KEIRN & MOXEY
[2015] FamCA 663
•14 August 2015
FAMILY COURT OF AUSTRALIA
| KEIRN & MOXEY | [2015] FamCA 663 |
| FAMILY LAW – CHILDREN – Spend time – Appropriate forum – Where the wife sought orders permitting her to leave to the United Kingdom with the children and institute proceedings there – Where it was found that the wife was not estopped from prosecuting her case in relation to appropriate forum by having sought orders in the Australian proceedings to agitate her application – Where it was found that the parents and the children are settled in Australia – Where the single expert opined that the wife could remain in Australia for the foreseeable future – Where it was found that if the children were to return to the United Kingdom their living arrangements would be disrupted – Australia determined to be the appropriate forum – Interim arrangements for the children to spend time with the husband made. FAMILY LAW – PROPERTY – Interim distribution by way of partial property settlement –Where the wife removed funds from the parties’ joint account – Wife ordered to provide $200,000 to the husband by way of partial property settlement – Wife ordered to deposit $223,000 in a controlled moneys account pending further order – Balance of the funds removed by the wife to be retained by her as a partial property settlement. |
| Family Law Act 1975 (Cth) s 69ZQ |
| In re F (Abduction: Custody Rights) [1991] Fam 25 Randle & Randle [2011] FamCA 830 |
| APPLICANT: | Mr Keirn |
| RESPONDENT: | Ms Moxey |
| FILE NUMBER: | SYC | 8029 | of | 2014 |
| DATE DELIVERED: | 14 August 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 16 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mater |
| SOLICITOR FOR THE APPLICANT: | Rockliffs Solicitors and IP Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | Reid Family Lawyers |
Orders
IT IS ORDERED
That by way of partial property settlement, the wife cause to be paid to the husband, from the sum of $623,000 removed by her from their joint account, the sum of $200,000.
That the wife cause the sum of $223,000 to be placed into an interest bearing account jointly with the husband such that both parties are required to consent to any withdrawal.
That the balance of the funds removed by the wife from the parties’ joint account be retained by her as a partial property settlement.
That the application for interim orders contained in the Response of the wife filed 17 March 2015 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keirn & Moxey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8029 of 2014
| Mr Keirn |
Applicant
And
| Ms Moxey |
Respondent
REASONS FOR JUDGMENT
These are proceedings arising out of the relationship between the applicant, Mr Keirn (“the husband”) and the respondent, Ms Moxey (“the wife”), in relation to their property and the parenting arrangements for their two children, B (“B”) born in 2010 and C (“C”) born in 2013.
The husband has dual New Zealand and British citizenship. The wife has dual Country E and British citizenship. They commenced living together in 2005 in France, moved to England and married there in 2006. They remained living and working in England until late 2014. Both of the children were born in England and hold dual New Zealand and British citizenship.
The parties discussed moving to Australia.
On 10 July 2010 the wife was granted a New Zealand Citizen Family Relationship (Temporary) visa which allows her to live and work in Australia for up to five years. There is no evidence of the conditions, if any, attached to that visa.
There is a dispute between the parties as to whether the move to Australia was to be permanent. They sold the house in which they lived in England, cancelled B’s school enrolment, enrolled B at school in Sydney and transferred $623,000 from the proceeds of sale of the house to a bank account in Sydney.
They arrived in Australia on 13 October 2014 on one way tickets.
They both obtained employment.
On 21 November 2014 they agreed to separate.
On 16 December 2014 the husband confirmed that the wife had transferred $623,000 from their joint account into an account in her sole name.
The husband commenced proceedings in the Family Court of Australia on 19 December 2014. The children were placed on the Airport Watch List.
The husband moved from the parties’ jointly rented premises on 5 January 2015. The children remained living with the wife. There was no agreement that the children would spend overnight time with the husband after separation.
On 17 March 2015 the wife filed a response to the husband’s application seeking interim orders permitting her to return with the children to England, on the basis that she undertook to institute parenting and property proceedings there.
On 20 March 2015 the husband filed an Amended Application in a Case in which he sought interim orders in relation to financial matters, specifically in relation to the money removed by the wife and orders that the children live with him.
The matter came before the Court on 16 April 2014. Counsel agreed that the matters which should be determined were:
· The wife’s contention that Australia was an inappropriate forum for the property proceedings.
· The wife’s contention that the parenting proceedings should not be heard in Australia.
