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 of 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

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

2. 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 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 PARRAMATTA

FILE NUMBER: PAC 5094  of 2016

Mr Goen

Applicant

And

Ms Sinna

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Ms Sinna (“the mother”) and Mr Goen (“the father”) are in dispute about the future parenting arrangements for their four year old daughter, B (“the child”).

2. This is an application for a determination in relation to the forum in which that parenting dispute is to be heard. The father seeks that the matter be dealt with in State C, United States of America where the child was born while the mother seeks that the matter be dealt with in Australia where she currently resides with the child. 

Background

1. On 7 April 2017 I delivered a judgement[1] in relation to a costs application made by the father that substantially sets out the factual and procedural history of the matter (“the costs judgment”).

   [1]Sinna & Goen [2017] FamCA 209.

2. On 13 April 2017 another Judge of this Court delivered a judgment[2] in relation to the proceedings for the return of the child pursuant to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) that further sets out the background to the matter (“the Hague judgment”). 

   [2]Department of Family and Community Services & Gurner [2017] FamCA 232.

3. The following background is extracted from the costs judgement and the Hague judgement.

4. The father is a 42-year-old American National. The mother is a 41-year-old Australian.

5. The parties met online in 2008 and each spent time in the other party’s country prior to their marriage.

6. In 2010 the parties married in State C in the United States. The mother obtained employment in State C some months later and continued working for some time prior to the birth of their only child.

7. In January 2012 the mother began attending upon a psychologist in State C.

8. In 2013 the child was born in State C and at the time of these proceedings is four and a half years old. The child attained citizenship of the United States at the time of her birth.

9. From the time of her birth the child was primarily cared for by the mother.

10. Soon after the child’s birth, the mother was diagnosed with postnatal depression. The mother also developed symptoms of premenstrual dysphoric disorder (“PMDD”).

11. In late 2014 the mother began experiencing some significant difficulties associated with not having returned to Australia for some years and feeling depressed and isolated.

12. The mother’s parents and her sister visited her in State C in November 2014 and her mother visited her again in February 2015.

13. The mother’s mental health fluctuated from the beginning of 2015 and at times she experienced suicidal ideation. A nanny was employed by the father between February 2015 and the end of 2015 to help care for the child which the mother did not find helpful. There was also friction between the mother and father about the father’s relationship and interaction with the nanny.

14. The mother says that by early 2016 her mental health had improved but following a visit from her father in February 2016 she was once again reminded of how isolated she felt in the United States. The parties continued to experience difficulties in their own relationship.

15. According to the Hague judgement the turning point in relations between the parties came in August 2016 when the mother became aware that the father had begun another relationship. In this context the mother consulted another psychologist reporting that she felt alone, without support and needing help. The father left the family home on two occasions, the final occasion being 12 August 2016. At this stage the parties regarded themselves as having separated.

16. The parties then arranged to see a lawyer who acted as a mediator in relation to their parental dispute concerning the future arrangements for the child. The parties attended mediation with the lawyer and reached an agreement in relation to parenting orders.

17. On 23 August 2016 the parties signed a joint Motion and agreement for “temporary orders” which was filed in court on 25 August 2016.

18. As set out in the Hague judgement at [76] the joint motion contains the following preamble:

    1)It is the parties’ desire to amicably resolve all issues related to the divorce, including property and debt division, legal decision-making, parenting time, spousal maintenance and child support in a final consent decree, marital settlement agreement and parenting plan.

    2)Mother desires to return to her home country of Australia with the parties’ minor child in the very near future, prior to a final agreement as described above.

    3)Father agrees that Mother may return to Australia with the minor child subject to the parties’ agreement contained in this Joint Motion, below. 

19. On 25 August 2016 the father also filed a petition of dissolution of marriage in the Superior Court of the State of State C which is still pending and set for trial in December 2017.

