DUNSTAN & ZIEGLER
[2015] FamCA 419
•4 June 2015
FAMILY COURT OF AUSTRALIA
| DUNSTAN & ZIEGLER | [2015] FamCA 419 |
| FAMILY LAW – FORUM – where there is no dispute that the child has spent very limited time in Australia – where during a holiday to Australia the child was retained by the father – where the mother travelled to Australia and commenced proceedings, seeking a recovery order – where an interim parenting order provided that the child live with the mother and spend time with the father – where the mother and child left Australia – where the child is no longer in Australia – where the mother subsequently commenced parenting proceedings in a foreign forum – where the mother now seeks an order for the permanent stay of the parenting proceedings she commenced in Australia. |
| Family Law Act 1975 (Cth), s 69E; Family Law Regulations |
| B v B (Re Jurisdiction) (2003) FLC 93 – 136 Bennett v Bennett (2001) FLC 93 – 088 CSR Limited v Cigna Insurance Australia Limited and Others (1996-97) 189 CLR 345 Henry v Henry (1996) 185 CLR 571 at 591 Jago v District Court (NSW) (1989) 168 CLR 23 Jess & Jess (2014) FLC 93–620 Kwon & Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559) Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 Pascarl & Oxley [2013] FamCAFC 47 R v Ross; Ex parte Green (1984) 156 CLR 185 Regie Nationale des Usines Renault SA and Another v Zhang (2002) 210 CLR 491 Tan & Guok [2015] FamCAFC 94 Voth v Manildra Flour Mills (1990) 171 CLR 538 Zanda & Zanda [2014] FamCAFC 173 ZP v PS (1994) 181 CLR 639 |
| APPLICANT: | Ms Dunstan |
| RESPONDENT: | Mr Ziegler |
| FILE NUMBER: | BRC | 9177 | of | 2014 |
| DATE DELIVERED: | 4 June 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 20 April 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Jennings from Go To Court Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kronberg |
| SOLICITOR FOR THE RESPONDENT: | R D Martin & Co |
Orders
The proceedings commenced by the Initiating Application filed 10 October 2014 be permanently stayed.
In the event either party seeks an order that the other pay the costs of and incidental to the proceedings:
(a)any such party shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and
(b)the party against whom an order for costs is sought shall file and serve within a further fourteen (14) days thereafter any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(c)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dunstan & Ziegler 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 BRISBANE |
FILE NUMBER: BRC 9177 of 2014
| Ms Dunstan |
Applicant
And
| Mr Ziegler |
Respondent
REASONS FOR JUDGMENT
By an Application in a Case, filed 3 March 2015, the mother seeks that:
a)the Initiating Application filed by her on 10 October 2014 and the subsequent Response filed by the father on 17 November 2014 be ‘discontinued’ and that an order be made permanently staying the proceedings; and that
b)the Court determine that “it does not have the jurisdiction to make any finding on Parenting Orders in relation to the child [J]”; and that
c)an injunction issue preventing the father from bringing any further Applications within Australia seeking parenting orders in relation to the child J.
The father seeks that this application is dismissed.
Overview
The parties commenced their relationship in 2006 in the Cook Islands. Their son J (“the child”) was born there in 2008. They married in the Cook Islands in 2011.
Between 2010 and 2012, the father studied and worked in New Zealand. It appears the parties agreed he would be absent from the Cook Islands for no longer than three years. The mother and the child remained living in the Cook Islands. The father spent time with the child when he returned to the Cook Islands.
In January 2012, the father started working in Australia on a three weeks on/one week off basis. He became a permanent resident of Australia. The mother and the child continued to live in the Cook Islands. The father spent time with the child when he returned to the Cook Islands.
In about July 2014, the parties separated on a final basis. The child remained living with his mother and spent significant time with his father when he (the father) travelled, approximately every three weeks, to the Cook Islands.
Between July and October 2014, the father’s employment schedule changed such that he worked three weeks on/three weeks off. During his three weeks off, the father returned to the Cook Islands and spent time with the child. As recently as mid-September 2014, the father referred to the Cook Islands as “home” and spoke of caring for the child when he was “home”.[1]
[1] Father’s affidavit filed 17 November 2014 at Annex IZ2.
