Callum and Favre

[2016] FamCA 487

FAMILY COURT OF AUSTRALIA

CALLUM & FAVRE [2016] FamCA 487

FAMILY LAW – INTERIM – FORUM – Whether Australia is the appropriate Forum in this matter – Where the proceedings were commenced in Australia – Where there were consent orders permitting the relocation of the children to France – Where the mother commenced further proceedings in France – Application of s 111CD of the Family Law Act

Family Law Act 1975 (Cth)

Akebar & Odemut [2015] FamCA 197
B and B (Re Jurisdiction) [2003] FamCA 105
Child Support Registrar Ltd v Cigna (1997) 189 CLR 345
Duckworth & Jamieson [2014] FamCA 308
Henry v Henry (1996) 185 CLR 571
Voth v Manilda Flour Mills Pty. Ltd. (1990) 171 CLR 538
Zegna & Zegna [2015] FamCA 345

APPLICANT: Mr Callum

RESPONDENT: Ms Favre

FILE NUMBER: SYC 1974 of 2014

DATE DELIVERED: 16 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 16 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies

SOLICITOR FOR THE APPLICANT: Blanchfield Nicholls Partners

SOLICITOR FOR THE RESPONDENT: O’Sullivan Lawyers

Orders

1. The application filed by the applicant father on 13 April 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Callum & Favre has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1974/2014

Mr Callum

Applicant

And

Ms Favre

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application in a Case filed by Mr Callum (“the father”) on 13 April 2016. He seeks orders which include an order requiring Ms Favre (“the mother”) to return the children B born in 2009 (7) and C born in 2011 (5) to Australia. He also seeks to restrain the mother from taking or further pursuing any proceeding relating to the children in France or any other country than Australia.

2. The father relies upon his affidavit sworn 13 April 2016.

3. The mother opposes each of the orders sought by the father. She relied upon a Response to An Application in a Case filed 16 May 2016.

4. The mother relies upon her affidavit sworn 12 May 2016.

Background Facts

1. The father is 41 years of age and the mother is 33 years of age. The father resides in Sydney and is a health professional. The mother resides in City D France and is also a health professional.

2. The parties have two children B, aged 7, and C, aged 5.

3. The parties separated about January 2014. The father asserts most of the time the parties lived together the cohabitation took place in Australia.

4. In April 2014 the father commenced parenting proceedings in this Court. Both parties participated in the proceeding and were able to agree to some interim orders which were made 20 May 2015. There is an issue between the parties as to what those orders were intended to do so far as future parenting arrangements for the children were concerned.

5. The husband asserts that the orders were to operate retrospectively so as to confirm that the children would reside with him in Australia for 12 months until July 2015 then move to France to live with the mother for 12 months. The father then asserts the children were to be returned to Australia to live with him until further orders of this Court were made either by consent or by determination of the Court. There appears to be common ground that from about mid 2014 until July 2015 the children lived principally with the father in Australia. Thereafter the children moved to France with the mother and spent time with the father during school holiday periods.

6. The mother asserts that the clear intent of the orders was that the children would reside with her in France permanently from July 2015 and that at the conclusion of 12 months the parties would enter into further negotiations about the time and circumstances in which the children might spend time with the father.

7. The consent order document was signed on 5 October 2014. On 22 December 2014 the Registrar conducted a Chambers Review of the file/case. She noted that the court had received a copy of the consent order. She then noted as follows:

   ·“On 10 November 2014 I was advised that the matter had settled in principle;

   ·Proposed consent orders were subsequently lodged but not made as I have sought confirmation of the parties intentions as to the proposed orders are interim in nature;

   ·Ms Michael has advised that she no longer holds instructions to act for the respondent mother and that the respondent will contact the court directly.”

8. The matter was adjourned to a procedural hearing on 16 February 2015. The court record shows that on 16 February 2015 the matter was before the Registrar again. The following note was made: “I further note that Mr Miskell will arrange for both the parties to confirm in writing that the proposed orders submitted in November 2014 are intended to be made as interim orders and the proceedings adjourned for two years. I note that I am advised that the respondent mother is working in Africa until Easter and that Mr Miskell will contact her by mail.”