· The husband’s contention that the wife, having sought orders in the Family Court, rather than filing a conditional appearance, is estopped from asserting that this Court is not the appropriate forum.
· The arrangements for the children until the proceedings were determined.
· The competing applications for interim or partial property distribution.
Both parties were represented by counsel and made submissions.
The husband did not seek to agitate his application for orders that the children live with him. He sought an injunction restraining the wife from instituting proceedings in the United Kingdom and orders to provide for the children to spend time with him.
There was no evidence of the likely effect on the wife’s right to remain in Australia once the Department of Immigration and Border Protection (“the Department”) became aware that she had separated from the husband. It was agreed that it would be necessary for a single expert to be appointed to prepare a report in relation to that issue and that the matter should be adjourned.
Mr D, a specialist in immigration law, was appointed as single expert and prepared a report dated 11 June 2015 and an addendum dated 16 June 2015.
In the interval between the first day of the hearing and the resumption, the husband left his employment.
Submissions resumed on 6 August 2015.
THE TIME THE CHILDREN SPEND WITH THE HUSBAND
There was no agreement between the parties about the time the children would spend with their father until this issue is determined and therefore it was necessary to make interim orders in relation to parenting. Orders were made for the children to live with their father each Wednesday from 5 pm until the following Thursday at 8.30am and each alternate weekend from 9 am on Saturday until 5 pm on Sunday. I indicated that the reasons for that decision would be provided in the written judgement. The reasons follow.
Although the husband, in his application, sought orders that the children live with him, he did not pursue that application but rather sought an order that the children live with him every weekend from Friday afternoon until Monday morning.
The husband was not aware that the wife had resumed employment and evidence of her commencing employment only a few days before the hearing was tendered. Nevertheless, he sought time with the children every weekend.
The wife’s position was that the children should spend time with their father each Wednesday from 4 pm until 7 pm and each alternate weekend from 9 am Saturday. For the first four occasions that time would conclude at 11 am Sunday and thereafter at 3 pm.
In support of her position, counsel for the wife submitted that C had not spent time away from her except on two occasions, each of three nights, when she visited her mother in Country E, prior to the parties’ move to Australia. It is not in dispute that the maternal grandmother is ill and that it would not have been appropriate for the children to be taken to visit her.
The husband deposed that he had cared for the children:
· When B was 16 months old, in September 2011 for ten days when the wife was in Country F.
· When B was about one and a half years old for three days while the wife visited her mother.
· Both children in March 2014 for three days when the wife visited her mother.
· Both children in September 2014 for four days while the wife visited her mother.
Although the wife asserted that she was the primary carer for the children, the husband asserted that both the parents had been employed and that they were both involved in the care of the children.
From the time each of the children was born until 5 January 2015, the children lived in a home with both of their parents.
Nothing in the wife’s affidavit material suggested that the children had other than a close and loving relationship with their father.
The arrangements which have been put in place allow the children to spend sufficient time with their father to maintain their meaningful relationship with him while, at the same time, not spending so much time away from their mother that their attachment to her will be threatened.
INTERIM PROPERTY SETTLEMENT
Each party sought an interim distribution by way of partial property settlement. The wife initially asked for $160,000. The husband asked that the sum of $623,000 which the parties had in Australia be divided equally between them.
Ultimately it was the wife’s position that each should receive $200,000 and the balance of the funds should be preserved. Both parties agreed that, whatever sum was distributed, the balance of their cash assets should be placed in joint accounts which they could only operate together.
Prior to marriage, the parties entered into a “Contracting Out Agreement” pursuant to New Zealand law.
The effect of that agreement pursuant to Australian law and pursuant to the law of the United Kingdom is not clear. The provisions governing the ownership of property acquired by the parties jointly after the date of the agreement are complex.
Neither party has demonstrated a need for a sum greater than $200,000. Caution dictates that no greater sum be distributed until the effect of the agreement has been determined.
The husband should receive $200,000 from the money which the wife removed from the joint account. The wife should have the benefit of $200,000 including any sum from the fund that she has already spent and the balance should be preserved.
FORUM - PRINCIPLES TO BE APPLIED - PARENTING
Counsel for the wife conceded that this is not a matter to which the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) applies, the children having lost their habitual residence in the United Kingdom when the parents removed them from that jurisdiction with the intention of settling in Australia.
The principles to be applied when determining an application concerning competing fora in a parenting matter were determined by the Full Court of the Family Court of Australia in Kwon & Lee (2006) FLC 93-287 as follows at paragraph 83:
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.
