CONDOR & CONDOR

[2011] FamCA 121

FAMILY COURT OF AUSTRALIA

CONDOR & CONDOR [2011] FamCA 121

FAMILY LAW - CHILD – interim parenting proceedings - application for the return of a child to Sydney from Germany – pending Hague Convention proceedings in Germany – written agreement between the parties approved by a German court – anti-suit injunction – actual or proposed parenting proceedings in Germany between the same parties on the same issues – abuse of process

Family Law Act 1975 (Cth)

CSR Limited v Cigna Insurance Australia Limited (1996-1997) 189 CLR 345 at 347.

Henry v Henry (1990) 171 CLR 538 at 564-565

APPLICANT: Mr Condor

RESPONDENT: Ms Condor

FILE NUMBER: SYC 231 of 2011

DATE DELIVERED: 3 March 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 22 February 2011

ORDERS: 22 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	J Levy
SOLICITOR FOR THE APPLICANT:	Barkus Doolan Kelly
SOLICITOR FOR THE RESPONDENT:	Craddock Murray Neumann as agent for Bock Oppler Hering

Orders

1. That until further order the husband have sole parental responsibility for the child of the parties’ relationship M born … June 2007 (“the child”).

2. That on or before the expiration of seven (7) days from the date of service of the Orders made this day as hereinafter provided the wife shall return the child to Sydney, Australia and inform the husband of the precise particulars of her place of accommodation in Sydney and telephone numbers and shall make arrangements with the husband for him to spend time with and communicate with the child until further order.

3. That until further order upon the wife returning with the child to Sydney, Australia she is restrained from removing the child from Sydney, Australia without the prior written consent of the husband or further order of the Court.

4. That until further order the child shall remain in the primary care of the wife.

5. That Order is made as sought in paragraph 4 of the husband’s Amended Application in a Case filed 15 February 2011 save and except that the word “[M]” is deleted and replaced with the full name of the child “[M]”:

   4.That the wife be restrained from agitating any relief in relation to the parenting of M in any Court in any jurisdiction except:

   4.1the Family Court of Australia, Sydney Registry;  and

   4.2the petition brought by the husband under the Hague Convention relating to the civil aspects of child abduction in the Stuttgart Local Court, Germany.

6. That the wife pay the husband’s costs of and incidental to the proceedings heard and determined today as assessed and agreed upon or failing agreement as taxed.

1. That a sealed copy of the Orders made this day and subsequent published Reasons for Judgment shall be served by the husband’s solicitors by email as soon as possible after it has been received and those documents shall be directed to the wife’s German lawyer Dr Hering of Böck Oppler Hering, Lawyers.

2. That the husband’s Amended Application in a Case filed 15 February 2011 is stood over to the Judicial Duty List at 10.00am on 22 March 2011.

3. That leave is granted to the wife to file and serve a Response to the husband’s Amended Application in a Case filed 15 February 2011 and any affidavit or affidavits upon which she seeks to rely on or before 4.00pm 15 March 2011.

IT IS NOTED that publication of this judgment under the pseudonym Condor & Condor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC231 of 2011

Mr Condor

Applicant

And

Ms Condor

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 February 2011 I made interim parenting and injunctive orders, as well as procedural and costs orders.

2. The following are my reasons for judgment.

3. In these proceedings the following interim orders were sought by the applicant/husband (“the husband”) by his Amended Application in a Case filed 15 February 2011:

   “3.That as soon as practicable after the making of this Order and in any event within 7 days of the date of the making of this Order, the wife return the child to Australia and deliver up the child to the care of the husband forthwith after her return to Australia pursuant to this Order.

   4.That the wife be restrained from agitating any relief in relation to the parenting of [M] in any Court in any jurisdiction except:

   4.1The Family Court of Australia, Sydney Registry;  and

   4.2The petition brought by the husband under the Hague Convention relating to the civil aspects of child abduction in the Stuttgart Local Court, Germany.

   5.Costs.”

