Kim and Lam

[2008] FamCA 379

FAMILY COURT OF AUSTRALIA

KIM & LAM [2008] FamCA 379

FAMILY LAW – JURISDICTION – Conflict of

Family Law Act 1975 (Cth)

Henry and Henry (1996) FLC ¶92-685
Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
B v B (Re jurisdiction) (2003) FLC ¶93-136
EKG and JSL (2006) 35 Fam LR 559; [2006] FamCA 730

APPLICANT: Mr Kim

RESPONDENT: Ms Lam

FILE NUMBER: SYC 4247 of 2007

DATE DELIVERED: 9 May 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 2 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

RESPONDENT: In person (by telephone link to Korea with interpreter)

Orders

IT IS ORDERED THAT:

1. The oral application of the wife seeking an order that the Court decline to exercise the jurisdiction it has, to hear and determine both the father’s application for parenting orders, and the mother’s application for parenting orders in circumstances where the like issues are the subject of proceedings before a Korean court, is dismissed.

2. Each party is to file and serve by 30 June 2008 an affidavit setting out the evidence in chief of each witness upon which they wish to rely at the hearing.

3. The matter be listed for further directions before Justice Fowler at 9.30 am on 22 August 2008

   AND THE COURT NOTED that on that day the Court proposes to allocate hearing dates for the matter.

4. Leave be granted to the mother to attend by telephone link on 22 August 2008.

5. Korean interpreters be booked by the registry for each party and that both interpreters attend at Court on 22 August 2008.

6. Liberty is reserved to each party to apply in the event of difficulty in preparing the matter for hearing on seven days notice to the court and to the other party specifying the matters in respect of which orders are sought.

IT IS NOTED that publication of this judgment under the pseudonym Kim and Lam is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4247  of 2007

MR KIM

Applicant

And

MS LAM

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the court is an oral application of the wife seeking an order that the court decline to exercise the jurisdiction it has to hear and determine both the father’s application for parenting orders and the mother’s application for parenting orders in circumstances where the like application is the subject of proceedings before a Korean court.

Background facts

1. The father was born in August 1971.

2. The mother was born in May 1974.

3. The father came to Australia in 1992 and became an Australian citizen in May 1999.

4. The wife has permanent resident status in Australia.

5. In November 2003 the parties married in Australia.

6. The marriage was registered also in Korea.

7. In November 2004 the child Y was born in Australia.

8. In May 2006 the child S was born in Australia.

9. Both of the children are Australian citizens.

10. The parties’ joint habitual residence during their cohabitation was Australia.

11. In March 2007 the parties and the children travelled to South Korea for the purpose of attending the mother’s father’s remarriage celebrations, with the intention of returning to Australia the following month.

12. In April 2007 in circumstances which are the subject of debate and disagreement, the father left South Korea and returned to Australia in accordance with the original plan, taking with him the parties’ son S.  The mother and their daughter Y remained in South Korea.

13. The father asserts that the retention by the mother of the child Y in South Korea was without his consent.  There is a suggestion that the mother asserts that such retention was with his consent, but that issue has not been determined.  There is no doubt that the father does not presently consent to the child remaining in South Korea.

14. The father filed an Application in this court in June 2007 seeking orders, and interim orders were made by Judicial Registrar Johnston in July 2007 in the following terms:

    “1.That orders are made in accordance with the Minute of Orders filed in Court today and signed by Judicial Registrar Johnston and placed with the Court papers as set out hereunder:-

    “PENDING FURTHER ORDER:-

    1.Leave to the applicant husband, […], (“the husband”) to proceed with his application for interim orders on an urgent ex parte basis.

    2.That the respondent wife, […], (“the wife”) immediately return the child [Y] born […] November 2004 (“[Y]”) to the Commonwealth of Australia.

    3.That the children, [Y] and [S] born […] May 2006 live with the husband.

    4.That these proceedings be relisted within 48 hours of the husband’s becoming aware of the wife or [Y] returning to the Commonwealth of Australia.

    5.        That the husband’s costs of this application be reserved.

    2.That the Initiating Application filed on 14 June 2007 is adjourned for mention in the call-over over of the Judicial Registrar’s Duty List at 9:30 am on 9 October 2007.

    3.That the father arrange for a sealed copy of these orders be served on the mother as soon as possible.

    4.That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”

15. The mother by a Response filed in this court on 21 November 2007 sought orders that both children live with her and for that purpose the return of the parties’ son to her in Korea and she sought what she describes as “consolation money” for herself and “raising expenses” for the children.

16. Proceedings were commenced in the Korean Court in June 2007 by the father in which he sought orders for a divorce and for the children to live with him.

17. It appears the mother has responded to that application also.

18. It is clear on the undisputed facts that this court has the jurisdiction to deal with the substantive parenting issues raised in the father’s application filed here, and the mother’s response to that application.  The reason for that is that jurisdiction is conferred on the Court if one of the parties to the marriage is an Australiana Citizen, or Ordinarily Resident in Australia or is domiciled in Australia.  The father has Australian citizenship, Australian Residence and was domiciled in Australia.

19. The issue for determination then is whether, in the circumstances of this case, the court should exercise that jurisdiction.

The evidence

1. The mother gave evidence by affidavit and relied upon her affidavit filed on 21 November 2007 and a further affidavit filed 4 February 2008.

