Flynn and Troy (Re-opening)

[2009] FamCA 436

FAMILY COURT OF AUSTRALIA

FLYNN & TROY (RE-OPENING) [2009] FamCA 436

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Forum Non Conveniens – Live parenting proceedings in United States Court – Application for stay of Australian parenting proceedings pending determination of United States Court – Re-opening

Family Law Act 1975 (Cth)

EB v CT (Number 2) [2008] QSC 306
Gelley and Gelley [1992] FLC 92-290
Smith v New South Wales Bar Association [1992] 176 CLR 256

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: 8 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Greer
Herbert Greer

SOLICITOR FOR THE RESPONDENT: Ms Robinson
Barry & Nilsson

Orders

IT IS ORDERED THAT

1. Leave is granted to the Applicant Father to make oral application to re-open the hearing of this matter.

2. Leave is granted to the Applicant Father to rely upon the evidence contained in the affidavit of Mr Greer with the Reasons for Judgment annexed to it and sent by facsimile to the Court today, and such affidavit to be filed and served within 7 days of today.

3. Leave is granted to the Respondent Mother to rely upon the evidence through her solicitor in the form of instructions provided to that solicitor, and such evidence is to be confirmed in an affidavit by the mother to filed and served within 7 days of today.

4. The oral application made today by the father, to re-open the hearing, is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Flynn & Troy (Re-opening) 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

EX TEMPORE

REASONS FOR JUDGMENT

1. On 27 April 2009, an application on the part of the husband for a stay of proceedings for parenting orders in this Court was heard.  The basis of the application was that the parties had previously been engaged in litigation in respect of parenting matters in the United States and an order had been made by the Court in Utah on 4 January 2008. 

2. That order, on any view of it, permitted the mother and the child the subject of the proceedings to travel to Australia. 

3. The application for stay involved, in part, an interpretation of that order, but also involved arguments about the application of forum non conveniens principles and/or the application of the paramountcy provisions of the Family Law Act with respect to children's best interests.

4. By reason of submissions having been received from each of the counsel representing the parties, Mr Page SC and Mr Kent SC, that referred in some detail to earlier decisions of the Full Court of this Court and the High Court of Australia, I reserved my judgment so that I could provide to each of the parties written reasons for judgment.

5. In the event, on the afternoon of 7 May 2009 (that is some 10 days after the matter was heard) the Court indicated to the parties that judgment would be delivered at 12 noon today, 8 May 2009. 

6. At approximately 11.26 this morning the Court received a facsimile from the solicitors for the father.  That facsimile contained a letter and attached an affidavit by the father's Australian solicitor, Mr Greer. 

7. The letter indicates on its face, and it is not disputed that, contemporaneously, a copy of that letter and affidavit was provided to the solicitors for the mother. 

8. Whilst received in the Court at approximately 11.26 am this morning, the letter and affidavit were not read by me until approximately 11.45, some 15 minutes prior to the allocated time for the delivery of my judgment in respect of the father's application.

9. When the Court convened at midday for the purposes of my delivering my reserved judgment, I asked each of the parties whether they sought to make an application.  Mr Greer made an oral application that the hearing of this matter be reopened so as to receive, as part of the material necessary for determination of the father's application, the affidavit sworn to by him to which I have earlier referred. 

10. That affidavit was sworn today.  In essence it deposes to information having been received from the father's American attorney and, in particular, information that Judge … of the First Judicial District Court in the State of Utah had delivered a judgment on 6 May 2009.  A copy of that judgment is annexed to Mr Greer's affidavit. 

11. I sought from the solicitor for the mother her client's attitude with respect to the oral application proceeding and the evidence just referred to being received.  Ms Robinson made a number of submissions on the mother's behalf in opposition to the oral application for reopening being heard and the affidavit being received. 

12. In essence, Ms Robinson makes the obvious point that the material has been received very late and in respect of a matter that has been reserved for some 10 days and refers to an order made on 6 May 2009, some two days ago, in circumstances where the State of Utah is some 15 hours or so behind Brisbane in terms of time difference.

13. Significantly, Ms Robinson submits that, not only did she have no prior knowledge of the affidavit, she also had no prior knowledge of the affidavit. 

