Kwon & Lee

[2006] FamCA 730

FAMILY COURT OF AUSTRALIA

EJK AND TSL  [2006] FamCA 730

APPEAL – Against orders for return of child to foreign jurisdiction and dismissal of proceedings commenced in Australia for parenting orders – Whether “clearly inappropriate forum” test applicable when child in jurisdiction, or whether trial judge require to apply best interests test as some of orders sought were parenting orders – Appellant argued principles in B and B (Re Jurisdiction) 2003 FLC 93-136 could be distinguished, or in the alternate that that decision should be overruled - Held that matter distinguishable from B and B (Re Jurisdiction) – Clarification of certain principles made obiter dicta in that case – On the facts of present case, matter should not have been determined on the basis of the clearly inappropriate forum test but rather by application of the best interests test.

Whether trial judge’s discretion miscarried as a result of inadequate weight given to matters favouring the child remaining in Australia – Whether trial judge failed to give adequate consideration to s 68F(2) factors - Trial judge’s decision within reasonable ambit of her discretion – Whilst trial judge did not make specific reference to each of s 68F(2) factors, consideration of relevant factors and weighting of those factors readily apparent from her reasons – Despite error in application of clearly inappropriate forum test, trial judge did not err in determining it was in the child’s best interests to be returned to the foreign jurisdiction.

APPLICATION - To adduce further evidence – Application by mother - Parts of proposed evidence controversial and if admitted would necessitate a rehearing – Parts of proposed expert evidence may not be admissible under the Evidence Act 1995 (Cth) – Not satisfied evidence would have produced a different result if available at trial – Case not within exceptional category –Father also sought to adduce further evidence – Further evidence in response to mother’s proposed further evidence rather than to buttress findings of trial judge – Application by father rejected.

COSTS – Mother wholly unsuccessful – Proceedings had their genesis in the mother’s wrongful removal of the child – Departure from s 117(1) warranted – Order that mother pay father’s costs of appeal as agreed or failing agreement as assessed pursuant to Chapter 19 of the rules.

Family Law Act 1975 (Cth), ss 64B, 65D, 65E and 68F(2)
Family Law Rules 2004, Chapter 19

A v J (1995) FLC 92-619
B v B (Re Jurisdiction) (2003) FLC 93-136
B and B Family Law Reform Act 1995 (1997) FLC 92-755
Bennett and Bennett (1991) FLC 92-191
Bennett v Bennett (2001) FLC 93-088
CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Cashel v Carr (2005) FLC 93-232
de Dampierrev de Dampierre (1988) AC 92
Dobson v Van Londen; sub nom D v L (2005) FLC 93-225
Flanagan and Handcock (2001) FLC 93-074 (and in the High Court S258/2000)
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Henry v Henry (1996) 185 CLR 571; (1996) FLC 92-685
In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80; [2005] 3 WLR 14; [2005] UKHL 40
JJT and CTT (2004) FLC 93-198
JRN v IEG (B18/1998) 3 August 1998, per Kirby J
Khademollah v Khademollah (2000) FLC 93-050
M v M (1988) 166 CLR 69; (1988) FLC 91-979
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Minister for Immigration and Multicultural and Indigenous Affairs and B and B (2004) 219 CLR 365; (2004) FLC 93-174
Northern Territory v GPAO (1999) 196 CLR 553
Reynolds v Reynolds (1973) 47 ALJR 499
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354
U v U (2002) 211 CLR 238; (2002) FLC 93-112
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
ZP v PS; Re PS; Ex parte ZP (1994) 181 CLR 639; (1994) FLC 92-480

APPELLANT:  EJK

RESPONDENT:  TSL

FILE NUMBER:  MLF 3708 of 2004

APPEAL NUMBER:  SA 68 of 2005

DATE DELIVERED:  9 August 2006  

PLACE DELIVERED:  Sydney

JUDGMENT OF:  Holden, Coleman and Boland JJ

HEARING DATE:  1 February 2006

LOWER COURT JURISDICTION:                  Family Court of Australia

LOWER COURT JUDGMENT DATE: 25 November 2005

LOWER COURT MNC: [2005] FamCA 1285

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr North, SC and Mr Cronin

SOLICITORS FOR THE APPELLANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr Geddes, QC

SOLICITORS FOR THE RESPONDENT: TressCox Lawyers

ORDERS

1. That the mother’s appeal be dismissed.

2. That the mother pay the father’s costs of the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

3. That the father’s application be listed before the Honourable Justice Dessau, or if she is not reasonably available, a judge in the Melbourne Registry of the Court, for the making of further orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

APPEAL NUMBER: SA 68 of 2005

FILE NUMBER: MLF 3708 of 2004

EJK

Appellant

And

TSL

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal by EJK (‘the mother’) against orders made by Dessau J on 25 November 2005.  The effect of the orders is to require the mother to return the child JWL (‘the child’) to Korea, and to otherwise dismiss proceedings commenced by her in Australia for parenting orders under the Family Law Act 1975 (Cth) (‘the Act’).

2. TSL (‘the father’), the mother and the child are all Korean citizens.  Following the breakdown of the parties’ marriage in March 2003, the mother commenced proceedings in a District Court in Korea for divorce, property settlement, alimony, child maintenance and parenting orders.  It is not in dispute that the mother, whilst exercising contact to the child, removed him from Korea without the father’s knowledge or consent.  The mother first took the child to Germany, and then travelled to Australia, arriving in June 2004.  The father only became aware of the mother and child’s whereabouts when he was served with an interim residence order obtained by the mother in this Court on an ex parte basis in January 2005.

3. As Korea is not a signatory to the Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’), thus precluding an application for the return of the child on the basis of wrongful removal from his place of habitual residence, before the trial judge the father sought orders ‘[t]hat save the Court make orders whereby the return of the child [JWL] … to Korea may be facilitated, including an order that the said child be forthwith made available to the husband for the purposes of travel to Korea, the Form 1 and Form 2 applications of the mother be dismissed or stayed.’

4. The central issue to be determined in this appeal is whether principles relevant to a forum dispute (‘the clearly inappropriate forum test’) are applicable in this case, or whether the orders sought by the parties required the trial judge to apply the ‘best interests’ test because the orders sought, or some of them, were parenting orders under the Act. If the trial judge was obliged to determine the issues having regard to the child’s best interests as the paramount consideration, an examination of whether those principles were adequately addressed is relevant.

5. The mother’s senior counsel argued principles enunciated in B v B (Re Jurisdiction) (2003) FLC 93-136, namely that an application for a stay in respect of whether a parenting case should be determined on the clearly inappropriate forum test, could be distinguished on the facts of this case. In the alternate, he submitted if we found this matter was not distinguishable, that B v B (Re Jurisdiction) (supra) should be overruled.  He further submitted, because of the trial judge’s focus on the clearly inappropriate forum test, that she had erred in the exercise of her discretion in dealing with the matter on the alternate basis of the child’s best interests being the paramount consideration, in assessing and weighing matters relevant to those interests.  

APPLICATION TO ADDUCE FURTHER EVIDENCE

1. Before us both parties sought to adduce further evidence.  It was not disputed by the mother that, if we admitted the further evidence on which she sought to rely, we should also admit the further evidence on which the father sought to rely.  We will return to the further evidence application later in our reasons.

RELEVANT BACKGROUND  

1. Relevant factual background matters, except for allegations by the mother of domestic violence perpetrated on her by the father, are not in dispute.

2. The mother was born in November 1967 in South Korea.  At the date of the hearing she was engaged in full time home duties, and the holder of a Visitor’s ETA and was applying for a Business Long Stay Visa to permit her to reside in Australia.  The mother asserted she had been offered employment as an interpreter and translator.  The mother has tertiary qualifications in mathematics, computer science and linguistics, and was previously employed as a university lecturer.

3. The father was born in July 1961, also in South Korea. The father is a tenured full-time university professor in the Department of Statistics and Information at a university in Korea, and earns approximately
   AUD$96,000.00 per annum. 

4. The parties were married in Seoul, Korea in March 2000, and separated in Korea in December 2002.

5. The child was born in Korea in February 2001.  After the child’s birth, and until the parties’ separation, the mother was engaged in full-time homemaking and parenting duties.  The father’s mother (‘the paternal grandmother’) lived with the parties for approximately six months after the child’s birth.  The paternal grandmother again lived with the parties for about four months after the child was accidentally burnt whilst playing with detergent as a toddler.

6. The mother asserted after the marriage the father exhibited controlling behaviour, and she said she was subject to physical attacks by the father including that:

   ·in June 2001 he assaulted her and pushed her out of their apartment;

   ·in April 2002 he kicked her, threw objects at her, threatened to expel her from the apartment, and locked her in the bedroom;

   ·in October 2002 he struck her in the face causing her lips to swell;

   ·in December 2002 after an argument he struck her in the face repeatedly (the mother was admitted to hospital for five days); and

   ·in December 2002 after an argument he pulled her from their car at one location, and when she got back into the car, drove to a school yard where he pulled her from the car and threw her onto the ground and locked the car.  She said she tried to hang on to the car but he started the car causing her to fall off, and then reversed the car and drove off.  After this incident the mother was admitted to hospital where she remained for 21 days.

