Ghazal and Werther
[2017] FamCA 1083
•14 December 2017
FAMILY COURT OF AUSTRALIA
| GHAZAL & WERTHER | [2017] FamCA 1083 |
| FAMILY LAW – CHILDREN – Jurisdiction – Appropriate forum – Where the mother and child have been resident in the provenance of Province F since 2009 – Where the father has placed the child on the airport watch list and seeks parenting proceedings be heard in Australia – Contended Australia is not the appropriate forum – Where the best interests of the child would be served by the parenting case being heard in the provenance of Province F – Father’s Initiating Application dismissed. |
| Family Law Act 1975 (Cth) ss 60I, 60CI, 60CC |
| Acquaah-Akuffo & Abioye [2016] FamCAFC 194 | ||
| APPLICANT: | Mr Ghazal | |
| RESPONDENT: | Ms Werther |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | ADC | 4660 | of | 2017 |
| DATE DELIVERED: | 14 December 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 14 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Horvat |
| SOLICITOR FOR THE APPLICANT: | Diaspora Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Lewis |
| SOLICITOR FOR THE RESPONDENT: | David Gibbs & Associates |
Orders
That all applications filed by the applicant father be dismissed.
That the child B born … 2015 be forthwith removed from the Australian Federal Police Watchlist and Ms Werther be permitted to remove the said child from the Commonwealth of Australia.
That the question of costs be reserved to a date to be fixed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ghazal & Werther has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4660 of 2017
| Mr Ghazal |
Applicant
And
| Ms Werther |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
Mr Ghazal is the applicant to the proceedings. Ms Werther is the respondent. The parties are the parents of the child B born in 2015 (“the child”) aged two years and 11 months. The proceedings commenced by way of an Initiating Application filed on 8 November 2017. The application was prepared in simple form and sought the following orders:
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child do spend substantial and meaningful time with the father and unless agreed in writing between the father the mother to the contrary.
(3)That the child live with the mother.
(4)That the child spend time a week about with the father.
There are no interim orders sought in that application.
That document was superseded by an Amended Initiating Application which sought substantially more detailed orders. It is notable that the orders sought were by way of final orders only and the initial intention of the father was that there would not be any interim orders. The tenor of the orders was to seek equal shared parental responsibility in respect of the child, that the child would live with the mother, that the child would spend time as set out in paragraphs 7 and 8 of the final orders sought. Subject to certain caution, it was not controversial that the child would reside in the province of Province F, Indonesia, even though the proceedings were brought in Australia.
The mother filed her Response on 4 December 2012. By way of final orders the mother sought that the child reside with her and spend time with the father as may be agreed. By way of interim orders the mother sought that the proceedings be transferred to the Federal Circuit Court of Australia at the Suburb H Registry and importantly, for the current proceedings that the child forthwith be removed from the Australian Federal Police watch list.
The father then filed a reply.
On 6 December 2017 the mother filed an Amended Response seeking that the applications filed by the father be dismissed with costs, but in the alternative that the child reside with the mother and spend time with the father. There is not much difference to the tenor of the orders sought.
The father filed a Reply filed on 12 December 2017 and sought detailed interim orders which to a very large degree mirror the orders sought as final orders in the Amended Initiating Application. Upon discussion with counsel for the father it was conceded that not all of the orders in the application were to be pressed. The interim orders sought could be confined to orders 1, 6, 7, 9, 13.1, 13.2, 13.3, 15, 16, 17, 18, 19, 20, 21 and 24.
The background to the proceedings is that each of the parties are Australian citizens but that they reside substantially or permanently in the province of Province F, Indonesia. The mother asserts that she has the ability to reside permanently in Province F and that she has done so since June 2009. The father also appears to reside permanently in Province F, although there is some suggestion that the father may need to return to Australia from time to time in order to renew his visa.
The evidence suggests that they each consider Province F to be their home. The child was born in Province F in 2015. It is conceded or at least asserted by the mother that the child is an Australian citizen. Each of the parties have businesses in Province F. There is more information in respect of the financial connection with Province F as far as the mother is concerned. She says that she operates a business employs some 10 persons. She says that she comes to Australia on two or three occasions per year, and she does so because she has family in Australia, and in particular, in the state of Victoria.
The father has a daughter, C, who is the child’s half-sibling. C is aged seven years and lives in Adelaide. He travels to Adelaide on a couple of occasions a year to spend time with C, and there appears to be a reasonable relationship between the father and C’s mother such that from time to time C may well travel to Province F and spend time with the father in his home.
