Flynn and Troy

[2009] FamCA 363

FAMILY COURT OF AUSTRALIA

FLYNN & TROY [2009] FamCA 363

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Proceedings – Parenting Orders - Proceedings in United States and Australia – Existing Orders in Utah – Child and Mother Living in Australia by Consent – Terms of Utah Orders – Applicable Principles – Forum Non Conveniens

Family Law Act 1975 (Cth)

B v B (Re Jurisdiction) (2003) FamCA 105
EJK v TSL [(2006) FamCA 730
Henry v Henry (1996) 185 CLR 571
Karim v Khalid (2007) FLC 93-348
Kwon and Lee (2006) FLC 93-287
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Voth v Milandra Flour Mills (1990) 171 CLR 538
ZP v PS (1994) 181 CLR 639

APPLICANT: Mr Flynn

RESPONDENT: Ms Troy

FILE NUMBER: BRC 1045 of 2009

DATE DELIVERED: 8 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 27 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: HERBERT GEER

COUNSEL FOR THE RESPONDENT: Mr Kent SC

SOLICITOR FOR THE RESPONDENT: BARRY & NILSSON

Orders

IT IS ORDERED THAT

1. The Application in a Case filed by the father on 12 March, 2009 is dismissed.

2. The father shall, within 28 days of the date of these Orders, file a Response in which he shall set out the terms of parenting orders sought by him, if any, in respect of the child … born … January, 2002 (“the child”).

IT IS DIRECTED THAT

1. The legal practitioners for the parties shall confer as soon as practicable with a view to filing directions by consent within 28 days of the date of these Orders for the further management of this action.

2. Any application for costs, or response to such application, be the subject of written submissions which shall be filed by any applicant within 14 days of today, and any response to such submissions shall be filed within a further 14 days.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1045 of 2009

MR FLYNN

Applicant Father

And

MS TROY

Respondent Mother

REASONS FOR JUDGMENT

1. The parents of the subject child, who was born in January 2002, live on opposite sides of the world. The father resides in the United States; the mother in Brisbane.  That fact is combined with a desire by each of them not only to have the child reside with them, but also to have the courts of their respective countries determine that issue.  Those circumstances give rise to the issue to be determined in this application.

2. Each of the parties and the child are citizens of the United States. The child and the mother currently live in Brisbane (with the mother’s partner and the child’s siblings) and have done so since August 2007.  However, consent arrangements between the parties saw the child spend a period of six months with each of his parents (and their respective partners and the child’s siblings in each family) in, respectively, Australia and in Utah in the United States. 

3. From August 2008, the child has lived in Brisbane save for a period of about a month in the December 08 / January 09 school holidays when he stayed with his father in the United States.

What is the Current Position and How Did it Arise?

1. The consent arrangements earlier referred to were formalised in a document entitled “Stipulation and Settlement Agreement”, executed by the parties (on 28 November 2007 and 1 October 2007 respectively), which was lodged in the First Judicial District Court, State of Utah.  Apparently, by reason of that lodgement, it became an order of that court on 4 January, 2008.

2. The agreement occurred at the end of nearly four years of separation.  The cohabitation between the parties had commenced in 1998, and they separated finally on 15 May 2003, only some two months subsequent to their marriage. The parties were divorced in the United States in December 2003.

3. A Decree of Divorce was made on 23 November 2003 which granted the mother “permanent care, custody and control” of the child. The divorce decree also contained a regime by which the father spent regular time with the child.  The subsequent agreement and Order earlier referred to emanated from the mother’s expressed desire to live permanently in Australia.

4. During the preceding period of separation, there were proceedings in the Utah court, but there is no evidence of any proceedings heard and determined by a court.  The intended move by the mother produced opposed positions being filed in the Utah court.  The evidence suggests that the parties participated in unsuccessful mediation and that a Dr Hwas appointed as what this court would call a single expert, and Dr H subsequently prepared a report.

5. Ultimately, the parties reached the agreement, and, subsequently, the order earlier referred to was made.  Relevantly, that agreed order provides that:-

   1.   “The parties shall be awarded joint physical and joint legal custody of the parties’ minor child […] (herein after “[the child]”). However, this may be re-evaluated and modified by the Court without a showing of a substantial material change in circumstances at a minimum of one (1) year in the future from August 2, 2007.

