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 (Cth).
INDEX
Introduction
Background
Procedural history
Mediation and the independent children’s lawyer
The law
Commentary on the 1996 Convention
The 1996 Convention
Article 1……………………………………………………………………………26
Article 2……………………………………………………………………………26
Article 5……………………………………………………………………………27
Article 6……………………………………………………………………………28
Article 7……………………………………………………………………………28
Article 8……………………………………………………………………………28
Article 9……………………………………………………………………………28
Article 10…………………………………………………………………………..30
Article 11…………………………………………………………………………..30
Article 12…………………………………………………………………………..32
Article 13…………………………………………………………………………..32
Article 14…………………………………………………………………………..32
Article 16…………………………………………………………………………..32
Article 17…………………………………………………………………………..33
Article 18…………………………………………………………………………..33
Article 32…………………………………………………………………………..33
Article 35…………………………………………………………………………..33
Article 44…………………………………………………………………………..34
Article 50…………………………………………………………………………..34
Implementation of the 1996 Convention into Australian law
Discussion about jurisdiction
Submission re interrelationship between s 69E of the Act and s 111CD of the Act
Submission that jurisdiction is not an “issue” because the father’s amended response was not filed
Submission that jurisdiction is not an “issue” because the father submitted to the jurisdiction
Submission that jurisdiction is not an “issue” because there is no competing application before a competent authority in The Netherlands
Submission that jurisdiction is not an “issue” with reliance placed on Chan & Wu [2010] FamCA 615
Further submissions filed 30 August 2013
The applicant’s contention that jurisdiction conferred under Articles 5 to 10 of the 1996 Convention can be conferred on authorities in Australia and The Netherlands concurrently
The applicant’s contentions as to habitual residence
Oral submission on 2 September 2013 that Brussells II bis is pertinent
Application to request a transfer of jurisdiction
The International Hague Network of Judges and direct judicial communications 54
Is there a sufficient connection between the child and Australia such that a request to assume jurisdiction could be addressed to Australia?................................................... 54
Is this court better placed than the courts in The Netherlands to assess the child's best interests?...................................................................................................................54
Conclusion
ANNEXURE A: Vienna Convention Articles 31 & 32
ANNEXURE B: Family Law Act 1975 ss 60CA, 60CB and 60CC 70
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11439 of 2013
| Ms Bunyon |
Applicant
And
| Mr Lewis |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These proceedings concern E, (“the child”) who is four and a half years old and lives with her father in The Netherlands.
The applicant, Ms Bunyon, seeks orders entitling her to spend time with the child and to be involved in the child’s life. Ms Bunyon is a cousin of the child’s late mother, Ms C, (“the mother”). Ms Bunyon brings the application in a representative capacity on behalf of the maternal family who include the child’s maternal grandparents and one of her maternal uncles, all of whom also live in Melbourne. The child has another maternal uncle who lives in Israel. The child’s maternal grandfather is Mr D who is 84 years old. The maternal grandmother is Ms D who is 85 years old. The applicant seeks orders to enable the child to spend time with them as much as with herself and her family.
The respondent to the proceedings is the child’s father, Mr Lewis, (“the father”) who was born in New Zealand and who has dual Dutch and New Zealand citizenship. The respondent father opposes the application but says that he is not averse to the child having a relationship with the maternal family.
On 20 August 2013 I decided to bifurcate the hearing so that the issue of jurisdiction will be determined now, prior to and separately from any determination of what parenting orders ought to be made about the child.
The jurisdictional issue pertains to the applicability and effect of Part XIIIAA Division 4 (International Protection of Children) of the Family Law Act 1975 (Cth) (“the Act”) which implements into our domestic law the 1996 Child Protection Convention (“1996 Convention”)[1].
[1] The full title of the Convention adopted by the Hague Conference on Private International Law and concluded on 19 October 1996 is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
The child lives in The Netherlands and has done so since early December 2012. The Netherlands is a Contracting State to the 1996 Convention and the Convention is in force between The Netherlands and Australia. The issue is whether this Court is constrained from making parenting orders about the child on the basis that the judicial and administrative authorities in The Netherlands have pre-eminent jurisdiction to do so by operation of law.
Section 111CD(1)(c) of the Act provides, in effect, that an Australian court[2] may only exercise jurisdiction to make a parenting order in relation to a child who is present in a country for which the 1996 Convention has entered into force with Australia if:-
a)The child is habitually resident in Australia;
b)The child was wrongfully removed or retained outside Australia and Australia keeps jurisdiction under Article 7 of the Convention;
c)A request has been made by a court or other competent authority of the other Convention country (The Netherlands) for this court to assume jurisdiction;
d)A court or other competent authority of the other Convention country (The Netherlands) agrees to this court assuming jurisdiction;
e)The child is habitually resident in the other Convention country and this court is exercising jurisdiction in divorce or annulment proceedings between the parents.
[2] In practical terms the courts in Australia are this court, the Family Court of Australia, and the Federal Circuit Court of Australia (formerly known as the Federal Magistrates Court of Australia) which exercise concurrent jurisdiction to make parenting orders.
The applicant contends that this Court does have jurisdiction to make parenting orders because either Part XIIIAA Division 4 (International Protection of Children) of the Act is not engaged or because the child is not habitually resident in The Netherlands.
I am satisfied that the child is habitually resident in The Netherlands. Furthermore, that as a result of the 1996 Convention having entered into force between Australia and The Netherlands on 1 May 2011, this court cannot make parenting orders about the child unless a court or a competent authority in The Netherlands agrees to this court assuming jurisdiction or invites it to do so.