9. The court record shows that on 31 March 2015 the mother’s solicitor sent an email to the Registrar annexing a copy of an email received from the mother that same day. The email says as follows:

   Dear Mr Miskell,

   I refer to your letter of the 18 February and I advise that I have no objection of Registrar McNamara making alteration to paragraph 1 of the orders Dated 5 October 2015 (sic) By deleting the word final basis to interim basis. Please forward this on to the Court.

10. Given the material contained in the above paragraph the position is quite unclear as to the intention of the parties in relation to paragraph 7 of the orders of 20 May 2015. It is possible to read paragraph 7 of the orders as being both consistent and inconsistent with the correction made by the Registrar to paragraph 1 of the orders. I note the relevant portions of those two paragraphs are as follows:

    1. That the present Orders are made on an interim basis and apply to the next 24 months from the date of these orders.”    

    7. The parties agree that once the 1-month period further to these Orders     has expired,.

    7.1 the children will relocate to France with the Mother.

    7.2 the parties will do all acts and sign all documents necessary to the relocation of the children to France on a final basis with the mother ….

11. Order 7 of the orders then proceeds with order 7.3 which prescribes the time and places the father will spend time with the children.

12. I note that although paragraph 1, as above set out, professes that the orders were to operate for “the next 24 months from the date of these orders”, the father says that is not correct and that the orders were to operate only until July 2016.

13. The mother has now commenced proceedings in France (filed 2 March 2016) seeking parenting orders. A copy of the application (Summons) and a translation to the English language is annexure “C” to the father’s affidavit. The hearing of the Summons is scheduled for 15 June 2016.

14. The Summons seeks a Divorce. It also seeks orders for child support and time for the children with the father. On page 10 of the translation (page 61 of the affidavit) the mother makes some significant allegations against the father. She says he left France following the separation taking the children with him. She asserts that was contrary to her intent and without her consent. (I note the father has a different version of what occurred.) 

15. The mother’s case, as disclosed in her French proceeding and in her affidavit filed in this proceeding can be summarised as follows: The mother complains about her treatment at the hands of the father when she travelled to Australia to see the children. She says she was coerced or effectively forced to agree to the conditions imposed by the father which became the consent order of 20 May 2015. She said the father was in a position of power at that time and took advantage of same to the point where the mother was really given no choice but to agree to the terms of the consent orders.

16. The mother does concede at page 11 of the document that the orders made in the Family Court of Australia were a “temporary agreement”.

17. The mother seeks a child support order (French equivalent) in the sum of 2,000 Euro per month (the same as the amount now paid by the father) and this is to be adjusted annually having regard to the equivalent of the Consumer Price Index.

18. The Summons also shows the mother is seeking a continuation of extensive communication between the father and the children by SKYPE and other electronic means. She also proposes extensive face to face time during the school holiday period, including time outside France.

Evidence

1. The evidence is contained in the affidavit of each party. Of primary focus however, in my view, must be the wording of the order made 20 May 2016.

2. The order commences at page 10 of the father’s affidavit. The circumstances under which the order was made I have set out earlier in these reasons. The order was made by a Registrar in the absence of the parties. The Registrar noted “the parties have agreed on the parenting arrangements for the children for a period of two years where after they will renegotiate the arrangements for the children. They seek to have interim orders made to reflect this agreement and for these proceedings to be adjourned for two years.” The Registrar also noted “It is noted that the final applications are proceeding.” The matter was then adjourned to 16 May 2017.

3. The orders provided that the order was to provide for the next 24 month period on an interim basis. The typescript had been amended to cross out the words “a final basis” and hand write “an interim basis”. The clear understanding which must emerge from what follows in the orders is that when the 24 month period concludes in May 2017 there would be no operative orders and the parties would rely upon the rights bestowed upon them as parents under the Family Law Act.

