ECCLESTON & ECCLESTON

[2013] FamCA 406

FAMILY COURT OF AUSTRALIA

ECCLESTON & ECCLESTON [2013] FamCA 406

FAMILY LAW – CHILDREN – Jurisdiction – Forum conveniens – Where there are parallel proceedings in an overseas jurisdiction – Whether Family Court of Australia should assume jurisdiction in respect of a child – Where the father sought a stay of the mother’s application in the Family Court of Australia and that the mother be restrained from making any further application for parenting orders in an Australian Court exercising jurisdiction of the Family Law Act 1975 (Cth) – Consideration of authorities – Where the paramount consideration is the best interests of the child – Where the father’s application for a stay is refused.

Family Law Act 1975 (Cth) s 70G; s 60CC

EJK & TSL (2006) FLC 93-287
Pascarl & Oxley [2013] FamCAFC 47
ZP v PS (1994) 181 CLR 639

APPLICANT: Ms Eccleston

RESPONDENT: Mr Eccleston

FILE NUMBER: SYC 568 of 2013

DATE DELIVERED: 3 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 29 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Sarah Bevan Family Lawyers

Orders

1. That the Father’s application for a stay filed on 26 April 2013 is hereby refused.

2. That liberty to apply is granted to each of the parties upon giving seven (7) days written notice. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eccleston & Eccleston 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 568 of 2013

Ms Eccleston

Applicant

And

Mr Eccleston

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 6 February 2013 Ms Eccleston (“the mother”) filed an Initiating Application in the Federal Magistrates Court of Australia seeking a number of parenting orders in relation to the child of the parties S (“the child”) born in November 2010.   On 4 April 2013 Federal Magistrate Monahan transferred the proceedings to this Court.

2. In his Response to the Initiating Application dated 24 April 2013 Mr Eccleston (“the father”) sought the following orders:

   1.That the application of the wife filed 6 February 2013 be permanently stayed.

   2.That the Wife is restrained by injunction from making any further application for parenting orders in relation to the child [S] born [in] November 2011 in any Court in Australia exercise in jurisdiction pursuant to the Family Law Act 1975 without leave of a Judge of the Family Court, Sydney Registry. (reproduced with errors)

3. The basis for the orders sought in the father’s Response is parenting proceedings between the parties in the Iowa District Court and orders made by that Court.  I shall describe those in detail shortly.

4. The application before me is the consideration of the matters raised in the father’s Response.  The parties agreed that if those orders were not made it would be appropriate to make an order that the parties attend a Child Dispute Conference with a Family Consultant and for interim parenting orders to be considered thereafter.

5. I will first deal with significant aspects of the relationship and then with the proceedings in each of the two Courts. 

Background

1. The mother was born in Sydney, Australia in 1978 and is 34 years of age.  The father was born in Virginia in the United States of America in 1982 and is 30 years of age. 

2. The parties met in Colorado in the United States in June 2006.  They were married in Australia in June 2007.  In July 2007 the parties began to live in Iowa.  At that time the father was studying.  He is now a healthcare professional. 

3. During January 2009 the Husband engaged in a program at a Sydney hospital in New South Wales.

4. The child was born in November 2010 in Sydney, Australia. After the birth the mother and the child returned to Iowa.

5. On 5 December 2011 the mother and the child flew to Australia.  The mother was due to return to the United States in March 2012 following the child’s christening in Australia.  The father was to arrive in March to be present for the christening.

6. In December 2011 the relationship between the parties deteriorated. On 3 January 2012 the father sent the mother an email in response to an email from the mother saying that she was proposing to return to Iowa stating:

   Please do not book a ticket I won't be here if you show up [the mother’s first name] I’m really sorry I’m really done and u should stay home with ur family and let this initial wave pass.  (as per original)

7. Since December 2011 the mother and the child have resided in Australia.

8. The father arrived in Australia on 4 February 2013 to spend time with the child pursuant to the orders of the Iowa District Court. Over the next few days the child spent up to three hours with his father, in the presence of the mother and the maternal grandfather, on four occasions.  The father left Sydney on 9 February 2013. 

Proceedings in the District Court of Iowa

1. On 1 June 2012 the father lodged a petition for Dissolution of Marriage in the Iowa District Court.  He petitioned for a decree pursuant to which:

   …[T]he marriage between the petitioner and the respondent is dissolved; the petitioner and the respondent are awarded joint legal custody of the parties’ minor child; The respondent is awarded primary physical care of the parties’ minor child with reasonable and liberal visitation awarded in the favour of the petitioner...The father also sought orders relating to property of the parties and child support

2. On 21 September 2012 the mother, by an attorney in Iowa, filed an appearance in those proceedings.

3. On 31 October 2012 the father made an application for a temporary matters hearing seeking orders that he and the mother be granted joint legal custody of the child, that the mother be awarded primary physical care of the child with reasonable and liberal visitation in his favour. 