4. In addition, the husband sought the following interim orders set out in his Initiating Application (Family Law) filed 17 January 2011:

   “5.If the mother fails to return to Australia on or before 31 January 2011 with [M] then:

   5.1The father have sole parental responsibility for [M].

   5.2      [M] live with the father.

   6.Handover for the arrangements shall take place at school or if [M] is not at school at handover, then the residence of the parent with whom he has just been living under this order.”

5. The respondent/wife (“the wife”) resides with the child of the marriage in Germany.

6. The wife has yet to file and serve a response by way of opposition to any of the orders sought by the husband, nor has any affidavit been filed and served on her behalf.

7. On 14 February 2011 Registrar Cameron made the following orders and notations upon the application of the husband:

   “6.Upon the application of the husband I order that all documents filed by or on behalf of the husband to date in this matter be served upon the respondent wife by forwarding same by email to:

   ·the last know [sic] address for the wife, and

   ·to Dr Hering of Bock Oppler Hering (Germany), and

   ·Mr Paul Boers of Craddock Murray Neumann (Lawyers, Sydney).

   7.I note that I am advised that the solicitor for the husband has already forwarded copies of all documents filed to date by email as provided for in order 6 above.

   8.I order that the solicitor for the husband serve any amended Application in a Case upon the wife provided for in order 5 above in the manner set out in order 6 above.

   9.I order that the solicitor for the husband forthwith give notice to the wife of the orders, directions and notations made today in the manner provided for in order 6 above.”

8. I am satisfied that the Orders made on 14 February 2011 in relation to service of documents upon the wife in the manner required has occurred as set out in the Affidavit of the husband’s lawyer, Christopher James Othen sworn 22 February 2011.  In that regard, I note that Mr Othen had sworn a previous Affidavit on 10 February 2011 referring to service by email to German and Australian lawyers acting on behalf of the wife of the husband’s Initiating Application (Family Law) filed 17 January 2011 and other court documents.

9. Those lawyers are Dr Hering of Böck Oppler Hering.  In addition, there has been service of copies of the relevant court documents upon Dr Hering’s agent in Australia, Mr Paul Boers of Craddock Murray Neumann, Lawyers.

10. Further, the last-mentioned affidavit also refers to email service upon the wife direct to her email address.

11. On the hearing before me on 22 February 2011, Mr Boers, solicitor appeared as agent for the wife’s German solicitors.  However, he made it clear that his instructions were limited and that he was principally appearing as a matter of courtesy as an officer of the Court.  Apart from opposing the orders sought by the husband, Mr Boers was left in the position by his principals that he was unable to make detailed submissions.  However, Mr Boers did state that his understanding was that the wife had either commenced, or was about to commence proceedings in an appropriate court in Germany seeking parenting orders in relation to the child, implicitly for the purpose of having the care and control of the child in Germany rather than in Australia.  I will refer to these matters subsequently in this Judgment.

Historical background

1. The following findings are made by me on the uncontested evidence.

2. The parties commenced to cohabit in September 2005 which continued until they separated on 3 September 2010.

3. The parties married in 2005.  The marriage has not been dissolved by divorce order.

4. The husband is 43 years of age. 

5. The wife is 39 years of age. 

6. The child of the marriage is M who is 3 years of age having been born in June 2007 (“the child”).

7. The child lives in Germany with the wife.

8. The parties lived in Australia, from a date which is not specified in the evidence, until in or about February 2010 when the wife returned to Germany with the child, ostensibly for a holiday.

9. In or about the end of June 2010 the husband travelled to Germany and spent time with the wife and the child.

10. On 19 November 2010 in the Stuttgart Local Court, Germany orders were sought by the husband (presumably, in conjunction with the Central Authority) for return of the child to Australia in implementation of the Hague Convention.[1]  Each of the parties was represented.  The wife was represented by her current German lawyers.  The parties reached agreement as set out in 16 clauses (“the agreement”) implicitly approved by the Court.