The applicant’s secondary position is that I order the Australian Central Authority make a request of a competent authority in The Netherlands to agree to this court assuming jurisdiction to entertain proceedings about the child and make parenting orders[3]. This request can be made under Article 9 of the 1996 Convention. Any parenting orders made after a transfer of jurisdiction would, perforce of Chapter IV of the 1996 Convention and our implementing legislation[4], be equally applicable in Australia and The Netherlands.
[3] The power to do so is found in s. 111CN(2) of the Act
[4] s.111CT of the Act
I can only make the order sought, or invite a party to introduce such a request to the Australian Central Authority, if I am satisfied that this court is better placed than the courts in The Netherlands to assess the child’s best interests. In the final result, I was not so satisfied.
It follows all proceedings in this court are dismissed and, for the avoidance of doubt, all previous orders made by this Court are discharged. 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[5] or provisionally[6].
[5] As provided by s.111CD(b)(i) of the Act
[6] As provided by s.111CD(b)(ii) of the Act
My reasons for decision appear in full below.
Background
I understand that the following background is not contentious. It is drawn from the applicant’s outline of case document[7], written and oral submissions and records of the hearings by either transcript or audio recording, orders and published reasons for decisions and documents referred to in those decisions. Parts of the applicant’s affidavits sworn 14 December 2012 and 8 January 2013 were referred to by counsel for the applicant in his written submissions filed 30 August 2013.
[7] Exhibit “M1”.
The child’s mother, Ms C, and father met and commenced their relationship in San Francisco in 2006. The child’s mother was diagnosed with an asbestos related cancer, mesothelioma, in April 2007 and subsequently went into remission.
The child was born in Melbourne, Australia, in December 2008.
The child’s parents separated in April 2011.
Following separation, the mother and father shared care of the child. The mother received assistance from her family and the applicant, as her declining health required. The child was three years and eleven months old when her mother passed away in November 2011 at the age of 49 years.
The applicant is 45 years old, married, and has three children. She resides with her husband and children in Melbourne.
Following the death of the child’s mother, the respondent father facilitated the child spending time with her maternal grandparents, Mr and Ms D, and other members of the maternal family and the applicant. The maternal uncle, Mr F, who also resides in Melbourne also saw the child.
Ms C bequeathed her estate to the child. It now comprises a testamentary trust, of $1.2 to $1.4 million, held for the benefit of the child. The applicant and a friend, Ms A, are executrices of the child’s trust. The applicant was also named by the child’s mother as a “guardian” of the child in the event that the mother predeceased the child and the applicant (which she did) but no issue arises in this proceeding as a result of that nomination.
The father was expressly excluded by the mother as any kind of beneficiary under the mother’s estate or as executor of his daughter’s beneficial interest in the estate. In June 2012 the respondent father instituted proceedings in the Supreme Court of Victoria, at Melbourne, in relation to the estate of the child’s mother seeking some provision out of the estate under state legislation being Part IV of the Administration and Probate Act 1958 (Vic). The father and the applicant (as executor) were both represented by lawyers in the Supreme Court proceedings. There was a court ordered mediation last November and the proceedings are still pending or at least not finalised.
By the end of November 2012 the applicant, in conjunction with the mother’s family, put a formal proposal to the father about arrangements for care of the child including specific time to be spent with the maternal family, for parental responsibility to be shared between the applicant and the father and for there to be restrictions on the father’s ability to remove the child from Australia.
On 6 December 2012 the respondent father took the child to The Netherlands with the intention of residing there permanently.
The child’s departure from Australia, a short time after her fourth birthday, was without any notice to the maternal family and attended by some subterfuge on the father’s part.
The father sent an email to the maternal grandparents on the day following the child’s departure from Australia saying “We are away this weekend so [the child] won’t be able to come. Sorry for the late notice”. It is recorded by the Family Consultant who prepared a Family Report in this matter, that[8] :-
[80] [The father] reflected on the suddenness of his departure from Melbourne reporting that he “…found the situation untenable”, for a range of issues including that in Mediation he was advised that there was intent to commence proceedings in the Family Court for joint parental responsibility and he was concerned that [the child] might be placed on airport watch and any travel would be restricted. [The father] described himself as “…having no stomach to do anymore Court procedures,” and he understood, as [the child’s] father “…it was my right to leave” and he was hoping that such action “…might stop them”.
[81] What [the father] hoped to stop was [Ms Bunyon’s] proposal for shared parental responsibility which he described as “…bizarre”. [The father] felt “…she doesn’t have any right to ask this”. He stated that “…[Ms Bunyon] helped out” largely in the last couple of months of [the mother’s] life and “…I am thankful that [Ms Bunyon] cared for [the child] as I was always anxious that something might happen to [the mother]”. However, he also considered that [Ms Bunyon] “…manipulated the situation and took advantage, she made things worse and worse” and he disputed that hers and [the mother’s] relationship was either close or of longevity.
[8] Family Report by Ms G, Family Consultant, Child Dispute Services, Melbourne, 9 August 2013.
By letter dated 12 December 2012, the firm of Clancy and Triado Lawyers, wrote to lawyers acting for the estate of the child’s mother, Arnold Bloch Leibler, advising that:-
We have been consulted by [the father] in relation to family law matters.
Your client(s) will be aware that [the father] and [the child] have permanently relocated to the Netherlands.
…
In the event that your client(s) seek to contact [the father] in relation to family law matters, our office can be considered an appropriate point of interim contact.
On 14 December 2012 the father confirmed to the maternal family, from The Netherlands, that he and the child were no longer in Australia. He wrote the following email to each of the maternal grandparents[9]:-
[9] Annexure “NB4” to the affidavit of [Ms Bunyon] affirmed 8 January 2013.