4. On 3 December 2012 the father filed a proposal regarding temporary matters in the Iowa District Court.  He did not seek an order that the child live with him but sought an order that the child spend time with him on six occasions each year. 

5. On 3 December 2012 the mother filed affidavits in support of her case. 

6. On 6 December 2012 the application for temporary matters was heard. 

7. On 4 February 2013 Judge Bergan handed down her Reasons for Judgment and made the following orders:

   (Noting that the petitioner is the father and the respondent is the mother).

   1.The child’s temporary legal custody shall rest with Petitioner and Respondent jointly

   (Orders 1(a)-1(i) omitted)

   2.Respondent shall provide temporarily for the children’s primary physical care.

   3. The child shall have visitation with Petitioner in New South Wales, Australia promptly; and petitioner shall provide respondent with at least two weeks written, e-mail, or text notice as to when petitioner will be arriving in New South Wales. Not later than twelve weeks after the day Petitioner departs from his visit with the child in New South Wales, the Respondent shall travel with the child to Iowa City, where the child shall have another visit with Petitioner for at least two consecutive weeks. Respondent shall provide petitioner with at least two weeks written, e-mail, or text notice as to when Respondent will be arriving in Iowa.

   4.During periods of visitation between Petitioner and the child in New South Wales, Petitioner shall not take the child out of New South Wales without the written permission of the Respondent.

   5.…

   6.Petitioner’s first visit alone with the child (both in New South Wales and in Iowa) shall be for no more than three consecutive hours.  Petitioner’s second visit with the child shall be a day visit and shall not include an overnight visit away from the respondent.  Petitioner shall then be vested  with the responsibility to assess and determine (both in New South Wales and in Iowa), after due consultation with the respondent, whether and when the child should spend an overnight visit with the Petitioner – having in mind the needs of the young child to feel secure as the paramount consideration. 

   7.…

   8.…

   9.Once the parties have accomplished the two visits ordered herein, either party may apply for further temporary custody, care and visitation orders and, in so doing, shall provide the Court with updated affidavits.  Petitioner shall provide an affidavit from a second party as well as his own affidavit. (Depending on how close the case is to trial, the Court may decline to enter further temporary orders and may, instead, hear the parties’ evidence in person at the trial and thereafter enter permanent orders in the case rather than additional temporary orders).

   10.Each party shall pay for the costs of the party’s visitation – related to travel ordered herein, and the Respondent shall pay for the child’s travel to Iowa that is required by this order. 

   11.      …

8. On 29 January 2013 the final hearing of the trial was fixed for two days commencing on 8 January 2014.

9. On 21 February 2013 the father filed an application for Rule to Show Cause, he being of the view that the mother had not complied with the orders made on 4 January 2013 in that she had only permitted limited supervised time with the child when he spent time with the child in Sydney in February 2013.

10. On 22 February 2013 the mother filed a Motion to Release Jurisdiction to Australia relying on Iowa Code 598.207 which provides that the Court may “decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum”. 

11. On 27 March 2013 the father filed a motion for leave to amend the Petition for Dissolution of Marriage.  If granted he would seek orders that he have primary physical care of the child with reasonable visitation awarded to the mother. 

12. Each party has filed documents in opposition to the other’s motions in the Iowa District Court.

13. On 3 May 2013 there was a procedural hearing before Judge Jackson who adjourned the matter pending this hearing.  Judge Jackson requested that there be telephone communication between him and the trial Judge in Australia.

Proceedings in Australia

1. On 6 February 2013 the mother filed an Initiating Application in the Federal Magistrates Court of Australia (as it was then known) seeking sole parental responsibility of the child and that he live with her.  The mother sought interim orders that the child live with her and spend supervised time with the father at a contact centre, or as supervised by the mother, or her relatives, for periods of two hours when the father is in Australia. 

2. On 26 April 2013 the father filed his Response seeking a permanent stay of the proceedings. 

3. On 13 May 2013 the mother filed an Amended Application seeking dismissal of the father’s response and proposing orders that there be communication, in open court, between Judge Jackson of the Iowa District Court and the Australian Hague Network Judge or their nominee assigned to the matter in this Court. 

4. The matter was listed for hearing in the Judicial Duty List on 27 May 2013 and came before me for hearing on 29 May 2013.