As well as spending time with his father in the Cook Islands, the child travelled to New Zealand with his father in December 2010, November 2012 and January 2013.
The child and his mother travelled to Australia in about late September 2014 so that his half-sister could participate in a sporting event here. This was the first occasion during which the child had ever spent time in Australia.
The parties had previously agreed[2] the child would spend time with the father whilst in Australia. Whilst the parties differ in their evidence about the father’s motives, it is clear they initially agreed the child would return to his mother’s care on 2 October 2014.
[2] On about 1 July 2014 according to the mother.
However, on that day the father told the mother he intended to retain the child in his care. On the father’s evidence, after he retained the child contrary to the prior agreement with the mother:
a)he changed the address at which he and the child were staying when the mother travelled to the previously disclosed location;
b)he enrolled the child in a local school;
c)after the mother attended at his workplace seeking to locate the child and telephoned him numerous times at work and on his mobile telephone number and attended at his office (yelling abuse at him and other employees)[3] he sought a domestic violence order – which was made on 3 November 2014;
d)the child “steadfastly” refused to speak with his mother; and
e)he took the child to a psychologist[4] on a number of occasions.
[3]The mother’s account of this event is that the father continued to tell her the child was “unavailable” and later sent her a message telling her not to contact him again and that the child was happy and being looked after by his family.
[4] Who prepared a report for the proceedings based on the information provided by the father.
The mother commenced proceedings in the Federal Circuit Court on 10 October 2014. At that time, both parents and the child were present in Australia.[5] The interim orders sought included a Commonwealth location order, an airport watch order and a recovery order. The final orders sought included a recovery order, that the child’s name be removed from the airport watch list upon him being returned to the mother’s care and that the father be restrained from removing or again taking possession of the child. It was proposed that any recovery order remain in force until the child was returned to the mother and they had left the Commonwealth of Australia.
[5] s 69E Family Law Act 1975
No proceedings in relation to the child’s parenting arrangements had been commenced in the Cook Islands and no parenting orders had been made by any court when the mother filed the Initiating Application on 10 October 2014.
On 17 November 2014, the father filed a Response. He sought orders, on both an interim and final basis, that the child live with him. He proposed the child spend time with his mother as agreed between the parents on the proviso that she provide an undertaking:
a)not to remove the child from Queensland without his consent; and
b)to return the child to him at the conclusion of any agreed time.
The Response did not seek to restrain the mother from removing the child from Australia.
On 18 November 2014, Judge Spelleken made an interim parenting order.[6] This order accorded the parents “equal joint parental responsibility” for the child, provided that he live with his mother and, in essence, that he spend:
… frequent and regular time with both parents as can be agreed between the parents and more particularly, that the child spend time with the father during such times as the father is off work and that the child be allowed to spend such time with the father in Australia whenever it does not interfere with the child’s schooling, but otherwise such time be spent in the Cook Islands; and that the child be allowed to travel as an unaccompanied minor once allowed to do so by the airline. [7]
[6]Her Honour also made an order transferring the matter to the Family Court of Australia, noting that it involved an international relocation and that the mother might apply in respect of the appropriate forum.
[7] Order 5, 18 November 2014.
Her Honour also ordered that:
a)“either parent ensure that the child is made available to the other parent to spend time with each parent pursuant to the terms of these orders”; and that
b)“the mother make available to the father the child’s passport and necessary travel documents whenever the child spends time with the father pursuant to the terms of these orders;” and that
c)the child’s name be removed from the airport watch list.
The child and his mother returned to the Cook Islands after the November 2014 Order was made.
On or about 11 December 2014, the mother commenced parenting proceedings in the High Court of the Cook Islands. Since then, both parties have seemingly participated – in different ways[8] – in various court events.
[8] The father participated in a telephone conference on 17 March 2015.
On 20 March 2014, his Honour Justice Sir Hugh Williams of the High Court of the Cook Islands made interim orders which may be summarised as follows:
a)the mother have interim custody of the child; and
b)the child not be removed from the Cook Islands other than by agreement between the parties or Court order and, in either case, only on agreed conditions concerning his travel, welfare and return; and
c)there be a reservation of reasonable access in favour of the father with him to have the power to ask the Court to determine the details of the same if the parties were unable to agree about that issue.