4. The mother, however, asserts that there is one provision of the orders which was to endure beyond the expiration of the otherwise operative 24 month period. She says order seven makes it clear that once the first 12 month period expired (both agree that was to be July 2015), during which the children resided in Australia with the father, then the children were to move to France to live with the mother “on a final basis”. The children would then spend school holiday time with the father. That could be in Australia, as the orders provided for overseas travel.

5. It seems clear that the consent order document was drawn up to operate as a final order and then was changed to an interim order by a change to the text in the first line of paragraph 1 of the document. However, no other provision was changed in the body of the document, including paragraph 7.

6. In the affidavit of the father there is no evidence to challenge the parental capacity of the mother or any aspect of the children’s wellbeing in her care. The same is true from the mother’s evidence. She is critical of the manner in which the father dealt with her post-separation, however, there is no criticism of his parenting capacity.

7. The father annexed to his affidavit as annexure “B” a copy of an email from the mother to her lawyer which also included himself dated 13 March 2015. It pre-dates the signing of the consent order (5 October 2014) and the making of the consent order (20 May 2015). In the email the mother confirms that the agreement between the parents is to operate for a two year period and is to be a temporary order. It confirms her understanding that the period covered is to end in July 2016.

8. The father annexes to his affidavit a copy of the air travel ticket he booked and paid for to enable the children to travel to France with the mother on 7 July 2015. The ticket has a return portion for 30 May 2016. That is for travel from City D to Sydney.

9. The mother also relies upon an affidavit sworn by her on 12 May 2016.

10. The mother acknowledges that the orders were intended to be temporary orders, however, she makes the point that the orders did provide for the children to be living with the mother in City D when the two year period expired. She refers to paragraph 7.2 of the orders which provided “the parties will do all acts and sign all documents necessary to the relocation of the children to France on a final basis with the mother.” She understood that any negotiation following the two year period would relate to the amount of time the children would spend with the father and where that time might be exercised.

11. In January 2016 the mother says she filed for divorce in France. The father had not filed for divorce in the Australian Court. That application does include applications for parenting orders and child support. The application was served on the husband on 2 March 2016. The father filed his application in this court on 13 April 2016.

12. The mother set out details of the children’s circumstances in City D. She set out details of her circumstances. Under the heading “Background to the Orders” the mother sets out facts relevant to the history of the parental relationship and the breakdown of the marriage. She also answered the father’s affidavit filed in support of his application.

13. The mother asserts the cost of legal services associated with proceedings in the French Court are less than the cost of legal services in Australia. No evidence, other than her own experience is supplied.

Submissions

The applicant Father

1. The father provided written and oral submissions. In the written submissions the father relied upon the test propounded in the High Court decision of Voth v Manilda Flour Mills Pty. Ltd. (1990) 171 CLR 538.

2. The father argues that the Australian Family Court is not clearly an inappropriate forum for the determination of this international dispute. As such it is submitted the court should grant the stay sought by the father against the mother pursuing further the proceeding she has commenced against him in the French court.

3. The father referred the court to the Full Court decision in Akebar & Odemut [2015] FamCA 197 and the High Court decision in Henry v Henry (1996) 185 CLR 571.

4. The father relied upon the following facts to support the Court making the order he seeks.

   ·The father commenced the proceeding in this court on 3 April 2014. That proceeding has not been concluded. (At that time the children were living in Australia.);

   ·The mother submitted to the jurisdiction of this court and did not challenge same. She was represented, filed documents and consented to the orders made 20 May 2015;

   ·The orders of 20 May 2015 contemplated that the parties would prevail on the services of the court after the expiry of the 20 May 2015 orders should that be required;

   ·The orders contemplated further negotiations at the expiry of the subject orders;

   ·The children are Australian citizens. The children have Australian passports;

   ·When the mother commenced proceeding in the French Court the subject orders were still operative;

   ·The mother is legally represented in Australia.