20. On 26 August 2016 a judge of the Superior Court of State C made orders in accordance with the parties’ agreement including the following:

    ·    [the] father “has sole legal decision- making of the child” and that he “shall make a good faith effort to discuss issues related to the legal decision-making with [the] mother”

    ·    [the] “mother has all parenting time, subject to reasonable parenting time for [the] father”. “Reasonable parenting time” is defined as “a minimum of two weeks uninterrupted parenting time at least every three months to be coordinated by the parties”

    ·    provisions in relation to the “transportation costs” associated with the fathers “parenting time”, payment of child support and spousal maintenance

    ·    the father has “sole discretion, should he determine that it is appropriate for the minor child to return to the United States” and that he “shall be entitled to retrieve the minor child and bring her to the United States, and [the] mother shall cooperate with [the] father to effectuate this provision”

    ·    orders in relation to registering the orders in an Australian court

    ·    that the mother be “permitted to relocate to Australia” with the child.

21. The orders were “date stamped” on 31 August 2016.

22. On 12 September 2016 the mother and child left the United States and arrived in Australia on 14 September 2016.

23. The mother and child moved to live with the mother’s parents and sister in their home on the central coast of New South Wales.

24. The orders of the Superior Court of State C were not registered in Australia.

25. There is no dispute that although the United States have signed the Hague Convention on Parental Responsibility and Protection of Children (‘the Child Protection Hague Convention’) as this Convention has not been ratified by the United States the convention does not apply in the parenting dispute.

26. From about 28 September 2016 in Skype and email communication the father began raising the issue of the mother returning the child to the United States.

27. The mother did make some arrangements to return to the United States but felt that she was coerced into doing so.

28. On 12 October 2016 the child became an Australian citizen.

29. The mother initially informed the father that she and the child were returning to the United States but subsequently changed her mind and informed the father that she would not be returning.

30. On 31 October 2016 the father filed a petition in the Superior Court of State C for enforcement of the temporary orders and for the return of the child to the United States.

31. On 1 November 2016 the mother commenced proceedings in this court for parenting orders in relation to the child.

32. On 14 November 2016 the father filed with the US State Department an application pursuant to the Hague Convention on the Civil Aspects of International Child abduction for the return of the child to the United States.

33. On 22 November 2016 orders were made in the State C Superior Court including that the child to be returned to the United States on 11 January 2017 and then be returned to the mother in Australia on 1 February 2017.

34. On 21 December 2016 the Department of Family and Community services as the Central Authority filed an application seeking orders for the return of the child to the United States (“the Hague application”). The Hague application was opposed by the mother on the basis that at the time of the asserted wrongful retention of the child in Australia the child was not habitually resident in the United States.

35. On the same day the father filed a motion in the Superior Court of State C to enforce the orders of 22 November 2016 for the child to travel to the United States.

36. On 10 January 2017 the parenting proceedings commenced by the mother in this Court were stayed pending the outcome of the Hague application.

37. The Hague application was heard by Watts J on 31 March 2017 and in a judgement delivered on 13 April 2017 the application was dismissed. For the reasons given in the Hague judgement His Honour found that as at 27 October 2016 (the date of the alleged wrongful retention of the child by the mother) the child was no longer habitually  resident in the United States and had become habitually resident in Australia.

38. On 30 May 2017 the parenting proceedings commenced in this court which had been stayed pending delivery of the Hague judgement were relisted at the request of the parties.

39. On 19 June 2017 the father filed an Application in the Case seeking interim parenting orders. In particular he sought that the child be returned to State C, live with him and spend time with the mother by agreement. Alternatively he sought that  the mother and father spend time with the child in a “three month about” arrangement until the child starts primary school or, that the child live with the mother and spend time with the father in State C for a period as the Court deems fit.

40. In her Response to the father’s Application in the Case, filed 21 July 2017, the mother sought orders that the father’s application for interim parenting orders be dismissed. She proposed that the child live with her, and that the child spend time with the father on the NSW Central Coast as agreed, that Skype contact be facilitated between the child and the father three times a week, that the child commence preschool and that the child be placed on the Airport Watch List.

41. When the matter was next before the Court on 24 July 2017 I made orders for the parents to attend on a Family Consultant under the Child Responsive Program and that the matter be set down for hearing to determine the dispute as to forum. I also ordered that the child be placed on the Airport Watch List. Orders were also made by consent on that date for the child to commence preschool and to spend defined time with the father in September and October 2017.  