14. More interesting still is her client's instructions to the effect that, despite speaking to her American attorney yesterday, she and the attorney had no knowledge of the order referred to in the affidavit of Mr Greer and, further, that she and her American attorney were continuing to prepare on the basis that the application in Utah relating to whether Utah or Australia was the appropriate forum was to proceed on 28 May. 

15. All of those matters are highly important in determining whether leave should be given so that Mr Greer can make an oral application and rely upon the affidavit referred to.  However, I am acutely conscious of the fact that this case involves competing jurisdictions on different sides of the world and by reason of the circumstances just described, there is considerable urgency in having this issue determined. 

16. It seems to me, then, that there is a compelling case for leave being given so that the oral application could be heard by me this morning but only in circumstances where the mother is not prejudiced significantly by that occurring. 

17. With that in mind I asked Mr Greer whether, if the oral application was to proceed based on the affidavit faxed to the Court, he would accept as evidence the assertion by the wife's solicitor in respect of the matters just referred to, assuming they were later sworn to by the mother.  He indicated that he would, subject to the Court making its own determination about the weight to be attached to that evidence. 

18. On the basis that the wife is permitted to lead, as it were, evidence through her solicitor in the form of instructions provided to that solicitor, I am prepared to grant leave to the father to have the oral application to reopen heard and, further, leave to permit the father to rely upon the affidavit of Mr Greer and the reasons for judgment that are annexed to it. I will order the mother file the affidavit referred to.

19. At the hearing of the application before me, the mother deposed in her affidavit at paragraph 34;

    "The motions currently in the District Court [in Utah] are next before the Court on 28 May 2009".

20. The motions there referred to are motions to similar effect to the application heard by me; that is, to the effect that Utah is the appropriate forum in which parenting proceedings in respect of this child should be heard.

21. There was some debate at the hearing of this application about that fact.  It was accepted on the father's behalf that there were, in fact, proceedings in the United States that were pending in that respect, but it was indicated from the Bar table as part of the submissions of Mr Page SC, that the hearing was to take place on 6 May 2009.  I asked Mr Greer to refer me to any part of the evidence then to that effect and Mr Greer was unable to do so. 

22. A quick perusal of the evidence by me this morning appears to confirm my recollection of the proceedings before me that there was no evidence to that effect before me at the hearing of the application. 

23. The principles applicable to an application to reopen can probably broadly be described as those applying at common law.  See, for example, the decision of the Full Court in Gelley and Gelley (1992), FLC 92-290 and the cases there discussed. 

24. The granting of leave to reopen is discretionary.  That discretion is guided by the interests of justice.  The essential question is:  is the Court more able to do justice in the facts and circumstances of the particular case if the application is granted.  Those principles have been referred to in a number of decisions, including the one probably best known that is of the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256. Very recently those same principles were discussed by Applegarth J in the Supreme Court of Queensland in a decision of EB v CT (Number 2) [2008] QSC 306.

25. In cases where an application to reopen is made but reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side. 

26. A number of decisions have referred to the sorts of considerations that a Court might take into account in determining whether proceedings should be reopened in those circumstances. Perhaps best known are those outlined in Reid v Brett where a Court held that the following matters might be included among those to be considered in the exercise of the discretion:

    a)the further evidence is so material that the interests of justice require its admission;

    b)the further evidence, if accepted, would most probably affect the result of the case;

    c)the further evidence could not, by reasonable diligence, have been discovered earlier;

    d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.

27. Those factors, while relevant, also need to be considered in light of the particular type of application before this Court.  That topic was the subject of argument at the original application heard by me. 

28. For reasons expanded upon in the reasons for judgment intended to be delivered today, my view is that the application for stay ought be determined by reference to the principles of forum non conveniens as distinct from the paramountcy of the best interests of a child pursuant to section 60CA of the Family Law Act.  That being the case, the principles applicable to a reopening of proceedings involving the application of the principles of forum non conveniens, are somewhat unusual. 

29. Mr Greer submits on behalf of the father that, in effect, the decision of the Utah Court is an important and relevant consideration to the determination by this Court and therefore the receipt of it in reopened proceedings better point to an outcome consistent with the principles of justice than if it were not received. 