5. The father argued, in response to the mother’s submissions, that although there is a date for the case before the French Court on 15 June 2016, it is not clear what the purpose of such occasion (i.e. is it a hearing date or a mention date). There is no clear or acceptable evidence to inform the Court when a final hearing of the parties parenting dispute may be able to be heard in the French Court system.

6. The father reminded the court that the authorities to which the Court had been directed by each party did not state the test as being “which court would be the most appropriate”.

7. The father said the proceeding in this Court have now reached a substantial stage. It is the case that the wife does not need an interpreter to conduct proceedings in this court whereas the father would clearly need an interpreter for the French proceeding should he be required to participate in the proceeding in that country.

The respondent Mother

1. Like the father in his submissions the mother addresses the decisions of the High Court in Voth v Manildra Mills and in Henry v Henry.

2. The mother submits that the proceeding in Australia is oppressive and vexatious. She says her proceeding was filed earlier in time than the father. Her proceeding sought a divorce. The father has not filed for a divorce. Further the mother says that vexatious is defined at paragraph 52 of B and B (Re Jurisdiction) [2003] FamCA 105 to mean “productive of serious and unjustified trouble and harassment”. The mother says the father’s application meets this criteria. She submits the French Court is available to hear the proceeding filed in that court on 15 June this year.

3. The mother says the father’s application is “oppressive” as defined in B and B. That definition is that the proceeding, if conducted in Australia, would be “seriously and unfairly burdensome, prejudicial or damaging.” In this aspect the mother points to the financial disparity between the parties in relation to their earning capacities. In short she says it is far less oppressive to require the father to litigate in France than to require her to litigate in Australia. The mother says she would be handicapped in having to participate in the proceeding in Australia because English is not her native tongue. Clearly that consideration would work against the father if he is required to litigate in France.

4. The mother says an important matter to be considered is the fact that the children reside in France and have done so for almost 12 months with the consent of the father and the permit of an order of this Court made 20 May 2015. I note that order made no provision for the return of the children to Australia at the conclusion of the two year operative provision of the order.

5. The mother referred to the Full Court decision in B and B (Re Jurisdiction) where the Full Court said that in considering a case which requires consideration of the “clearly inappropriate forum” test whilst the paramountcy principle applicable in parenting proceedings was not part of the test, matters relevant to a child’s best interests were able to be considered and given weight.

6. The mother pointed to her evidence (not contested) that the children attend school in France and have done so since their relocation to France with the consent of the father.  She refers to the living arrangements for the children in France and to the interaction between the children with her extended family.

7. The mother refers to the availability of expert witnesses in France and that the matter will be before the French Court on 15 June 2016.

8. The mother did file a Response to the father’s Application in a Case and an affidavit which she swore on 12 May 2016. She clearly subjects herself to the authority of the Court and to the exercise of its jurisdiction.

9. It was submitted the forum of the Australian Court is clearly inappropriate because any order which might be made by the Australian court, should the proceeding continue here, would need to be enforced (if required) through the French Court.

10. In relation to the order sought by the father that the mother cause the children to be returned to Australia, it is opposed by the mother and it is submitted that Court would not order the return of the children to Australia without first seeking the assistance of an expert to advise of the impact of such an order on the children and to inform the consideration of whether such an order would be in the best interests of the children.

11. The mother submits the proceeding issued by the father in the Australian Court in answer to her commencing her proceeding in the French Court is both oppressive and vexatious against her.

12. The mother points out that the proceeding in the French Court includes an application for divorce. The father has not suggested any opposition would be taken by him to her proceeding with that application. Clearly if she is required to take that proceeding in the Australian court she would need to file an application for divorce and pay the filing fee of $1,195.  She would probably be expected to incur further legal costs to pursue that divorce application in Australia. There are also other fees payable for filing a Response to an Initiating application ($320). There are also hearing day fees which may be payable by the mother in a proceeding in Australia.

1. The mother submits that there are matters relevant to the best interests of the children which the Court is able to take into consideration, yet not treat as paramount. Those matters would be expected to include the possible/probable requirement that the children would be required to travel to Australia for some aspect of the proceedings if conducted here. That may include interviews with expert witnesses. The impact upon the children of that travel and the ability for that to be timed so as to avoid absence from schooling are important matters.