7. The father denied that he had physically assaulted the mother, although he conceded she had been excluded from their apartment, and that he had left the mother in the school yard in December 2002.

8. During the mother’s hospitalisation in December 2002/January 2003 the child remained in the care of the father who was assisted by the paternal grandmother.

9. On her release from hospital the mother sought legal advice and commenced proceedings in a District Court in Korea in March 2003.

10. In June 2003 the Court granted the mother contact to the child. For three months the mother had day only contact each Saturday, and from September 2003, the mother had contact each alternate weekend from
    10 am Saturday to 6 pm Sunday.

11. The mother asserted from about February 2004 the child commenced showing signs of distress when in her care, and from May 2004 initially refused to go on contact visits.

12. In June 2004 the mother, whilst the child was with her for contact, left Korea and travelled initially to Germany and France, eventually arriving in Melbourne in mid June 2004 where she commenced living with her sister and brother-in-law and their two children.

13. In July 2004 the mother’s application for divorce was refused by the Korean court.  The mother was legally represented at the hearing.  The mother lodged an appeal to the Seoul High Court on 10 September 2004 and the father filed a ‘counterclaim’ on 29 March 2005.

14. The father’s lawyer asserted on 23 April 2005 the mother withdrew her appeal leaving the husband’s counterclaim pending.

15. The father’s lawyer asserted as a result of the mother’s withdrawal of her appeal, the judgment of the District Court in Korea of 25 August 2004 became final leaving the father’s counterclaim pending.  However, it was conceded before the trial judge that there were no proceedings on foot in the Korean courts.

16. On 1 November 2005, after the hearing and before the trial judge delivered reasons for judgment in respect of orders for the return of the child to Korea, the father asserted he commenced proceedings in Korea seeking orders for parental authority and to be fosterer of the child. 

CONDUCT OF THE CASE BEFORE THE TRIAL JUDGE

1. At the commencement of the hearing the parties’ competing applications were the mother’s application for interim and final orders that the child live with her.  The father relied on an Amended Response filed
   9 September 2005.  In that Response the father sought orders, including the order set out by us in paragraph 3 of these reasons.  Counsel for the father sought and obtained leave to amend the father’s Response to one in which he sought only a stay or dismissal of the mother’s application.  The hearing was thereafter conducted on a summary basis on the papers. At the conclusion of senior counsel for the mother’s submissions, the father’s counsel sought and obtained leave to revert to the orders sought in the Amended Response.  An application by senior counsel for the mother to cross examine the father was refused, with the trial judge having regard to a notation made when the matter was fixed for hearing that the father may not be in Australia.  No ground of appeal is directed to the trial judge’s refusal to allow cross examination.

THE TRIAL JUDGE’S REASONING

1. Her Honour set out the basis of each party’s case, noting that the father  asserted the test to be applied to the application before the Court was the clearly inappropriate forum test enunciated by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

2. The mother’s case was that the relevant test was the ‘paramountcy of the child’s best interests’.

3. In discussing the position advanced by the mother’s senior counsel, the trial judge noted he submitted that as Korea was not a signatory to the Hague Convention, and was not a ‘prescribed overseas jurisdiction for the purposes of the registration of orders in this country’ absent ‘express statutory guidance’, the common law principle of the child’s best interests being the paramount consideration was applicable.  Further, as there were no proceedings on foot in Korea, there was no suggestion ‘that it would be vexatious or oppressive for this court [sic] to hear a case in relation to this child’s care.  It is not a case of competing forums’.  Her Honour noted that the mother’s senior counsel submitted the correct approach was for her to consider summary dismissal of the mother’s application for residence before considering a stay.

4. The trial judge recorded the mother’s senior counsel’s submissions that:

   ·a court should not stay proceedings if they can be dismissed;

   ·in considering dismissal, the best interests test was applicable; and

   ·the order for return of the child derived from ss 61D, 64B(1) and 64B(2)(d).

5. The trial judge under the heading ‘The questions to be decided’ addressed herself to three questions requiring determination which she identified as:

   ‘(1)Does the “clearly inappropriate forum” test apply in this case?

   (2)   If so, is Australia a clearly inappropriate forum so that the wife’s proceedings should be dismissed or stayed?

   (3)   If not, and the case is to be decided on the paramountcy of the child’s best interests, should the wife’s proceedings be dismissed or stayed?’

6. Her Honour noted there was no dispute that an order could be made for the child’s return to Korea on a summary basis. 

7. The trial judge determined the clearly inappropriate forum test was the correct test.

8. The trial judge then set out her reasons supporting her finding that Australia was a clearly inappropriate forum.  Her Honour noted that the parties and the child were all Koreans, that until the mother ‘absconded to Australia’, neither the parties nor the child had ever resided in Australia, and they had no nexus with Australia.  Her Honour found a court determining the child’s residence ‘would be bound to consider significant religious and cultural matters’ and that ‘an Australian judge is likely to be at a serious disadvantage in understanding the nuance [of certain cultural matters]’. 

9. The trial judge also considered uncertainties surrounding the mother and child’s visa status in Australia and said ‘[t]he child’s future status here is thus quite uncertain.’ 

10. Having set out the mother’s allegations of domestic violence, including  particularising two hospital discharge summaries, her Honour noted the parties’ conflicting versions of domestic violence remained ‘important matters to be tested’.  

11. The trial judge noted that, in the Korean proceedings, the mother made no complaint that the father was violent to the child during the marriage or after separation.  Her Honour noted such complaint was made after the mother came to Australia, and said this would be a relevant issue in the Korean court.  Her Honour also noted that all relevant witnesses in respect of the domestic violence allegations, other than the mother’s brother-in-law, were in Korea. 

12. The trial judge then considered the question of the threat of arrest or prosecution of the mother if she returned to Korea.  Her Honour noted ‘[i]t was not made clear to me, if her child were returned to Korea, whether or not she would return.  In any event, the evidence cannot lead me to conclude that the mother will certainly face criminal prosecution, or prejudice in a family law case, in Korea’. 

13. Her Honour then considered the question of local recognition of orders of a Korean court in Australia.  Having recorded the observations of the High Court in Henry v Henry (1996) 185 CLR 571; (1996) FLC 92-685 which her Honour summarised, saying ‘if the orders of a foreign court would not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue’ she then said ‘I have also noted it does not appear to be a definitive statement that would preclude me from finding that Australia is in this case a clearly inappropriate forum.’ 

14. The trial judge noted the importance of a lack of enforceable Korean orders prior to the father’s amended application to seek an order for the return of the child. 

15. Her Honour then turned to consider the period of time the mother had lived in Australia, and the effect on the child if he was removed from the mother, but thereafter returned to her after proceedings in Korea.  The trial judge concluded ‘[t]hat submission calls for a rather limited view of this child’s best interests, failing to take into account his removal from his father after living with him for 18 months, being secreted, and not being able to see him at all, until a day’s contact could be arranged through this court [sic]’.

16. Having noted she was not determining a residence case, her Honour concluded the period the child had spent with the mother was something a Korean court could take into account and that ‘status quo in itself cannot dissuade me that Australia is a clearly inappropriate forum’.

17. The trial judge then considered, in the alternate, if the clearly inappropriate forum test did not apply, whether the mother’s application should be dismissed or stayed having regard to the child’s best interests as the paramount consideration.  

18. In addition to the matters already discussed earlier in her reasons,  the trial judge placed emphasis on the following matters:

    ·the child’s birthplace and the majority of his close family connections were in Korea;

    ·that his link with Australia was tenuous and occasioned by the mother’s action in removing him from Korea;

    ·a Korean court was best able to decide the child’s future with an appreciation of his culture, and having regard to the interruption of the child’s relationship with his father;

    ·that family violence issues could be considered by a Korean court;

    ·the material did not demonstrate the child was likely to be put at risk by a return to Korea;

    ·the existing status quo of 16 months with the child in the care of his mother could be considered by the court in Korea; and

    ·there were likely to be longer delays in Australia than in Korea for the case to be finally determined. 

1. The trial judge concluded it was in the child’s best interests that he should be returned to Korea. 

2. Her Honour then considered the authorities dealing with either a stay or dismissal and determined that the mother’s application should be stayed on the basis that if proceedings were not determined in Korea, and the mother returned to Australia, the proceedings could be ‘re-invigorated’.