30. There are some troubling aspects about that submission. First, the decision which for the purposes of this application is taken to have been heard and determined on 6 May 2009 (noting that the decision itself does not indicate when the matter was heard but only when it was determined and disseminated to the parties) says (at page 2):

    “The Australian Court has not presided over any hearings concerning this case”.

31. Furthermore, the reasons do not refer to the fact that, some nine days previous to the hearing and decision made by the Utah Court, a contested application involving the very issue of forum had been fully argued on behalf of each of the parties by senior counsel and was the subject of a reserved decision.  No reference whatsoever is made to that fact in the decision of the Utah Court. 

32. Further, the passage just referred to appears to indicate, as Mr Greer was effectively forced to concede, that the Court in Utah may have proceeded on information which was false.  It is plainly not right to say as the Utah judgment does that, as at 6 May 2009, the "Australian Court [had] not presided over any hearings concerning this case."  Not only had an Australian Court presided over proceedings in respect of this case, it had reserved a judgment in respect of the very issue which the Utah Court was being asked to determine. 

33. Next, accepting for the purposes of this application the mother's instructions to her solicitor communicated by her solicitors (and which I will, by order, require her to swear to within a short period of time, the proceedings not only proceeded in her absence, which is understandable enough, given that she resides in Australia but also, according to her, may have proceeded in the absence of her American attorney. 

34. Indeed, she goes further and says that, despite speaking to her American attorney yesterday, her American attorney was not even aware of the fact that a determination was being made by the Utah Court and, further, had not been made aware of the decision itself. 

35. The mother goes on to say, again in the manner just indicated, that the position is even more complex because, as far as she and her attorney were aware yesterday, the matter was still proceeding in the Utah Court on 28 May 2009.

36. These are not the proceedings in which issues disputed factually can be resolved, but I should say that I find each of the circumstances just described to be troubling and puzzling.

37. It seems to me that each of those factors directly concern the materiality of the evidence sought to be relied upon by the father in support of the application to reopen.

38. Each of the circumstances just referred to also directly relate to the justice of the case which ought be, in any event, the overriding determinant in respect of any application to reopen.

39. It is not clear to me whether the father or his American attorney were in a position at the hearing of the initial application by me to swear to the likelihood of proceedings (in whatever form) proceeding in Utah on 6 May 2009. But, I consider that at the hearing of that application, if either the father or his American attorney had that knowledge, then it ought to have been deposed to. It seems to me that that evidence could, by reasonable diligence, have been available to this Court and I find it puzzling that, in the period between 27 April 2009 and when this matter was apparently heard on 6 May 2009, no further evidence was forthcoming about the prospect of that hearing (or it having occurred) until some half an hour or so prior to the judgment being delivered.

40. In that vein, the admission of the further evidence in reopened proceedings is likely to cause prejudice to the mother.  She was, on the evidence of the father adduced at the hearing before me, entitled to assume that the proceedings before this Court would continue and be heard at a time prior to the determination of any similar issue in the Utah Court. 

41. It was, in my view, beholden upon the father to produce sworn evidence to any different effect at the hearing of the application and that was not done.

42. A litigant is presumed to be bound by the actions of those who properly represent that litigant, a Court is entitled to assume that when matters are submitted to a Court or evidence is submitted on behalf of a party to a Court, that it is done with the client's consent, knowledge and upon their instructions. 

43. The fact that proceedings might be heard by the Utah Court prior to the delivery of judgment was potentially a highly important matter, in respect of which evidence ought to have been received by this Court if within the province of the father. 

44. Furthermore, if proceedings were heard, as appears to be the case, on 6 May 2009 by a Utah Court, it seems to me that the father, through his American attorney, ought to have made that Court aware not only of the fact that there were proceedings with respect to the issue of forum having been heard by an Australian Court, but also that a reserved judgment in that respect was pending.

45. For those reasons I am not convinced that the interests of justice require the proceedings to be reopened so as to receive the affidavit of Mr Greer which, in turn, attaches the decision apparently made by the Utah Court on 6 May 2009 and I dismiss the oral application made on behalf of the father to reopen those proceedings.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  26 May 2009