the subject child on the basis that the judicial and administrative authorities in The Netherlands, a Contracting State to the 1996 Child Protection Convention, have pre-eminent jurisdiction to do so by operation of law – Whether conflict of jurisdiction is “an issue” – Held that this Court will not have jurisdiction to make orders in relation to the child unless or until there is a transfer of jurisdiction to it or the child is physically present in Australia and then only urgently or provisionally – Mediation in Hague matters – Direct judicial communication – International Hague network of judges – Application for an order requesting a transfer of jurisdiction from The Netherlands to this Court – Whether authorities in Australia have sufficient connection with the child – Whether this Court better placed to assess the child’s best interests – Application refused – Proceedings dismissed. |
1996 Child Protection Convention
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986
Family Law (Child Protection) Regulations 2003
Chan & Wu [2010] FamCA 615
Re T (A Child: Article 15 of B2R) [2013] EWHC 521 (Fam)
| Cape & Cape [2013] FamCAFC 114 at [73]. Hon. Peter Nygh, ‘The New Hague Child Protection Convention’ (1997) 11 International Journal of Law, Policy and the Family 344. |
| APPLICANT: | Ms Bunyon |
| RESPONDENT: | Mr Lewis |
INDEPENDENT CHILDREN’S LAWYER Mr W Dunstan
| FILE NUMBER: | MLC | 11439 | of | 2012 |
| DATE DELIVERED: |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 20 August, 4 September & 6 November 2013 |
| DATE OF LAST SUBMISSIONS: | 30 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Strum |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bowlen Dunstan & Associates Pty |
Orders
The applicant’s amended application filed 30 May 2013 be dismissed.
The respondent’s amended response be deemed filed on 8 May 2013 and be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bunyon & Lewis (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975
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- AGLC
- BUNYON & LEWIS (NO. 3) [2013] FamCA 888
- Case
- [2013] FamCA 888
- Decision Date
CaseChat Overview and Summary
In this matter before Bennett J, the applicant sought to have parenting orders made concerning a child, and also sought a transfer of jurisdiction from The Netherlands to Australia. The respondent sought the dismissal of the applicant's amended application.
The central legal issue before the court was whether Australia was a more appropriate forum than The Netherlands to assess the best interests of the child, for the purpose of potentially assuming jurisdiction over parenting matters. This involved an interpretation of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, specifically Articles 8 and 9 concerning the transfer of jurisdiction.
Bennett J considered the principles of jurisdiction under the 1996 Convention, noting that habitual residence is the primary jurisdictional factor. The court examined the criteria for transferring jurisdiction, particularly the requirement that the requesting court must be "better placed" to assess the child's best interests. His Honour reviewed relevant case law, including decisions concerning Article 15 of Brussels II bis, and distinguished between determining the most convenient forum and assessing which court is better placed to evaluate a child's best interests. Ultimately, while acknowledging Australia's capacity to assess such interests, the court was not satisfied that it was better placed than the courts in The Netherlands, given the child's habitual residence and presence there, and the fact that the child's sole parent resided in The Netherlands.
Consequently, the applicant's amended application was dismissed. The respondent's amended response was deemed filed on 8 May 2013 and was also dismissed.
The central legal issue before the court was whether Australia was a more appropriate forum than The Netherlands to assess the best interests of the child, for the purpose of potentially assuming jurisdiction over parenting matters. This involved an interpretation of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, specifically Articles 8 and 9 concerning the transfer of jurisdiction.
Bennett J considered the principles of jurisdiction under the 1996 Convention, noting that habitual residence is the primary jurisdictional factor. The court examined the criteria for transferring jurisdiction, particularly the requirement that the requesting court must be "better placed" to assess the child's best interests. His Honour reviewed relevant case law, including decisions concerning Article 15 of Brussels II bis, and distinguished between determining the most convenient forum and assessing which court is better placed to evaluate a child's best interests. Ultimately, while acknowledging Australia's capacity to assess such interests, the court was not satisfied that it was better placed than the courts in The Netherlands, given the child's habitual residence and presence there, and the fact that the child's sole parent resided in The Netherlands.
Consequently, the applicant's amended application was dismissed. The respondent's amended response was deemed filed on 8 May 2013 and was also dismissed.
Orders
Orders of the court
1.
The applicant’s amended application filed 30 May 2013 be dismissed.
2.
