JJT & CTT

[2004] FamCA 1104

[2004] FamCA 1104

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

No. SYF5629 of 2003

IN THE MATTER OF

JJT
Applicant Father

AND

CTT
Respondent Mother

Coram:

The Hon. Justice Rose

Dates of Hearing:

30 July 2004

Written Submissions:
Date of Judgment:

24 August, 6 & 17 September 2004
1 December 2004

Date of Orders:

1 December 2004

JUDGMENT OF THE HONOURABLE JUSTICE ROSE

INTRODUCTION

1. In these proceedings JJT (who for convenience I shall refer to as “the husband”) seeks orders for contact in relation to the three children of the marriage pursuant to his amended application filed 29 April 2004.

2. By her response filed 28 January 2004 CTT  (who for convenience I shall refer to as “the wife”) objected to the Court’s jurisdiction. The principal order sought by her was that the application of the husband filed 22 December 2003 be dismissed. That order is sought by her on the same basis in respect of the husband’s amended application.

3. Written submissions were made. No submissions in reply were made by counsel for the wife within the time directed or since. I allowed further weeks for that purpose.

4. The issues for determination by me are:-

   (i)Whether this Court has jurisdiction.

   (ii)If the answer is in the affirmative, whether that jurisdiction should be exercised or declined in accordance with forum non conveniens principles.

HISTORICAL BACKGROUND

1. The following are brief relevant historical matters which are undisputed.

2. The husband and wife are 50 and 43 years of age respectively. The husband is 50 years of age and an Australian citizen. At the time of institution of these proceedings he was and remains ordinarily resident in Australia.

3. The wife was born in Canada. The wife holds both Canadian and Australian citizenship.[1] The wife was ordinarily resident in Canada at the date of institution of the proceedings and continues to reside there.

   [1] Supplementary submission dated 17 September 2004 on behalf of the husband not disputed on behalf of the wife.

4. The parties commenced to cohabit in about October 1991. That occurred in Australia.

5. The parties married on 19 December 1991 in Canada.

1. The three children of the marriage are:-

   (i)D 10 years of age having been born in September 1994 in Canada. I have used the spelling of his middle name as appears in the Ontario Court documents as opposed to “M” so spelt in the affidavit of the husband filed 2 July 2004.

   (ii)E 8 years of age having been born in April 1996 in Australia.

   (iii)M 7 years of age having been born in July 1997 in Canada.

2. The eldest two children of the marriage have lived in Canada continuously since late 1996. The youngest child has lived in Canada since she was born.

3. The three children of the marriage have resided with the wife continuously in Ontario Canada since the parties finally separated on 1 May 1998 in that country.

4. The husband has resided in Australia since the parties finally separated on 1 May 1998.

5. On 27 May 1998 the parties entered into an agreement dated 27 May 1998 in Canada (“the Agreement”).

6. On 27 May 1998 the wife filed a petition for divorce in the Ontario Court (General Division).

7. On 2 October 1998 the Hon. Mr Justice O’Connell of the Ontario Court (General Division) gave a consent judgment and made orders (“the consent judgment and orders”) on 2 October 1998 and entered on 5 October 1998.

8. On 28 August 1999 the marriage of the parties was dissolved by judgment and orders made in the Ontario Court (General Division).

PERIODS AND PLACES OF COHABITATION

1. The relevant periods and places of cohabitation of the parties are as follows:-

   (i)From commencement of cohabitation October 1991 until about October 1994 in Australia.

   (ii)In or about mid 1994 in Canada.

   (iii)From October 1994 to late 1996 in Australia.

   (iv)The parties and the eldest two children of the marriage left Australia to commence residing in Canada in about November 1996  initially for a holiday. Shortly thereafter the parties agreed to remain living in Canada. The husband applied for permanent residence in Canada. He returned to Australia in 1996 to arrange his financial affairs. The wife travelled to Australia for 2 weeks also in late 1996 before returning to Canada to resume living there.

   (v)Following the husband being granted permanent residence in Canada, in June 1997 he joined the wife and the two eldest children of the marriage in Toronto Ontario Canada where they remained with the third child until the parties finally separated on about 1 May 1998.

2. Following the separation of the parties the husband returned to Australia where he has remained ordinarily resident until the present time.

3. Throughout the period since the parties separated on 1 May 1998 the wife and the three children of the marriage have resided continuously in Canada.