Subject: [The child] and I in the Netherlands
Dear [Mr and Ms D], Opa and Nonna,
As you know [the child] and I are in the Netherlands. I am sorry we had to leave urgently and could not say goodbye.
[The child] is doing well and she made a snow-woman on our first day as it was snowing heavily when we arrived. Very unusual for the time of the year. See the attached photos.
You are welcome to do regular video chats with [the child] (and me) through Skype or iChat. Probably the best time will be in the evening for you and the morning here. The time difference is 10 hours at the moment. For example 8 pm in Melbourne is 10 am here.
Maybe you could speak to me first?
I’ll let you know an address to send mail to and dutch mobile number as soon as I have one.
Kind regards,
[The father] and [the child]
The child has not spent face to face time with the applicant or the maternal family since December 2012 but she has communicated electronically, by Skype by arrangement between the father and the maternal family.
Procedural history
On 14 December 2012, the applicant filed an urgent application in this Court seeking interim and final parenting orders to facilitate the immediate return of the child to Australia, that the applicant and the father share parental responsibility in relation to the child’s long term care, welfare and development including (but not limited to) decisions about the child’s city and country of residence, the child’s travel outside Australia, the child’s education and the child’s participation in the Jewish culture and community. The applicant sought that the child live with her “at such times as are deemed to be in the child’s best interests” and with the father at all other times. The child’s maternal grandparents, Mr and Ms D and the maternal uncle (Mr F) were referred to as persons with whom the child would spend time when with the applicant.
On 8 January 2013 the applicant’s proceedings came on for hearing. The applicant was represented by counsel. There was no appearance by, or on behalf of, the respondent father although the Court appeared to be satisfied that the father had notice of the proceedings. Interim orders were made providing for the applicant and the respondent to share parental responsibility for the child’s long term care, welfare and development and that they each have sole responsibility for the child’s day to day care, welfare and development during such times as the child lives with either of them. It was also ordered that the father do everything necessary to return the child to Australia as soon as practicable and, in any event, by no later than 31 January 2013. In the event that the father did not reside in Melbourne, the child was to reside with the applicant. If the father did reside in Melbourne, the child could live with him but have each alternate weekend with the applicant from 4.30 p.m. on Friday to 6.00 p.m. on Sunday as well as each other Friday evening and four consecutive days during each school term holiday. The balance of the Order was procedural. The proceedings were adjourned to 14 January 2013 on the basis that, if the father failed to appear on that day (in person or by a lawyer), the applicant could apply for final orders on an undefended basis.
The father did not return the child to Melbourne by 31 January 2013.
The applicant’s application next came before the Court on 4 February 2013. The father was in The Netherlands but was legally represented. The father’s lawyer informed the Court that the father intended to file a review (appeal) of the decision made on 8 January 2013 and the applicant agreed to not seek enforcement of that order pending the review.
By an application filed on 4 or 7 February 2013, the father sought a review of the decision on 8 January 2013. He sought that alternative parenting orders be made by the Court including that he have sole parental responsibility for the child and that the child communicate with the maternal family by Skype regularly and by spending time in Australia for one week each year at the expense of the maternal family or the mother’s estate.
The father’s application was supported by an affidavit sworn 31 January 2013 in which, inter alia, the father relevantly deposes:-
[5] [The child] and I are currently living in The Netherlands and I say that this Honourable Court [in Australia] is not the appropriate forum for matters relating to [the child’s] care to be heard. …
[10] I have always considered The Netherlands to be my home country. The majority of my life has been spend there, the majority of my family are there or in Belgium and the majority of my friends live there. I am a Dutch citizen and a New Zealand Citizen.
…
[167] … I deny that my move was motivated by any desire to deprive [the child] of her Jewish heritage or extended maternal family. I am already facilitating video chats with [the child’s] maternal grandparents. If the estate sees fit to fund travel for [the child] and I to Australia, employment permitting I am willing to bring her to Australia for holidays provided I am assured there will not be attempts to retain her. I am also willing to facilitate time with [the child] in the Netherlands should [the mother’s] family visit her here.
On 8 February 2013, the father’s review application came before the Court. It proceeded as a re-hearing before Cronin J. His Honour discharged the Order made on 8 January 2013 and ordered that, until further order, the child live with the father in The Netherlands. His Honour adjourned the matter to 8 May 2013 for the purpose of listing the matter for final hearing. By paragraph 5 of the Order, the applicant was required to file an amended application by 4 p.m. on 24 April 2013 and the respondent father was required to file an amended response by 1 May 2013. The Court noted that “if a party does not comply with paragraph 5 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.”
The effect of the parenting order made by Cronin J on 8 February 2013 was to discharge the order requiring the father to return the child to Melbourne and to discharge the provision for the applicant to have any parental responsibility and day to day care of the child. Insofar as the Order provided that the child live with the father until further order, the Order reflected what was already occurring.
Cronin J observed:-
[6] The application by the applicant was filed on 14 December 2012. The father left Australia on 6 December 2012. It has not been suggested that there has been a breach of s 65Z(1) of the Family Law Act 1975. Indeed, the father’s evidence now before me makes clear that, as he saw himself as the sole surviving parent, he was entitled to do what he did.
…
[37] The two critical evidentiary matters seem to me to be:
(a) Why did the father leave Australia and was it done surreptitiously and to the disadvantage of [the child]?
(b) Does the father have the capacity to appropriately care for [the child] until this Court can look at the longer term issues properly?