3. The trial judge then adjourned the matter to enable the parties to provide submissions to her as to appropriate arrangements for the return of the child to Korea.  Her Honour delivered subsequent ex tempore reasons for judgment on 25 November 2005.  By that time the father’s counsel provided evidence to the trial judge that the father had issued proceedings in Korea on 1 November 2005 in which he was seeking to be designated as the person of parental authority and the fosterer of the child. 

4. The trial judge noted that the mother sought orders that the child be permitted to return to Korea with her and for the Korean court then to determine the ‘interim and ultimately the longer term arrangements for the child’.

5. The trial judge had regard to the child’s age and period of time he had spent exclusively with the mother, and concluded that it was in the child’s best interests for him ‘to travel to Korea with his mother for the court there to decide in whose care he will be’. Having noted that there was no argument that the father should be permitted to travel on the same flight, the trial judge then made orders for the return of the child to Korea.

6. Later on 25 November 2005, the trial judge stayed her orders pending this appeal, and made orders for two contact periods to occur between the child and the father before his planned return to Korea. 

RELEVANT LAW

1. Part VII of the Act deals with children. Part VII was comprehensively reviewed in Minister for Immigration and Multicultural and Indigenous Affairs and B and B (2004) 219 CLR 365 at 384 – 405; (2004) FLC 93-174 at 78,909 – 78,921 (see particularly the joint judgment of Gleeson CJ and McHugh J at 385 – 391; 78,909 – 78,914 and Gummow, Hayne and Heydon JJ at 400 – 405; 78,918 – 78,921), Northern Territory v GPAO (1999) 196 CLR 553 at 571 – 573, 594 – 596 and by Gummow and Callinan JJ in U v U (2002) 211 CLR 238 at 257 – 260; (2002) FLC 93-112 at 89,087 – 89,088. At the date of the hearing, Division 5 of the Act defined parenting orders and s 64B provided:

   ‘Section 64B Meaning of parenting order and related terms

   (1)A parenting order is:

   (a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

   (b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

   (2) A parenting order may deal with one or more of the following:

   (a)  the person or persons with whom a child is to live;

   (b)  contact between a child and another person or other persons;

   (c)  maintenance of a child;

   (d)  any other aspect of parental responsibility for a child.

   (3) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(a), the order is a residence order.

   (4) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(b), the order is a contact order.

   (5) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(c), the order is a child maintenance order.

   (6) To the extent (if at all) that a parenting order deals with any other aspect of parental responsibility for a child, the order is a specific issues order . A specific issues order may, for example, confer on a person (whether alone or jointly with another person) responsibility for the long‑term care, welfare and development of the child or for the day‑to‑day care, welfare and development of the child.

   (7) For the purposes of this Act:

   (a)  a residence order is made in favour of a person, or the person, with whom the child concerned is supposed to live under the order; and

   (b)  a contact order is made in favour of a person, or the person, with whom the child concerned is supposed to have contact under the order; and

   (c)  a specific issues order is made in favour of a person, or the person, on whom the order confers duties, powers, responsibilities or authority in relation to the child concerned.

   (8)    For the purposes of this Act:

   (a) a person has a residence order in relation to a child if a residence order made in favour of the person is in force in relation to the child; and

   (b) a person has a contact order in relation to a child if a contact order made in favour of the person is in force in relation to the child; and

   (c) a person has a specific issues order in relation to a child if a specific issues order made in favour of the person is in force in relation to the child.

   (9) In this section:

   “this Act” includes:

   (a) the standard Rules of Court; and

   (b) the related Federal Magistrates Rules.’

2. Following amendments to the Act which came into force on 1 July 2006,
   s 64B now provides:

   ‘Section 64B Meaning of parenting order and related terms

   (1)   A parenting order is:

   (a)  an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

   (b)    an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

   (2)  A parenting order may deal with one or more of the following:

   (a)  the person or persons with whom a child is to live;

   (b)    the time a child is to spend with another person or other persons;

   (c)  the allocation of parental responsibility for a child;

   (d)    if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

   (e)    the communication a child is to have with another person or other persons;

   (f)     maintenance of a child;

   (g)   the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

   (i)  a child to whom the order relates; or

   (ii)  the parties to the proceedings in which the order is made;

   (h)  the process to be used for resolving disputes about the terms or operation of the order;

   (i)     any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

   The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
   Note: Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.

   (3)  Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.

   (4)  The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:

   (a)  letter; and

   (b)  telephone, email or any other electronic means.

   (4A)  Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:

   (a)    resolving any dispute about the terms or operation of the order; or

   (b)  reaching agreement about changes to be made to the order.

   (5)  To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order .

   (6)  For the purposes of this Act:

   (a)  a parenting order that provides that a child is to live with a person is made in favour of that person; and

   (b)    a parenting order that provides that a child is to spend time with a person is made in favour of that person; and

   (c)    a parenting order that provides that a child is to have communication with a person is made in favour of that person; and

   (d)    a parenting order that:

   (i)  allocates parental responsibility for a child to a person; or

   (ii)  provides that a person is to share parental responsibility for a child with another person;

   is made in favour of that person.

   (9)  In this section:

   "this Act" includes:

   (a)    the standard Rules of Court; and

   (b)  the related Federal Magistrates Rules.’

3. Section 65D(1) and (2) which are contained within Division 6, and which provide as follows, are also relevant:

   ‘Section 65D Court’s power to make parenting order

   (1)  In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

   Note:  Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.

   (2)  Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.’

4. The other significant provision of Part VII of the Act is s 60CA (formerly s 65E), the ‘best interests’ provision. It is as follows:

   ‘Section 60CA Child’s best interests paramount consideration in making a parenting order

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.’

5. Under the present legislation, in contrast to the Act prior to the introduction of the Family Law Reform Act1995 (Cth) (‘the Reform Act’), not all orders made under Part VII are subject to the ‘best interests’ test, for example, the power to make orders in respect of child maintenance and/or injunctions concerning a child (see Bennett v Bennett (2001) FLC 93-088 and Flanagan and Handcock (2001) FLC 93-074, and in the High Court S258/2000).

6. In 1994, in ZP v PS; Re PS; Ex parte ZP (1994) 181 CLR 639; (1994) FLC 92-480 the High Court heard and determined the issue of how proceedings involving competing forums to hear and determine proceedings relating to children should be resolved. Mason CJ, Toohey and McHugh JJ said the Court under Part VII (as drafted before the Reform Act) was invested with a welfare jurisdiction similar to the parens patriae jurisdiction exercised by the Court of Chancery, but freed of the preliminary requirement of a wardship order.  Their Honours further said at 647 - 648:

   ‘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 [our emphasis] of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child. Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case, are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.

   However, in some situations the welfare of a child may require that a dispute as to the custody of the child be determined by a foreign court. Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the 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.’ (footnotes omitted)

7. Brennan and Dawson JJ in their joint judgment said at 660:

   ‘Once the jurisdiction conferred by s 63 of the Family Law Act 1975 (Cth) (“the Act”) on the Family Court in custody proceedings is effectively invoked — and there is no doubt that both parties invoked that jurisdiction in this case — s 64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court's power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country.’

8. Their Honours further held at 663:

   ‘The Family Court's attempt to meld the paramount consideration of the welfare of the child with the test of “clearly inappropriate forum” is misconceived. The latter test determines whether, in certain classes of case, a court should decline to exercise its jurisdiction; the former consideration governs the manner in which the Family Court must exercise the jurisdiction which has been conferred upon it by s 63. 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.’

   Their Honours acknowledged, in an appropriate case, there could be a speedy hearing to determine whether an order should be made for the return of the child to the country from which he or she had been abducted.

9. In April 1996 (shortly prior to the commencement of the Reform Act which substantially came into operation on 11 June 1996), in Henry v Henry (supra) the High Court considered the question of forum in respect of a divorce application commenced by a husband in Australia, when the parties had, during their marriage, never lived in Australia, but rather lived overseas, including in Monaco, where the mother had commenced proceedings following the breakdown of the marriage by filing a petition for divorce.  

10. Senior counsel for the appellant argued before the High Court that the clearly inappropriate forum test should not be applied to matrimonial disputes.  Senior counsel for the respondent submitted (at 574) that in principle Voth v Manildra Flour Mills Pty Ltd (supra) should apply in matrimonial proceedings, whilst noting that ZP v PS; Re PS; Ex parte ZP (supra) determined the overriding principle (best interests of the child) took precedence over Voth v Manildra Flour Mills Pty Ltd (supra). 

11. The majority, Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry (supra) upheld the clearly inappropriate forum test as set out in Voth v Manildra Flour Mills Pty Ltd (supra) as applicable to an application for divorce.  Their Honours did not refer to ZP v PS; Re PS; Ex parte ZP (supra) however in approving the clearly inappropriate forum test in the case of divorce proceedings they said at 591 – 592; 83,124:

    ‘In such cases, it is the marital relationship itself which is the subject of controversy.  And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship’.