And at paragraph 84 (my emphasis):
We are satisfied that on the facts of this case, where the mother had regularly invoked the jurisdiction of the Court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best interests principles….
A differently constituted Full Court in Karim & Khalid (2008) 38 Fam LR 300 (“Karim & Khalid”) held at paragraph 59:
We thus endorse the view… that the sole principle which governs the determination of an application for the return of a child from Australia to a foreign non-Convention country is, as held by the High Court in ZP v PS (supra), the best interests of the child. Forum non conveniens principles are not relevant to such an application.
In the course of their judgement in Karim & Khalid, their Honours refer to the decision of the High Court in ZP v PS (1994) 181 CLR 639 (“ZP v PS”) where the High Court says at 648:
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 questions concerning custody and access may be dealt with by the courts of that jurisdiction.
In ZP v PS the High Court adopts the principle set forth by Neill LJ in In re F (Abduction: Custody Rights) (1991) Fam 25 as follows:
The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have been normally resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.
In short, the husband having regularly invoked the jurisdiction of the Family Court of Australia for parenting orders, in circumstances where the children and both of the parents are present in Australia, the matter should be determined according to the best interests of the children. It can, however, be dealt with by way of summary hearing and that is the course which has been adopted here.
Division 12A of Part VII of the Family Law Act 1975 (Cth) governs the conduct of the proceedings. Section 69ZQ(1) requires the court to determine whether the issue should be dealt with summarily and in what order the issues should be dealt with.
At the commencement of the hearing the legal representatives of the parties agreed that it was appropriate to deal with the forum issue summarily and the matter proceeded on that basis.
IS THE WIFE ESTOPPED FROM ASSERTING THAT THE FAMILY COURT OF AUSTRALIA IS NOT THE APPROPRIATE FORUM?
The proceedings were instituted by the husband on 19 December 2014 by the filing of an application seeking financial relief. His application for final relief does not seek parenting orders. In his amended application the husband also sought specific orders relation to parenting, specifically orders placing the children on the Airport Watch List and orders in relation to the children’s passports.
The wife filed a response on 17 March 2015. The only final order sought in the application was “Leave to amend subject to the outcome of the interim proceedings”.
She sought the following “Interim or procedural orders”:
1.That the children [B] born … 2010 and [C] born … 2013 live with the mother pending further order by a competent court in the United Kingdom.
2.That the mother have sole parental responsibility for all matters relating to the return of the children to the United Kingdom.
3.That the Court accepts an undertaking from the mother that, within 14 days of her return to the United Kingdom she do all things and sign all documents as are necessary to commence proceedings in a competent court in the United Kingdom for parenting and property orders.
4.That, pending their departure for the United Kingdom and until further order by a competent court in the United Kingdom, the children shall spend time with their father as agreed between the parties.
5.IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by removing the said children from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
6.That the mother or her solicitors be ordered to serve a sealed copy of these Orders on the Australian Federal Police.
7.That the application for parenting orders contained within the initiating application filed on 19 December 2014 be adjourned to a date to be fixed to confirm commencement of proceedings in the United Kingdom
8.That within 14 days of the commencement of proceedings in a competent court in the United Kingdom for parenting and property orders, the parties shall do all acts and things and sign all documents as are necessary to instruct Reid Family Lawyers to issue a trust cheque payable to the parties jointly in payment of the balance of any and all funds held by Reid Family Lawyers in trust on behalf of the parties, such trust cheque to be paid into an account as agreed between the parties or failing agreement, as directed by a competent court in the United Kingdom.
9.That the application for property orders contained within the initiating application filed on 19 December 22104 (sic) be stayed on the basis of Australia being a clearly inappropriate forum.
Counsel for the husband relied on the judgement of Kent J in Randle & Randle [2011] FamCA 830 (“Randle”).
The facts of that case were significantly different from those in this matter. In Randle, the application was initiated by the wife and sought interim parenting orders for the children to live with her, a warrant for the return of the children and orders restraining the husband from removing the children from her care. When the matter came before the Court, the wife sought amended orders including, for the first time, an order that the proceedings be stayed pending the conclusion of parenting proceedings in another forum.