JURISDICTION OF THE FAMILY COURT OF AUSTRALIA

1. It was submitted on behalf of the wife that this Court lacked jurisdiction on the following basis:-

   (i)The terms of paragraphs 1, 4 and 11 of the Judgment given by consent on 2 October 1998 by O’Connell J in the Ontario Court (General Division).

   (ii)The provisions of Rule 5 of the Ontario Family Court Rules.

   (iii)The “exclusive” jurisdiction of the Ontario Court.

   (iv)The children not being ordinarily resident in the jurisdiction of this Court.

2. It was submitted on behalf of the husband that the Court’s jurisdiction is founded upon Section 69(E)(i)(b) and (d) of the Family Law Act 1975 (“the Act”). In addition it was submitted on behalf of the husband that the wife has sought “to invoke jurisdiction of the Australian legal system” in relation to the enforcement of an alleged child support debt of the husband. Implicit in that submission is that the wife has submitted to the jurisdiction of this Court in relation to the parenting orders sought by the husband.

3. I will now proceed to determine the issue of jurisdiction as opposed to the separate issue of forum non conveniens.

4. The starting point must be the jurisdictional provisions in the Act in respect of proceedings relating to children in which parenting orders are sought.

5. This Court is a superior Court of record[2]. As such, there is a prima facie presumption in favour of jurisdiction with an inherent power to determine whether or not it has jurisdiction to determine a matter before it.[3] Indeed, no submission to the contrary was made.

   [2] Section 21(2)

   [3] Re: Ross Jones and Marinovich; Ex Parte Green (1984) FLC 91-555 at 79,496

6. The jurisdictional foundation is provided in Division 12 of Part VII and the following provisions of Section 69E:-

   “(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.”

1. I find that the “relevant day” in accordance with Section 69E(2)(a) is 22 December 2003 being the day on which the application instituting the proceedings was filed.

2. The husband, being the parent of each of the three children of the marriage is an Australian citizen and also was ordinarily resident in Australia “on the relevant day”. Accordingly, the jurisdictional basis for the proceedings being instituted in this Court is in accordance with each of Section 69E(1)(c) and (d). No contrary submission to that interpretation of Section 69E(1)(c) or (d) or Section 69E(2)(a) was made.

3. With regard to the submissions made on behalf of the wife in relation to paragraphs 1, 4 and 11 of the consent judgment and orders, I do not accept that the jurisdiction granted to this Court in accordance with the statutory provisions to which I have earlier referred is excluded by or is subject to those particular paragraphs. Paragraph 1 restrains the husband from removing the children of the marriage from the jurisdiction of Ontario without the wife’s prior written consent or Court order; paragraph 4 grounds jurisdiction in a Court of competent jurisdiction in the Province of Ontario in respect of monthly child support and paragraph 11 makes provision for the Ontario Court’s jurisdiction in respect of the terms of the judgment and interpretation thereof. With respect, none of those paragraphs of that judgment can operate to oust the jurisdiction granted to this Court by an Australian statute. I was not referred to any rule of public or private international law or any treaty or convention to which Australia and Canada or Ontario are parties which support the submission made on behalf of the wife.

4. So far as Rule 5 of the Ontario Family Court Rules is concerned, I infer that the conventional rules of statutory interpretation apply namely that the rule is subject to the legislation referred to in Rule 1(2) of the Rules including its enabling legislation. In those circumstances I consider that there is no merit in the submission that a Family Law Rule applicable to family law proceedings in the courts referred to in Rule 1(2) has any extra-territorial application at all, let alone to operate in a way which subjugates the jurisdiction granted to this Court pursuant to Australian legislation.

5. So far as the children not being “ordinarily resident” in Australia, regardless of the requirements in that respect in Ontario, it is quite clear that is not the only jurisdictional basis upon which jurisdiction may be vested in this Court as is apparent from the provisions of Section 69E of the Act earlier set forth.

6. Accordingly, I reject the submissions made on behalf of the wife that this Court lacks jurisdiction. These proceedings are a classic illustration of conflict of laws. The real issue is the principles that apply in that regard, including the application of them to the facts in these proceedings.

FORUM NON CONVENIENS

WHETHER JURISDICTION SHOULD BE EXERCISED OR DECLINED

1. During the course of the mention of these proceedings prior to directions being made on 30 July 2004, I informed counsel for the wife that this Court is bound to follow the principles enunciated in the High Court of Australia to the effect that the leading English authorities and judgments given in other countries establishing that conclusions must be reached as to “another available forum which is clearly or distinctly more appropriate”[4] no longer apply. I suggested to him that he consider the relevant High Court authorities in that regard.