12. Although the High Court adopted the clearly inappropriate forum test for matrimonial proceedings where a marriage still subsists, their remarks at 591 - 592 appear apposite to matters where ancillary relief is tied to principal relief, and do not directly address issues relating to proceedings in respect of ex-nuptial children, or the situation where parenting orders can be, and are, made independently of divorce proceedings as is frequently the case in this Court.  We note parenting proceedings do not fall into the definition of ‘matrimonial cause’ in s 4(1), but Part VII itself contains conferrals of jurisdiction (see Minister for Immigration and Multicultural and Indigenous Affairs v B and B (supra) at 384 – 385; 78,909). 

13. In markedly different factual circumstances to those pertaining in this case, the Full Court in B v B (Re Jurisdiction) (supra) was dealing with a case stated by Faulks J (as he then was).  Prior to the commencement of the proceedings before Faulks J, the mother and children had been living in New Zealand for some time.  The father commenced proceedings in Australia seeking defined contact to the children.  Proceedings were also regularly instituted by the mother in the New Zealand court.   The mother sought either dismissal or stay of the Australian proceedings. None of the questions posed to the Full Court in the case stated required consideration of the Court’s powers to make, or principles applicable to, parenting orders (see 78,266 - 78,267).

14. The case stated assumed the relevant question to be determined was the correct test to be applied in respect of a stay, and not whether a determination of an application for a parenting order, including, if appropriate, a determination on a summary basis, or dismissal, was appropriate. The Court was not asked to consider whether the principles espoused in Henry v Henry (supra) were limited to matrimonial proceedings for principal relief, and/or ancillary relief dependent upon principal relief, rather than parenting proceedings, and/or if the provisions of the Reform Act negated the reasoning underpinning ZP v PS; Re PS; Ex parte ZP (supra). The majority held at 78,269, at [15]:

    ‘15. We accept that it is arguable that the principles enunciated in ZP v PS are limited to cases such as that one, in which a child has been abducted from a foreign country and is present within the jurisdiction. It is, however, unnecessary in our view given the significant changes made by the 1995 amendments to debate that issue.’ 

15. Their Honours also noted that the mother argued the application for a stay was ‘in effect, deciding whether to make a particular parenting order’ and found, having regard to the specific language of s 64B, there was not ‘sufficient elasticity in the language of the Act for us to conclude that an application with respect to the exercise of jurisdiction is in fact an application for a parenting order nor is it an application made under any other section of the Act in respect of which an order is required to be made having regard to the paramountcy principle.’ Additionally, their Honours said at 78,274 at [50] – [51]:

    ‘50. In our view, the making of an order to stay proceedings in circumstances such as exist in this case is not an order relating to the welfare of children.  In our opinion, the fact that such an order may be made with respect to proceedings, which proceedings are with respect to the welfare of children, does not make the order itself an order relating to welfare of the children.

    51. The distinction is significant because if an order granting a stay was an order relating to the welfare of children then s 67ZC(2) provides that the court must regard the best interests of the child as the paramount consideration.’

THE PARTIES’ POSITIONS AT THE HEARING

1. There is no doubt that the proceedings commenced before the trial judge with written submissions in which both parties adopted the position that the clearly inappropriate forum test was the applicable test. 

2. Notwithstanding the father had, in earlier Responses, sought an order that the child live with him (a parenting order), clearly a forensic decision had been made by him so that by the time of the hearing the only order sought was the stay or dismissal of the mother’s application for parenting orders.  At that time there was no firm evidence that there were concurrent proceedings in Korea, so it was not strictly a matter of choice of proceedings between courts of differing countries.  However, both parties changed their position during the hearing.  Senior counsel on behalf of the mother sought initially to persuade both the trial judge and us that the principles set out in B v B (Re Jurisdiction) (supra) could be distinguished on the factual basis that in that case the children were not in the jurisdiction, in contradistinction to the child in this case, where there was no dispute the mother had regularly and properly invoked the jurisdiction to seek a residence order, thus requiring determination of those proceedings.  Further, he submitted if the father’s application was successful, the child would be left in a legal hiatus because there would be no enforceable orders in this jurisdiction as any Korean orders could not be registered here.

3. As we have already adverted to, the father’s counsel, at least impliedly,  conceded the child would be left in a legal hiatus, and at the conclusion of the proceedings, the father then sought leave and further amended his application to seek orders for the child to be placed in his care to return to Korea.  The mother’s counsel submitted this order was not ancillary to the stay order, but a parenting order which required the Court to have regard to the child’s best interests.

THE GROUNDS OF APPEAL

1. The mother’s senior counsel argued her grounds of appeal in her Amended Notice of Appeal in four groups, namely grounds 1 and 2 (the grounds relating to best interests and clearly inappropriate forum tests), grounds 9, 4(b) 5, 6, 7 and 8 (asserted failure to properly consider as an alternate the best interests of the child) ground 10 (asserted failure to properly consider relevant s 68F(2) factors) and ground 3 (asserted failure to consider ‘the status quo’ and the risk that the mother may face criminal proceedings in Korea, and to ascribe weight to competing matters relative to the child’s best interests). As the father’s counsel also adopted this course in his submissions we find it convenient to consider the grounds of appeal in the groups identified by the mother’s senior counsel.

GROUNDS 1 AND 2

‘1. Her Honour erred in failing to determine whether it was in the child’s best interest for a summary hearing to take place to determine speedily whether an order should be made for the return of the child to Korea;

2. Her Honour erred in applying the clearly inappropriate forum test to the application before her;’

1. Senior counsel for the mother submitted:

   ·the application which the trial judge was called upon to determine was an application for parenting orders to which the doctrine of forum non conveniens (and a stay) had no application;

   ·the doctrine of forum non conveniens which is relevant to inter partes litigation cannot be invoked when dealing with parenting proceedings in light of the principles enunciated by the High Court in ZP v PS; Re PS; Ex parte ZP (supra);

   ·B v B (Re Jurisdiction) (supra) is distinguishable on the facts of this case, and insofar as it dealt with the doctrine of forum non conveniens, the comments were obiter dicta and not binding on the trial judge or this Court; OR

   ·in the alternate B v B (Re Jurisdiction) (supra) was wrongly decided and should be overruled; and

   ·the proper relief to be afforded to the father was to deal with the parenting application on a summary basis applying the best interests test.

2. By contrast, in her written submissions, the father’s solicitor submitted that:

   ·an application for a stay is not a parenting order;

   ·that following the Reform Act the best interests test is limited to those applications set out in the Act (and this was confirmed in B v B (Re Jurisdiction) (supra);

   ·that the Act does not expressly provide that the paramountcy principle applies to an application to stay proceedings concerning children;

   ·the test in considering an application to stay proceedings in the Court to ‘permit proceedings commenced in another country to proceed is the “clearly inappropriate forum test”’ as set out in Voth v Manildra Flour Mills Pty Ltd (supra);

   ·as a result of the Reform Act the test is no longer the paramount consideration of the child’s best interests (thus negating the effect of ZP v PS; Re PS; Ex parte ZP (supra)); and

   ·in determining whether the Court is a clearly inappropriate forum the best interests of the child are to be taken into account although they are not paramount.

3. At the commencement of our discussion it is appropriate we consider the factual circumstances before the trial judge.  There is no dispute that it was the mother who initiated proceedings in this Court, particularly having regard to her need to establish a basis for the child’s permanent residency in Australia. The child was present in Australia at the time of the filing of the application, and an interim ex parte order was made.  The Court’s jurisdiction was regularly invoked.  It is of note that, at that time no other court had effective jurisdiction over the child.  We also note that in B v B (Re Jurisdiction) (supra) the Court’s jurisdiction under Part VII was regularly invoked notwithstanding the children were not in the jurisdiction (see s 69E  and JJT and CTT (2004) FLC 93-198 at [26]).

4. The father did not file an objection to the jurisdiction of the Court, but initially submitted to the jurisdiction of the Court and sought a residence order in his favour. Had the father’s application proceeded as originally filed there can be no doubt that the application would have required determination either on a summary or defended basis applying s 65E (now s 60CA) of the Act.

5. The evidence before the trial judge, and as noted by her, was that there were ‘presently no proceedings on foot in Korea’.  However, at the time the mother absconded with the child from Korea there were proceedings on foot, and the trial judge referred to the husband’s intention to commence proceedings in Korea. That intention was subsequently confirmed to the trial judge prior to her Honour’s subsequent judgment and orders of 25 November 2005.

6. It is not disputed that ZP v PS; Re PS; Ex parte ZP (supra) was determined prior to the enactment of the Reform Act when the whole of Part VII of the Act dealing with children was expressed to be subject to the paramountcy principle. Therefore any order made under that Part of the prior legislation required the best interests of a child to be the paramount consideration.  As we have already noted, the High Court in ZP v PS; Re PS; Ex parte ZP (supra) considered the jurisdiction under Part VII to be analogous to the parens patriae jurisdiction of the Court of Chancery, absent the requirement for a wardship order.