…
[47] Accepting the basic facts of the father’s financial and personal situation including the fact that he is in a country he calls “home” despite not having lived there for 10 years, it would seem that he is otherwise not only capable of caring for [the child] but doing so.
…
[49] There was no argument here about jurisdiction. The father raised the forum issue but that is not a matter that I should concern myself about now.
[50] There was also no argument that the applicant is a person who has an interest in the welfare of [the child]. Her entitlement to bring the application was not challenged.
The issue of the constraint on this Court’s power to make parenting orders, given that the child is living in The Netherlands, was not raised by anyone at the hearings on 8 January or 4 February 2013.
Neither party complied with paragraph 5 of the Order made on 8 February 2013. Instead, at the hearing on 8 May 2013, counsel for each party were permitted by Cronin J to hand up the amended application and the amended response upon which she/he relied.
The matter was next before the Court on 8 May 2013. Mr Strum of counsel appeared for the applicant and Mr Staindl, lawyer, appeared for the respondent father. The final hearing was set down to commence not before 19 August, estimated to take three days. The applicant was required to file and serve all evidence by 11 June 2013, which she did. The respondent father was required to file all evidence by 28 June 2013. The balance of Cronin J’s reasons relate to preparation of a Family Report by Child Dispute Services which, in due course, was prepared by Ms G, Family Consultant.
The father did not file any evidence by 28 June 2013 which is significant for two reasons. First, his Honour ordered that, at the final hearing, evidence in chief be given by affidavit and that no previous affidavits for earlier hearings could be relied upon. Counsel for the applicant contended that, because the father filed no new affidavits, he had no evidence before the Court at the final hearing. Second, it was ordered that, if one party did not comply, the Court could relist the case and require the parties to justify why the matter ought not be taken out of the list (and the final hearing cancelled) and “the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.” Notwithstanding the father’s non-compliance, the matter was not relisted at the volition of the Court, nor did the applicant file an application seeking that the final hearing be undefended at any time prior to the hearing on 20 August 2013.
On 6 and 8 August 2013, a Family Consultant, Ms G, conducted assessment interviews and observations for the purpose of preparing a Family Report. The father and the child participated by Skype. The maternal grandparents were interviewed as was the applicant. The Family Report was published on 9 August 2013 and released to the parties on 14 August 2013.
Counsel for the applicant takes exception to the fact that the Family Consultant read documents and evidence that pre-dated the Order made on 8 May 2013 (which provided that earlier evidence could not be relied upon). Somewhat curiously, he then went on to quote from the Family Report in his outline of case and in submissions as well as to refer to the Family Consultant’s recommendations as being not dissimilar to the outcome now sought by the applicant. In any event, the earlier order that the parties not be able to rely upon the previous affidavits in the proceedings did not preclude the Family Consultant from reading the previous affidavits as part of her assessment. The order for the report provided that it be commenced after 5 July 2013 and be completed for release by 12 August 2012. It was also ordered that:-
8. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.
I have read the Family Report. It is 45 pages in length. It reads as a sensitive, thorough and thoughtful social science analysis. Ms G has not been cross examined so I have regard to her opinions as expert evidence which is untested. With that caveat in mind, I note that she expresses two conclusions which she considers are very important.
·First, in the midst of the dreadful grief of the mother’s family, very careful regard must be had to what the child needs and what she is experiencing in her own right as well as through the father who, Ms G accepts, is also grieving.
·Second, that the child’s best interests require that the maternal family recognise the father’s role as the child’s care giver and sole surviving parent. The Family Consultant explains:-
[121] It is unfortunate that the [maternal] family has responded like many families post separation seeking to vilify and exclude the rejected partner [the father]. But [the mother] and [the father’s] story is not that simple it is unclear as to whether the parents ever separated emotionally and [the mother’s] illness left her unaccountable for her behaviour. Both [the father] and [the maternal grandparents] shared a love for [the mother] and both love her surviving daughter [the child]. It is unfortunate that there has been little respect shown for [the father] in his role as father, he has not been solicited for this opinion about [the child’s] welfare nor included in considerations about her future and the adoption of an adversarial position is squandering what little good will there is in the family and acts to the detriment of [the child’s] well-being.
[122] There is a saying in Hebrew that the best thing a man can do for his children is to love his wife. In this case the best things [the maternal] family can do for [the child] is to care and respect for her father.
Counsel for the applicant says that there is much in the Family Report with which his client and the maternal family take issue. They say that they have not vilified, excluded or rejected the father. They feel hurt and cannot forgive what they perceive to have been the father’s poor behaviour in the last stages of their beloved daughter’s life compounded by his clandestine removal of the child from Melbourne. As the maternal grandmother deposes, the family “have at all times tried to put aside the pain and hurt felt by the circumstances of [the mother’s] illness, separation and death, and to avoid controversy with [the father], and our focus remains our granddaughter.”[10]
[10] Affidavit of the maternal grandmother sworn 11 June 2013 [22].
I am sensitive to Mr Strum’s comments that the applicant and the maternal family are upset by some of Ms G’s conclusions. However, it is an assessment that has not been tested. It would be an inadvertent tragedy if either party allowed the untested expert evidence in the Family Report to be an impediment to the child having a meaningful relationship with the maternal family.
The father did not attend court on 20 August 2013, although it is apparent that he had notice of the proceedings because he had written to the Court about the hearing[11]. Omitting formal parts, his letter dated 17 August 2013 says as follows:-
[11] Exhibit “C1”.
With no disrespect intended I have to inform you that regrettably I will not be able to appear in court in the matter before your Honour this Monday 19th August regarding [Lewis] v [Bunyon] [case number: MLC11439/2012].