Following the parties’ separation, the mother asserts that she and the father had come to an amicable arrangement between them in respect of his time with the child. The mother says in her affidavit that following separation in or about April 2016, the father had contact with the child on a reasonably regular basis. She says for a time he was spending time with the child from 5 pm on Friday night through until 2 pm the following Saturday. That only commenced either last year or early this year. He would have her for breakfast on a Monday morning, returning her around 9 am and on a Thursday morning would take her for breakfast at 7.30 am. The father would engage the child in other activities, swimming and other social engagements.
It is not to suggest that the parties were necessarily on good terms, but there appears to be a concession by the parties, but in particular the father, that he has not been prevented from spending time with the child. What he seeks is to put in place a regular arrangement. Accordingly, the orders he seeks in relation to the interim orders would be a reflection of that which generally he wants but also has some substance in terms of the arrangement as between the parties.
The mother arranged to travel to America on 2 November 2017 to participate in the City D Marathon. The child stayed with the mother’s sister, in Suburb E, Victoria. The child and the child’s cousin met with the mother in the US on 7 November and that following a family holiday she returned to Australia on 27 November. There is some contention as to whether the father received any or any sufficient information as to the mother’s intention to remove the child from Province F and travel to the United States.
There appears as far as the mother is concerned to have been some issue in relation to the inability of the parties to secure an arrangement, that there were difficulties in phone calls being returned. She says that when they did eventually meet up she concedes she did not tell the father that she intended to holiday or take the child to the United States. She provides a reason in her affidavit but essentially the reason is I think obvious, namely, she was concerned that if she told the father of her intentions , then he would take some action to stop her.
The mother then made contact with the father whilst in Australia and it was assumed by her that the father was in Province F. It is uncontroversial that at all material times the mother’s intention was to return the child to the province of Province F. Indeed, it was only when she and the child attended at the airport that she was advised that the child had been placed on the Airport Watch List. That meant that the child could not leave the Commonwealth of Australia and return to Province F. There is no controversy that it was the actions of the father or, on instruction, his solicitor that caused the child to be placed on the Airport Watch List.
There is now the curious, and invidious situation of the father wishing to return to take up residence in Province F, the mother wishing to return with the child to take up residence in Province F and the proceedings having been issued by the father having the effect of preventing the child and, by implication, the mother from returning to the very jurisdiction or area where the parties both live and have significant financial connection. The mother’s position is that the father was opportunistic in relation to the filing of these proceedings in circumstances where at all times he knew that the mother was going to return the child to Province F and that, in any event, it was only the Airport Watch List directive which stopped the child being returned to Province F. Counsel for the mother highlights that when one considers the initial application which underpinned the watch list directive, that it was defective in a number of aspects.
Of more substance however is the assertion that, in any event, in relation to a parenting application, the parties are obliged to explore by way of appropriate mediation and counselling whether their differences can be dealt with, and if not, then a s 60I certificate pursuant to the Family Law Act 1975 (Cth) (“the Act”) can issue and the Court can then have confidence that there is a dispute between the parties that merits the Court’s attention. It is true that the parties have obviously have had some discussion with each other in terms of attempting to resolve their differences, but it could not be said that the efforts of the parties, in terms of pre-litigation mediation, would in any way satisfy the provisions of s 60I.
I do not consider that this is a child at risk and there are no allegations relating to matters of family violence. If it be the case that the father had a concern that the child was in the United States of America and that, in some way, the child was not likely to be returned to the province of Province F, then upon the father learning of the mother’s clear intention to return, it seems to me that the process then should have been embarked upon to ascertain whether the parties could resolve their differences. The issue for the father is that the manner in which the proceedings have been brought would not allow that option because the father and the mother do not want to remain in Australia.
To the extent that there is any urgency in the matter, it is created by the father. It could be said that the father has pulled himself up by his own bootstraps in creating a circumstance where, as a result of that, there is difficulty, in terms of his ability to comply with the provisions of s 60CI of the Act.
There is uncertainty as to the father’s clear position before the Court. Whilst I understand the orders that the father presses in respect of the interim proceedings, it could not be said that the father would wish an outcome that would see the child remaining in Australia until either the interim proceedings or the final orders as sought by the order being the subject of resolution. It appears that the application by the father has, at the very least, an opportunistic aspect to it in that he hoped that by ensuring that the child could not return to Province F until he determined that circumstances were such that the child could be removed from the Airport Watch List, the mother would capitulate to at least some of the orders that he sought.