   2.   [The child] shall be entitled to move with his mother [Ms Troy], to Australia on August 20, 2007.

   …

   4.   …The petitioner, [Ms Troy], shall have physical custody of [the child] and [the child] shall reside with [the mother] in Australia until February 20, 2008 when she shall return [the child] to the Respondent, [Mr Flynn], in […], Utah.

   5.   The Respondent, [Mr Flynn], shall have physical custody of [the child] and [the child] shall reside with [the father] in Utah from February 20, 2008 until August 20, 2008 when the Respondent shall return [the child] to the Petitioner [Ms Troy] in Australia.

   6.   Each parent shall have the right to spend parent time with [the child] while he is in the physical custody of the other parent so long as he/she provides at least 30 days advanced notice to the parent who currently has physical custody of [the child]. Further, should this event take place the parent who is seeking his/her parent time shall transport him/herself to the current physical custodian’s area…”

6. It will be appreciated that the mother and child had moved to Australia prior to the formalisation of the agreement between the parties. The terms of the agreements, in respect of the child spending six months with his mother in Australia and six months with the father in the United States, were carried into effect.

What Is The Actual Relief Being Sought in the Current Application?

1. By an Initiating Application filed on the 9 February 2009, the mother seeks parenting orders by which the child would live with her (in Australia) and the father would spend time with him as agreed between them. The application also seeks an order that the mother “have sole responsibility for the long term care, welfare and development of the child” as well as sole responsibility for his “day-to-day care, welfare and development”.

2. By response to that application, the father seeks an order that the application referred to be dismissed. Orders are sought "in the alternative” that:-

   “…this Honourable Court grant a stay of proceedings in this matter until a determination by the First Judicial District Court of […], State of Utah, of the Petition to Modify dated 19 January 2009”.

3. An Application in a Case filed 12 March 2009 seeks orders in the same terms.

4. In Karim & Khalid ((2007) FLC 93-348) the Full Court held:-

   “49.     The comparison of the factual circumstances of B v B (Re Jurisdiction) … with the factual circumstances of EJK & TSL … and of the present case illustrate how important it is in arguing, or determining, a case which involves some overseas aspect, to identify clearly at the outset what is the actual relief which is being, or can be, sought in the factual circumstances of the case, and thus, what principles are to be applied.”

5. An objection by Mr Kent SC, counsel for the mother, was raised during the course of submissions by the father’s counsel, Mr Page SC.  In answer to that objection, Mr Page SC made it plain that the only order sought, and the only application by his client, was for a stay of proceedings in this court so that the matter could be litigated in the United States.

6. The only relief sought, then, is the stay of proceedings, which is opposed by the mother.   

What Are The Applicable Principles?

1. Mr Page SC argues, in written submissions on behalf of the father, that “the Full Court decision in Karim v Khalid [above] provides the definition of the applicable law”. In oral submissions, Mr Page SC referred to passages from that decision (at (2007) FLC 93-348 at 81,981). The passage referred to by counsel is a reference to a lengthy quotation by the Full Court in that case to the decision of the High Court in ZP v PS (1994) 181 CLR 639. The High Court of Australia there said (among other things):-

   “…as we have already said, the doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction. [emphasis by the Full Court in Karim]…Once the jurisdiction conferred by s.63 Family Law Act 1975…on the Family Court in custody proceedings is effectively invoked…s64(1)(a) of the Act requires that the court regard the welfare of the child as the paramount consideration in exercising the Court’s power…The family court’s attempt to meld the paramount consideration of the welfare of the child with the test of “clearly inappropriate forum” is misconceived”.

2. Mr Page SC submitted that, in a “pure parenting” case, (as he described it) the matter is to be determined by reference to the welfare of the child and not by the doctrine of forum non conveniens. The submission went on to argue that “in determining the appropriate forum for the determination of a pure parenting matter, the decision is based on best interests and not on whether the Australian Court is a clearly inappropriate forum”.  (In this case it is conceded that the jurisdiction of this court is properly invoked by the mother in bringing her application).