Reason why I am not appearing
I cannot travel to Australia because I have no money to pay for the flight and to live on while in Australia. I now owe debts of legal fees in excess of $120,000.
Just this week [the child] has started school again after the summer school holidays in group 2 and I cannot leave her on her own.
There are some things I feel I should let you know.
I am unrepresented.
Since the 12th of July I have been unrepresented and it is simply not possible for me to look for legal support in Australia from the Netherlands let alone pay for it.
While I am unrepresented, because I can’t afford it, [Ms Bunyon] is paying for her legal fees from the estate of my late partner [the mother]. The executors [Ms Bunyon] and [Ms A] have rejected my request to pay my legal fees.
I have had to spend so much time on answering to [Ms Bunyon] and her family’s barrage of affidavits in the past 1.5 years to the detriment of my daughter that enough is enough and I can do no more.
I choose to invest my time in the well being of my daughter, who experienced the loss of her mother, loss of her maternal home, relocation from Australia to the Netherlands and a new school.
I have not received any documents after my lawyers Notice of ceasing to act
I do not have any copies of court material filed since 12th of July since my lawyers filed their Notice to cease to act. I do not know if [Ms Bunyon] has filed any further documents.
Family Consultant [Ms G] mentioned and notes in the Family Report an Amended initiating application by [Ms Bunyon]. I have not received this document or any others that might have been produced.
Of the affidavits I have read, but am not responding to, this does not mean I agree with the contents.
Family Report
The one thing I felt I could do, even without legal representation or being present in Australia, in this process was to participate in the Family Report.
I received the Family Report by [Ms G] on the 15th of August and even though I have had only a short time to study it I agree with her description of the situation and her conclusions.
Orders
In consent orders I have nothing to offer [Ms Bunyon] personally for the simple reason that she has never had any special relationship with me or my daughter [the child] and deliberately and consistently has refused to build one.
Skype contact is already occurring and will continue to occur with the grand parents and [Mr H].
Supreme Court ruling
On the 15th of May the Supreme Court dismissed an application by the executors of [the mother’s] estate to fund family law court actions with the estate. [Re: … [2013] VSC …]
Nevertheless [Ms Bunyon] continues fund her family law case using estate funds.
I ask Your Honor to make orders for [Ms Bunyon] to pay the costs of all parties in this proceeding personally.
I am upset by how the estate, [the child’s] trust, has been eroded by the actions of [Ms Bunyon]. And I know my late partner [the mother] would be horrified by what the executors and the [maternal] family have done with the estate and the damage they have inflicted on me and our daughter [the child] personally through their actions.
I remain fully devoted to my daughter who is always first and foremost on my mind. She is a happy child growing and learning and I will protect her with my life.
I am determined to keep alive the memory of [the child’s] mother [the mother] and to offer this to [the child] while growing up.
If there is any way I can be of assistance please let me know. I am willing to contribute to any solution that would benefit [the child’s] well being, short and long term.
I trust your wisdom will prevail.
As the father says, this matter was set down for hearing on 19 August 2013. It was not reached by Justice Thornton on that day and was then placed before me on 20 August 2013 when I heard submissions by counsel for the applicant. The father’s letter had arrived after Justice Thornton adjourned the matter to me but before the matter commenced on 20 August 2013.
This is a superior court of record. Hearings are not conducted by correspondence. If a party seeks to be heard then they must appear in person, by a legal representative or electronically (by telephone link or audio visual connection) the latter being with the prior permission of the Court. Nonetheless, in this instance I have regard to the contents of the father’s letter. I was satisfied that the father knew of the final hearing and had been accorded procedural fairness of the applicant’s evidence, being the four affidavits upon which she relies all filed on 11 June 2013[12]. Nonetheless, during the hearing on 20 August 2013 and without objection from the applicant, my Chambers sent an email[13] to the father requesting a telephone number at which he could be contacted in the event that he was awake, which was unlikely given that it was about 2 a.m. in The Netherlands. A response was received from the father some 7 hours later and included a telephone number for him which has now been entered in the records of the Court.
[12] Affidavit of Ms Bunyon sworn 11 June 2013; Affidavit of the maternal grandmother sworn 11 June 2013; Affidavit of the maternal grandfather sworn 11 June 2013; Affidavit of Ms I sworn 11 June 2013.
[13] Exhibit “C1”.
The hearing on 20 August 2013 proceeded by submissions. There was no oral evidence. Mr Strum sought to file an application on the morning of the hearing but I did not grant him permission to do so.
Counsel for the applicant sought, and was granted, leave to amend the applicant’s application to seek that, if I determine that this Court has no jurisdiction to make parenting orders about the child, then pursuant to s 111CG(2) of the Act, I make a request under Article 9 of the 1996 Convention that the appropriate authorities in The Netherlands invite this Court to assume jurisdiction to entertain parenting proceedings and make parenting orders about the child.
Then the applicant sought additional time and was granted until Friday 30 August 2013 to make further written submissions in relation to jurisdiction. The respondent father was granted until Friday 6 September 2013 to file any further submissions in response, notwithstanding that he was not present.
On 20 August 2013, I made the following Order. Insofar as the appointment of an independent children’s lawyer and mediation are concerned, the Order was intended to operate up to the point of deciding whether the court has jurisdiction to make orders in the substantive child related proceedings:-
1.I bifurcate the proceedings so that the issue of jurisdiction, with particular reference to the operation of Part XIIIAA Division 4 (International Protection of Children) of the Family Law Act 1975, be determined prior to any further consideration of the substantive proceedings for child-related orders concerning [the child E] born … December 2008.
