Hunt and Planey

[2017] FamCA 549

FAMILY COURT OF AUSTRALIA

HUNT & PLANEY [2017] FamCA 549

FAMILY LAW – CHILDREN – JURISDICTION – APPROPRIATE FORUM – Where the mother and child have been resident in the USA since Orders were made in 2013 – Where the father is resident in Australia and seeks that the child live with him and to have sole parental responsibility – Where the mother contends that Australia is not the appropriate forum – Consideration of the best interests of the child when determining whether the Court is the appropriate forum – Where the father has made allegations that the mother is subjecting the child to unnecessary and inappropriate medical intervention – Where the best interests of the child would be served by the parenting case being heard in the USA – Father’s Initiating Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 60CC(3)(m), 69E, 111CA
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑Operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996

Kwon & Lee (2006) FLC 93-287
Pascarl & Oxley (2013) FLC 93-536
ZP v PS (1994) 181 CLR 639

APPLICANT: Mr Hunt

RESPONDENT: Ms Planey

FILE NUMBER: SYC 4416 of 2010

DATE DELIVERED: 1 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: York Law Family Law Specialists

COUNSEL FOR THE RESPONDENT: Ms Eldershaw

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

IT IS DECLARED

1. That the Family Court of Australia is not the appropriate forum to determine the parenting dispute relating to the child L, born on … 2009.

IT IS ORDERED

1. That the Initiating Application of the father filed 30 March 2016 be dismissed.

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 Hunt & Planey 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 SYDNEY

FILE NUMBER: SYC 4416 of 2010

Mr Hunt

Applicant

And

Ms Planey

Respondent

REASONS FOR JUDGMENT

1. On 13 June 2013, after a defended hearing, Judgment was delivered and Orders made which permitted Ms Planey (“the mother”) to take the child of her marriage with Mr Hunt (“the father”) to live in the United States of America (“the USA”). Their child, L, who was born in 2009, is now eight years old.

2. The father appealed against the Orders of 13 June 2013 and the appeal was dismissed on 9 October 2013.

3. The mother and the child returned to the USA in October 2013 and since then they have lived in California. The Orders made by the Family Court of Australia (“the Australian Court”) were registered in the Superior Court of California (“the Californian Court”).

4. On 19 March 2015, the father filed an Application in a Case in the Australian Court seeking enforcement of certain Orders made on 13 June 2013 relating to telephone contact with the child and the provision of information to him about health issues and updating information about her. That Application was heard and dismissed on 15 July 2015.

5. On 14 October 2015, the mother commenced proceedings in the Californian Court seeking to vary some of the provisions for the child to spend time with the father, and seeking an order that she have the equivalent of sole parental responsibility for the child’s medical care.

6. In the proceedings in the Californian Court, the father contended that the Californian Court could not exercise jurisdiction except to enforce the Orders made in the Australian Court.

7. Those proceedings remain on foot and have not yet been determined. The proceedings in the Californian Court will proceed no further until the Australian Court determines whether the matter should proceed in Australia.

8. On 30 March 2016, the father filed an Initiating Application in the Australian Court seeking orders that the mother return the child to Australia and vacating the June 2013 Order which permitted the mother to relocate to the USA. The father also filed an Application in a Case on 25 August 2016 in which he sought the appointment of a single expert for the preparation of a report. On 7 June 2017 the father filed an Amended Initiating Application seeking orders that the child live with him and that he have sole parental responsibility.

9. The mother filed a Response on 14 September 2016, seeking the following orders:

   1.That the Applicant Father’s Initiating Application filed 30 March 2016 and Application in a Case filed 23 (sic) August 2016 be dismissed.

   2.The Court declares that it has no jurisdiction under the Family Law Act 1975(Cth) to determine the applications of the father and/or that it declines to exercise the jurisdiction.

   3.That the Applicant father be restrained from commencing any proceedings under the Family Law Act 1975(Cth) with respect to the child [B] born …2009 without first obtaining the leave of the Court.

   4.[Indemnity costs].

10. The matter was listed for argument in relation to the issue of forum, the father contending that the matter should proceed in the Family Court of Australia and the mother contending that it should proceed in the Superior Court of California.

CHILD PROTECTION CONVENTION

1. Australia is a signatory to, and has ratified, the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 (“the Child Protection Convention”).

2. Although the mother initially sought to invoke the provisions of the Child Protection Convention, it was common ground in the hearing of this application that, although the USA has signed the Child Protection Convention, it has not ratified it.

3. The definition of “Convention country” for the purpose of the Family Law Act 1975 (Cth) (“the Act”) is found at s 111CA in the following terms “‘Convention country’ means a country, other than Australia, for which the Child Protection Convention has entered into force.”

4. The parties agree that, because the USA has not ratified the Child Protection Convention, it has not “entered into force” in the USA and therefore the provisions relating to the Child Protection Convention do not apply here.

5. Thus the matter is to be decided according to the principles applicable under the Act with respect to determination of the proper forum for disputes relating to parenting.