3. In my view, the submission made by Mr Page SC runs foul of the very distinction which the Full Court in Karim & Khalid delineated.

4. Here, as earlier referred to, the father’s Application for Final Relief, the Application in a Case and submissions by Mr Page SC make clear that the order sought is for a stay of the proceedings before this Court, pending a determination by the Court in Utah. No parenting order is sought by the father. Specifically, the application does not seek that the child be returned to the United States, and there are no proceedings brought by the father pursuant to the Hague Convention.

5. That marks this case as significantly different factually from that in Karim & Khalid, above, where the Full Court makes it clear at the outset of its judgment that:

   “… the husband’s primary position remained that an order should be made for the return of the child to Pakistan (a non-convention country). His argument on appeal essentially was that the trial judge erred in reaching his decision by having regard to the doctrine of forum non conveniens and for failing to regard the child’s best interests as the paramount consideration”.

   There then follows the lengthy quotation from the High Court decision to which Mr Page SC took this Court in argument.

6. The distinction between an application for the return of a child (or an application for parenting orders) and an application for stay of the type in this case is emphasised in further passages in the judgment of the Full Court in Karim.  For example:-

   “In relation to [the earlier Full Court decision in B & B (Re Jurisdiction) (2003) FamCA 105], we agree with the observations of the Full Court in EJK & TSL [(2006) FamCA 730] at paragraph 60 that the factual circumstances in B & B (Re Jurisdiction) were “markedly different” from those in EJK & TSL, as indeed they are from those in the present case. Notably the subject children in B & B (Re Jurisdiction) were not in Australia, whereas in EJK & TSL and in the present case the subject child was in Australia. Furthermore the actual relief sought in B & B (Re Jurisdiction) was a stay of Australian proceedings for contact between the father and the children where there were proceedings in relation to contact on foot in New Zealand where the children were living”  [emphasis added].          

7. Significant to the issue before this court, the Full Court went on to hold:-

   “An application for the return to a non-Hague convention country of a child who is in Australia is a different type of application from, and subject to different principles to, an application for a stay of proceedings in an Australian Court on the basis that the Court is a clearly inappropriate forum”.

8. Indeed, the same distinction is made in the decision of the High Court in ZP v PS, as part of the passage cited in Karim to which specific reference was made by Mr Page SC. The High Court there referred to an English decision of Lord Donaldson MR in which His Lordship said (1991) Fam 25 at 31:-

   “the welfare of the child is indeed the paramount consideration, but it has to be considered in two different contexts. The first is the context of which the Court shall decide what the child’s best interest requires.  The second context, which only arises if it has first been decided that the welfare of the child requires that the English rather than a foreign Court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made”.

   The High Court in ZP v PS  went on say:-

   “That approach also applies to application in the Family Court when the question arises whether the Family Court or a foreign Court should determine questions concerning the custody of a child within the jurisdiction.  In such an application, the first issue is whether the welfare of the child requires the making of a summary order that those be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issues of custody itself. Furthermore, even when the Court rejects the application for a summary order and embarks on determining the issue of custody itself it does not necessarily follow that the Court must make an order for custody or access. Further investigation of the issue may result in the Court concluding that the interests of the child would be best served by the foreign forum determining the issues. However such cases will be exceptional”.  [emphasis added in each case]

9. The Full Court had held, in B v B (Re Jurisdiction), above,  that:

   “50.     In our view, the making of an order to stay proceedings in circumstances such as exist in this case is not an order relating to the welfare of children.  In our opinion, the fact that such an order may be made with respect to proceedings, which proceedings are with respect to the welfare of children, does not make the order itself an order relating to children.

10. I am, of course, bound by the decision of the Full Court in that case.  But, that case was decided prior to the legislative changes effected to the Family Law Act 1975 by the introduction of the Reform Act.   Section 60CA provides that “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”.

11. I sought submissions from each counsel as to whether an order seeking a stay of the type sought here is a “parenting order” within the meaning of s.64B of the Family Law Act 1975.  Mr Kent SC submitted (without further argument) that an order for stay was a parenting order.  Mr Page SC did not submit to the contrary.  I respectfully disagree. 