2.The applicant file and serve any further submissions, in writing, as to jurisdiction by not later than 12.00 noon on Friday 30 August 2013 (Melbourne time) and as soon as practicable after receipt they be forwarded by the Court to the respondent by email who can file any submissions in response by not later than 12.00 noon on Friday 6 August 2013 (Melbourne time).
3.I grant leave to the applicant to make oral application to amend her application to seek a further order that if, and only if, the Court is ultimately satisfied that it has no jurisdiction to deal with this matter, then pursuant to section 111CG, this Court request a transfer of jurisdiction in its favour such as would enable it, if the request be granted, to assume jurisdiction to take a Commonwealth personal protection measure (such as spend time order) relating to the child.
4.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child [E] born … December 2008 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer give urgent consideration to the possibility and arrangement of a mediation between the applicant in Australia and the respondent in the Netherlands.
5.That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
6.The applicant be responsible for forthwith providing to the independent children’s lawyer a copy of all documents filed in the proceedings AND IT IS DIRECTED that my Associate provide Legal Aid Victoria with a copy of the Court file index from which it is apparent what documents have been filed.
7.In the event that the respondent agrees to participate in a mediation and one is appointed the independent children’s lawyer advise my chambers of the time and date of the mediation.
8.There be liberty to apply for further directions in relation to any mediation.
9.For the avoidance of doubt, the maternal grandparents are at liberty to attend any mediation in which the applicant participates.
10.In the event of a mediation between the parties, anything said or done in the mediation is not admissible as evidence in these proceedings.
11.Pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.
12.That the question of the costs be reserved.
13.The respondent father file and serve a Notice of Address for Service without delay and IT IS DIRECTED that my Associate forward the father an Address for Service form electronically.
AND IT IS NOTED that the applicant seeks that there be direct judicial communication via the International Hague Network of Judges to ascertain the facilities in The Netherlands available to litigants who are not within that jurisdiction and who would seek to participate in proceedings from Australia.
AND IT IS FURTHER NOTED that subsequent to the hearing, the respondent father notified the Court of his telephone number which has been entered into the records of the Court subject to a request that those details not be released to the other party.
On 27 August 2013 the father filed electronically a Notice of Address for Service which nominates an address in The Netherlands as the address at which he can be served with documents.
Further submissions were filed and served by the applicant on 30 August 2013 and I have regard to them later in these reasons. The father did not file any submissions in response or otherwise by 6 September 2013.
In the context of direct judicial communications, there were further oral submissions by all parties, including the independent children’s lawyer, on 2 October 2013 and I will discuss those later in these reasons.
Mediation and the independent children’s lawyer
At the hearing on 20 August 2013, the applicant welcomed the immediate appointment of an independent children’s lawyer who could facilitate further negotiations and try to arrange a mediation between the parties whilst further submissions were made and my decision was reserved. When the father participated in the mention on 4 September 2013 he appeared similarly well disposed to an opportunity to negotiate further or mediate with the assistance of the independent children’s lawyer.
Whereas, in abduction cases under the 1980 Convention, the Court’s power to request the appointment of an independent children’s lawyer is fettered by the necessity for “exceptional circumstances”[14], there is no such restriction in relation to cases under the 1996 Convention. Mr Wayne Dunstan, lawyer, was appointed as independent children’s lawyer to represent the child’s interests. He filed a Notice of Address for Service on 2 September 2013.
[14] As provided in s 68L(3) of the Act.
The role of an independent children’s lawyer is not to represent the child or to act on the child’s instructions but to form an independent view, based on the available evidence, of what is in the child’s best interests and to then act in the proceedings in a manner which would promote those best interests. The duties of the independent children’s lawyer include acting impartially between the other parties in the proceedings. In this case, the purpose of the appointment was specifically to investigate the viability of mediation and, if mediation is considered desirable, to facilitate a mediation between the applicant and the respondent father in the model accessible through Victoria Legal Aid. Mediations in Hague matters are routinely conducted by two mediators who are specifically trained in international children’s matters and resourced to conduct mediation internationally with audio visual links within short compass of time and free of cost to the parties.
There is no doubt that the jurisdictional arguments in this case may be interesting for lawyers. The operation of the 1996 Convention is largely unchartered territory for this Court. However, I have a biding fear that the ‘interesting’ legal issues could distract the maternal family and the respondent father from identifying and acting on what is best for the child in the immediate, medium and long term. That would be a great pity if the parties were so distracted. Hence, I raised mediation.
Mediation is mandated by the 1996 Convention inasmuch as Article 31b provides that “[the] Central Authority of a Contracting State, either directly or through public authorities or other bodies, shall take appropriate steps to – facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the Convention applies.” In 2011 a course of training for mediators in Hague cases was provided under the auspices of the Attorney-General’s Department in conjunction with the Australian Central Authority and was attended by selected persons within the public alternative dispute resolution sector including some family consultants from this Court and some employees of Victoria Legal Aid. Neither the Australian Central Authority nor the Victorian Central Authority is a party to this proceeding and more’s the pity that neither have been asked to facilitate a mediation in this case. However, the imprimatur for mediation within the 1996 Convention is clear and, to my mind, there is nothing which precludes any other authority or person from facilitating mediation.
A useful text in relation to mediation is the The Hague Conference on Private International Law, Permanent Bureau, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – Mediation (2012) The use of mediation in cross-border family disputes is growing but poses some particular challenges and parties in dispute may require more structured assistance than parties to cases which are confined to one country. Different languages, different cultures and geographical distance are factors that need to be taken into account[15].