ORDERS SOUGHT

1. It was agreed that, if the matter is to proceed in Australia as sought by the father, the appropriate course is that the mother be restrained from continuing the proceedings in the Californian Court and that there be a declaration that the Family Court of Australia is the appropriate forum for the dispute.

2. Conversely, if the matter is to proceed in California, there should be a declaration that the Californian Court is the appropriate forum and the father’s Initiating Application should be dismissed.

3. There was no dispute that each of the Australian Court and the Californian Court has jurisdiction to determine the parenting dispute.

THE LAW

1. The High Court of Australia considered the issue in ZP v PS (1994) 181 CLR 639 and held that:

   Because the welfare jurisdiction of the Family Court is similar to the
   parens patriae jurisdiction of the Court of Chancery, the Family Court
   must also form an independent judgment as to what the welfare of the
   child requires notwithstanding the existence of any custody order made
   by a foreign court. Moreover, proceedings for custody or access are
   not disputes inter partes in the ordinary sense of that expression
   because the Court is not enforcing a parental right to custody or
   access. Its duty is to make such order as will "best promote and protect the interests of the child". It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child.    (Footnotes omitted)

2. Brennan and Dawson JJ said, “The test of ‘clearly inappropriate forum’ is not an alternative test to the welfare of the child in determining the order

   
   

   to be made when the custody jurisdiction conferred by s. 63 is to be

   
   

   exercised.”

3. In Kwon & Lee (2006) FLC 93-287, the Full Court, of the Family Court of Australia, (“Full Court”) considered the law applicable to applications relating to the appropriate forum for parenting matters. Their Honours said:

   We consider the following principles can be distilled from authority:

   i)where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;

   ii)in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti-suit injunction based on common law principles;

   iii)the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;

   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;

   vi)in some circumstances, such as an abduction from a non-Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction.  In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;

   vii)in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and

   viii)that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.  

4. In Pascarl & Oxley (2013) FLC 93-536 a differently constituted Full Court held:

   86. …the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.

   87. In this case, it is not clear that the child is within the jurisdiction. Nevertheless, the application by the father is one for parenting orders under s 64B, and s 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the interests of the child as the paramount consideration. For these reasons, even though the child may not be within Australia, the principle upon which to decide whether the court should exercise its jurisdiction must be determined by best interests of the child as being the paramount consideration.

WAS THE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA PROPERLY INVOKED?

1. The requirements precedent to the Family Court of Australia exercising jurisdiction in relation to children are set out in section 69E of the Family Law Act 1975 (Cth) as follows:

FAMILY LAW ACT 1975 - SECT 69E

Child or parent to be present in Australia etc.

(1)  Proceedings may be instituted under this Act in relation to a child only if:

(a)  the child is present in Australia on the relevant day (as defined in subsection (2)); or

(b)  the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

(c)  a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

(d)  a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

(e)  it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

(2)  In this section:

"relevant day " , in relation to proceedings, means:

(a)  if the application instituting the proceedings is filed in a court--the day on which the application is filed; or

(b)  in any other case--the day on which the application instituting the proceedings is made.

Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.

1. The father contends that he is an Australian citizen and that the child is an Australian citizen. Thus the jurisdiction has been properly invoked. The issue to be determined is whether the Family Court of Australia will exercise its jurisdiction.

THE SUBMISSIONS

1. Counsel for each of the parents prepared extensive and very helpful written submissions setting out their competing contentions.

2. In written submissions relied upon by the father, counsel states:

   Summarised, the Father’s evidence details no less than 120 attendances by the child on health professionals including 80 Medical appointments (sic) the [BB] Medical Centre, 43 medical appointments at the [CC] Hospital as well as a multiplicity of attendances at quasi health dispensers including but not limited to chiropractors, psychologists and others of dubious qualification and skill. The 120 medical appointments alone average 1 every 1.6 weeks during her residence in the United States, with no clear multi-disciplined confirmation of preliminary diagnosis and no confirmed prognosis as to appropriate treatment.

   The Father will seek to tender before the court evidence that shows that the child has ben (sic) to in fact 190 appointments over the last 3.5 years, the revised number is because of the other appointments that the child attended outside of [Californian] Medical System.

   First hand evidence from the Father’s own observations during periods the child is alleged to be suffering uncorroborated ailments do not support the alleged symptoms contended by the Mother.

3. The father’s concerns about the extent of medical treatment for the child are not recent. They were raised in the hearing before Johnston J in 2013 and are set out at paragraphs 116 to 123 of his Honour’s judgment. Notwithstanding that evidence, his Honour allowed the mother to relocate with the child to the USA.

4. The provisions which govern the determination of a child’s best interests are found at section 60CC of the Act. The most cursory reading of the section reveals that its specific provisions do not address the matters to be considered in making this determination and almost all of the provisions, with the exception of section 60CC(3)(m), are not relevant to this determination.

5. First and foremost, the child’s best interests require that issues related to her parenting be determined by a court that has access to all of the relevant evidence, both documentary and oral.

6. Nextly, the child’s stability and continuity of residence is relevant.

7. The financial implications for each of the parents are relevant, insofar as their ability to afford to travel to a foreign country and secure accommodation must be considered, if only because ultimately, the financial position of the parents has direct implications for their ability to provide support for the child.