The respondent’s amended response be deemed filed on 8 May 2013 and be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Article 1 sets out the objectives of the 1996 Convention. In summary, the 1996 Convention establishes conflict of laws rules to be applied in parental responsibility litigation which has an international aspect. These rules govern the questions whether a court has jurisdiction to hear an international parental responsibility dispute, which country's law is to be applied in determining international parental responsibility disputes, what conditions must be satisfied to ensure international recognition and enforcement of parenting orders and what obligations courts in Australia and overseas have to co-operate in the protection of children. [24][24] General Outline in the Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2001 >Article 2 provides that the Convention “applies to children from the moment of their birth until they reach the age of 18 years”. This differs from the 1980 Convention which applies only until a child attains the age of 16 years.The concept of habitual residence is pivotal to the operation of the 1996 Convention. It remains undefined as a term. Wrongful removal, wrongful retention, rights of custody, breach of rights of custody, acquiescence and consent also feature in the 1996 Convention. There is no retrospectivity in relation to measures taken before the 1996 Convention enters into force between the relevant countries. The Convention only applies to measures which are taken after the Convention has entered into force for that State[25] and to the recognition and enforcement of measures taken after its entry into force as between the State where the measures have been taken and the requested State[26]. [25] Article 53(1).[26] Article 53(2).As with the 1980 Convention, cooperation between Contracting countries is achieved through Central Authorities. The duties and powers of Central Authorities are set out in Chapter V of the 1996 Convention. Australia’s experience under the 1980 Convention has been that the overwhelming majority of abduction and access cases are prosecuted by the Central Authority on delegation to a State Central Authority whose very presence reminds the parties (and the courts) of the jurisdiction to be exercised. Where proceedings related to international parental child abduction are initiated by the State Central Authority, the court’s attention shifts immediately from the best interests principle relevant to the making of parenting orders (s 60CA) to the less work a day language and concepts of the Family Law (Child Abduction Convention) Regulations 1986. However, as is the case here, the Central Authority or a State Central Authority will frequently not be a party in proceedings to which the 1996 Convention applies. In other words, the fact that the 1996 Convention is relevant and may constrain the powers or jurisdiction of this Court to make parenting orders, comes unheralded. Article 1(2) provides that the term “parental responsibility” includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child. This includes the rights of all persons and institutions who exercise parental authority being state welfare authorities, courts, administrators and parents alike.Article 5(1) provides that:-The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.Habitual residence is thereby the crucial jurisdictional factor[27] under the Convention except in relation to refugee children and children whose habitual residence cannot be established[28].[27] Hon. Peter Nygh, ‘The New Hague Child Protection Convention’ (1997) 11 International Journal of Law, Policy and the Family 344-359 at 344. [28] Article 6 provides that for refugee children, children whose habitual residence cannot be established and children who, due to disturbances occurring in their country, are internationally displaced, the authorities of the Contracting State in which the child is present has jurisdiction to take measures directed to the protection of a child’s person or property. Article 5(2) provides that subject to Article 7, where there is a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence will have jurisdiction.Article 6 applies to a refugee or displaced child or a child whose habitual residence cannot be established and confers jurisdiction to make orders on the Contracting State in which the child is present.Article 7 relates to a child who is wrongfully removed or retained and some of the circumstances under which the state to which the child was removed to, or retained in, can obtain jurisdictional competence. Article 7 is the compromise which was reached between negotiating state parties who maintained that habitual residence should never change as a consequence of a unilateral act of wrongful removal or retention on the one hand, and the negotiating state parties who considered that habitual residence could change in some circumstances, notwithstanding that the removal to, or retention in, the new state was initially wrongful on the other hand.Article 7(1) provides that the Contracting State in which the child in which the child was habitually resident immediately before the removal or retention keeps its jurisdiction until the child has acquired a habitual residence in another State, and a)each person, institution or other body having rights of custody has acquiesced in the removal or retention; or b)the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.Article 7(2) attributes the same definition to wrongful removal and retention as applies to those terms under the 1980 Convention and, as for the 1980 Convention, rights of custody may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State of habitual residence.Article 7(3) provides that, so long as the authorities of the child’s state of habitual residence keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child. Article 11 provides that, inter alia, in all cases of urgency, the authorities of any Contracting State in whose territory