2. There are also aspects such as cost of travel for the children and the parties which could be considered by the court in this determination.

3. The mother submits that one of the matters which establish that the Australian Court is clearly inappropriate is that the French Court is seized of the case and ready to proceed to determine same. The father only needs to file a response to the French proceeding should he oppose same.

4. The mother’s counsel drew the Court’s attention to paragraph 592 of the Henry v Henry decision and submitted that the paragraph of the decision stated that consideration should be given in applications of the nature of that currently under consideration, to the following:

   ·The order in which the proceedings were initiated;

   ·The stage which each proceeding had reached;

   ·The cost each party had incurred;

   ·The connection of the parties and their marriage with each of the jurisdictions;

   ·The issues on which relief might depend in each jurisdiction. And;

   ·Consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceeding on an equal footing.

5. The mother submitted that the judges stated in Henry the list was not exhaustive.

6. The mother points out that she had never filed a Response to the father’s Initiating Application filed in 2014. She asserts that means her proceeding initiated in France in March 2016 was filed first in time (I do not understand the logic of that submission). She says the French proceeding is ready to proceed this month whereas the Australian proceeding is not otherwise due to be relisted until May 2017 (2 years after the date of the order). The parties lived for some part of their cohabitation in both France and Australia.

7. The mother submits the procedural and jurisdictional considerations would convince the court that there would be a similar procedure and similar jurisdictional approach to determining any parenting dispute in each of the competing forums.

8. The wife submits that the children are habitually resident in France now as a result of the Court orders which implemented the clear intention of the parties that the children would move to permanently relocate from Australia to France in mid-2015.

9. The mother submitted that should the determination of the court be that the Australian court should not proceed to restrain the mother from proceeding in France, then, the court would not permit the father to continue the proceeding in this country. There should in those circumstances be an injunction against the father preventing any attempt by him to proceed in this court with parenting proceedings, child support or divorce. The mother referred the court to High Court decision in Child Support Registrar Ltd v Cigna (1997) 189 CLR 345.

Further submission

1. In preparing this judgment and carrying out my own research I came to the conclusion that section 111CD of the Family Law Act operated to render the submissions of the parties, especially those of the father, as inappropriate. In light of that I had my associate send the following email to each party. That email was as follows:

   Good Morning
   
   In preparing the judgment in this matter His Honour has had cause to consider the provisions of sec. 111CD of the Act. The provisions of this section appear to have great relevance to the case brought by the father in his application in a Case filed 13 April 2016. Neither of the counsel for the parties brought this section to the attention of the court.
   
   His Honour therefore asks each party whether they wish to argue that the section does not operate to render the father's application as impermissible or "doomed to failure".
   
   Given the time constraint, the last day upon which there might be a further hearing would be Tuesday 14 June 2016.
   
   Could you please contact me urgently about the matter raised to let me know whether you would be seeking further time in Court before His Honour on Tuesday 14 June 2016. In the event of the applicant father agreeing the operation of the section is such that he cannot succeed in his application would you be kind enough to let me know as a matter of urgency. In such circumstance you could expect that His Honour would dismiss the application based upon that concession should it be made.
   
   
   …
   Associate to the Hon. Justice Le Poer Trench
   Family Court of Australia

2. The father was the only party who sought to provide submissions to the effect that the section did not apply to this case. The father also submitted that if the section did apply then the interpretation given by Tree J in the decision of Duckworth & Jamieson [2014] FamCA 308 is to be preferred to the decision of Watts J in Zegna & Zegna [2015] FamCA 345.

3. Section 111CD is as follows:

FAMILY LAW ACT 1975 - SECT 111CD

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.

1. The issues to be determined, from the section set out above, are:

   ·Is France a signatory to the “Child Protection Convention?

   ·Are the subject children habitually resident in France?