CONSIDERATION   

1. It is inherent in the father’s case that he believes that the child has been subjected by the mother to unnecessary and inappropriate medical intervention on numerous occasions.

2. The father deposed, in his affidavit sworn 23 August 2016, “I am extremely concerned that the mother is displaying symptoms of Munchausen or Munchausen by proxy”.

3. Those allegations are central to the father’s case and will be central to any determination of the child’s future parenting.

4. On behalf of the father it was submitted that, should the mother be required to conduct her case in Australia and seek to rely on overseas witnesses, presumably the child’s treating doctors and other medical professionals, then those persons can give their evidence by videolink or Skype.

5. That submission has a number of flaws.

6. Firstly, the relevant medical professionals would be called in the father’s case as he bears the onus of proving his contentions. Those professionals might not voluntarily co-operate with the father, particularly if it is his case that they have facilitated the mother’s actions or, in some way, been complicit. There is no effective mechanism which would ensure the production of documents and files held by doctors in the USA before an Australian court. Nor is there any mechanism which would compel a doctor in the USA to make him or herself available for cross-examination.

7. In his affidavit, the father annexes email correspondence with the maternal grandmother and deposes to conversations with her about her concerns for the mother. The maternal grandmother may be a significant witness in the father’s case. She lives in the USA.

8. The father deposed that he will rely on evidence from his parents and that his mother is unable to travel to the USA. No doubt she would be permitted to give her evidence electronically. The father’s father travels to the USA to see the child. The only other witness, or potential witness, in the father’s case who lives in Australia is the father himself.

9. It is not contended that the Californian Court would have any difficulty enforcing both the production of documents and appearance to give evidence.

10. It would be necessary for a single expert witness to evaluate all of the medical evidence to determine whether, as the father alleges, the child is being subjected to unnecessary treatment or evaluation. That expert’s opinion would be made more valuable if he or she has unfettered access to all of the medical records and to all of the medical practitioners. It is difficult to envisage how a single expert in Australia would have such access. It may also be the case that there would be advantages in the single expert having knowledge of the way in which the health system in the USA works and by being in the same time zone as those treating professionals with whom the expert may wish to confer.

11. Similarly, it would be necessary for a report to be prepared, either by a single expert or by a Family Consultant or the equivalent, about the wider parenting issues. The mother and the child are habitually resident in the USA. They are present in Australia only until Tuesday 1 August 2017 when they will return to the USA. It is not suggested that such expertise is not available in the USA. The most efficient manner in which to conduct the interviews for such an assessment is for the father to travel to the USA rather than to require the mother and the child to travel to Australia. Furthermore, all of the people and documents currently relevant to the child’s progress, such as, for example, school reports and teachers, are in the USA. This is not mere speculation. The father, in his affidavit, deposes to conversations with a teacher about the child being bullied, and to conversations between the child’s teacher and the child’s therapist, Ms DD, about bullying. In addition, the father raises significant concerns about the child’s school attendance and absences which would need to be addressed by evidence from the school, for example, as to the explanation for each absence given by the mother to the school.

1. There is no evidence as to whether the proceedings would be heard more quickly in either jurisdiction.

2. It is likely that the Californian Court will have access to both documents and witnesses which would not be available in Australia.

3. The consideration of this factor favours the matter proceeding in California.

4. The child has been resident in California since October 2013 when she was four years old and there is no dispute that the USA is her habitual residence. She attends school in California and that is her settled home. Her connection with Australia is maintained by travelling to Australia to spend time with her father twice each year for a 14 day period.

5. It would presumably be possible, although not desirable, for a hearing to take place at a time when the child is spending time with her father. The father has deposed that he is willing to pay the reasonable air fares and costs of accommodation for the mother and the child if the hearing took place at a time when they would normally be living in the USA.

6. There is ample evidence, both before Johnston J and before me in the father’s affidavit, that the mother suffers from anxiety. No doubt, the most destabilising factor for the child arising out of this litigation, is the effect of heightened anxiety on the mother’s ability to parent effectively. However, I cannot find that the mother’s anxiety would be any greater if the matter is determined in Australia rather than in California. I have no doubt that her anxiety will be extreme no matter where the matter is heard.

7. There would be less upheaval for the child if she is not required to travel to Australia in school term time and to miss school.

8. The consideration of this factor slightly favours the matter being heard in California.

9. The father gives no evidence of his financial position. He does not suggest that he is unable to afford to conduct the proceedings in California. He has already engaged lawyers there.

10. The mother relies on the child support paid to her by the father in the sum of $1,128.83 per month. Until recently, she has been receiving assistance from her parents but, as the father deposed, the maternal grandmother has stopped that assistance.

11. The consideration of this factor favours the matter being heard in California.

CONCLUSION

1. The allegations raised by the father are serious and, potentially, could lead to a change in residence if proven.

2. The child’s best interests require that the allegations are tested in the forum where there can be no impediment to the adducing of all of the relevant evidence.

3. That forum is the Superior Court of California.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 August 2017.

Associate: 

Date:  1 August 2017