Inherent in the submissions of counsel is the clear undercurrent that the father accepts this child, and obviously the mother, should be properly back in Province F. He does not seek that the child be retained in Australia for any significant period of time. It is difficult to understand what was ultimately the father’s expectation in respect of the proceedings, knowing, as he would have from his legal advice, that whilst the interim orders might be dealt with sooner rather than later, the final orders are proceedings that are not likely to be resolved unless resolved by consent for a period of some two years or so. It is unclear whether there is an expectation that the parties would happily travel from the province of Province F to Australia in respect of what is required for a parenting case to be properly prepared and all that entails, preparation of documents, attendance on family consultants for the purposes of assessment and report, mediation, and then attendance in Court.
The Court has been assisted by detailed, outlined documents and, in the father’s case, a detailed and helpful document setting out the authorities. It seems to me the first issue that must be considered is the appropriate forum for the proceedings. That is, the question is posed in what circumstances may a Court decline to exercise its jurisdiction in favour of a foreign jurisdiction? Ordinarily, the doctrine of forum non conveniens will dictate the forum of proceedings n circumstances where the matter may be heard in Australia or in another jurisdiction. However, the doctrine of forum non conveniens is not applicable in parenting cases where the child is within the jurisdiction. See ZP & PS (1994) 181 CLR 639.
The appropriate focus is to consider what is in the child’s best interests, and in considering that, the Court may have regard to the following: -
(1) Whether it is appropriate to make a summary order that the proceedings should be heard in a foreign jurisdiction;
(2) If the answer to the first question is negative, the Court should embark upon the question of parenting considerations, and in making a finding, the Court may determine the matter is more appropriately heard in a foreign jurisdiction.
Voth & Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538 is authority that Australian Courts should only decline jurisdiction regularly invoked by a plaintiff if it is satisfied that the forum selected is clearly inappropriate. The Voth test has been applied in the Family Court in respect of property settlement and other financial relief. In custody disputes, however, the High Court of Australia held in ZP & PS that the best interests of the child prevail over consideration of forum non conveniens, and after finding that the doctrine have no application to the issue, the plurality, comprising Mason CJ and Toohey and McHugh JJ, said:
In some cases those matters may bear on issues which touch upon the welfare of a child, but 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. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction. However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court to make a summary order that a child be returned to a foreign jurisdiction so that the questions concerning custody and access may be dealt with by the courts of that jurisdiction.
Their Honours cited with approval the decision of Neill LJ in Re F (Abduction: custody rights) 11 (1991) Fam 32 in the following terms:
The general principle is that, in the ordinary way, any decision relating to custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.
Their Honours then continued, saying that where the question arises whether the Family Court or a foreign court should determine the issue of custody of children, at page 648 the following appears:
In such an application, the first issue is whether the welfare of the child requires the making of a summary order that both questions 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 the court should embark upon determining the issue of custody itself.
On the topic, their Honours also referred to the decision of Baroness Hale of Richmond in Re J (A Child)(Custody rights: jurisdiction) [2006] 1 AC 80 at 28:
It is plain, therefore, that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping of a child from his home country. On the other hand, summary return may well be in the best interests of the individual child.
The Court has considered the matter in a number of authorities, Killam & Loeng [2015] FamCAFC 41, and in that decision the plurality of the Full Court, consisting of May and Ainslie-Wallace JJ upheld the trial judge’s finding, namely, that whilst the Family Court had jurisdiction the best interests of the child required their immediate return to China where any argument between the parties could be dealt with by the Chinese legal system. Their Honours upheld that that the trial judge undertook a proper consideration of the evidence and the law in ZP & PS and that the findings of the court were, “not inconsistent with the proper consideration of the best interests of the child.”
A similar consideration was given in the decision of Acquaah-Akuffo & Abioye [2016] FamCAFC 194 and Hsing & Song [2016] FamCA 986 where the child lived with the father in China, was brought to Australia by the mother without the father’s consent and orders were made for the immediate return of the child. I have today been referred to the decision of his Honour Justice Rose of JJT & CCT (2004) FamCA 1104. Whilst his Honour appeared to place more weight on matters relating to the question of forum non conveniens it is my consideration that the principle of forum non conveniens – that is, whether Australia is clearly an inappropriate forum – is not the applicable test in circumstances relating to parenting considerations.