7. It appears to us the starting point for consideration is whether, accepting the jurisdiction to grant a stay of proceedings is based on the Court’s inherent power, and because of the Reform Act the paramountcy principle only applied to specific types of orders, does Henry v Henry (supra) proscribe the clearly inappropriate forum test for all family law matters in the context of competing forums, or do certain applications relating to the welfare of children, not being strictly inter partes litigation, fall into a different category?

8. We have already referred to the provisions in the Act relative to the granting of a stay, and the case law which supports the exercise by the Court, in an appropriate case, to grant a stay pursuant to its inherent power. We accept that such inherent power is to be distinguished from the exercise of jurisdiction under a particular provision of Part VII. We accept as correct the reasoning in B v B (Re Jurisdiction) (supra) that a stay cannot be categorised as a parenting order as defined in the Act. It follows, therefore, that if some or all matters involving children are not in a special category, if it is appropriate for a Court, pursuant to its inherent power to grant a stay, then the best interests principle is not the paramount consideration, although the best interests of a child may, in a particular factual situation, be highly relevant or deserving of the greatest weight in considering whether the Court is a clearly inappropriate forum.

9. Courts have increasingly recognised that litigation, where the issues to be determined involve a child’s welfare, is not strictly inter partes litigation, see U v U (supra) at 284 – 285; 89,102, per Hayne J; Reynolds v Reynolds (1973) 47 ALJR 499 at 501-502 per Mason J; M v M (1988) 166 CLR 69 at 76; (1988) FLC 91-979 at 77,080; JRN v IEG (B18/1998) 3 August 1998, per Kirby J and ZP v PS; Re PS; Ex parte ZP (supra) at 647.

10. In Henry v Henry (supra) Brennan CJ, at the commencement of his reasons, identified that one of the two questions before the Court was ‘does Voth apply to proceedings for a decree of dissolution of marriage under the Family Law Act’. At 580; 83,115 his Honour specifically referred to the staying of proceedings instituted under s 39(3) of the Act, that is proceedings for divorce.  Dawson, Gaudron, McHugh and Gummow JJ in their joint judgment considered the application of the clearly inappropriate forum test by the English Court in matrimonial proceedings in de Dampierrev de Dampierre (1988) AC 92 where the House of Lords considered the applicable principles to be applied to a stay pursuant to the provisions of the Domicile and Matrimonial Proceedings Act 1973 (UK) should be identical to other cases at common law.  In his speech Lord Templeman said, applying the clearly inappropriate forum test, the parties’ divorce and property proceedings should be determined in France rather than England but noted at 100 the dispute about the parties’ child, who was resident in New York, was not a matter to be solved by the English court.

11. The clearly inappropriate forum test has been consistently applied in stay applications particularly concerning competing property and spousal maintenance proceedings since the decision in Henry v Henry (supra) (see Dobson v Van Londen; sub nom D v L (2005) FLC 93-225; Cashel v Carr (2005) FLC 93-232 and Khademollah v Khademollah (2000) FLC
    93-050).

12. Senior counsel for the mother submitted that as four of the Justices who comprised  the bench in ZP v PS; Re PS; Ex parte ZP (supra) (Brennan CJ, Dawson, Gaudron and McHugh JJ) also determined Henry v Henry (supra) and made no retraction of their findings in ZP v PS; Re PS; Ex parte ZP (supra) or even made mention of it, this indicated that the Justices of the High Court did not intend to overrule their earlier determination.  We note that both appellant’s and respondent’s counsel in Henry v Henry (supra) did refer to ZP v PS; Re PS; Ex parte ZP (supra) in their arguments. Senior counsel for the mother in this appeal conceded the majority had, at 592, referred to custody being an aspect of the ‘underlying controversy with respect to the marital relationship’.  He also submitted for there to be an effective remedy ‘the object cannot effectively be achieved unless an Australian court exercises a jurisdiction to require the return of the child.  Here, for that to be done, it must do so on the basis of a paramountcy principle.’

13. We accept that on a careful reading of ZP v PS; Re PS; Ex parte ZP (supra) the principles therein enunciated may be construed as limited to situations where a court is required to determine issues relevant to a child when the child is in Australia and a court is asked to consider the summary return of the child to another jurisdiction.  Even so limited, ZP v PS; Re PS; Ex parte ZP (supra) would have application to the case with which the trial judge was confronted.  It is not without significance that in ZP v PS; Re PS; Ex parte ZP (supra) neither party sought a stay pursuant to the Court’s inherent power, rather the Court was dealing with competing residence (then described as custody) applications.  We are satisfied, having regard to these factual matters, the ratio decidendi of ZP v PS; Re PS; Ex parte ZP (supra) is not inconsistent with paragraph 15 of the reasons for judgment in B v B (Re Jurisdiction), or paragraph 27 of Bennett v Bennett (2001) (supra).  It also admits an interpretation of B v B (Re Jurisdiction) (supra) which is distinguishable on the facts of this case if the matters referred to in paragraphs 37, 38 and 39 can be regarded as obiter dicta.  Those paragraphs provide:

    ‘37. It is our view that as a result of the 1995 amendments the test is no longer that propounded by the High Court in ZP v PS; Re PS; Ex parte ZP (supra). The test to be applied is the “clearly inappropriate forum” test. In determining, however, whether or not a forum is “clearly inappropriate” one of the matters to be taken into account is what is in the best interests of the children.

    38. The importance to be attached to what is in the children's best interests will vary according to the facts of the case. For instance, in the case of an abduction from a non-Hague Convention country, what is in the best interests of the children may be a very important consideration. In a case such as this, what is in the best interests of the children may be of little importance.

    39. In general, therefore, it may be said that the best interests principle does not govern various procedural and jurisdictional matters that arise prior to and in the course of parenting proceedings but that the child's interests will normally be a relevant matter in exercising discretion on such matters and may, in many situations, be the most important matter.’

14. We think it is not without significance that at the commencement of the hearing, counsel for the father did not seek any order other than a stay or dismissal of the mother’s application.  When it became apparent that in Australia neither of the disputing parents would have any valid and/or enforceable orders for the care of the child until his departure to Korea, to effect his return to Korea and for his care until the Korean law took effect, the father amended his application.

15. An examination of the orders made on 25 November 2005 is illuminating.  Orders 2, 6 and 8 provided as follows:

    ‘2.    That the wife shall return with the child [JWL] born [ ] February 2001 to Korea on [ ] November 2005 by taking flight [ ] from Melbourne to Sydney and flight [ ] from Sydney to Incheon Airport, Korea.

    …

    6. That paragraphs 1 and 2 of the Orders made by this court on 27 January 2005 shall be discharged upon the carrying out of Order 2 hereof.

    …

    8. That pursuant to s 65DA(2) of the Family Law Act 1975, the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” and these particulars are included in these orders.’

16. Pursuant to O 1 of the orders made on 27 January 2005 the child was, until further order, to reside with the mother.  We are satisfied that by reason of s 69B, the orders sought and obtained by the father were ones made under Part VII, and were parenting orders which dealt with the person with whom the child was to live pending his departure for Korea, and the order that the mother return the child to Korea was an order dealing with an aspect of parental responsibility.  That the orders made on 25 November 2005 were considered by the trial judge to be parenting orders is apparent from her ex tempore reasons for judgment in which she clearly considered the child’s welfare as her paramount consideration, and from O 8 of the orders made 25 November 2005 with the attached brochure setting out penalties for breach of the order.

17. We have already noted the differing circumstances of the decision in B v B (Re Jurisdiction) (supra) coming before the Court by way of a stated case, when the children were not in the jurisdiction, in contrast to this case where the issue of the return of the child to Korea has focused our attention on the actual orders made by the Court.  We are satisfied this matter is distinguishable from B v B (Re Jurisdiction) (supra). We discern the principles espoused in paragraphs 37, 38 and 39 of the judgment in that case were made obiter dicta, are perhaps too widely stated for general application, and require some clarification and refinement.  Read as a whole, and as recognised in paragraph 50, the answers given to the case stated referred to the special circumstances of that case where the granting of a stay was appropriate.  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.   

18. 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.  In so determining, we can readily understand the difficult task which confronted her Honour, and her conclusions as a result of the application of the principles set out in B v B (Re Jurisdiction) (supra).

1. The mother’s counsel also submitted that if the Court was not exercising its inherent power in granting a stay, the source of power to make such an order is to be found in s 67ZC.  He further submitted that in B v B (Re Jurisdiction) (supra) the Full Court erred in determining an order for a stay of a parenting order was not ‘“an order in relation to the welfare of children”’ within the meaning of s 67ZC(1).  As we are satisfied that the applications which the trial judge was required to determine involved parenting orders in respect of which the best interests test applied, rather than the exercise of the Court’s power to grant a stay, we find it unnecessary to consider the alternate submission of the mother’s counsel based on s 67ZC.  

