Goen and Sinna - [2017] FamCA 857

FAMILY COURT OF AUSTRALIA

GOEN & SINNA

[2017] FamCA 857

FAMILY LAW – PRACTICE AND PROCEDURE – Dispute as to appropriate forum – Where a previous determination has been made that the child is habitually resident in Australia under the Hague Convention – Where there are current proceedings on foot in State C, United States of America – Where the father seeks that any parenting proceedings be determined in State C – Where the father submits there is greater cost and delay in Australia – Where the father claims his meaningful relationship with the child is hindered by proceedings being continued in Australia – Where the mother seeks that parenting proceedings continue in Australia – Where concerns raised by the father as to the mother’s mental health – Where the delay and cost of proceedings in Australia unlikely to be greater in Australia than State C – Where the mother’s mental health could be negatively affected by her returning to State C – Where the mother returning to State C could be detrimental to the child – Where the father’s meaningful relationship with the child is not hindered by proceedings being continued in Australia – Where the best evidence as to the mother’s mental health is in Australia – Where the appropriate forum for resolving parenting disputes is usually the child’s place of habitual residence – Where it is in the best interests of the child for the matter to be determined in Australia.

Family Law Act 1975 (Cth) s60CC Family Law (Child Abduction Convention) Regulations 1986 Hague Convention on the Civil Aspects of International Child Abduction 1980 Hague Convention on Parental Responsibility and Protection of Children 1996
Department of Family and Community Services & Gurner [2017] FamCA 232 Sinna & Goen [2017] FamCA 209 Zanda & Zanda [2014] FamCAFC 173 ZP v PS (1994) 181 CLR 639
APPLICANT:	Mr Goen

RESPONDENT:

Ms Sinna

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

FILE NUMBER:

PAC

5094

2016

DATE DELIVERED:

16 October 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

3 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mahony

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Watts McCray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

Orders

That the Applicant Father’s Application in a Case filed 29 September 2017 be dismissed.
That both parties be and are hereby restrained from pursuing, enforcing or otherwise continuing with any legal proceedings in the Superior Court of State C in respect to the child of the marriage, the child B born … 2013, in so far as they relate to the child’s care, welfare and development.

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 Goen & Sinna has been approved by the Chief Justice pursuant to s 121(9)(g) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goen and Sinna

Details

AGLC: Goen and Sinna [2017] FamCA 857
Case: [2017] FamCA 857
Decision Date: 16 October 2017

CaseChat Overview and Summary

The applicant father sought to bring proceedings in the Superior Court of State C concerning the care, welfare, and development of the child B. The respondent mother opposed this application. The matter came before Hannam J.

The primary legal issue before the court was whether the applicant father should be permitted to commence proceedings in the Superior Court of State C regarding the child B, given existing proceedings and orders in another jurisdiction. The court was required to determine the appropriate forum for resolving disputes concerning the child's welfare.

Hannam J dismissed the applicant father's application. The court applied principles of comity and the need to avoid conflicting orders in matters concerning children. The reasoning focused on preventing vexatious litigation and ensuring the child's best interests were not prejudiced by parallel proceedings in different jurisdictions. Consequently, both parties were restrained from pursuing or enforcing legal proceedings in the Superior Court of State C concerning the child B's care, welfare, and development.

Orders

Orders of the court

That the Applicant Father’s Application in a Case filed 29 September 2017 be dismissed.

That both parties be and are hereby restrained from pursuing, enforcing or otherwise continuing with any legal proceedings in the Superior Court of State C in respect to the child of the marriage, the child B born … 2013, in so far as they relate to the child’s care, welfare and development.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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