In considering any decision such as this, I’m obliged to consider the best interests of the child and I bring to account those factors pursuant to s 60CC but, in particular, the primary considerations and the additional considerations. It is a curious consideration of s 60CC that little is applicable to the circumstances of this case. There is no suggestion that the actions of the mother in coming to Australia with the child was in any way intended to diminish the meaningful relationship that the father has with the child.
It could not be so in circumstances where the mother had, in fact, prepared herself to return to the province of Province F to the extent where she reached the airport and about to get on the plane with the child. There is no risk to the child in the sense of a risk that is unacceptable. There are no issues relating to the views of the child. There are no matters relating to family violence and the best that can be said is that there is a dispute between the parties as to the extent to which the child should spend time with the father, notwithstanding that there is nothing in evidence to suggest that the father has been denied time but, rather, the parties are in dispute as to perhaps the extent or the regularity of that time.
The child lives in Province F and that is the child’s habitual place of residence. The parties live there and they have viable financial enterprises in Province F. It is not really a serious contention by the father that the interests of this child are best served by the child remaining in Australia. There is nothing about the orders that he seeks, either by way of the final orders or the interim orders, that would suggest the child should remain here. That is not what he wants and his counsel speaks against it. An important consideration is obviously to consider in terms of the best interests of the child whether any issues relating to the legal entitlements of the parties or the manner in which a parenting consideration or a parenting hearing will be dealt with in the province of Province F, as opposed to Australia, may present as a risk to the child.
The Court is assisted by an affidavit of Mr G who is a solicitor in Province F and whose assistance and opinion was sought by the father’s solicitors as to the circumstances that the parties and the child would find themselves in Province F if they venture upon a parenting dispute. There is nothing inherently inappropriate about the opinion. What it does say, though, is that there is a legal system in Indonesia that would be able to assist the parties. It may not provide the considerations that apply under the Family Law Act, but there is a suggestion by the author of the opinion that in issues of jurisdiction, if the parties are not able to exercise any rights under Indonesian law, then the parties would be able to present evidence as to how issues might be dealt with under Australian law for the Indonesian courts to take into account.
True it is that the proceedings may well be conducted in Indonesian and the parties may well require an interpreter. There is nothing inherently unfair or inappropriate or even, to some extent, inefficient about the use of an interpreter in litigation. Interpreters are used in the Family Court of Australia and all Courts in Australia on a regular basis. The same applies in Indonesia. Indeed, that is where the parties live and that is where the parties would wish to live. I am not able to take judicial notice of any disadvantage, perceived or otherwise, that inures to the parties but, in particular, the child that arises where an application in respect of a parenting dispute is filed in an Indonesia court.
To do so would be inappropriate. Accordingly, I find that there is an appropriate legal system in Indonesia that would be able to deal with the issues as raised between the parties in respect of the child and in circumstances where each of the parties submit themselves to an Indonesian court process on the basis that they have residency and permanent residency. In the circumstances of this case I can see no particular advantage to these proceedings remaining in this jurisdiction. It is not in the interests of the child that it occur.
In fact, the best interests of this child are served where there is a familiar environment in the province of Province F and where the child will have the advantage of the proximity of both her parents. As circumstances currently are now, the mother resides in Suburb H with members of her family. The father is in Adelaide with his family, including his daughter. At present, even with the best of intentions, no order could be made which would enable the parties in their separate geographical residence in Australia from coming together for the purposes of the child spending time with the father.
A further issue arises that whilst there may be some greater familiarity and, therefore, an assumption that orders made in Australia may be better attuned to the ongoing parenting arrangements for the child, given that, ultimately, the child sooner rather than later would return to the province of Province F the question then arises as to whether those orders made in Australia could be enforced. It seems to me that if there are advantages to there being some regular arrangement put in place in respect of the child spending time with the father that it best occurs in a jurisdiction where orders can be made, but not just made enforced.
There is little or no evidence to suggest that an order that might be made in this Court could be the subject of enforcement or effective enforcement in the province of Province F or Indonesia generally. Indeed, even the orders that the father seeks by way of interim orders does not seek to restrict the mother to the province of Province F but, just simply, her return to Indonesia. For those reasons, I consider that the Court should not embark upon a consideration of the parenting arrangements in respect of this child but, rather, should dismiss the proceedings and put in place appropriate orders that would see the mother able to return the child to Province F with all possible expedition. It is a matter then, of course, for the father as to how quickly he chooses to follow his daughter.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 14 December 2017.
Associate:
Date: 21 December 2017
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