12. In my view, the definition of “parenting order” in the Act (s. 64B) is exhaustive. I do not consider that an order for the stay of proceedings (so as to permit proceedings in another forum) falls within the matters prescribed in s.64B(2). Nor do the proceedings relate to “the discharge, variation, suspension or revival of an order under Part VII”.   

13. In Kwon and Lee (2006) FLC 93-287, the Full Court held (at 80,924) that:

    (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”

14. The precise nature of the application before the court remains crucial, though, to the principles applicable to its determination.  The Full Court in Kwon went on to hold (at 80,925) that, in the case before it:

    “… the applications which the trial judge was required to determine involved parenting orders in respect of which the best interests test applied, rather than the exercise of the Court’s power to grant a stay, we find it unnecessary to consider the alternative submission of the mother’s counsel based on s. 67ZC”. [emphasis added]

15. I consider that, with respect, the reasoning of the Full Court in B v B (Re Jurisdiction) remains apposite to the determination of the question of whether regularly-invoked Australian proceedings should be stayed so as to permit proceedings in another forum.  In my judgment, the proposition advanced in argument by Mr Page SC is not supported, either by the authority to which he refers or by reference to the Act.

16. In the latter respect, I should probably add a comment in respect of a matter raised, but specifically not decided, in Kwong and Lee.  It was argued in that case that the source of power to order a stay is s.67ZC (as opposed to the court’s inherent power).  A related argument was that the Full Court in B v B (Re Jurisdiction), (2003) FamCA 105 erred in determining that an order for stay was not an “order in relation to the welfare of children” within the meaning of s.67ZC.

17. The issue was not argued before me nor, specifically, was s.67ZC argued as a source of power.  I respectfully incline to the view that a decision about forum is a decision about which court should decide about the welfare of a child, not a decision about the welfare of a child.  The fact that (as is the law) the child’s best interests are relevant to a decision about forum (albeit not, in my view, mandated legislatively as the paramount consideration) does not, in my view, change that position.

18. I hold, then, that I should determine the instant application by reference to the principles of forum non conveniens.

Forum Non Conveniens - Principles

1. It is plain that, in deciding whether Australia is a “clearly inappropriate forum”, the test to be applied is that initially expounded by Deane J in Oceanic Sun Line Special Shipping Co Inc & Fay (1988) 165 CLR 197 at 247. So much is made clear by the decision of the High Court in Henry & Henry, above. For example the (CLR) headnote to that case provides that:

   “the test for determining whether a stay for matrimonial proceedings should be granted is whether the Australian Court is clearly an inappropriate forum. This requires the Court to determine whether the continuation of the proceedings in the local court would be oppressive or vexatious in the sense those terms were used by Deane J in Oceanic…”.

2. In that context, “oppressive” is to be understood as meaning “seriously and unfairly burdensome, prejudicial or damaging” whilst “vexatious” should be understood as meaning “productive of serious and unjustified trouble and harassment” (see Voth & Milandra Flour Mills (1990) 171 CLR 538 at 555-557).

1. In the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ in Henry (at 592 – 593) their Honours refer to a number of considerations “relevant to a stay of proceedings between a husband and wife in respect of their marital relationship”.  Their Honours emphasised, however (at 593), that, ultimately, the decision was to be made upon “the general circumstances of the case, taking into account the true nature and full extent of the issues involved”.

2. Some of the specific considerations referred to by their Honours refer to matters of jurisdiction and procedure. For example, their Honours held that “no question arises until the Courts of the respective countries have jurisdiction with respect of the parties and their marriage”. So, too, issues of mutual enforceability and registration of orders are referred to.

3. In referring to the non-exhaustive list of considerations other than jurisdictional and procedural considerations, their Honours held (at 592):-

   “The considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive.”

Forum Non Conveniens – Relevant Considerations

(a)         “Procedural and Jurisdictional” Considerations

1. It is submitted centrally by Mr Kent SC in written and oral submissions on behalf of the mother that “the applicant does not discharge the onus of proof he bears”.  A number of specific matters relevant to these jurisdictional and procedural issues are referred to. For example, it is submitted that:

   “The applicant proffers no evidence to this court whatsoever as to the procedures in the US system, assuming the US can and will exercise jurisdiction as would enable this court to make the comparisons of law and procedure that, on the authorities, must be made as part of the considerations in determining whether or not to stay local proceedings”.