Relevant Legal Principles

1. In EJK & TSL (2006) FLC 93-287, at [83], the Full Court said that 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 different types of relief arising from the breakdown of a marriage, or a defacto 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 an stay to determine the application before the Court;

   (iv)in proceedings involving competing fora where 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 for 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);

   …

2. At [84] the Court said:

   We are satisfied that on the facts of this case, where the mother had regularly invoked the jurisdiction of the Court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best principles.

3. In Pascarl & Oxley [2013] FamCAFC 47 the Full Court said at [86 and 87]:

   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.

   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 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 although the child may not be within Australia, the principle upon which to decide whether the Court should exercise its jurisdiction must be determined by the best interests of the child as being the paramount consideration. 

4. Counsel for the father, quite properly, conceded that, as the mother and the child were both in the jurisdiction at the time the proceedings were commenced in the Federal Magistrates Court they were regularly commenced and as they were seeking parenting orders in respect of which the best interests of the child is the paramount consideration the test to be applied is the best interests test and not the forum conveniens test.

5. The orders made by the Iowa District Court are interim orders. As such they cannot be registered, and thus enforced, in Australia as s 70G of the Family Law Act prevents registration of interim orders.  It is therefore necessary, if the proceedings continue in Australia, for parenting orders to be made.  Having regard to that and to the matters noted by counsel the appropriate test to be applied is the best interests test. 

6. The consideration of what is in the best interest of the child requires a consideration of the factors in s 60CC of the Act.

7. The two primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm from being exposed to or subject to abuse, neglect or family violence.

8. As to the first the child has a meaningful relationship with the mother.  It is desirable that he also have a meaningful relationship with his father. How best that will be achieved, given the circumstances, will need to be subject to consideration in these proceedings.

9. As to the second, there is presently no such risk identified in the evidence.

10. I now turn to the other factors in s 60CC.

11. The mother is the child’s primary care giver and the child is still very young.  It is not suggested that the child does not have a close relationship with his mother.  The child lives in a house with his maternal grandparents with whom he appears to have a good relationship.

12. The child has not yet established a relationship with the paternal grandparents. 

13. The child left Iowa when he was very young.  He has seen his father only for a few hours on four occasions since December 2011.   Although he regularly ‘Skypes’ with his father it could not be suggested that he has as close a relationship with his father as he presently does with his mother or that he has any attachment to Iowa. 

14. In those circumstances any separation from the mother and from the maternal grandparents is likely to cause anxiety and stress in the child and would not be desirable.

15. Therefore, if proceedings were to be conducted in Iowa the mother and the child would be required to travel to Iowa and accommodate themselves there.  This would involve removing the child from what is now his home and the support of his maternal relatives. The mother would also lose that support which would not be in the child’s best interests.

16. The evidence is that the mother has limited financial means.  The mother does not have the means to take herself and the child to Iowa, to stay there for the hearing and also to assist her attorneys to present her case.

17. Whilst the father gave evidence that his means are also limited his evidence did establish an income of US$50,000.00 with expenses of US$33,959.00.  The father has the greater capacity to travel than the mother.

18. Travel to Australia will be easier for the father than it would be for the mother and the child to travel to Iowa.

19. The greater practical difficulty and expense in the mother travelling to Iowa with the child is thus likely to impair the child’s relationship with his parents.

20. The child’s interests will be best served by one set of proceedings rather than he and his parents being involved in two sets of proceedings.

21. In parenting proceedings in the Family Court of Australia the court, and thus the parties, has the benefit of a Family Report prepared by an appropriately qualified family consultant (a social worker or psychologist employed by the Family Court of Australia) for the court’s assistance or a Single Expert Report prepared by an independent single expert agreed to by the parties and appointed by the court either upon application or of its own motion who is either a psychologist or psychiatrist with specialised knowledge in the area of children’s matters.  The preparation of such a report includes interviews not only with the parents and the child but also interviews with other members of the proposed respective households.  The family consultant or single expert also views the interaction between the child and each of their parents.  Such a report would require the child’s presence.  The court is of the view that such reports are in the child’s interests as they assist the court to come to the ultimate view of what course of action is in the best interests of the child.  The evidence is that the Iowa District Court does not have such facilities.

22. In December 2012 the father requested that the mother remain in Australia with the child.  That has caused difficulty with him communicating with the child and is indicative of his attitude to the child and his parenting responsibilities.

23. The father has provided no financial support for the child.  I do not find this to be of assistance in determining this application.