the child is present have jurisdiction to take any necessary measures of protection but that those measures will lapse as soon as the authorities in the Contracting State in which the child is habitually resident take measures required by the situation. Articles 8 and 9 provide a regime in which the authorities in the state of habitual residence can cede jurisdiction to another Contracting State and that other Contracting State can assume jurisdiction.Article 8(1) provides that the authority in the state of habitual residence may, if it considers the authority in another Contracting State would be better placed in the particular case to assess the best interests of the child, may either:- request that the other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or, - suspend its own consideration of the case and invite the parties to introduce such a request before the authority of that other State. Article 8(2) specifies that the other states to which request to assume jurisdiction may be addressed are:-a)a State of which the child is a national;b)a State in which property of the child is located;c)a State whose authorities are seised of an application for divorce or legal separation of the child's parents, or for annulment of their marriage;d)a State with which the child has a substantial connection. Article 8(3) provides that the authorities concerned may proceed to an exchange of views. The Draft Handbook suggests how the exchange of views might be facilitated at [5.14]:Central Authorities can also be useful in helping to transmit documents between authorities, and some Central Authorities may assist with the interpretation or translation of documents or with locating such services in their State. The members of the International Hague Network of Judges may also provide a useful means to obtain information on the best way to proceed, for example regarding the information or documentation that the competent authority might require before considering the transfer.Lowe and Michael Nicholls[29] suggest that cooperation between states parties over transfer of jurisdiction, including states which are not contracting states, may be achieved through the International Hague Network of Judges (“the IHNJ”). I will discuss the International Hague Network of Judges later in these reasons (see paragraph 203). However, for current purposes, our implementing legislation (ss.111CG and 111CH of the Act), requires that the request be communicated “in a way that the Commonwealth Central Authority considers appropriate” rather than require the authorities concerned to proceed to an exchange of views. [29] Lowe and Nicholls QC, above n 14, 45.Article 8(4) provides that the authority addressed may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or 6, if it considers that it is in the child’s best interests to do so.Article 9(1) makes provision for the Contracting State in which the child is not habitually resident but for which one of the connecting factors in Article 8(2)(a) to (d) does apply, to be able to make a request of the Contracting State in which the child is habitually resident for authority to exercise jurisdiction to take whatever measures it considers to be necessary or to invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child. A request for jurisdiction can only be made if the requesting Contracting State considers that it is better placed in the particular case to assess the child’s best interests. In these proceedings, in the event that the applicant fails on jurisdiction, she seeks that I request a transfer of jurisdiction from The Netherlands to this Court in Australia so that this Court can deal with the applicant’s application for parenting orders about the child.Article 9(2) provides that the authorities concerned may proceed to an exchange of views, as with Article 8.3 above.Article 9(3) provides that the authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child, only if the latter authority has accepted the request. Accordingly, if I accede to the applicant’s application to request a transfer of jurisdiction from The Netherlands to this Court in Australia, I could not exercise any jurisdiction until a court or other competent authority in The Netherlands has accepted the request. Acceptance of the request would be on the basis that this Court in Australia is better placed in this particular case to assess the interests of the child than are the judicial or administrative authorities in The Netherlands. Article 10 gives jurisdiction over a child who is habitually resident in another Contracting State to a state which is exercising jurisdiction for a divorce or legal separation for as long as those proceedings are extant. Article 10 has no application to this case but does demonstrate one instance in which a Contracting State, other than the state of habitual residence, can have jurisdiction to take measures (make orders) in relation to a child or the property of a child.Article 11 confers jurisdiction in cases or urgency to take necessary measures of protection (make orders) on a Contracting State which is not the state of the child’s habitual residence on the basis that the child or the child’s property is present in that Contracting State. An urgent protective measure under Article 11 has effect extra territorially so it can be entitled to recognition and enforcement under the Convention. However, it will lapse as soon as the state which has jurisdiction under Articles 5 to 10 (including the state of habitual residence), takes its own protective measures.