2. I consider there is much force in that argument. However, I would not be prepared to dismiss the application of the father on that basis.

3. While the High Court makes it clear that evidence as to jurisdiction of the foreign court is fundamental, I am prepared to infer from the terms of the order, and a reading of the documents filed in the United States (which are annexed to the affidavit of Ms McCormack on behalf of the father), that the jurisdictional and procedural considerations referred to by the High Court are satisfied. 

4. For example, it seems plain from the documents that a Court in Utah has exercised jurisdiction in respect of the child previously, and in so doing has exercised powers significantly similar to those which might be exercised by this court. Moreover, speaking generally, the procedures there indicated are not unfamiliar to this Court. Further, I am bound to decide the question, as the High Court makes clear, by reference to “the general circumstances of the case, taking into account the true nature and full extent of the issues involved” (Henry at 593) as well as having regard to the best interests of the child.

(b)        The Current Position of any Proceedings in Utah

1. The current position of any proceedings in the United States can be seen as important:

   “… there are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy”.  (Henry at 590)

2. This factor, and, in particular what is said to be the crucial central position of the Utah court-appointed “custody evaluator” Dr H, is a central plank of the submissions made on behalf of the father.  (Although, for the reasons earlier discussed, Mr Page SC directed submissions towards the paramountcy of the best interests of the child as the applicable principle governing the application, his submissions emphasised significantly this issue - albeit in that different context).

3. The solicitor for the father deposes in an affidavit that the Order made on 4 January, 2008 “… specified the arrangements were to be revaluated after August 2008”.  No objection was taken to the deponent swearing to the meaning of a document otherwise before the court, but the submission was made that the assertion was incorrect. 

4. The terms of the Order of 4 January 2008 clearly, in my view, permit the mother to relocate with the child, where his time with his parents in the first year after that move was to be shared equally (six-months about) in each of Australia and the United States.  However, whilst the orders – in terms of their specificity with respect to time – refer to the first 12 months after the relocation, there is nothing to indicate that the Orders were (as they would be known in this country) “interim orders”.

5. The extent to which the Orders (arguably) provide for further proceedings in Utah is confined to the concluding sentence of the first paragraph of the orders.  Mr Page SC’s submission at paragraph.13 of his written submissions mirrors the deposition of the father’s solicitor.  He writes that the Order provides that the Order be ‘re-evaluated and modified by the Court’ without the showing of a material change in circumstances at a minimum of one year in the future from August 2, 2007”. 

6. In fact, as Mr Page SC correctly records at paragraph 17 of his written submissions (contrary to paragraph 13 of those submissions and the deposition by the father’s solicitor) the agreement / order provides that the orders “may be” re-evaluated at that time.  

7. In my view, the distinction is important, particularly given the emphasis which submissions on the father’s behalf place on the position of Dr H and the reference by the High Court in Henry to “the stage which [the proceedings] have reached”. 

8. If proceedings instituted in the lead-up to the mother’s move to Australia in 2007 are on-going, and the Orders of 4 January 2008 are interim orders in contemplation of proceedings being completed at a future date, the consideration just referred to has the potential to weigh more heavily within the mix of considerations than in a situation where proceedings have been completed, and fresh proceedings in one jurisdiction or another would be necessary to change the Orders.

9. Here, in my judgment, the evidence points to the latter.

10. The 4 January Orders, in my judgment, do no more than (a) record that an application may be made at the conclusion of the 12-month period in respect of which specific arrangements are made and, (b) if such an application is made, to provide that it is not necessary for the applicant to show a material change of circumstances.

11. The steps taken by each of the parties in respect of the current dispute (revealed by the actions taken by each of them in Utah – as to which see the Exhibits to the affidavit of Ms McCormack) appear to support the view that fresh proceedings are required.

12. Thus, the Utah Court and this Court are each seized with proceedings seeking parenting orders, each of which proceedings are at a very preliminary stage. I emphasise, however, that the view I have taken does not render irrelevant in the mix of considerations the prior litigation history in Utah and, as was emphasised in particular in submissions on behalf of the father, the involvement of Dr H.