Having obtained a parenting order in Australia – by which the child was returned into her care – and having returned to the Cook Islands with him, the mother wishes to bring these proceedings to an end in circumstances where, as outlined above, the High Court of the Cook Islands is now seized of the matter and parenting orders in relation to the child have been made by that Court.
Distillation and application of applicable principles
It is an accepted fact that orders made in Australia cannot be registered and recognised in the Cook Islands. Additionally, as the Cook Islands are not an overseas jurisdiction prescribed by Schedule 1A of the Family Law Regulations, orders made in the Cook Islands are not capable of registration and enforcement in Australia.[9]
[9] Family Law Regulations Part III, Schedule 1A.
Before me, the father did not seek any further parenting orders. He simply proposed that the Application in a Case be dismissed.[10] If such a course is followed, the interim order made on 18 November 2014 will remain in force but, as the child is not within Australia and it cannot be enforced in the Cook Islands, it has no utility.
[10] Response to Application in a Case filed 16 April 2015.
Obviously, the mother does not seek any further parenting orders in relation to the child. Now that he has been returned to the Cook Islands, there is no longer any necessity to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief.[11]
[11]Kwon & Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559) at [83].
Jurisdiction
There is no doubt that the mother regularly invoked the Court’s jurisdiction by filing the Initiating Application on 10 October 2014.[12] That being the case, the Court has a prima facie obligation to exercise its jurisdiction and the parties have a prima facie right to insist on the Court exercising its jurisdiction to hear and determine the claim or proceedings.[13]
[12] s 69E Family Law Act 1975 (Cth).
[13]Voth v Manildra Flour Mills Proprietary Limited and Another (1990) 171 CLR 538 at 554; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 per Deane J at 241.
There is also no doubt that the Court has jurisdiction to make parenting orders in relation to the child, irrespective of the fact that he is no longer within the Commonwealth of Australia.[14]
[14] See: Zanda & Zanda [2014] FamCAFC 173 at [54].
Whilst the father says he instructed his Cook Island solicitors to apply for an urgent stay of the Cook Islands proceedings pending the outcome of the Australian proceedings, he also says he believes that they did not follow his instructions in this respect. Thus, there is no evidence to suggest that the father formally challenged the jurisdiction of the High Court of the Cook Islands to make parenting orders in relation to the child after the mother commenced proceedings in that Court.
The father asserts he instructed solicitors in the Cook Islands to act on his behalf in respect of the proceedings commenced by the mother there. In summary, he asserts that:
a)he instructed them to register the November 2014 Order but – presumably because it was not capable of being registered in the Cook Islands – this was not done; and
b)his then Cook Islands lawyers lodged documents in the Cook Islands proceedings without his instructions: he also disagrees with the contents of these documents; and
c)despite him notifying the High Court of the Cook Islands of his inability to attend, that Court made an interim parenting order in his absence.
As both Australia and the Cook Islands have jurisdiction to determine the respective applications for parenting orders filed by the mother in each of these countries, a forum issue arises.
Stay of proceedings
In certain circumstances, including where an assertion of forum non conveniens is successfully made out, a Court may decline to exercise its jurisdiction: that is, a Court may exercise its inherent power to decline to exercise jurisdiction because of a responsibility to prevent an abuse of its processes[15] and/or to prevent its own processes being used to bring about injustice.[16]
[15]Voth v Manildra Flour Mills Proprietary Limited and Another (1990) 171 CLR 538 per Mason CJ, Deane, Dawson and Gaudron JJ at 554.
[16]CSR Limited v Cigna Insurance Australia Limited and Others (1996-97) 189 CLR 345 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ at 391.
In Kwon & Lee[17] the Full Court said, at [83]:
[17](2006) FLC 93-287; also reported as EJK & TSL (2006) 35 Fam LR 559 and referred to with approval by the Full Court in Pascarl & Oxley [2013] FamCAFC 47.
…We consider the following principles can be distilled from authority:
(i) where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;
(ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti-suit injunction based on common law principles;
(iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court; (my emphasis)
(iv) in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti-suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA);
(v)if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;
(vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;
(vii) in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and
(viii) that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.