[15] Revised Draft Practical Handbook on the Operation of the 1996 Hague Convention drawn up by the Permanent Bureau for the attention of the Special Commission of June 2011 [13.43].
Presumably, any mediation between the applicant and the father could have related to matters which fall outside the narrow scope of this litigation or the scope of the 1996 Convention. For instance, apart from mediating parenting issues, the parties may have wished to include incidental but related issues such as legal costs, the father’s preparedness or otherwise to return to Australia given that he says he owes $120,000 in legal costs, as well any issues arising out of the testamentary trust held by the applicant and another for the child’s benefit[16]. Both the estate of the child’s mother and the father have spent, or incurred, very significant legal expenses in the Supreme Court action but, to date, those proceedings have not resulted in any funds being paid for the child’s direct benefit or for her day to day needs[17]. If the child’s mother bequeathed her estate with the express wish to provide the child with an excellent education at a Jewish school as well as ongoing involvement with the maternal family, it is most unfortunate that, despite her wishes and proceedings in two superior courts in Australia, neither of the mother’s aspirations have been fulfilled.
[16] Article 3(d) of the 1996 Convention defines measures include the administration, conservation or disposal of a child’s property but Article 4 (f) excludes “trusts or succession” as measures of the 1996 Convention. The Convention on the Law Applicable to Trusts and on their Recognition, also known as the “Hague Trust Convention”, was concluded on 1 July 1985 and entered into force as between Australia and The Netherlands on 1 February 1996. However, the opration of the Hague Trust Convention seems to be practically confined to choice of law.
[17] In the context of the November mediation in the Supreme Court proceedings, the applicant deposes to having offered to fund the travel expenses of the father and the child to Australia from the child’s trust for the purpose of the child being able to spend time with the maternal family should such time be ordered by this court or agreed to occur.
It seems clear that the real difficulties faced by the maternal family and the father and, through them, by the child, are much wider than the narrow jurisdictional issue which I have to determine. Counsel for the applicant confirmed that the applicant’s costs of these proceedings, which will be considerable, are being met from the trust set up under the estate of the child’s mother. Accordingly, the costs incurred by the applicant in these proceedings will diminish whatever is available for the child from her late mother’s estate into the future. Put another way, the child is paying for these proceedings.
At the mention of this matter on 2 September 2013, the parties indicated that arrangements for a mediation were underway although at a very early stage. It was my expectation that mediation could occur whilst this decision is reserved. The matter was mentioned on 6 November 2013 so that I could ascertain whether the delivery of this judgment would interrupt a mediation that was underway or about to take place. I was informed that this decision will not interrupt any mediation process.
The fact that no mediation has taken place is a pity. The parties may wish to revisit mediation following this decision but will now have to do so without the assistance of the independent children’s lawyer.
The law
This court is a court of statutory jurisdiction.
Section 69E of the Act provides that:-
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
relevant day, in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court—the day on which the application is filed; or
(b) in any other case—the day on which the application instituting the proceedings is made.
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
It is clear that the applicant was able to institute proceedings in relation to the child based on the child’s Australian citizenship (s 69E(1)(b)) as well as her own Australian citizenship, ordinary residence and presence in Australia on 14 December 2012 (s 69E(1)(d)). The legislation notes that s 69E is to be read subject to Division 4, Part XIIIAA of the Act. Section 111CB(1) of the Act provides likewise.
Division 4 of Part XIIIAA, which was inserted into the Act in 2003 by the Family Law Amendment (Child Protection Convention) Act 2002, commences with a definition section which includes:-
Commonwealth personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child.
competent authority:
(a) competent authority of Australia means an entity that has responsibility or authority under the law in force in Australia, or part of Australia, to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child’s property; and
(b) competent authority of a Convention country means an entity that has responsibility or authority under the law in force in the Convention country to take, or make decisions about, a foreign measure relating to a child; and
(c) competent authority of a non‑Convention country means an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child’s property.
entityincludes the following:
(a) an individual;
(b) a corporation;
(c) an unincorporated body;
(d) a government authority or body;
(e) a court or tribunal.
foreign personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) taken by a competent authority of a Convention country for protecting the person of the child.
Article 1 of the 1996 Convention recites the objects of the Convention to include to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or the property of the child and to determine the law applicable to parental responsibility.
Article 2 provides that “[for] the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or property of the child.”
Article 3 provides that “the measures referred to in Article 1 may deal in particular with –
a)the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
b)rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s palace of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
In this case the applicant seeks parenting orders about the child. Parenting orders routinely made by our Court include orders dealing with the person or persons with whom a child is to live (s 64B(2)(a)), the time a child is to spend with another person or persons (s 64B(2)(b)), the allocation of parental responsibility (s 64B(2)(c)) and the form of consultation required between persons who share parental responsibility (s 64B(2)(d)), the communication that a child is to have with another person or persons (s 64B(2)(e)) and any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (s 64B(2)(i)). Section 61B of the Act provides that parental responsibility in relation to a child means all the duties, powers, responsibilities which, by law, parents have in relation to children.
It is clear that a Commonwealth personal protection measure, as referred to in s 111CD(1) of the Act for the implementation of the 1996 Convention includes, a parenting order as defined by s 64B(1) and (2) of the Act.
Section 111CB(1) of the Act provides that Division 4 of Part XIIIAA has effect despite the rest of the Act, except s 69ZK (Child welfare laws not affected) and s 111B (Convention on the Civil Aspects of International Child Abduction) and the Family Law (Child Abduction Convention) Regulations 1986.
Subdivision B of Division 4 of Part XIIIAA relates to, and is headed, “Jurisdiction for the person of a child”. Section 111CC provides under the heading “Application of this Subdivision”, that:-
(1) This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a) a central authority or competent authority of a Convention country;
(b) a competent authority of a non-Convention country.