[30] [30]The phrase “jurisdiction under Articles 5 to 10” is frequently used. It is shorthand for jurisdiction under:-a)Article 5 which makes the state of habitual residence the pre-eminent jurisdiction;b)Article 6 which applies to refugee children and children whose habitual residence is not known so jurisdiction is based on the presence of the child;c)Article 7 which applies to a child who is wrongfully removed from or retained subject to conditions; d)Articles 8 and 9 which apply for children for whom a request or invitation for a transfer of jurisdiction is made because the state which is not the state of habitual residence is better placed to assess the best interests of the child and one of the connecting factors exist;e)Article 10 which confers jurisdiction on the state which is not the habitual residence concurrently with that state determining proceedings for the divorce or separation of the parents of the child.Jurisdiction under Article 11 is based on the physical presence of the child and can be taken in relation to a child who is wrongfully removed to or retained in a Contracting State. For instance, the Revised Draft Handbook [6.11] provides a scenario in which a court which orders the return of a child to another Contracting State pursuant to the 1980 Convention exercises jurisdiction to take urgent measures which are parenting orders which will apply to the child upon its return to the state of habitual residence until such time as the courts in the state of habitual residence takes its own measures (makes its own orders). In other words, a court of a state in which a child is not habitually resident, but is present, can exercise its jurisdiction to take urgent measures under Article 11 to make safe harbour orders to secure the immediate protection or financial support of a child who is returned to his/her state of habitual residence under the 1980 Convention“Urgency” is not defined in the 1996 Convention. The Revised Draft Handbook explains:-6.2 …It will therefore be a matter for the judicial/administrative authorities in the Contracting State in question to determine whether a particular situation is “urgent”. The [Legarde Report] states that a situation of urgency may be said to exist where, if measures of protection were only sought through the normal channels of Articles 5 to 10 (the general bases of jurisdiction), irreparable harm might be caused to the child, or the protection of the child or interests of the child might be compromised. A useful approach for authorities may therefore be to consider whether the child is likely to suffer irreparable harm or to have his/her protection or interests compromised if a measure is not taken to protect the him/her in the period that is likely to elapse before the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection.[citations omitted] The Revised Draft Handbook also describes other possible scenarios, including[31]:-·Where a child, who is outside his/her state of habitual residence, requires urgent and life saving medical treatment; ·Where a child, who is on an access visit outside his/her state of habitual residence, is at risk from the person entitled to access and orders are required to suspend the access and to take the child into protective care or place to the child in a safe place; ·It is necessary to make a rapid sale of perishable goods belonging to the child.[31] Revised Draft Handbook [6.4].In the recent case of Re T (A Child: Article 15 of B2R) [2013] EWHC 521 (Fam), Mostyn J considered the operation of Article 15 Brussels II bis in relation to a 10 month old boy who was born in England to travelling people who were both Slovakian citizens. At the time of the hearing the mother was aged 17 years and the father was 20 years. The mother had conceived the child in Slovakia and, when 16 years old, run away from a state run special accommodation unit for underage mothers and entered England with the father on false papers. The baby was born in an English village, removed from the mother’s care immediately after birth and returned to the mother only after she entered into a written agreement with the authorities about the care and supervision of her son. Within a month or so, the English local child protection authority augmented its care application to seek an adoption order for the baby. At the same time, the director of the children’s home in Slovakia, from whence the mother had escaped, had written to the English local authorities stating his interest in having the mother and her child returned to his institution where, he claimed, the mother was required by orders of a Slovakian court to reside. At the hearing, the baby was in short term foster care, the parents were having only supervised access to the baby for 90 minutes once a week and no potential adoptive placement had been identified.Before Mostyn J the Slovakian Central Authority argued that under EU law, equally applicable in Slovakia and England, the mother and baby were habitually resident in Slovakia[55], that the mother was in state care pursuant to an order entitled to recognition and enforcement in England and Wales under Brussels II bis, and requested a transfer of proceedings the proceedings before Mostyn J to the Slovakian courts under Article 15 of Brussels II bis.[56] [55] In the result Mostyn J considered himself bound by ZA & Anor v NA [2012] EWCA Civ 1396 and found at [43] that the baby, T, had no habitual residence anywhere. Thorpe LJ had delivered a dissenting judgement in ZA & Anor v NA to the effect that a child could be habitually resident in a country in which the child had never been present. In a recent decision of Supreme Court In the matter of A (Children) (AP) [2013] UKSC 60, the plurality comprising Lady Hale, Deputy President, with whom Lord Wilson, Lord Reed and Lord Toulson expressed some doubt whether a child could have an habitual residence on the basis that he “is intergrated into the social environment of a country where he has never been”[55]. Lord Hughes delivered a different opinion on this narrow issue of habitual residence absent any previous physical presence [90] including “There is a factual enquiry into the integration of the family unit to which he or she belongs, and that may well yield the conclusion that the child shares the habitual residence of that unit even if he has not yet achieved physical presence there, especially if he is being prevented by coercion or other force majeure from doing so. The decision of the Court of Appeal in this case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. This does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a State which is the home of the family unit of which the infant is part, and is where he would be but for force majeure”.