2. Whilst grounds 1 and 2 are established, this cannot determine the appeal because of her Honour’s alternate consideration of the matters in issue having regard to the ‘best interests principle’.

GROUNDS 9, 4(b), 5, 6, 7 AND 8.

‘9. Her Honour’s consideration of the application on the basis of the best interests of the child appearing in paragraphs 84 to 88 of her reasons for judgment was erroneous in that her Honour clearly continued to regard the question before her as one primarily of competing jurisdictions;

4. Insofar as her Honour considered the best interests of the child her Honour erred in that: -

…

(b)    her Honour failed to give any or any adequate weight to the evidence that the child was now happy and settled;

5. Her Honour erred in determining that the child’s links with Australia were tenuous in that her Honour in reaching that conclusion failed to give any or any adequate consideration to the significance to the child of his links and attachments to members of his extended family resident in Australia;

6. Her Honour erred in failing to give any or any adequate consideration to the ongoing connection for the child with Korea through his involvement with his extended family resident in Australia;

7. Her Honour erred in determining that the majority of the child’s close family connections lie in Korea in that the evidence did not support any finding that most of the family connections of significance to the child lie in Korea;

8. Her Honour erred in failing to give any or any adequate consideration to the impact of the orders on the child’s relationship with his mother;’

1. The essential challenges to her Honour’s reasons advanced in these grounds are twofold.  First, it is submitted the exercise of her discretion miscarried because she did not assess matters relating to the child’s best interests independently, but rather assessed such considerations against the background of the competing fora.  Second, it is submitted her Honour’s discretion miscarried because she gave inadequate weight to matters favouring the child remaining in Australia, including particularly his attachment to the mother, the time he had lived in Australia and the ‘roots’ he had developed here.

2. These grounds are directed to the exercise of discretion by the trial judge.  The principles applicable to the challenge of such discretion are well known.  In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, Kirby J said at 230 – 231; 85,465:

   ‘Discretionary and evaluative decisions

   186. A number of general propositions may be stated:

   1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

   2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision- makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.

   3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self - restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.’

3. In paragraphs 84 - 88 of her reasons, the trial judge summarised and re-emphasised some of her earlier findings concerning matters relevant to the child’s best interests.  We do not accept that her Honour failed to carry out the task she assigned herself because of her conclusion set out in paragraph 85, or her reference to the fact she was not deciding ‘the residence issue’.  Neither statements of her Honour detract from the essential task which she undertook.  The concept of a summary determination and return of a child is not inimical to best interests principles (see the speech of Baroness Hale of Richmond in In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80; [2005] 3 WLR 14; [2005] UKHL 40 at [26] - [28]).We find it is also appropriate to record the well recognised principle that a trial judge in a parenting case is not required to deal with every aspect of the case raised by one parent, provided an appellate court can discern the trial judge’s appropriate consideration of relevant factors and reasoning leading to his or her determination (see A v J (1995) FLC 92-619 at 82,230 - 82,233; Bennett and Bennett (1991) FLC 92-191 at 78,267 and CDJ v VAJ (supra) at 236 – 237; 85,468).

4. It is clear, given the child’s age, his wishes were not a factor to be taken into account by the trial judge. 

5. Her Honour gave careful consideration to the fact the child had lived in Australia in the mother’s care for 16 months and it was submitted he was well cared for and happy.  Her Honour also considered this factor was a matter which could be taken into account by a Korean court.  She also noted, notwithstanding the child had not seen the father during the period of his residence, ‘the time he spent with his child in Australia in August passed happily’.

6. The undisputed evidence before the trial judge was that the parties were Korean citizens and other than the mother’s sister and her family who were in Australia, the paternal grandmother who had a close involvement in the child’s life until his removal from Korea by the mother, as well as the mother’s parents, were all in Korea.

7. We acknowledge that the task to be undertaken by a trial judge in determining a child’s best interests, particularly a young child as in this instance, requires consideration of the effect of any order on both the short term and long term welfare of the child.  The child’s welfare required an independent consideration of his needs, rather than suggesting any punitive element to reflect any wrongdoing of his absconding parent.  Whilst the trial judge gave significant weight to the fact the mother left Korea without notice, and did not communicate with the father, thus severing his relationship with the child, we do not regard this assessment by her Honour reflects a punitive stance, rather she appropriately took into account the father’s close relationship with the child, who had been in his care for some 16 months after the parties’ separation, had been seriously disrupted, and that the mother had not considered appropriately the effect of such disruption on the child.

8. The trial judge carefully recorded the history of the litigation between the parties, and the care of the child, including the mother’s contact with him post separation.  She also considered the effect on the child of a likely change in his circumstances, including the uncontroverted fact that the child’s immigration status in Australia was uncertain.  In her ex tempore reasons delivered on 25 November 2005 the trial judge had careful regard to care and travel arrangements for the child which would reduce trauma for him, and had regard to the trauma the child must have experienced in his sudden removal from the father when he was brought to Australia.  Her Honour also had regard to the possibility of impending proceedings against the mother in Korea for the wrongful removal of the child from that country.

9. The trial judge gave considerable weight in her reasons to the effect of the mother’s actions in unilaterally severing the child’s relationship with the father, and the importance of the extended family in relation to the child.  We identified the second broad challenge by the mother is directed to the weight afforded to relevant factors by the trial judge.  In our consideration of this challenge, it is appropriate to have regard to the judgment of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519; (1979) FLC 90-716 at 78,848 – 78,849 where his Honour said:

   ‘The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.  While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion.  When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge.’

10. We consider that her Honour was entitled, in considering relevant matters under s 68F(2), to give the mother’s attitude to parental responsibility considerable weight. Her Honour also had regard to the mother’s assertion that the father’s conduct post separation had the effect of alienating the child from her.

11. The mother’s case centred to a significant degree on her allegations of domestic violence by the father.  The trial judge carefully recorded the disputed incidents of domestic violence, and noted the comments of the Investigation Report prepared in the course of the Korean court proceedings, and found ‘these remain important matters to be tested’.  Her Honour also noted the findings and decision of the three judges of 25 August 2004, and that they did not ignore the allegations of domestic violence.  Her Honour also said that until the proceedings in this Court the mother raised no allegation that the father had ever been violent to the child during the marriage or in the 18 month period of their separation before she left Korea.  We are satisfied her Honour carefully assessed the evidence relevant to domestic violence, and her conclusion that the issue could be determined in the Korean court, which would have the benefit of evidence from all witnesses who were in Korea, except the mother’s brother-in-law, as well as an expert report, was one open to her on that evidence.

12. The trial judge considered and gave considerable weight to matters relating to the child’s Korean background and culture.  There is nothing before us to suggest that the weight placed on these factors by the trial judge was other than appropriate.  We find Baroness Hale’s discussion of matters of connection with a home country, race, language, religion, ethnicity and welfare in In re J (supra) particularly apposite in dealing with the difficult issues which cases such as this one throw up for determination by a trial judge, often on short notice, and on the papers.  Baroness Hale said at [33] – [38]:

    ‘33. One important variable, as indicated in Re L, is the degree of connection of the child with each country.  This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection.  What is his ‘home’ country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this.

    …

    37. Like everything else, the extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case.  It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here.  In a world which values difference, one culture is not inevitably to be preferred to another.

    …

    38. Hence our law does not start from any a priori assumptions about what is best for any individual child.  It looks at the child and weighs a number of factors in the balance, now set out in the well-known “check-list” in section 1(3) of the Children Act 1989; these include his own wishes and feelings, his physical, emotional and educational needs and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future.  There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future.  Our own society is a multi-cultural one.  But looking at it from the child’s point of view, as we all try to do, it may sometimes be necessary to resolve or diffuse a clash between the differing cultures within his own family.’

13. We are satisfied that the trial judge appropriately considered a number of other factors which were relevant to her determination of the child’s best interests including how soon the proceedings could be determined in either country, and the relevant law to be applied in Korea. Whilst her Honour did not refer to specific matters by reference to s 68F(2), and her reasons were contained substantially in her discussion of factors relevant to the clearly inappropriate forum test, her consideration of matters relevant to the child’s best interests, and her path of reasoning is clearly discernible.

14. The thrust of the arguments advanced on behalf of the mother is that the trial judge gave insufficient weight to the period of time the child had spent in the sole care of the mother, and the ‘roots’ the child had developed in Australia whilst living in the same home as his aunt, uncle and cousins.  We accept this element of the child’s circumstances was a significant factor to be balanced and weighed by the trial judge with all of the other factors present in this case. 