Section 111CD provides:-
Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a)a child who is present and habitually resident in Australia; or
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child's protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii)the child is a refugee child; or
iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence; or
(v)a competent authority of the country of the child's habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(c)a child who is present in a Convention country, if:
(i) the child is habitually resident in Australia; or
(ii) the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child's habitual residence or country of refuge; or
(iv) a competent authority of the country of the child's habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v) the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents or the annulment of their marriage (but see subsection (3)); or
(d)a child who is present in Australia and is a refugee child; or
(e)a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f)a child who is present in Australia, if:
(i) the child is habitually resident in a non-Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
(2)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
(3)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:
(a)one or both of the child's parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b)one or both of the parents have parental responsibility for the child; and
(c)the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
(d)the exercise of jurisdiction to take the measure is in the best interests of the child; and
(e)the proceedings on the application for divorce or separation of the child's parents or the annulment of their marriage have not been finalised.
(4)Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.
Where s 111CD applies to a child, it may operate to restrict the power of a court to make orders in relation to children notwithstanding that the proceedings in which the order is sought could be instituted pursuant to s69E of the Act.
Section 111CD can only, but will not always, apply if a child has a connection with a country other than Australia. Thereafter, determinative characteristics are:-
a)Whether the other country is a Convention country. A Convention country is a country for which the 1996 Convention has entered into force with Australia;
b)Whether the child is a refugee child;
c)Where the child is habitually resident;
d)Where the child is physically present;
e)Whether the child was wrongfully removed to, or retained in, Australia;
f)Whether a competent authority in a Contracting state has invited or requested Australia to assume jurisdiction;
g)Whether orders are sought at the same time as this court is exercising its jurisdiction in relation to divorce or annulment of marriage.
Commentary on the 1996 Convention
Notwithstanding that the 1996 Convention has been implemented in Australia since 1 August 2003, our Full Court recently observed[18] that:-
There has to date been virtually no experience in this country, or indeed to the best of our knowledge, in any country, with the operation of the Child Protection Convention, and in particular, its provisions for the recognition and enforcement of the orders of one Convention country in another.
[18] Cape & Cape [2013] FamCAFC 114 at [73].
Over the last three years there has been an increase in awareness of the 1996 Convention in Australia. This appears to have coincided with the Convention coming into force between Australia and most of the member states of the European Union, with New Zealand expressing a commitment to join and the United States of America signing the Convention on 22 October 2010 (although it is not yet in force there). I will discuss the 1996 Convention in as much detail as is necessary for the present case but I will not deal with the 1996 Convention comprehensively and I do not touch on the provisions for recognition and enforcement at all. Comprehensive analysis is provided in manuscripts and articles by learned authors and commentators and the valuable work of the Permanent Bureau of the Hague Conference and of the Special Commissions of the Hague Conference for the children’s conventions.
Two of the authors of the text International Movement of Children (2004), Nigel Lowe and Michael Nicholls QC have co-authored The 1996 Hague Convention on the Protection of Children[19] which is a comprehensive treatment of the 1996 Convention.
[19] Nigel Lowe and Michael Nicholls QC, The 1996 Hague Convention on the Protection of Children (Jordan Publishing, 2012).
In Cape & Cape (supra) at [67], the Full Court quoted extensively from the pre-published version of an article by Michael Nicholls QC, Australia and the 1996 Hague Child Protection Convention (now published in Family Law Review Volume 3, Number 3, August 2013), which is a short and accessible treatment of the 1996 Convention.
As with the 1980 Convention, reference can be had to supplementary materials including the Explanatory Report which, for the 1996 Convention, was prepared by Professor Paul Lagarde[20] (“the Lagarde Report”). This is so because of the general and supplementary rules of interpretation contained in the 1969 Vienna Convention on the Law of Treaties to which Australia is a party.[21] In particular Articles 31 and 32 of the Vienna Treaty[22] which are set out as Annexure A to these reasons.
[20] Australia acceded to the 1969 Vienna Convention on the Law of Treaties on 13 June 1974 and it entered into force in Australia on 27 January 1980.
The Revised Draft Practical Handbook on the Operation of the 1996 Hague Convention which was drawn up by the Permanent Bureau in May 2011 for the attention of the Special Commission of June 2011 as Preliminary Document No 4[23] (“the Revised Draft Handbook”) is comprehensive and informative. In its current draft form, the Revised Draft Handbook cannot be said to fall within Article 31(3)(a) or (b) or Article 31(2) of the Vienna Convention. It does, however, represent a consensus of informed opinion which can lend support and guidance to one’s own interpretation the 1996 Convention and it is in this way that I refer to it in these reasons. It is a bird’s eye view into the way in which the Permanent Bureau considers that the 1996 Convention was intended to, does and can operate.
[23] >
Generally and where indicated I have had regard to the book by Nigel Lowe and Michael Nicholls QC , the article of Mr Nicholls QC, the Lagarde Report and the Revised Draft Handbook.
The 1996 Convention
The 1996 Convention was concluded at The Hague on 19 October 1996. Australia signed on 1 April 2003. It entered into force between Australia and The Netherlands on 1 May 2011.
The 1996 Convention contains a number of strategies and concepts which appear in the 1980 Convention.
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.
Conclusion
It 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 2013
ANNEXURE A
1969 Vienna Convention on the Law of Treaties
Article 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.
- AGLC
- BUNYON & LEWIS (NO. 3) [2013] FamCA 888
- Case
- [2013] FamCA 888
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.