[56] The precise terms of Article 15 are “By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child…”Article 15 of Brussels II bis provides that a court having jurisdiction over a child may request a court of another EU member state, with which the child has a particular connection, to assume jurisdiction if it considers that it “would be better placed to hear the case, or a specific part thereof, and where it is in the best interests of the child.” Whereas here the issue is whether this court is satisfied that it is better placed to assess the child’s best interests. Mostyn J lamented the lack of reported cases on the interpretation of Article 15 which had been in operation for 10 years, the lack of official guidance from the authority and that no academic commentary had been identified by counsel. His Honour proceeded as follows:-10. […] In AB v JLB[57] Munby J (as he then was) was concerned with a case where a court in the Netherlands had jurisdiction over the substance of the matter and had declined a request to transfer the case to England and Wales. The question was whether the English court should invite the Dutch court to reconsider that refusal. Munby J considered that a stringent test should be applied in those circumstances and that the applicant did not meet it. It can be seen therefore that this decision is not directly in point. However, Munby J made some helpful observations about article 15 in general. In paragraph 34 he made the obvious point that the only court which can make a substantive decision under article 15 is the court "having jurisdiction as to the substance of the matter". In this case that is this court. Secondly, there were three questions under article 15 (1) to be considered:[57] AB v JLB [2008] EWHC 2965 (Fam).“i) First, it must determine whether the child has, within the meaning of Article 15(3), "a particular connection" with the relevant other member State – here, the United Kingdom. Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child's nationality (see Article 15(3)(c))?ii) Secondly, it must determine whether the court of that other Member State "would be better placed to hear the case, or a specific part thereof". This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case. iii) Thirdly, it must determine if a transfer to the other court "is in the best interests of the child." This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”11. In paragraph 36 Munby J pointed out that even if affirmative answers were given to all of the three questions there remains a discretion whether or not to request a transfer. However he observed that if all the questions were answered affirmatively it was difficult to envisage circumstances where it would nonetheless be appropriate not to transfer the case.…13. The debate before me has centred on the second and third questions which give rise to quite challenging questions of law which can be summarised as follows:i) Is article 15 to be interpreted in isolation, and be given an independent autonomous explication in the same way that the concept of "habitual residence" has been given an autonomous definition to be applied uniformly across the European Union?ii) Or can some assistance be derived from domestic decisions concerning the grant of a stay in favour of a more convenient forum in children proceedings whether under section 5 of the Family Law Act 1986 or under the inherent jurisdiction?iii) Further, can assistance be derived from the decisions in this jurisdiction concerning the principles to be applied when considering an application for a summary return to a country which is not a subscriber to the Hague Convention on International Child Abduction 1980?iv) Inasmuch as there is a requirement under the third question to consider the best interests of the child:(a)What scope of enquiry does this mandate?(b)Should the concept of paramountcy be read into article 15?However, his Honour observed at [15], “As is well known article 15 was the culmination of a campaign by certain member states, including the United Kingdom, to include within the regulation the ability to stay a children’s case in the country having substantive jurisdiction and to transfer it to a more convenient forum. It was a compromise between those states which operated a forum conveniens doctrine and those which did not. Plainly the framers of article 15 have had in mind the principles of law used by those member states that operated the doctrine.” Mostyn J considered the terms of the regulation and relevant case law and summarised at [24] what he says to be the applicable principles all of which were at home with forum conveniens principles.Mostyn J found that, if the case were to proceed in the United Kingdom, he could not decide the social science assessment evidence put before the court by the UK local child protection authority was not “sufficiently thorough and impartial to warrant the drastic orders [for adoption] now sought” and required a further assessment from an independent social worker fluent in Slovakian. His Honour commented that “it will be well nigh impossible to identify Slovakian adopters of Romani ethnicity.” Mostyn J was satisfied that if the baby was returned to Slovakia, he and his mother would be cared for 24 hours a day in a children's home which, he concluded, best promoted the possibility of preserving the baby’s Slovakian and Roma heritage. 