42. On 28 September 2017 the mother, father and child were interviewed by a Family Consultant. The Family Consultant’s Memorandum, known as the Child and Parents Issues Assessment, was released to the parties at the forum hearing on 3 October 2017 and relied upon in the hearing.  

43. The father seeks orders that the appropriate forum for the parenting dispute is State C Superior Court, that the mother’s parenting application be dismissed, that she be restrained from prosecuting any application in relation to the child in the Family Court of Australia and that she pay his costs on an indemnity basis.

44. The mother seeks orders that the parties be restrained from pursuing legal proceedings in State C with respect to the child, that the parents equally share parental responsibility for the child, that the child live with the mother and “spend time with” (sic) the father via Skype three times a week and on the NSW Central Coast as agreed between the parties and the father pay the mother’s costs on an indemnity basis.

45. This judgment is concerned only with the issue of the forum in which the parenting dispute is to be heard.  

The Evidence & Submissions

1. The father relied upon an affidavit of himself, a single paragraph from an affidavit previously filed by him and an affidavit of his attorney in the State C proceedings. The father’s attorney in State C was available via video link for additional oral evidence and gave such evidence in response to questions I asked in relation to the proceedings in State C.

2. The mother relied upon an affidavit of herself and her mother.

3. Both parties relied on the Family Consultant’s Memorandum dated 28 September 2017.

4. There is no dispute in the proceedings that the State C Superior Court and the Family Court of Australia each have jurisdiction to determine the parenting dispute between the parties.

5. Both parties and the independent children’s lawyer (‘ICL’) agree that the law is clear. The venue for the resolution of this parenting dispute is determined on the basis of the best interests of the child.

6. It is the father’s case in summary that the most significant factor in favour of the dispute being resolved in State C is that there will be less delay in that jurisdiction than if the proceedings are determined in this court. A final determination of the parenting dispute is of itself in the child’s best interests in the father’s submission and for so long as the proceedings remain undetermined it is argued that the child is not receiving the benefit of a meaningful relationship with her father. It is also submitted on behalf of the father that as there are outstanding divorce, property and child maintenance proceedings in State C it would be more costly for the parties to be involved in litigation in both jurisdictions. It is argued it would be in the child’s best interests for all outstanding matters between the parties to be resolved in one jurisdiction.

7. The mother’s case in summary is that it is appropriate and in the child’s best interest for the matter to be resolved in the place in which the child lives. If the proceedings were determined in State C this would require the mother to travel to that jurisdiction which brings with it a number of detriments for the mother and child. It is also submitted on her behalf that the current evidence in relation to a significant issue in dispute between the parties (being the father’s contention that the mother’s parenting capacity is impaired due to her mental health) is in Australia where the mother has sought treatment since moving here.

8. The ICL supports the mother’s position and contends that it is in the best interests of the child for the proceedings to be to be determined in this court. The ICL is particularly concerned about the practical arrangements for the mother and child if the proceedings are to be determined in State C and the adverse impact upon the mother of travelling to State C to participate in those proceedings which in the submission of the ICL is likely to also detrimentally affect the child.

The Law & Discussion

1. It is settled law[3] that the principle upon which the court determines the appropriate forum for a parenting application is that the best interests of the child is the paramount consideration.

   [3]ZP v PS (1994) 181 CLR 639; Zanda & Zanda [2014] FamCAFC 173.

2. The matters to be considered in determining a child’s best interests are set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’) and are described as primary considerations and additional considerations.

3. Virtually none of these considerations have any relevance with respect to determining the appropriate venue, other than s60CC(3)(m) which provides that the court is to consider “any other fact or circumstance that the court thinks is relevant”.

Delay

1. The first relevant consideration raised by the mother with respect to the child’s best interests in this forum application is the period in which in which the proceedings are likely to be finally determined in each jurisdiction. I accept that generally it is regarded to be in a child’s best interests that proceedings are determined to finality sooner rather than later.