   [4] Spiliada Maritime Corp v Cansulex Ltd (1987) AC 460 declined in its application in Australia in Oceanic Sun Line Special Shipping Company Inc. v Fay (1988) 165 CLR 197.

2. The test applied by the majority in the High Court of Australia in Oceanic Sun v Fay[5] is whether the local court is the “clearly inappropriate forum”.

   [5] Ibid.

3. The submissions on behalf of the wife did not refer to any of the judgments of the High Court of Australia. Rather, my attention was drawn to the judgment of Wallace J in Krisko v Krisko[6] in which having held that the Ontario Superior Court of Justice had jurisdiction, concluded that “the balance of convenience favoured the Court exercising its jurisdiction here” as opposed to a Dubai Court. The principles utilised for the purpose of determining the issue do not apply in Australia.

   [6] (2000) O.J. Number 5660

4. My attention was also drawn to the judgment in Meadows v Barned[7] in which the judgment turned upon the interpretation of various sub-sections of Section 22 of the Children’s Law Reform Act 1990 for the purpose of determining whether or not the Ontario Court of Justice was vested with jurisdiction. With respect, that judgment is irrelevant to the issue which I must now determine.

   [7] (1994) O.J. Number 80

5. In Voth v Manildra Flour Mills Pty Ltd[8] the High Court confirmed the rejection by it in Oceanic Sun Lines Special Shipping Company Inc v Fay[9] of the forum non conveniens principle previously stated by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd[10]. As a result, the test that applies in the United Kingdom, and any other country of forum non conveniens principles which is “a clearly more appropriate forum” or “the natural forum” does not apply in Australia.

   [8] (1990 – 1991) 171 CLR 538

   [9] Ibid.

   [10] (1987) AC 460

6. In Voth and subsequently in Henry v Henry, the High Court confirmed that the test propounded by the majority in Oceanic Sun “namely, that a stay should be granted if the local court is a clearly inappropriate forum”, which will be the case if continuation of the proceedings in that Court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or vexatious in the sense of “productive of serious and unjustified trouble and harassment”.[11]

   [11] Henry v Henry (1996) FLC 92-685 at 83,120

7. In Voth, affirmed in Henry the judgment of Deane J in Oceanic Sun was followed in that “in determining whether the local court is a clearly inappropriate forum, “the discussion by Lord Goff in Spiliada of relevant “connecting factors” and “a legitimate personal or juridical advantage” ” provides valuable assistance.”[12]

   [12] Henry, ibid. at 83,121

8. Voth also followed the judgment of Deane J in Oceanic Sun in that “the adjectives “oppressive” and “vexatious” are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings rather than the conduct of the plaintiff in continuing them”.[13]

   [13] Ibid. at 248

9. It was also held in Henry following Voth that the “legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being where the case may be tried “suitably for the interests of all the parties and for the ends of justice”.[14]

   [14] Ibid. at 83,121

10. Amongst the factors considered relevant by Lord Goff as referred to in the High Court judgments include whether the connection of the respondent with the forum of the local court “is a fragile one”; “that justice can be done in the other forum at substantially less inconvenience or expense”; that the other forum is one “with which the action had the most real and substantial connection”; the place and availability of witnesses with associated factors of convenience and expense; discovery where relevant and “the interests of all the parties and the ends of justice”.[15];

    [15] (1987) AC at pp. 477-478; 482-483

11. Recently the Full Court of this Court followed, as it was bound to do, the judgments of the High Court in that the “clearly inappropriate forum” is the test to be applied in relation to the issue of forum non conveniens.[16] It further held that “the best interests of the children” applies as a relevant consideration in determining whether or not jurisdiction should be exercised.[17]

APPLICATION OF PRINCIPLES TO THE FACTS IN THESE PROCEEDINGS

[16] B v B (Re: Jurisdiction) (2003) FLC 93-136

[17] Ibid. at 78,265; 78,271

1. I have concluded that it is clearly inappropriate for the proceedings to continue in this Court in that they are oppressive. In so determining I find that the proceedings are “seriously and unfairly burdensome, prejudicial or damaging”. My reasons are set forth in subsequent paragraphs having regard to the uncontested facts to which I refer.