241.Mostyn J was satisfied that a transfer request should be issued to invite the competent authorities in Slovakia to take a transfer of the case. The guardian at litem of the baby T appealed Mostyn J’s decision and the Court of Appeal head the case, about a month later, which is reported as In the matter of K (A Child) [2013] EWCA Civ 895. Thorpe LJ wrote the judgment with which the other members of the Court of Appeal, Tomlinson and Briggs LJJ, agreed. In dismissing the appeal, Thorpe LJ characterised Mostyn J’s approach as “initially impeccable”, with particular regard to his adoption of the three questions stated by Munby J in AB v JLB, but concluded that Mostyn J had “erred when he introduced into his consideration the principles of forum non conveniens ” in a case not concerned with EU law. On this point Thorpe J concludes:-18. … What [Mostyn J] says there is acceptable until we reach sub‑paragraphs (v) and (vi), where again he adopts the language of Wilson J, saying: “v) If the court were to conclude that the other forum was clearly more appropriate, it should issue the transfer request and grant a stay unless other more potent factors were to drive the opposite result.vi) In the exercise to be conducted at (iii) – (v), the best interests of the child is an important, but not the paramount, consideration."19. I am in no doubt at all that this approach cannot be supported. The construction of Article 15 must be uniform throughout the courts of the Member States. It cannot be dominated by a domestic law approach in cases brought under the domestic jurisdiction, whether it be statutory or inherent. The context of the issue before Wilson J and the law that he was applying are radically different to the determination of Article 15, which was hardly in being when he was sitting in the domestic case. The Article is transparently clear. The court cannot request a transfer unless so to do would be in the best interests of the child. As Munby J had pointed out in AB v JLB, this is one of the three cardinal questions that has to be considered in the construction of Article 15(1).…Thorpe LJ approved of Mostyn J’s reference to a decision of Baroness Hale (as she then was) in Re I (A Child) [2009] UKSC 10, in relation to another aspect of the European Regulations, in which Baroness Hale said of the requirement of Article 12(3) that the jurisdiction should be in the best interests of the child: This question is quite different from the substantive question in the proceedings, which is ‘what outcome to these proceedings will be in the best interests of the child?’ It will not depend upon a profound investigation of the child’s situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum. And in dismissing the appeal, Thorpe LJ said:-27. So, by way of conclusion, I accept that Mr Prest has demonstrated a misdirection in law, but I roundly reject his submission that there should be a remission for a fresh hearing before another court. That is a completely unrealistic submission. It would waste court time and public money and lead to no different conclusion. 28. I accept Mr Newton's submission that, in effect, this was a very minor aberration from the straight and narrow, and the judge would have arrived at precisely the same conclusion had he directed himself only to the observations of Munby J and not imported into the search for the autonomous law of the Regulation, observations made by Wilson J in a domestic case some years earlier.Thorpe LJ also commented on the absence of submissions to assist the court and the “dearth of authority on the proper construction of Article 15, which … has not come for consideration by the Court of Justice of the European Community, and there is, I think, little authority in this court or in any other European appellate court that has been drawn to our attention.” This court is in the not advantaged in relation to s 111CG(2). Not only is this procedure new to us but it a legislative provision based a mechanism which has long been in play in Europe without attracting authoritative statements of law there (until very recently). The above discussion in relation Re T (A Child: Article 15 of B2R) is helpful for my consideration of whether this Court, as opposed to the competent courts of The Netherlands, is better placed to assess the best interests of the child. The task at hand it is not a determination of the most convenient forum. Nor is it a determination of what outcome would be in the child’s best interests. It is, plain and simple, whether this Court is better placed to make an assessment of the child’s best interests than are the courts in The Netherlands. The standard to which I need to be satisfied is on a balance of probabilities.[58][58] S 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities (s140(1)). Parenting proceedings in Australia are conducted under the principles set out in Part VII – Division 12A of the Act which appear at s 69ZN as follows:-Principle 1(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. Principle 2 (4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings. Principle 3 (5) The third principle is that the proceedings are to be conducted in a way that will safeguard: (a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and (b) the parties to the proceedings against family violence. Principle 4 (6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties. Principle 5 (7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. This is a specialist court. A function of the core work this Court is to determine the best interests of children in the context of family disputes. In this respect, the child’s circumstances are not at all unusual. The manner in which this Court is required to determine a child’s best interests is set out in Subdivision BA of Division 1 Part VII of the Act. There are primary considerations and numerous additional considerations including an assessment of the nature of a child’s relationship with non-parents and other persons including grandparents.[59] This Court is mandated to take into account the background, culture and traditions of the child and of the child’s parents and other characteristics of the child that the Court thinks are relevant.[60] I set out the provisions of Sections 60CA, 60CB and 60CC as Annexure “B” to these reasons. [59] Family Law Act 1975 (Cth) s 60CC(3)(f)(ii).