Kwon & Lee

Case [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;…

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AGLC
Kwon & Lee [2006] FamCA 730
Case
[2006] FamCA 730
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by a mother against orders for the return of her child to a foreign jurisdiction and the dismissal of proceedings she had commenced in Australia seeking parenting orders. The mother argued that the trial judge erred by applying the "clearly inappropriate forum" test rather than the "best interests of the child" test, contending that the latter should have been applied as some of the orders sought were parenting orders. She also sought to distinguish or have overruled the principles established in *B and B (Re Jurisdiction)* [2003] FLC 93-136.

The central legal issues before the Full Court were whether the trial judge had correctly applied the relevant legal tests when determining the appropriate forum for the parenting dispute, and whether the trial judge had given adequate weight to factors favouring the child remaining in Australia under section 68F(2) of the *Family Law Act 1975* (Cth). The Court also considered applications by both parties to adduce further evidence on appeal.

The Full Court held that the matter was distinguishable from *B and B (Re Jurisdiction)* and clarified certain principles. Crucially, the Court affirmed that when a child is within the jurisdiction of the Family Court, the doctrine of *forum non conveniens* has no application to a dispute concerning the custody of the child. Instead, the Court's duty is to make such orders as will best promote and protect the interests of the child, as mandated by section 60CA of the *Family Law Act 1975* (Cth). While acknowledging that the trial judge had erred in applying the "clearly inappropriate forum" test, the Court found that her ultimate decision to return the child to the foreign jurisdiction was within the reasonable ambit of her discretion and was supported by her consideration of the child's best interests, despite not explicitly referencing each factor under section 68F(2). The applications to adduce further evidence were rejected.

The mother was ordered to pay the father's costs of the appeal, as she was wholly unsuccessful and the proceedings originated from her wrongful removal of the child.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.’ 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). 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)