(c)The Involvement of Dr H

1. It was submitted orally by Mr Page SC that there are “many aspects of consensual connection with the Utah Court after the relocation of the mother and [the child] to Australia and including during the process contemplated by the orders”. Mr Page’s written submissions point out that, prior to the orders being made on 4 January 2008, a “custody evaluation” was ordered to be carried out by Dr H. It is submitted that Dr H has continued to be involved with each parent until summer 2008 (see exhibit A to memo of 4 March 2009).   It is also pointed out that the parties submitted to (ultimately unsuccessful) mediation in the United States.

2. The affidavit of Mr Greer, filed on behalf of the father, deposes to a report from Dr H being “issued to the First District Court” in Utah on 24 February 2009. Dr H is described as “the psychologist assisting the Court in matters surrounding [the child’s] living arrangement”.

3. The “Memorandum in Opposition” filed on behalf of the father in Utah refers to the involvement of Dr H. It is said (para.9) that Dr H “has been meeting with petitioner, respondent, [the child] and others as part of an in depth custody evaluation that has been ongoing in Utah since approximately April of 2007” (Affidavit of the father at para.9, see also exhibit “A”).

4. The exhibit “A” referred to is a letter from Dr H dated 24 February 2009. Dr J refers to being the “Court appointed custody evaluator” in this case. There are a number of aspects about the document that are, in my view, significant in light of the submissions made on behalf of the father by Mr Page SC.  Mr Page SC’s argument can be seen reflected also in the “Memorandum in Opposition” filed on the father’s behalf in the Court in Utah. His attorney there argues:-

   “Perhaps most important is the fact that the court appointed custody evaluator Dr [H] is based in Providence, Utah and has easy access to more information in Utah than a custody evaluator would have in Australia. Dr [H] has been evaluating this case for almost two consecutive years and it would be a colossal waste of his time and the parties' resources to disregard his findings at this late juncture and to have him replaced by a foreign evaluator or other process…”.

5. As well as referring to a number of opinions expressed by Dr H (which may - or may not -  be considered as having significant weight in any contested parenting proceedings either in Utah or Australia) the Memorandum goes on to say:

   “… based on Dr [H’s] unequivocal position in this case, it would appear that petitioner is now forum shopping with an eye to starting anew in distant country with absolutely no attachment to Dr [H], the respondent or the Utah or American judicial system (and minimal attachment to [the child] or Petitioner). Based on this information, there is plausible reason why this Court should abdicate its authority to a foreign tribunal after nearly five years of considerable involvement in this case. If this case were transferred to Australia at this late stage, petitioner would undoubtedly attempt to pull the proverbial wool over the Australian Court’s eyes by putting on a façade of custodial fitness contrary to what Dr [H] observed in the course of his two year in-depth evaluation”.

6. A number of observations might be made about these submissions – particularly about the hyperbole, which, it might be hoped, would be (and in this case, were) foreign to arguments in this Court. For present purposes, the importance to the father’s argument in this application of the alleged importance of Dr H, and, in turn, his alleged importance to any proceedings in Utah can be seen.

7. Dr H made observations of, and received data from, each of the parties and the child in the period leading up to the mother’s relocation to Australia in 2007. The mother has resided in Australia since that time.  Dr H has not seen the mother since that time. He has not seen the child with the mother since that time. By definition, he evidences knowing (first hand) nothing of the current parenting circumstances of the mother, her partner, the child and, importantly, the child’s siblings, in Australia.

8. Dr H himself appears to recognise this in his letter dated 24 February 2009, which is exhibit “A” to the “Memorandum in Opposition” earlier referred to. Dr H says that he has been asked by the father’s US attorney to “provide the court with a brief summary of the date and recommendations based on that data”. He goes on to say, however, “…because there is a multitude of case facts that extend well beyond the scope of a TRO (Temporary Restraining Order) request, I will do my best to provide a short overview of the most relevant concerns.”  There then follows, as earlier indicated, a number of matters that may be relevant to the determination of parenting proceedings.