2. It appeared on the basis of the affidavit filed by the father’s US attorney that it was likely a final parenting trial would be heard within about three months of a decision being made that State C was the appropriate forum. However, in her additional oral evidence the father’s attorney said that if a “best interests lawyer” were to be appointed in this case or an expert appointed by the court which would involve assessment of the child and parents a further three to four months should be added to the likely hearing date. Neither a “best interests lawyer” or an expert have been appointed to date.

1. If an expert were appointed in the proceedings in State C which appears likely given the parties’ competing applications, the father’s attorney said that the interview and assessment of the child and parents could take place either in State C or in Australia but in any event would require the parents and child to be physically present with the expert for that assessment. When concerns were raised by the mother about her being required to travel to the United States, (a matter to which I will return) it seemed that the father conceded it would be preferable for the expert assessment to be undertaken in Australia and expressed through his counsel a willingness to travel for this purpose.

2. It is likely that the appointment of an expert in Australia for the purposes of the State C proceedings would bring with it the delays inherent in obtaining expert evidence in this Court, given the paucity of appropriately qualified experts. For this reason in my view a final hearing date in proceedings determined in State C may well be similar to that which could be given were the proceedings to be determined in this jurisdiction. For this reason delay is not a particularly weighty factor.  

3. It was also submitted in the father’s case outline that delay in the proceedings is likely to deprive the child of a continuing meaningful relationship with her father. In particular the child has only spent face-to-face time with the father when he travelled to Australia (around 12 months after the child left the United States) for the purposes of the proceedings. In the course of the oral argument it was conceded that the child was not being deprived of a meaningful relationship with her father due to any reason associated with the appropriate forum but it was an aspect of the contention that it is in the best interests of the child for the proceedings to be resolved without undue delay.

Cost of proceedings

1. The other main consideration raised on behalf of the father is the cost associated with conducting proceedings in two jurisdictions. There is no dispute that there are some outstanding matters related to divorce, property adjustment and child maintenance in State C and it is the expectation of the parties that those proceedings will be completed in State C at a hearing in December 2017.

2. It is argued on behalf of the father that the cost of the family law litigation has had an impact on the ability of the parents to comply with the temporary orders made in State C on 26 August 2017 (i.e. for the mother to bring the child to the United States or for the father to travel to Australia) and thereby facilitate the child’s meaningful relationship with her father. It is argued that it will be less expensive for the parents if the proceedings can be consolidated to address all matters arising out of the breakdown of the parties’ marriage in the one venue and thus in the child’s best interests if this can occur.

3. Upon further enquiry the parties agreed that the only remaining matters other than the parenting dispute have been listed for final hearing for two hours and the lawyers engaged in those proceedings are confident all issues will be completed within this timeframe.

4. It also does not appear to me on the basis of the evidence concerning the father’s financial resources that there has been any real financial impediment to him spending time with the child while she has been living in Australia. The issue of cost associated with determining the entire proceedings in State C rather than in this court is in my view marginal and little weight is attached to it in the determination of the appropriate forum. 

The parties’ intention to litigate in State C

1. It is also submitted on behalf of the father that another relevant fact or circumstance in the forum determination is that at all times prior to November 2016 the intention of the parties was to conduct their parenting proceedings in the court in State C, including aspects of the child’s living arrangements and relocation. It is argued that this intention is clear from the fact that the parties equally filed a Motion with the court that it make temporary orders in relation to the child’s parenting.

2. In my view the intention of the parties to conduct the litigation in State C is not a weighty factor in circumstances where it appears to be conceded by the parties (and according to the transcript of the proceedings in State C on 22 November 2016 when the father sought to enforce the consent orders) that the temporary parenting agreement they had reached was not in the best interests of the child.

Availability of evidence

1. It is submitted on behalf of the mother that it is in the child’s best interests for an application relating to her parenting to be resolved in a jurisdiction where the best relevant evidence is available.

2. It has been a common theme in the father’s case to date that the mother’s parental capacity is impaired by difficulties in her mental health. When seen by the Family Consultant as part of the Child Responsive Program the father’s allegations regarding the mother’s mental health and its impact upon her parenting is identified by the Family Consultant as a key issue. The father raised concerns about the mother’s “physical and mental illness” and the mother also told the Family Consultant about her physical hormonal illness which affected her moods and mental health.