15. The mother’s senior counsel’s submissions asserted it was inappropriate for the trial judge to have ‘failed to appreciate the significance of that factor to whether it was in the child’s best interests for a summary determination of these proceedings to be made’.  We have already noted, understandably, no ground of appeal was directed to the trial judge’s determination to refuse the mother’s senior counsel’s application to cross examine the father.  Both parties agreed before the trial judge the matter was to be heard on the papers.  This fact derogates from the submissions now advanced on behalf of the mother that it was inappropriate for the matter to be dealt with in a summary manner.  Evidence of the type now sought to be adduced by way of further evidence was not before the trial judge.  Whilst other judges faced with the same facts may not have come to the same conclusion as the trial judge, we are unable to discern that her Honour took into account any extraneous matter, or failed to take into account any matter relevant to the child’s welfare, and that her decision was within the reasonable ambit of her discretion.

GROUND 10

‘10. In considering the application by reference to the best interests of the child her Honour failed to give adequate consideration to those matters required to be considered under s.68F(2) of the Family Law Act or if her Honour did give adequate consideration to those factors her Honour failed to indicate that consideration in her reasons.’

1. We have already considered the trial judge’s assessment of relevant factors under s 68F(2) both in her treatment of matters relevant to the clearly inappropriate forum test and additionally her further discussion in paragraphs 84 - 88 of her reasons in the principal judgment. We have already noted that whilst her Honour did not make specific reference to each of the s 68F(2) factors, that her consideration of relevant factors is readily apparent from her reasons (see B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,219 to 84,220).

GROUND 3

‘3. In applying the clearly inappropriate forum test her Honour erred in that:-

(a)    when considering the child’s connection with each country her Honour failed to consider or adequately consider the connection the child has established with Australia in the 16 months preceding the date of her order;

(b)    when considering the consequences for the wife of the removal of the child from Korea her Honour:-

(i) failed to adequately consider the risk that the wife may face criminal prosecution in the event of her return to Korea;

(ii) failed to give adequate consideration to the difficulties for the wife in participating in an application with respect to the child in Korea without having herself return to Korea;

(c)    her Honour failed to expressly consider whether the child’s best interests would be served by being now removed from his mother’s care to Korea with the prospect of possibly then subsequently being returned to Australia after proceedings in Korea or better served by the child remaining in the care of his mother until after a final determination with respect to his residence;

(d)    her Honour failed to expressly consider the comparative significance to be attached to the interests of the child and the other factors considered relevant by her;’

1. We have already considered the challenge to her Honour’s orders directed to the question of the time the child had spent in Australia at the date of the hearing.

2. We are satisfied that the trial judge carefully considered the consequences for the mother in returning to Korea, including the risk of criminal prosecution.  We are also satisfied that her Honour carefully considered the expert evidence adduced on the mother’s behalf, gave due consideration to the difficulties which the mother was likely to face in participating in proceedings in Korea, and afforded appropriate weight to those matters.

3. We discern the issue raised by ground 3(c) overlaps to a significant extent with matters raised by the mother’s senior counsel in paragraph 35 of his submissions.

4. Whilst her Honour did not directly specify which of the s 68F(2) factors she afforded most weight, we are satisfied that her Honour’s ‘weighting’ of relevant factors is readily discernible from her assessment of the evidence and her findings. Her Honour placed considerable weight on the importance of the child’s relationship with his father, and the lack of appreciation by the mother of the impact on the child of the severance of that important relationship. Her Honour also considered as matters of significance impacting on the child’s best interests including his Korean and his parents’ Korean nationality, and his cultural background, and balanced these matters against the period of time the child had lived in Australia in the sole care of the mother.

CONCLUSION

1. Although, in the factual circumstances of this case, we have determined that her Honour was in error in applying the clearly inappropriate forum test to the applications before her, we are satisfied that she did not err, in the exercise of her discretion, in determining on the evidence before her, that it was in the child’s best interests that a summary order be made for his return to Korea, and that issues in dispute between the parties about his custody be determined in that country. 

APPLICATION TO ADDUCE FURTHER EVIDENCE  

1. The parties set out their contentions in respect of the admission of further evidence in their respective written submissions.  The mother sought to rely on an affidavit of her solicitor, Ms W, affirmed 16 January 2006 which affidavit annexed to it the further evidence on which the mother sought to rely. The father sought to rely on an affidavit by his solicitor Ms G sworn 30 January 2006 in which she set out objections on the father’s behalf to the reception of further evidence.  Ms G’s affidavit annexed to it a draft affidavit to be affirmed by the father and a further affidavit by his Korean lawyer, Mr J of 27 January 2006.

2. The mother sought to admit evidence of:

   (i)Ms H, the Director of the preschool kindergarten the child was attending;

   (ii)the mother’s Korean lawyer, Ms P;

   (iii) Mr SK, the pastor of the Korean Presbyterian Church attended by the mother and the child in Australia;

   (iv) an updating affidavit by the mother;

   (v) an affidavit of the mother’s sister, Ms YJK; and

   (vi) a report of Mr VP, a psychologist. 

3. The father sought to rely on evidence from:

   (i) Mr J; and

   (ii) an updating affidavit by the father.

The nature of the further evidence

1. In summary, the evidence of Ms H related to the child’s attendance at preschool.  Ms H deposed that after some initial difficulties the child’s social and emotional development had progressed well.  He was noted to speak both English and Korean, and had completed transition sessions for the local primary school.  There was no indication that Ms H’s material could not have been adduced before the trial judge.

2. Ms P, the mother’s Korean lawyer, swore or affirmed her affidavit in Seoul on 12 January 2006.  Her evidence was directed to five issues being:

   (i) a summary of the proceedings in Korea in 2003/04 in which she acted for the mother;

   (ii) the likely events upon the mother’s return to Korea;

   (iii) the relief available to the mother in Korea from the courts;

   (iv) the likely outcome of custody proceedings in a Korean court; and

   (v)her response to ‘inaccuracies’ in the affidavit of the father’s lawyer in the Korean proceedings.

3. Much of Ms P’s evidence overlapped with evidence given by the expert in Korean law relied on by the mother before the trial judge, Mr BK.

4. The pastor of the mother’s church, Mr SK set out the history of the mother and child’s involvement with the church and Korean cultural events in Melbourne. 

5. In addition to setting out her present accommodation arrangements, the mother deposed to her knowledge of being placed on the ‘“first degree wanted” list’ in Korea, and as a consequence, her fear of imprisonment, leading to her determination not to return to Korea.

6. The mother’s younger sister, Ms YJK, deposed to household arrangements and the child’s good relationship with her children. 

7. Mr VP, a clinical psychologist in private practice, on instructions from the mother’s solicitors, visited the mother and the child at her residence.  Mr VP set out his observations of the child and the mother, and the child and his cousins.  He concluded the child was progressing well socially, physically and psychologically and that he had a strong and secure attachment to his mother.

8. Mr J’s affidavit sought to be adduced on behalf of the father noted the father was the accuser in respect of a criminal complaint laid against the mother, and asserted the father had the ability to withdraw that complaint, and if he did so that ‘it is unlikely that she [the mother] will face any punishment or penalty in the event she chose to return to Korea’.

9. Ms G also annexed to her affidavit a document, being an unsworn affidavit prepared for execution by the father.  The relevant portions of that document are as follows:

   ‘3.    Insofar as the said Affidavits refer to the prosecution currently pending in Korea in respect to my wife, I am the Accuser in the prosecution.  The prosecution is currently suspended.

   4. In the event that the appellant wife returns to Korea with the child [JWL], I will withdraw the prosecution.’

10. Other than the mother’s evidence about her change of intention about returning to Korea because of her knowledge of the warrant for her arrest, which knowledge post-dated the hearing, it is conceded the other evidence which would have been available to the mother was simply not gathered.  There is no suggestion, however, that it was deliberately withheld.

11. Senior counsel for the mother relied on the observations of the High Court in CDJ v VAJ (supra) at 201; 85,447 where the majority, McHugh, Gummow and Callinan JJ, said:

    ‘109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.’

12. In the written submissions filed on behalf of the father, his lawyers referred to the constraints imposed on the adducing of further evidence, noting that before the power to admit further evidence can be exercised pursuant to s 93A(2) the Court must be satisfied of appealable error (see CDJ v VAJ (supra) at paragraphs 148 and 151).

13. We accept the father’s submissions that the evidence of Ms H, Mr BK and the mother’s sister was available and could have been adduced before the trial judge with reasonable diligence.  We are not satisfied that there has been a probable error by the trial judge, and if this evidence was admitted such error would be manifest.  This evidence was corroborative of what the mother herself deposed to in her affidavit evidence before the trial judge.

14. We also accept the submissions that the mother had expert evidence before the trial judge about Korean law, and that the mother’s expert in his report said ‘I have reached the above conclusions based on my own knowledge of the Korean legal system, together with additional inquiries made with [the mother]’s legal representative in Korea, Ms [P]’.