9. Dr H is, in any prospective parenting proceedings, simply a witness.  It is true (apparently) that he is court-appointed and it might be tolerably safe to assume that any trial court would carefully analyse his evidence.  But, irrespective of appointment by a court, an expert does not decide the case; the court does.  A court expert’s evidence does not escape close scrutiny by reason of his court appointment.  His evidence (or specific parts of it) may, or may not, be accepted by a trial court.  The argument of the father seems to me to overstate the weight of the evidence of Dr H beyond that which it currently has.

10. There is no doubt that if parenting proceedings are to proceed in this country, expense and inconvenience might be associated with Dr H giving evidence (if such a course is determined to be appropriate by the father).

11. Otherwise, the fact that a court was seized of a parenting issue which included a report from a court appointed expert based on observation and data some two years ago where the parties’ circumstances were very different from those which they are now (consequent upon the mother’s relocation) is but one of the factors which, in my view, will be taken into account in determining appropriate parenting arrangements in the child’s best interests.

12. If proceedings were to be conducted in Utah it may well be that the mother would seek to introduce expert evidence of her own from an expert in this country in those proceedings.

(d)Connection; Burdens and Best Interests

1. It is relevant to consider (using the words of the High Court in Henry) the “connection of the parties and their marriage with each of the jurisdictions”.

2. The child currently resides with the mother, her partner and two siblings in this country. Since being returned to Australia in August 2008 in accordance with the American orders, the child has resided in this country with her (apart from a period of a month in the December ‘08 – January ‘09 period when he spent time in the United States with his father).

3. He resides here with two siblings.  One of the child’s sisters, who is a child of another relationship, is aged about 5. The mother and her current partner have a child who is almost two. The mother and the child are US citizens. Her partner and their two year old child are both Australian citizens.

4. The father deposes to living with his wife and their child in what are deposed to be happy family circumstances.

5. Dr H gives a number of (historical and untested) opinions about the respective parenting situations of the parties and their respective parenting capacities.  He is critical of the mother’s [then] parenting in a number of respects (“[she] has no demonstrated history of stability”…”[her] employment record was erratic” …”substance abuse has been part of her recent past … her judgments have been poor over the years dating back to adolescence …”she has four children from four different fathers”). He also identifies what he describes as “strengths” (“she is a creative parent”… “she is patient and nurturing”…). 

6. Dr H comments that the father’s [then] role had been [then] somewhat limited (“the biggest concern at the time was that [the father] had no relational history with [the child]” … “[the father] contends that this was because [the mother] never fostered the relationship.  There may be some truth to this but the larger concern is [the father’s] parental passivity and lack of initiative as a father …”;  “… there was nothing in [the father’s] paternal behaviour, at least prior to evaluation, indicating a level of psychological engagement or attachment typical of fathers who have a strong interest in their child”).  Since then, of course, the father has (as Dr H points out) cared for the child for a period of six months in early 2008 and again for a month over the recent Australian summer holidays.

7. Of significance to the child’s best interests (in the context of the instant application) is Dr H’s opinion that “[a]nother factor not in [the father’s] favour was that [the child] had lived with his mother and siblings his entire life.  He really did not know his father…”.   That opinion is then qualified by the factor just mentioned.

8. Each of the parties will incur burdens if there is to be a trial of the parenting issues conducted in the country in which they do not reside. It is argued on behalf of the mother that the mother’s partner would be an essential witness and there would likewise need to be evidence from the child’s school, as well as evidence in respect of his extra curricular activities.

9. Equally the father deposes to the child having attended school whilst spending six months in the United States as well as participating in many extra-curricular activities.

10. Although not sworn specifically in these terms, it seems clear enough that the father would contend that there are witnesses who might be required on his side who reside in the United States. The child had clearly established a connection with the United States prior to relocating to Australia with the mother, although it is noted that he was about five and a half when that move occurred.

11. It seems equally clear on the mother’s evidence (albeit untested) that he has established a significant connection with Australia since he has been in this country.

12. Whilst there is no evidence of the applicable Utah laws governing any prospective parenting case in that U.S. State, it seems tolerably clear that something akin to the “best interests” consideration fundamental to the law in this country applies there so that it can at least be said that the two applicable legal systems and laws are, apparently, relatively familiar to each other.