2. The three children of the marriage are aged 10, 8 and 7 years respectively. They have lived continuously in Ontario Canada for the past period of approximately 8 years commencing in the second half of 1996 so far as the eldest two children are  concerned, whilst the youngest child born in 1997 has lived there all her life.

3. Accordingly, the eldest child has lived most of his life in Ontario and it represents the only home known to the other two children. It follows that Canada and Ontario in particular represents the only place with which the three children of the marriage have a real and substantial connection.

4. The connection that the three children of the marriage with Australia is a tenuous or fragile one at best. That connection is represented by the husband who is an Australian citizen and lives in Sydney and to a lesser extent his parents. Accordingly, the connection is a relationship one, rather than with Australia as such.

5. The wife holds both Canadian and Australian citizenship.[18] The wife has lived continuously with the eldest two children of the marriage in Ontario since 1996 and with all three children since 1997. A significant although minor period of cohabitation took place in Canada, albeit that the major period of cohabitation was in Sydney.

   [18] Supplementary submission of husband’s solicitor dated 17 September 2004

6. The consent judgment and orders dealt with issues of “custody” and “access” in respect of the three children of the marriage.

7. Jurisdiction is able to be invoked and exercised in the Ontario Court in relation to issues of contact (“access”) in proceedings which may be instituted by either party. No submission to the contrary was made.[19]

   [19] Henry ibid. at 83,123

8. The wife is unemployed. I infer that she may have the pressure of financial constraints. The wife would face substantial expenditure for travel, accommodation and legal costs in the event of these proceedings continuing in this Court.

9. Contact has not occurred in Australia.

10. The children have seen the husband in Canada on two occasions since 1998 namely in August and September 1999 and for a similar period in 2001. In that regard, the husband has a demonstrated ability to travel to Canada to spend time with them, notwithstanding the disputes between the parties in relation to alleged arrears of child support. In the absence of expert evidence as to the applicable law in Canada or an agreed statement on behalf of the parties, I do not accept the husband’s evidence of his concern that should he travel to Canada he “will be detained as a consequence of a child support issue.”

11. Having regard to the long and uninterrupted period that the three children have lived with the wife in Canada, I infer that it is only in that country and in particular Ontario that potential witnesses are available who can give probative evidence in relation to all relevant matters touching upon the welfare or best interests of the three children so far as all issues of contact are concerned. That includes but is not limited to their wishes, the quality of the relationship between each of them and each of the parties and any anxiety that may be occasioned to each of them by the travel to Australia and the periods of time to be spent in Australia as sought by the husband. Whilst evidence may be able to be given by video link, that is a matter for the trial judge’s discretion depending upon the nature of the evidence to be given and issues of credit.

12. The only real and substantial connection with a forum that the three children of the marriage have is with Ontario.

13. The connection of the wife with the forum of this Court “is a fragile one”[20] having regard to the uninterrupted period of many years in which she has lived with the three children of the marriage in Ontario commencing in 1996, apart from her being a Canadian citizen (as well as an Australian citizen) who was born in Canada.

    [20] (1987) AC at 477

1. The weight that I have given on a cumulative basis to the matters referred to in paragraphs 45 – 49, 52 and 54 -56 well exceeds the weight which I have accorded to the uncontested facts in the husband’s case. That includes the husband being an Australian citizen and ordinarily resident in Sydney, his choice of forum by the institution of proceedings in this Court, his choice of Australian legal representation and the inconvenience which he will avoid of having to travel to and be accommodated in Ontario as well as the need to retain Canadian legal representation.

2. It is clear that the forum with which the proceedings have “the most real and substantial connection”[21] is Ontario having regard to the matters set forth in paragraphs 45 - 56. Having regard to all of those matters and the availability of the jurisdiction of the Ontario Court previously invoked by consent of the parties in relation to children’s issues, I have concluded that it provides the forum where the proceedings “may be tried suitably for the interests of all the parties and for the ends of justice”[22].

ORDERS

[21] (1987) AC at 478

[22] Henry, ibid. at 83,121

1. Accordingly, I make the following Orders:-

   1.That the Amended Application of the husband filed 29 April 2004 is dismissed.

   2.That written submissions in support of an application for an order for costs be lodged with my Associate and served by facsimile transmission or email by 4 pm. 7 December 2004.

   That any written submissions in reply be lodged with my Associate and served by facsimile transmission or email by 4 pm, 14 December 2004.

I certify that the preceding 59  paragraphs
are a true copy of the reasons for judgment
delivered by the Hon. Justice Rose

……………………………..
Associate