15. The salient features of Mr BK’s evidence were noted by the trial judge, namely that the mother had instituted proceedings for divorce and other relief including the seeking of orders ‘that she be “the person of parental authority and the fosterer of the child’”, and that she had obtained a contact order.  Her Honour also noted that ‘the wife is under investigation in Korea for kidnapping, and if she were to return there, she could be charged, and if convicted, could face a sentence of imprisonment for up to 10 years’.  At paragraph 66 of her reasons, the trial judge summarised the expert evidence provided by Mr BK.  Her Honour also noted that the proceedings in Korea would not be concluded for 12 months.

16. Her Honour also recorded at paragraph 39 of her principal judgment a summary of the father’s evidence in respect of the Korean proceedings as follows:

    ‘39. The future of any litigation in Korea is unclear.  The submissions for the husband were predicated upon the husband’s intention to commence proceedings in Korea, if this court stays or dismisses these proceedings and allows him to return there with the child.  His material was silent on the question, although it appears that at the time he swore his affidavits, he believed his counter-claim was alive.  The uncertainty was compounded by the expert opinion on the Korean law suggesting that if the child were with the father, then the father would be considered the “fosterer”, and might not need to take court proceedings.  If that were the case, it might then depend on the wife to recommence proceedings in Korea.’

17. In paragraphs 75 - 77 her Honour discussed the evidence relating to the threat of criminal proceedings against the mother in Korea.  Her Honour noted ‘[i]t was not made clear to me, if her child were returned to Korea, whether or not she would return.’  Her Honour concluded ‘[i]n any event, the evidence cannot lead me to conclude that the wife will certainly face criminal prosecution, or prejudice in a family law case, in Korea’.  When the matter resumed before her Honour on 25 November 2005 there was no further evidence about criminal charges against the mother, although there was evidence the father had instituted proceedings in Korea that he be designated as the person of parental authority and fosterer of the child.

18. Ms P’s evidence contains a detailed critique of the affidavit of Mr J.  We are satisfied there is nothing in her Honour’s judgment which suggests that she was misled by the expert evidence before her in respect of the family law proceedings in Korea, save and except her noting that the mother did not attend court on 15 January 2004.  Ms P’s evidence, if admitted, is that she appeared on the mother’s behalf on that occasion.  We do not consider this factual matter to be such that had it been before the trial judge it would have affected the outcome of the case.

19. As noted by the father’s solicitor some aspects of Ms P’s evidence are contrary to earlier expert evidence presented on the mother’s behalf, including her evidence that divorce proceedings usually take two to three years to be finalised.  Ms P also deposed to the mother’s prospects of success in proceedings in Korea and opined that ‘the courts are likely to severely penalise the wife for her actions in taking [JWL] from Korea’ .

20. The mother’s affidavit in which she deposed to her intention not to return to Korea pre-dated the father’s solicitor’s affidavit annexing Mr J’s affidavit.  Prima facie, the mother’s concern about potential imprisonment on return to Korea, and the unlikely prospects of success in the Korean courts are relevant factors in considering this child’s best interests. There was no evidence before us that the mother’s position had altered after reading Ms G’s affidavit.  

21. It appears to us that much of the further evidence which the mother now seeks to adduce does not fit within the criteria in CDJ v VAJ (supra).  Two matters, however, warrant careful consideration.  The first issue is the mother’s evidence that she will not return to Korea.  The mother’s decision is based on hearsay advice she asserted she had received from Ms P that she would be arrested at the airport if she returned to Korea, her belief, based on the advice of Ms P that she had no prospects of success in respect of a custody application, and that she would have no prospect of contact, except with the consent of the father which she did not believe would be forthcoming.  The second matter is intertwined with the first.  It relates to what arrangements can be put in place to enable the child to have a relationship with each of the parties until a final determination of the proceedings in Korea, which may take 12 months or more to resolve.

22. The mother annexed to her affidavit a translation of a document dated 3 January 2006 from a Korean Public Prosecutors Office, which document disclosed the father as the ‘Accuser’ and the mother as the ‘Accused’.  The crime is shown as ‘Abduction of Minors’.  Under the heading ‘Decision summary’ the words ‘Prosecution suspended’ appear.  The document also referred to ‘Reasons for non indictment: Please refer to the attached.’  There is no attachment to the mother’s annexure to her affidavit.  Under the heading ‘Remarks’ the following appeared: ‘The whereabouts of the accused is unknown (Listed in the “WANTED” List: Arrest Warrant)’.

23. The further evidence of Mr J confirms the father can withdraw a complaint.  He does not say the mother will not face any punishment, rather that punishment or penalty is unlikely if the father withdraws his complaint.  There is no evidence the father has withdrawn the complaint, rather, at its highest, his lawyer’s evidence is that the father ‘has stated that in the event [the mother] returns to Korea with the child … he will withdraw the criminal complaint’.  It appears if the father affirms his proposed affidavit in terms of the draft annexed to his solicitor’s affidavit it is his intention to withdraw the complaint on the mother’s return to Korea with the child.  There could be a delay between the mother’s arrival in Korea and the withdrawal of the complaint.  The annexure to the mother’s affidavit suggests that an arrest warrant for the mother is in existence, and the mother’s decision not to return to Korea in these circumstances is explicable.

24. The expert evidence of Mr BK which was before the trial judge was clear that Korean courts ‘do not usually make any interim orders in relation to children until they make a decision as to divorce applications except that an order for access by the non-possessing parent may be granted’.  His evidence was that if the mother was found to have defied a Korean court’s order by removing the child ‘she may become subject to some disadvantage at the Korean court and it is very unlikely for her to have a fair hearing under Korean law. … However, the fact that she is found to have committed an offence by removing the child from Korea should not itself hinder a fair hearing.’  He also referred to the fact the mother may be able to defend a case whilst staying in Australia, although ‘at a much disadvantageous position’.  The evidence which the mother now seeks to adduce from another expert in Korean law, if admissible, confirms the lack of ability to apply for an interim custody order, but the availability of an application for contact if the father refused her contact with the child.  The evidence asserts a serious prejudice to the mother in the Korean court system.  There is, as submitted by the father’s solicitor, a conflict in the evidence between the two experts on whom the mother seeks to rely.

25. We are satisfied the evidence now sought to be adduced insofar as it relates to whether the mother would be granted interim contact to the child is controversial and would, if admitted, result in the necessity for a rehearing.  Further, parts of the proposed expert evidence may not be admissible in accordance with the provisions of the Evidence Act1995 (Cth) (see also Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354). Both these factors militate against admitting the further evidence. Significantly, we are not satisfied that the further evidence, if it had been available at trial, would have produced a different result. Further, we are not satisfied that this case falls within the category of exceptional cases of physical or psychological abuse of a child which would warrant the admission of the further evidence because there would be a very real risk, as distinct from a probability, that the current order ‘may actually endanger the child’ (see CDJ v VAJ (supra) at [150]).

26. We also accept the father’s submissions concerning Mr VP’s evidence, namely, that such evidence is sought to be adduced contrary to the Family Law Rules 2004 (‘the rules’) covering the appointment of experts, but of more significance is that the report would be of questionable weight as Mr VP did not observe the father with the child.

27. We are cognisant that a Court now determining a child’s best interests must consider the matters set out in s 60CC of the Act. Notwithstanding the difference in the factors now requiring consideration in s 60CC compared to those previously in s 68F(2) we do not consider there is any particular factor in the new section having regard to the relevant evidence which was before the trial judge, or now sought to be adduced, requiring our consideration which would affect the outcome of this case.

28. Accordingly, we reject the application to adduce further evidence by the mother.

29. We are satisfied that the further evidence sought to be relied on by the father was sought to be adduced in response to the mother’s proposed further evidence rather than to buttress the findings of the trial judge.  Hence we also reject the father’s application to adduce further evidence.

COSTS

1. At the conclusion of the appeal, we sought submissions from each party’s senior counsel as to costs.  The mother’s senior counsel submitted that in the event the appeal was successful, that the father should be ordered to pay the mother’s costs, and in the event the appeal was dismissed, conceded he could not resist an application for costs by the father.  Senior counsel for the father submitted in the event the appeal was allowed, he would seek a certificate pursuant to the Federal Proceeding (Costs) Act 1981 (Cth).In considering whether there are circumstances which warrant a departure from the general rule that each party pay his or her own costs we note there is little evidence before us about the mother’s financial position other than her proposed employment. We are cognisant that the father’s salary is approximately AUD$96,000.00 per annum. The mother has been wholly unsuccessful in the appeal. We also take into account these proceedings had their genesis in the mother’s wrongful removal of the child from Korea. We are satisfied that these two circumstances warrant a departure from s 117(1) and that the mother should pay the father’s costs of the appeal as agreed or failing agreement as assessed pursuant to Chapter 19 of the rules.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 9 August 2006