Counsel for the wife submitted that the present matter should be distinguished from Randle. She submitted:
In the present case, the father was the applicant and the mother the respondent. The Response filed makes clear her case that interim orders are sought to permit return of the children to the UK, where a court of competent jurisdiction should determine competing applications about the children.In the cases of Kwon & Lee [2006] FamCA 730[1], Killiam & Loeng [2015] FamCAFC 41[2], Coburn & Sakura [2011] FamCA 640[3], Dickson & Dickson [2015] FamCAFC[4], the respondents sought orders that the matter be determined in a forum other than Australia, and orders ancillary to the children being permitted to return to their “home” country, such as interim live with orders. Notably, such a position did not result in a finding by the Court that the respondent had submitted to or enlivened the Court’s jurisdiction.
[1] At paragraphs 3 and 23.
[2] At paragraphs 20 and 22.
[3] At paragraphs 8, 9 and 17.
[4] At paragraph 6.
The wife in the present proceedings did not specifically use the words “Conditional Appearance” in her response filed 17 March 2015. However the response clearly set out, at orders 1 to 3 and order 9, her position that the courts of the United Kingdom were the appropriate forum for the determination of this dispute.
The wife did not seek to invoke the jurisdiction of the Family Court of Australia other than to agitate her application to leave this country with the children in order to institute proceedings in the United Kingdom.
Neither the husband nor the Court could have understood her position to be that she submitted unconditionally to the jurisdiction of this Court.
For those reasons I do not accept that the wife is estopped from prosecuting her case in relation to the appropriate forum.
THE EVIDENCE OF THE SINGLE EXPERT
Mr D was not required for cross examination. The gravamen of his evidence is that the wife can remain in Australia for the foreseeable future. Her right to live in Australia is not affected by the separation of the parties.
The husband can also remain in Australia.
IS AUSTRALIA AN INAPPROPRIATE FORUM FOR THE PROPERTY PROCEEDINGS?
Counsel for the husband sensibly conceded that, if it were determined that the parenting proceedings ought to be conducted in the United Kingdom, there was no logical basis on which the property proceedings should not also be heard there.
The only significant property of the parties in Australia is cash which was transferred here from the sale of the parties’ home in the United Kingdom. They have significant property, including real property, in the United Kingdom. However, there is no bar to the making of orders in Australia requiring the parties to deal with the property in the United Kingdom.
Whether the matter proceeds in Australia or in the United Kingdom, there will need to be expert evidence about the effect of the agreement into which the parties entered pursuant to New Zealand law.
Nothing in the facts suggests that there will be any obstacles to the hearing of the property proceedings in Australia.
WHERE SHOULD THE PARENTING PROCEEDINGS BE HEARD?
The parties’ connection with Australia is limited. They have lived in Australia since October 2014. Neither is an Australian citizen.
The wife has dual British and Country E citizenship. The husband has dual British and New Zealand citizenship.
The children were both born in the United Kingdom and are not Australian citizens.
The wife has employment in Australia. The husband has been employed until recently and is seeking other employment in Australia.
The husband is able to return to the United Kingdom if necessary. There is no evidence to suggest that the husband would be unable to obtain employment in the United Kingdom. He had been employed there since he moved there in 2005.
The wife has prospects of employment in the United Kingdom and tendered letters making offers of employment there.
The children’s situation in Australia is settled. They live with their mother and spend time with their father. Both parents have accommodation. They live within reasonable distance from each other so that the children’s travel from one parent to the other is not onerous.
There is no evidence that similar arrangements could be put in place in the United Kingdom.
The wife deposes that she intends to live “in [City G] or the surrounding suburbs”. It could not be assumed that, when the wife decides where she wants to live, that area will be suitable to the husband or that he will also be able to secure accommodation in the same area. Similarly, there is no evidence that the husband will be able to find employment which will allow him to live in the same general area as the wife.
If the wife were to return with the children to the United Kingdom, at least in the short term, the children’s time with their father would be disrupted until he returns to the United Kingdom and secures accommodation. There is no evidence that the husband will, in fact, follow the children to the United Kingdom.
If a court in the United Kingdom ultimately determined that the children should live in Australia, their living arrangements would be disrupted again.
The best interests of the children dictate that their living arrangements not be disrupted unnecessarily.
The preferable course, in circumstances where the jurisdiction of the Family Court of Australia has been properly invoked, and where the parents and the children are settled, albeit recently, in Australia, is that there be a hearing in Australia to determine whether the wife and the children will be permitted to relocate to the United Kingdom.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 August 2015.
Associate:
Date: 14/8/2015
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