    [1] The Convention on the Civil Aspects of International Child Abduction concluded at the Hague on 25 October 1980.  Australia and Germany are signatories to that Convention.

11. In substance, the agreement recorded the undertaking by the wife to return to Sydney, Australia with the child on or before 31 January 2011;  the wife to have “parental custody” of the child and that the husband have periods of “access” to the child in both Sydney and Germany for specified periods of time.  In addition, the husband made a commitment to pay the flight costs for the wife and the child “for their return flight on 31 January 2011”.

12. Significantly, clause 5 of the agreement states:

    “5.The petitioner undertakes to inform this Court through his German attorney whether the child [M] was returned to Australia or not on or before 11 February 2011.  In case [M] has not been returned in due time, both his parents reserve their legal standpoints.  In this case, the Family Court shall take a decision.”  (Emphasis added)

13. In breach of the agreement, the wife has not returned to Australia with the child.

14. A copy of the Orders made on 19 November 2010 including the recording of the agreement is annexed to this Judgment.

Conclusion

1. I have determined to make the orders sought by the husband with some variation for the following reasons.

2. So far as the issues of parental responsibility for the child and return of the child by the wife to Sydney, Australia, I have concluded that it is in the best interests of the child on an interim basis for the husband to have sole parental responsibility for him.

3. In that regard, I find that the presumption of equal shared parental responsibility as set forth in s 61DA of the Act[2] has been rebutted in that it is in the best interests of the child for the husband to have sole parental responsibility for him.

   [2] The Family Law Act 1975 (Cth)

4. On the evidence before me, the wife unilaterally decided to retain the child with her in Germany notwithstanding the clear terms of the agreement recorded in the Orders made on 19 November 2010.  There is no evidence before me that the husband agreed to that course of action by the wife.  It was an irresponsible decision by the wife and in making that decision she implicitly ignored the husband’s legal rights to participate equally with the wife in relation to an important issue affecting the child, that is the place of residence of the child.

5. In those circumstances, at this stage the wife cannot be relied upon to adhere to the agreement or to ensure that both parties exercise equal shared parental responsibility for the child.

6. Both the wife and the child have lived in Australia.  The Hague Convention proceedings in the Stuttgart Local Court in Germany were clearly not proceeded with in view of the agreement.  The parties obviously considered that it was in the best interests of the child for the wife to return with him to Australia to enable the child to spend periods of time in the care of the husband.  On the evidence before me, there is no reason why that agreement should not be implemented.

7. The child has been in the primary care of the wife since the parties separated.  The child is very young.

8. I have concluded that it is in the best interests of the child to remain in the primary care of the wife as I am not satisfied on the evidence before me that the potential emotional impact upon the child of being moved from the primary care of the wife to the husband is in the child’s best interests.  Consequently, an interim order will be made for the child to remain in the primary care of the wife.

Anti-suit injunction

1. In CSR Limited v Cigna Insurance Australia Limited the High Court held that “only after determining that it is not a clearly inappropriate forum should an Australian court consider whether to grant an anti suit injunction or to require the applicant to seek a stay of the foreign proceedings”.[3]

   [3] CSR Limited v Cigna Insurance Australia Limited (1996-1997) 189 CLR 345 at 347.

2. In Henry v Henry[4] the majority followed the test adopted in Voth v Manildra Flour Mills Pty Limited as follows:

   “That a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of seriously and unfairly burdensome, prejudicial or damaging, or, vexatious, in the sense of productive of serious and unjustified trouble and harassment.”[5]

   [4] Henry v Henry (1990) 171 CLR 538 at 564-565

   [5] (1996) FLC 92-685 at 83,121

3. Relevant to the determination of whether “the local court” (that is, this Court) is a clearly inappropriate forum, is the consideration of “relevant” connecting factors and “a legitimate personal or juridical advantage”.  So far as the latter is concerned, it is “not a decisive consideration”, the fundamental question being “where the case may be tried suitably for the interest of all the parties and for the ends of justice”.[6]