[60] Family Law Act 1975 (Cth) s 60CC(3)(g).This court would be well able to decide the case. However, the test is whether we are “better placed” than courts in The Netherlands.In the circumstances of this case, I place significant weight on the fact that the child is not only habitually resident in The Netherlands but is present in The Netherlands and has been so for the last eleven months. The Netherlands is where her sole parent resides. The law of The Netherlands regulates the order of the child’s life. I take into account the facts and practicalities set out earlier in these reasons including that this court conducts proceedings in English which is the only language common to all parties and the maternal family witnesses, that the maternal grandparents cannot travel to The Netherlands, that this court has audio visual facilities and we can sit outside normal court hours to accommodate any witness giving evidence from The Netherlands doing so at a reasonable time having regard to international time zones. I take into account that the parties are well along the path in these proceedings in Australia. It was prepared for a final hearing when the matter came before me and the jurisdictional issue was raised and lost. I am satisfied that the evidence before this court, certainly the Family Report, can be put to some use in proceedings in The Netherlands after translation. The matters to which I have referred earlier such as enforcement of whatever orders are made and the availability in this State of remedial action in relation to the testamentary trust are relevant to which forum is most convenient but too remote to influence my determination of whether this court, rather than the courts in The Netherlands, is better placed to assess the child’s best interests. I do not place weight on these matters.I conclude that, whilst this Court is well equipped and well able to assess the child’s best interests, I am not satisfied that it better placed than the courts in The Netherlands to do so. Accordingly, I decline to make a request pursuant to s 111CG(2). I also decline to invite the parties to make their own request to the Australian Central Authority to request a transfer of jurisdiction to this Court.If the applicant or the child’s maternal family institute proceedings in The Netherlands and there seek that jurisdiction be transferred to the competent courts in Australia, these reasons can be used in support of that request and to demonstrate what resources our Court has to deal with the matter in its entirety or even partially, for instance, for mediation. This court is ready and able to deal with the case in the manner which I have described if it obtains jurisdiction or is invited to assume jurisdiction to do so.ConclusionIt is regrettable that, given the opportunity, the parties did not proceed to mediate this matter with or without the consequential and connected issues that pertain to it. That was the purpose of appointing an independent children’s lawyer who could have arranged the mediation neutrally and without cost to the parties. If no party takes any further steps, it is difficult to see how the child can have a meaningful relationship with the maternal family. Two years ago the child lost her mother. It is nearly a year since the child left Australia. I am sensitive to the tragedy of the mother’s death for all concerned and acknowledge that the maternal family has a perspective which is different from the father’s perspective. However, it seems to me that the child’s interests will not be advanced, particularly in relation to her maternal family, unless all of the adults concerned can recast their perspective to focus entirely on the child’s future.I certify that the preceding two hundred and fifty eight (258) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 November 2013.Associate: Date: 15 November 2013ANNEXURE A1969 Vienna Convention on the Law of TreatiesArticle 31: General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.Article 32: Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonableANNEXURE “B”FAMILY LAW ACT 1975 - SECT 60CA Child's best interests paramount consideration in making a parenting order 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. FAMILY LAW ACT 1975 - SECT 60CB Proceedings to which Subdivision applies This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration. Note: Division 10 also allows a court to make an order for a child's interests to be independently represented by a lawyer in proceedings under this Part in which the best interests of a child are the paramount consideration. This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68R applies. FAMILY LAW ACT 1975 - SECT 60CC How a court determines what is in a child's best interests Determining child's best interests Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3). Primary considerations The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b). (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). Additional considerations Additional considerations are: (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; (b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child); (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; (f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; (h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right; (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; (j) any family violence involving the child or a member of the child's family; (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter; (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m) any other fact or circumstance that the court thinks is relevant. Consent orders If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3). Right to enjoy Aboriginal or Torres Strait Islander culture For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and (ii) to develop a positive appreciation of that culture.
Ratio Decidendi
Legal Principle Established
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