13. The mother alleges that she is a full-time mother to three children and that she is not employed outside of the home and is entirely reliant on her partner for support. It is argued that “she does not have the resources, without the indulgence of (her partner) to pursue her legal rights”. The prospect of legal aid in this country is alluded to in circumstances where the partner withdrew his support but no direct evidence is offered of that possibility.

14. The financial circumstances of the father are unknown save that he has “been employed with the same company for the past seven years”.

(e)Timing and Status of Current Proceedings

1. On 19 January, 2009, the father filed a “Petition To Modify” the orders made on 4 January 2008.   On 24 February 2009 the mother filed a “Petitioner’s Motion for Stay of Utah Proceedings” and “Motion for Stay of Petitioner’s Answer” and “Motion to Transfer Jurisdiction to Australia” as well as a “Memorandum of Points and Authorities Supporting” that motion. A “Memorandum in Opposition to Petitioner’s Motion to Stay…” was filed by the father in Utah on 4 March 2009.

2. In this country, the mother’s proceedings commenced with an Application for Final Orders that the child live with her and spend time with the father as agreed, which was filed on 9 February 2009. That application was listed before a Registrar of this Court on 11 March 2009, in which Directions were made for the father to file and serve materials. That material was filed through the father’s Brisbane lawyers on 12 March 2009.

3. The mother deposes to “the motions currently in the District Court (of Utah) annexed before the Court on 28 May 2009”. Mr Greer in his affidavit on behalf of the father swears that “no date is currently being set for the determination of the stay application brought by [the mother] in Utah”.

Conclusions

1. For the reasons earlier discussed, I am of the view that:

   ·   The jurisdiction of this court has been regularly invoked by the mother seeking parenting orders;

   ·   At that time, the father had, shortly prior, commenced proceedings in Utah to modify existing parenting orders;

   ·   Those existing parenting orders permitted the child to live in Australia at the end of the 12 months of specified time provided for in the orders; did not provide for the “re-evaluation” of those agreed arrangements but contemplated that there may be such proceedings;

   ·   There are, then, competing forums for the determination of parenting proceedings.  The father seeks a stay of those proceedings so as to permit proceedings in Utah;

   ·   The order sought by the father in this country is not a “parenting order” within the meaning of the Family Law Act 1975;

   ·   The principles governing the father’s application in this case are those applicable to forum non conveniens.  The best interests of the child are, then, not the paramount consideration, but remain an important matter to be taken into account;

2. The child’s best interests would demand of parenting arrangements in respect of him to be resolved as soon as possible.  To the extent that his best interests are relevant to forum, I consider that, on balance, they favour proceedings in this country which, pending their determination is likely to involve a continuation of him remaining with his historical primary carer in Australia.

3. The current orders are not interim orders, nor are they part of a proceeding yet to be completed.  The current proceedings for parenting orders in each country are each at a very preliminary stage.

4. I have taken into account the litigation history in the United States.  That history, does not, on the evidence before me, include any findings made by a Utah court in any contested hearing.  The fact that proceedings there precede a consensual relocation to this country does not weigh particularly heavily in my determination. 

5. Specifically, I have taken into account the fact that Dr H may be a witness and, indeed, may be an important witness, in parenting proceedings in either forum.  He is, though, merely a witness and, although court-appointed, is in the same position as any other witness in terms of the analysis and assessment of his evidence.  If the case proceeds in this court, there is (particularly given that the case involves issues of international relocation) the possibility of evidence from a single expert here.

6. Proceedings in either country are likely to involve burdens, including financial burdens, for each party. 

7. On balance, when account is taken of “the general circumstances of the case, taking into account the true nature and full extent of the issues involved”  I consider that the father does not discharge his onus of establishing that this court is a “clearly inappropriate forum”.

8. Accordingly, I dismiss the application for stay brought by the father.

9. With a view to the future management of this case, I will direct that, in the first instance, the solicitors for the parties confer with a view to arriving at directions by consent.  I will specifically order that the father file a Response setting out the specific parenting orders he seeks from this court.  In allowing 28 days for each, I have taken account of the fact that the husband resides in the United States.

10. Order accordingly.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  8 May 2009