   ·Is the jurisdiction to hear the parenting proceeding in this court consented to by each parent?

   ·Is there a divorce application still outstanding in this Court between the parties?

Determination

1. I have read the decision of Justice Tree in Duckworth & Jamieson and also the decision of Justice Watt in Zegna & Zegna. I prefer the decision reached by Justice Watt. I do so on the basis that I consider it well researched and logically consistent. I cast no aspersions upon the decision of Justice Tree who clearly invested a great deal of effort and a learned approach to the conclusion he reached in Duckworth. The only other consideration is one of seniority and Justice Watts has served as a judge of this court for a longer period than Justice Tree.

2. France is a signatory to the Child Protection Convention. The father does not assert to the contrary.

3. There is no particular aspect of the evidence relied upon to support the father’s contention that the subject children are habitually resident in Australia. The area of law which is of the greatest assistance in considering where a child is habitually resident is found in cases dealing with the 1980 UN Convention on the Civil Aspects of International Child Abduction. I find the children are at this time habitually resident in France. The key indicators can be summarised as follows:-

   ·The children have lived in France since mid-2015;

   ·The children left Australia pursuant to an order, consented to by the father which provided that they were to permanently relocate to France;

   ·The children attend school in France;

   ·The available evidence from the mother indicates the children are settled in their present environment. The father does not suggest the children are not settled in France.

4. Section 111CD(c)(v) is potentially available to the father to submit that the Australian court does have jurisdiction to hear the application he now pursues. The evidence to support such a submission was not before the court and still is not before the court. However, in the written submission from the father received today, it is stated that the father has commenced divorce proceedings in Australia (the date the proceeding was commenced is not stated, the only detail provided is that the Divorce Application is before the Federal Circuit Court on 7 July 2016, however, I note from the court record that the Divorce Application was filed on 13 April 2016). I can only reasonably infer that the father has not sought to tender a copy of the Divorce Application because there was some content which did not support his case. That proceeding is not in this Court, rather it is in the Federal Circuit Court (although the application is attached to the file in the Family Court of Australia). Without canvassing whether the use of the words “and the court is exercising jurisdiction” might not include the Federal Circuit Court (see the definition of “court” in section 4(1) of the Act which defines the term to mean “in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act), the requirements of section 111CD (3), which specify the very restricted circumstances in which a case may exercise jurisdiction conferred under section 111CD(1)(c)(v), include that “(c) the jurisdiction of the court to take the measure is accepted by the parents”. In this case the mother clearly does not accept the jurisdiction.

5. The father argues that the mother submitted to the jurisdiction of the Court when the orders were made in May 2015. What the mother was consenting to was a set of orders which she signed in October 2014. At that time and at the time the orders were made, the children were clearly habitually resident in Australia. Thus there was no issue to be argued as to jurisdiction at that time.

6. It is submitted that the proceeding in Australia was not finalised by the making of the orders in May 2015. This is said to differentiate the facts from the decision in Zegna. However, the Convention, as explained by Justice Watts, is triggered by the filing of a Divorce, Legal Separation or Annulment application and in this case that occurred when the wife filed her application in the French Court in March 2016.

7. To the extent that it is inferred by the father in his submission that the mother seeking to oppose his application in this Court dealing with jurisdiction is a consent on her part to the jurisdiction of the court at large, I do not accept that argument. The mother clearly presented herself before the court to argue only the question of jurisdiction.

8. In the result I conclude by operation of section 111CD of the Act this Court does not have jurisdiction to consider the question of parenting any further unless the mother provides a clear consent to that course of action. That consent has not been forthcoming and accordingly I will dismiss the father’s application.

9. If it be of any comfort to the father I record here that I had concluded that Australia was not the appropriate forum for the parenting dispute prior to my request for further submissions, in that there were a number of significant aspects of this case which convinced that Australia was a clearly inappropriate forum for the determination of that dispute. Given that it is no longer necessary to state the reason for such conclusion I will refrain from doing so.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 16 June 2016.

Associate: 

Date:  16 June 2016