3. As noted in the background it is well documented that the mother was diagnosed with PMDD from around 2014. The mother has had ongoing treatment for this condition including surgery in March 2017 in Australia. The mother told the Family Consultant that her mental health and moods were no longer affected since this surgery and her ongoing treatment as those matters were related solely to her physical illness. The mother has been under the care of a specialist with respect to this condition and a psychologist in Australia.  

4. In his discussions with the family consultant the father disputes the mother’s contention that her mental health issues were all related to a hormonal condition though he conceded that condition exacerbated her mental health issues. The father has at all times raised concerns about how the mother’s mental health affected her parenting.

5. In my view the best evidence in relation to the mother’s current physical and mental health and any impact it may have on her parenting is likely to be available in Australia. It is likely that any overseas witnesses such as treating health professional will be less relevant than the current and recent health professionals and will be able in any event to give their evidence by Skype or similar facility.

The mother travelling to State C

1. It is also submitted on behalf of the mother that an assessment of herself and the child by an expert may require the mother and child to travel to the United States. It is submitted that any travel to the United States will heighten the mother’s anxiety especially where the father has not given any undertaking that he would not approach the court in State C to issue a warrant or take other action to enforce the temporary consent orders made by that Court. According to the transcript of the proceedings in the State C Superior Court on 22 November 2016 the presiding judge is of the view that the mother has breached the court orders.

2. It is also submitted on behalf of the mother that she will need to be present in the United States if the parenting proceedings were to be conducted there. Although she may be able to give her evidence via Skype she could be disadvantaged in the conduct of such important proceedings generally if she were not physically present to instruct those who appear on her behalf.

3. The ICL was also concerned about the practicalities for each party in preparing for a parenting dispute to be conducted in another country. The ICL submitted that the difficulties associated with these practical arrangements would have a greater impact upon the child if the mother were required to conduct litigation in another country as the mother is and has been the child’s primary or sole carer throughout her life.

4. If the proceedings were to be conducted in this court this will necessitate only that the father travel which presents no disadvantage to the child. Indeed there is the advantage of the father spending some time with the child if he is to travel for the purposes of the proceedings in light of the fact that the only time he has spent with the child since September 2016 has been when he travelled for the purposes of this hearing.

5. If the mother is required to travel to the United States for the purposes of the parenting litigation this will mean that the child will be separated from her throughout this period and the mother’s heightened anxiety associated with that travel for the purposes of the proceedings may also impact adversely on her mental health to the detriment of the child.

6. In my view the disadvantages to the mother if she were required to travel to the United States for the purposes of the litigation is a significant consideration which has the potential to have a greater impact upon the child than many of the other considerations raised by the parties.

Habitual residence of the child

1. An additional other relevant consideration is that the court previously determined in the Hague judgment that the child’s habitual residence is now Australia. Although this was only touched upon and not developed to any great extent in the oral argument it is of significance in my view that the underlying rationale of the Hague Convention is that except in particular exceptional circumstances a determination concerning the parenting arrangements for a child should be made in the child’s habitual residence.

2. This is a weighty factor in these proceedings having regard to the Explanatory Report for the Hague Convention and the Family Law (Child Abduction Convention) Regulations 1986. The Regulations give effect to Australia’s obligations as a signatory to the Hague Convention and specifically provide in reg 1A(2) that:

3. These Regulations are intended to be construed:

   (a)       having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and

   (b)       recognising in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and

   (c)       recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries. 

   (emphasis added)

Conclusion

1. The previous determination of this court is that Australia is now the child’s habitual residence. The best evidence concerning a significant area of dispute is also likely to be located in this jurisdiction. The conduct of the proceedings in State C may necessitate the mother’s presence in that jurisdiction and her separation from the child may have adverse effects upon the child. Although some limited weight may be attached to the matters of cost and delay raised by the father they are outweighed by the factors favouring the proceedings being determined in Australia. I am satisfied that it is in the best interests of the child for the proceedings to be determined in this Court rather than in State C Superior Court and for this reason make the orders concerning forum as sought by the mother.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 October 2017.

Legal Associate: 

Date:  16 October 2017