The Full Court in Pascarl further said:
86. We do not understand anything said by the Full Court in Karim & Khalid (including at [60]) to be inconsistent with what we have earlier said at [73], being that the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
87. In this case, it is not clear that the child is within the jurisdiction. Nevertheless, the application by the father is one for parenting orders under s 64B, and s 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the interests of the child as the paramount consideration. For these reasons, even though the child may not be within Australia, the principle upon which to decide whether the court should exercise its jurisdiction must be determined by best interests of the child as being the paramount consideration.
In contrast to the situation which was before the Court in Pascarl, the father does not seek any interim parenting orders from the Court. The child is no longer in Australia and any orders made here about his parental care regime cannot be enforced in the Cook Islands.
This is a case where the grant of relief by way of a stay of proceedings is appropriate because the child is resident in the Cook Islands (the foreign forum) and there is no necessity to make any order other than a stay to determine the application before me. Thus, I consider that the test to be applied in determining the application for a stay of the proceeding is whether the Court is a clearly inappropriate forum[18] within which the parenting dispute in relation to the child should be determined.
[18]Voth v Manildra Flour Mills (1990) 171 CLR 538 per Mason CJ, Deane, Dawson & Gaudron JJ at 534; ZP v PS (1994) 181 CLR 639 per Brennan and Dawson J at 663.
The discretion to grant a stay should be exercised with great care or extreme caution.[19]
[19] Voth per the majority at 554.
In considering whether the local Court is a clearly inappropriate forum, attention must be directed to the inappropriateness of that Court and not the appropriateness or comparative appropriateness of the foreign forum: a Court is not an inappropriate forum merely because another Court is more appropriate.[20]
[20] Regie Nationale des Usines Renault SA and Another v Zhang (2002) 210 CLR 491 at 503.
A party seeking a stay of local proceedings will establish that the local Court is a clearly inappropriate forum if it demonstrates that continuance of proceedings there will be:
a)‘oppressive’ - in the sense of “seriously and unfairly burdensome, prejudicial or damaging”; or
b)‘vexatious’ - in the sense of “productive of serious and unjustified trouble and harassment”.[21]
[21]Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 per Deane J at 247.
The fact that – as here – there are simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive or vexatious in the sense outlined above. Courts should strive, to the extent Voth permits, to avoid that situation. [22]
[22] Henry v Henry (1996) 185 CLR 571 at 591.
The question of whether Australia is a clearly inappropriate forum depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.[23] Regard should, where relevant, be had to the following non-exhaustive list of considerations:
[23] Henry v Henry at 592-593.
a)whether each Court will recognise the other’s orders and decrees: if the orders of the foreign Court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue and if the order of a foreign Court will be recognised in Australia, it will be relevant to consider whether orders need to be enforced in other countries and the relative ease with which that can be done;
b)which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy;
c)the order in which the proceedings were instituted;
d)the stage each proceeding has reached;
e)the costs which have been incurred in each proceeding;
f)the connection of the parties with each of the jurisdictions;
g)the issues on which relief may depend in each jurisdiction;
h)whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing; and
i)whether legitimate personal or juridical advantage flows to either party.
In having such regard, it must be remembered that it is not a question of striking a balance between competing considerations but, rather, for an applicant to demonstrate that a trial in the local forum will be productive of injustice because it would be oppressive or vexatious in the Voth sense referred to above.[24] That is, if an applicant for a stay demonstrates that there are enough factors to indicate that the local forum is clearly inappropriate, the stay should be granted.
[24]Regie Nationale des Usines Renault SA and Another v Zhang (2002) 210 CLR 491 at 520-521.