1. The child has developed a home in Sydney. Any prolonged stay in Iowa is likely to be upsetting for him as will any separation from his relatives here including the maternal grandparents.

2. In determining what arrangements will best promote the child’s best interests not all of the s 60CC factors are relevant to these proceedings and not all were subject to evidence.  In respect to some that were, the evidence was not undisputed and it is not appropriate to make any interim findings about those matters. 

3. The matters that I have discussed are in support of the proceedings continuing in Australia, that being in his interests.  The child is young and it is desirable, that his home life and relationships that he has developed not be unduly disrupted. 

4. Counsel for the father submitted that I did not need to turn to the s 60CC factors because of other factors.  Although they are expressed in different ways these three factors seem to be:

   (a)the financial effect of two sets of financial proceedings on the child;

   (b)there would be litigation in two separate jurisdictions which may have an effect on the parties’ capacity to be effective parents; and

   (c)there is the possibility of conflicting orders arising from two separate courts which would not be in the child’s best interests.

5. Each of these factors assumes that there will be two sets of proceedings which will continue.  That is not necessarily the case.  There is a motion before the Iowa District Court for it to relinquish its jurisdiction which it may do so if the court is satisfied that it is an inconvenient forum and that a court of another State is a more appropriate forum.

6. Whilst it is, of course, a matter for that Court, the fact that the child has lived in Australia since December 2011 gives support for the view that the Iowa District Court may well decide that Australia is the more appropriate forum.  I note in that regard that all interim proceedings in the Iowa District Court have been adjourned pending the outcome of these proceedings.

7. The orders of Judge Bergan made 4 February 2013 are clearly of an interim nature in that they only provide for two occasions on which the father is to spend time with the child with provision for either party to apply for further temporary custody, care and visitation orders pursuant to Order 9 of those orders.  There can be no doubt that further parenting orders will be required, including orders of an interim nature, whether or not the proceedings are heard in Iowa or Australia. 

8. The cost, either financially or emotionally, of proceedings in two jurisdictions is likely adversely to affect the parties to the detriment of the child.  That may be so but taking into account the factors I have already mentioned it is my view not determinative.

9. Finally, it appears likely that the two courts will take a cooperative attitude to jurisdiction and the orders which they will make.  Judge Jackson has requested an open communication between the courts for that purpose.  Each court will strive not to make conflicting orders.

10. The mother seeks an order, which I understand will not ultimately be opposed, that in the event the stay is refused there be, in effect, a joint sitting of the District Court of Iowa and the Family Court of Australia with the Judges communicating with each other in open court to determine the issue of jurisdiction.  This is commonly done in the United States of America.  Thus it cannot be assumed that if the stay is refused the motion in the Iowa District Court for it to relinquish jurisdiction would fail or that the result of the joint sitting would not be that the proceedings continue in Sydney, Australia.

11. Each court has to accept that the child is in Australia.

12. The mother does not oppose the divorce and property proceedings continuing in Iowa.

13. Counsel for the father submitted that the mother was simply engaging in forum shopping because she does not like the orders made by Judge Bergan and particularly the order requiring her to take the child to Iowa and then provide the father with overnight time.  The father submits that had the mother wished to do she could have sought leave to appeal against the orders of Judge Bergin but she decided not to do so.  Thus it is submitted that, having willingly participated in the proceedings in Iowa up until a point orders were obtained which the mother did not wish to comply, she, in effect, should be compelled to continue the proceedings and to be bound by those proceedings on a final basis.  I do not accept these submissions.  Even if the assertions were true the test that I have to apply remains the best interests of the child.  The conduct of the Wife is relevant only in so far as it relates to those interests.

14. The evidence of lawyers from Iowa is that leave to appeal, which is required if an appeal is to be taken from the orders of Judge Bergan, is unlikely to be given.

15. Secondly, in ZP v PS (1994) 181 CLR 639; (1994) FLC 92-480 at CLR 647 members of the High Court said:

    It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child.  In justice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a form non conveniens case are not relevant issues to make custody application.  In some cases, those matters may bear on issues which touch the welfare of the child they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum.

16. Whilst the court there was speaking of a somewhat different statutory scheme which was then contained in the Act their Honours comments as to what constitutes the forum non conveniens test are still apposite.  The issues raised by the father are only relevant to the extent they bear on the best interests of the child.  The weight to be given to the matters raised by the father is very limited.

Conclusion

1. Taking all these matters into account I am satisfied that it is in the best interests of the child for the proceedings to continue in Australia and the application for a stay is refused.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 3 June 2013.

Associate: 

Date:  30 May 2013