   [6] Henry v Henry, supra 83,121

4. I have concluded that this Court is not “a clearly inappropriate forum”.  On the evidence before me, given the lack of any evidence on behalf of the wife, the proceedings in this Court were legitimately instituted and are bona fide.  The husband has a “legitimate personal and juridical advantage”.[7]

   [7] ibid

5. In addition, the parties have resided with the child in Australia on a permanent basis.  The agreement makes it clear that the wife herself made a commitment to return to Australia with the child.  Clause 5 of the agreement, to which I have earlier referred, puts it beyond doubt that the wife together with the husband submitted to the jurisdiction of this Court for the purpose of making “a decision”.  The wife at the time was legally represented, and as such I infer that she has received or had the opportunity to receive legal advice.

6. Further, no issue was raised before me that this Court “is not a clearly inappropriate forum”.[8]

   [8] supra

7. There is no issue that the proceedings in this Court, and either the pending or proposed proceedings in Germany, are between the same parties arising out of their marriage and require the determination of “the identical issue or same controversy” namely, parenting orders in respect of the child.[9]

   [9] CSR Limited v Cigna Insurance Australia Limited, supra at 399

8. I have also given significant weight to the information responsibly provided to the Court by Mr Boers of the wife having instituted or intending to institute parenting proceedings in relation to the child in a German court, notwithstanding that both she and her German lawyers have been on notice of the pending parenting proceedings in this Court since at least 1 February 2011.  An inference is drawn by me of forum shopping which has been criticised by various courts in different countries over many years.  I am unable to find on the evidence as to whether this is a case of the wife having been poorly advised or whether the wife has taken the action of her own volition.

9. The parenting proceedings between the parties will continue in this Court.

10. In those circumstances, and having regard to the matters to which I have previously referred, it is an abuse of process for the wife to continue or to institute parenting proceedings in a German court.

11. Additional legal costs and potential travel expenses that would be incurred by the husband cannot be justified.  The obvious exception is the pending proceedings in relation to the Hague Convention in the Stuttgart Local Court, Germany.

12. In addition, I have also followed the High Court’s statement that “the counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion”.[10]  (Emphasis added)

    [10] CSR Limited v Cigna Insurance Australia Limited, supra at 391

Costs

1. I have also determined that an order for costs will be made against the wife as it is just to do so for the following reasons.

2. Section 117(1) of the Act provides the general principle that each party to  proceedings under the Act bears his or her own costs.

3. However, s 117(2) provides a discretionary power to make an order for costs should there be “circumstances that justify it in doing so” having regard to s 117(2A).

4. I am satisfied that there is a circumstance that justifies a possible order for costs.  The circumstance is that the husband has been compelled to make an application to the Court for orders due to the wife’s breach of the agreement.

5. I take into account that the wife and her German lawyers have had notice of the proceedings in this Court and that the proceedings have been properly instituted by the husband.

6. In addition, the wife has not caused any affidavit evidence to be filed on her behalf.

7. The wife is in breach of the agreement which had been accepted by the Stuttgart Local Court in Germany as is clear from the terms of its orders, a copy of which is annexed hereto.

8. Consequently, the weight I give to all of those matters is such that I have concluded that it is just that an order for costs should be made against the wife in favour of the husband as sought by him.

Procedural matters

1. I will make orders in relation to service of a sealed copy of the Orders and this Judgment as well as standing over the husband’s Amended Application in a Case filed 15 February 2011 to the Judicial Duty List at 10.00am on 22 March 2011 to enable adequate time for service to be effected.

2. In addition, I will grant leave to the wife to file and serve a Response to the husband’s amended application and any affidavit or affidavits upon which she seeks to rely.  Those matters must be attended to, by or on behalf of the wife on or before 4.00pm, 15 March 2011 to enable the husband and those advising him to have adequate regard to consider the content of such documents.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 3 March 2011.

Associate: 

Date:  3 March 2011