I accept that:
a)whilst the Court can grant relief, the fact that such order cannot be enforced in the location where the child is living means that the Cook Islands can provide more effectively for complete resolution of the parenting dispute between the parents about the child’s future parenting arrangements;
b)both the courts of Australia and the Cook Islands have made interim parenting orders in respect of the child – the nature of each provided that he continue to live with his mother and spend time with his father;
c)it is likely that the proceedings in both Australia and the Cook Islands are very much at an early stage;
d)the parties have incurred costs in relation to the proceedings on foot in both Australia and the Cook Islands: I accept as more likely than not that the mother would incur significant costs in future participation in the proceedings in this Court, both by virtue of incurred expenses and also by virtue of time away from her self-employment in the Cook Islands;
e)the father has some connection to Australia in that he is resident in this country and has lived here primarily since January 2012; in contrast, the mother has no connection to or with Australia at all – she has always lived in the Cook Islands where she operates her own business; all her family and the child’s extended maternal family live there and all of his school friends also live there; the child has attended formal education in the Cook Islands;
f)the mother may well struggle to be involved in proceedings in Australia – she is self-employed and, thus, any time away from her business in the Cook Islands is likely to have a deleterious financial impact on both her and the child;
g)in contrast, the father seems to be more financially secure in that he has previously demonstrated the financial capacity to travel from Australia to the Cook Islands on a regular basis to spend time with the child – his most recent trip to the Cook Islands occurred in December 2014;
h)the father has previously engaged legal representatives in both Australia and the Cook Islands – although he complains that those in the Cook Islands failed to follow his instructions - and he is now representing himself in the proceedings in that Court;
i)whilst the father says he will struggle to participate in the legal process in the Cook Islands because of an inability to attend Court events due to his work commitments, until October 2014, he appears to have been able to travel to the Cook Islands quite regularly to spend time with the child and he travelled there again in December 2014;
j)the father says he is afraid to return to the Cook Islands because the mother and her friends threatened his safety when he visited in December 2014: the nature of these asserted threats remains un-particularised to some extent but, whatever is the position, there is no evidence before me to suggest that the appropriate authorities in the Cook Islands would not act upon any complaint made to them by the father;
k)given the mother’s ongoing attachment to the Cook Islands and the father’s long-standing attachment there also, it is highly likely that many of the persons who, potentially, may be witnesses in any proceedings are also likely to be located there – there is the obvious legitimate advantage in conducting proceedings in the country in which such persons live and where they can more easily (and at less cost) be produced as witnesses if required.
I also accept generally the tenor of the submissions advanced on behalf of the mother to the overall effect that, given the child’s clear connection with the Cook Islands, there may be a risk – of whatever magnitude - that subtleties associated with cultural factors arising from the child’s identity as a Cook Islander may not be as fully appreciated here as they are likely to be by a court in the Cook Islands.
If proceedings continued here, it is highly likely the child would be required to travel to Australia to engage in a Family Report interview process – this would likely have the obvious disruptive and unsettling effect on him and would remove him – even only temporarily – from all that has been known to him. He may well be required to be absent from school for a period of time. His mother would be required to be absent from her employment and, given its nature, it is more likely than not that there would be a direct financial impost as a consequence of this – a further matter more likely than not to impact deleteriously on the child.
A continuation of proceedings in Australia to obtain an order that cannot be enforced or recognised in the country in which the child lives is, in the circumstances of this case, something which can only be regarded as likely to be productive of financial impost for both parties: a cost for which there is no corresponding benefit.
I accept that it would be “manifestly futile” for proceedings in this Court to continue given that the Cook Islands – where the child lives – does not recognise orders made in this country: given this and the matters outlined above, I am easily persuaded that it is ‘oppressive’ (in the sense of “seriously and unfairly burdensome, prejudicial or damaging”) and/or ‘vexatious’ (in the sense of “productive of serious and unjustified trouble and harassment[25]) for proceedings to continue in this Court.
[25]Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 per Deane J at 247.
A consideration of all of the matters outlined above persuades me that this Court is clearly an inappropriate forum for the continuation of proceedings in respect of the child’s future parenting arrangements.
In the event that the application of Pascarl necessitates that I determine whether it is in the child’s best interests that proceedings for parenting orders in relation to him continue in Australia or the Cook Islands, I am comfortable in concluding that his best interests are met by any proceedings about his future parenting arrangements occurring in the Cook Islands where he lives. In arriving at this conclusion, I have relied upon the matters outlined above.
For these reasons and whether the test to be applied in the particular circumstances of this case is the clearly inappropriate forum test or the best interests test, I consider that an order staying the proceedings commenced by the mother in October 2014 should properly be made. This determination deposes of all outstanding Applications.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 4 June 2015.
Associate:
Date: 4 June 2015
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