2. She was invited to supplement her evidence orally if she wished to do so, but she declined the invitation.

3. The husband filed in court two affidavits, the one relied on being an affidavit filed on 1 February 2008 in which he in part says:

   ‘I was advised that orders of an Australian court about this matter will have no legally binding effect in South Korea.  Therefore, in an attempt to do everything I can to have [Y] returned to me, I retained a solicitor in South Korea to make an application to the court there.  My South Korean solicitor has advised me “It would be helpful for you to get an order from an Australian court.”’

4. In submissions the wife said that if the decision were that the Australian court would exercise jurisdiction she would come to Australia to deal with the matter.

The law

1. The question before the Court requires the Court to answer the question, “is the Australian court in all the circumstances the clearly inappropriate forum?”

2. The relevant law is set out in Henry and Henry (1996) FLC ¶92-685 in which the majority quotes with approval the decision of the High Court in Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 in the following terms (at 83,121):

   “In Voth, this court adopted for Australia the test propounded by Deane J 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’.”

   “At 83,122 their Honours made it clear that:”

   “… the substance of the test in Voth is simply whether the chosen forum is a clearly inappropriate forum.  And, as already indicated, that is to be determined by considering whether continuation of the proceedings would be ‘oppressive’ or ‘vexatious’, in the extended sense in which those words were used by Deane J in Oceanic Sun”.

3. The Full Court in the matter of B v B (Re jurisdiction) (2003) FLC ¶93-136 held that Voth also applied to the proceedings concerning parental responsibility for children, and that although the best interests of the children do not determine the matter they were a factor to be taken into account in determining whether the court constituted a clearly inappropriate forum.

4. I can find nothing in the mother’s evidence which suggests that Australia is clearly the inappropriate forum.

5. The matters  that she raises in summary are:

   a)She has a preference for the hearing to take place in Korea because she is Korean.

   b)She says there are difficulties (costs) in litigating in Australia.

   c)She says the husband has told her that the Australian Courts will favour him because he is a citizen.

6. I am informed by counsel for the husband, instructed by the Australian Legal Aid Commission NSW, that should she pass the appropriate means (and presumably merits test) she could procure legal aid in Australia, as the father has, to assist her to conduct a case before this court.

7. The requirement of the law is that the Court is required to make decisions upon a consideration of a number of factors, the overarching one of which is that the decision must be one which promotes the best interests of the child.  The citizenship of a party does not rank as a consideration in the matters required to be taken into account by a court.

8. There are in this case, a plethora of connecting factors of the case and the parties to the jurisdiction.

9. They are:

   a)The citizenship of the father and each of the two children is Australian

   b)The place of marriage of the parents was Australia

   c)The ordinary and habitual place of residence from prior to their marriage until April 2007 of the mother, the father and the children was Australia.

   d)The mother has permanent residence status in Australia.

   e)The father and one child continue to reside in Australia.

   f)Both the father and the mother have invoked the jurisdiction of this Court seeking parenting orders.

10. Given the mother’s representation that she will litigate this matter in Australia if that is the court’s decision, that an order might be ineffective and unenforceable in Korea is not, in my view, decisive of a refusal to undertake a hearing of this matter.

11. That Australian orders are not directly enforceable in Korea does not render them ones which ought not to be made.

12. There is, in any event, an increasing practice of comity between, courts and often an order will give rise to the exercising of a foreign courts decision in comity with it.  The making of an order, even in circumstances where there is no direct means of enforcement, does not render it purely an academic process or in the words of Mr Tockar’s submission a brutum fulmen.

13. Any order made here (whatever that might be) will be definitive of the rights and obligations of each of these parties to both their children, and will be directly enforceable in Australia.

14. It is noted also that it is the intention of the father to seek from the Korean court an order that the child there residing be returned to Australia.  This is so that the matter of the children’s future may be determined in accordance with the law of their habitual residence before what he asserts was a wrongful retention of his daughter without his consent in Korea.

15. The government of Australia has become a party to the Hague Convention on the civil aspects of child abduction and applies that Convention where children whose habitual residence is in an overseas convention county and they are wrongfully retained in Australia.  That Convention requires, in general terms, that the future of those children be determined by law of the state of the habitual residence of children prior to their wrongful retention or removal.  In becoming a party to the Convention and implementing it by regulation, the Government has recognised that this process of determination best serves the interests of children.

16. In circumstances where children are removed to Australia from a non-Convention state, the Court is bound in its consideration of the question of the return of the child to take into account what best serves that child’s interests.  Nevertheless, the decisions in those cases, other things being equal, tend to favour the future of the child being determined by the country of the habitual residence of the child prior to his or her wrongful removal or retention.  These decisions recognise the underlying principle infused in the Regulations made to give effect to the Convention, that it is in the best interests of children that their future be determined by the courts of their habitual residence.

17. In my view, given that the evidence about the history of parenting of these children arises out of events which occurred substantially in Australia, it is in the interests of these children that their future be determined in a court where that evidence would be more readily available to a Court and capable of being tested.

18. I have had regard to the decision in EKG and JSL (2006) 35 Fam LR 559; [2006] FamCA 730 in coming to my decision as well as the cases cited above.

19. It seems to me, on a consideration of the scant evidence that there is, that the mother has not discharged the onus she bears to establish that Australia is the clearly inappropriate forum or that the determination of the matter in this jurisdiction is not in the interests of the children, and accordingly her application will be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  9 May 2008