Maylin and Maylin

[2019] FamCA 466

FAMILY COURT OF AUSTRALIA

MAYLIN & MAYLIN [2019] FamCA 466

FAMILY LAW – JURISDICTION – Whether Australia is clearly the inappropriate forum for the parties’ parenting and property dispute – Where proceedings are ongoing in Country B – Where those proceedings are more advanced than those in Australia – Where the children live, and are settled in Country B – Where there are criminal proceedings against the mother in Country B – Where the mother is not an Australian citizen, and may not be permitted to stay here – Where both parties have engaged in the litigation in Country B – Order for application to be stayed permanently.

Family Law Act 1975 (Cth) ss 65Y, 65Z

Henry v Henry (1996) 185 CLR 571

APPLICANT: Mr Maylin

RESPONDENT: Ms Maylin

FILE NUMBER: SYC 3303 of 2019

DATE DELIVERED: 16 July 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 8 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Coulton

SOLICITOR FOR THE APPLICANT: O'Sullivan Legal

COUNSEL FOR THE RESPONDENT: Ms Flower

SOLICITOR FOR THE RESPONDENT: Women’s Legal Service

Orders

1. The Response to Initiating Application dated 1 July 2019 and Application in a Case filed on 3 July 2019 of the mother are stayed permanently.

2. The children X, born … 2013, and Y born … 2016, are permitted to travel with the father Mr Maylin from the Commonwealth of Australia pursuant to sections 65Y and 65Z of the Family Law Act 1975 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maylin & Maylin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3303 of 2019

Mr Maylin

Applicant

And

Ms Maylin

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Maylin and Ms Maylin are parties to litigation, arising from the breakdown of their marriage, in both Australia and Country B.  By a Response to an Application in a Case filed on 6 July 2019 the father sought the following orders:

   1.The orders sought by the Mother in her Response and Application in a Case be permanently stayed;

   2.The parties do all acts and things to cause the Wife's application filed 1 July 2019 in the Family Court of Australia be transferred and joined with proceedings …/2019 in the Family Court, City D, Country B.

   3.        The Wife pay the Husband's costs.

1. The father contended that the proceedings commenced by the mother in the Family Court of Australia should be permanently stayed, on the basis that Australia is "a clearly inappropriate forum".  Litigation between the parties has been on foot since January 2019 in the Family Court of Country B ("the Country B Court").

2. The parties are the parents of two children:

   ·X born in 2013 (5) and

   ·Y born in 2016 (2).

   X and Y were born in Country C and Country F respectively and were granted Australian citizenship when they were babies.

3. A number of orders have been made by the Country B Court, which include the following:

   ·interim protection orders against the mother in favour of the father on 9 January 2019 and 14 February 2019

   ·a permanent protection order against the mother in relation to the father and the parties' two children on 17 April 2019

   ·an order for interim custody of the two children to the father, with reasonable access and "provision of primary care" to the mother on 17 April 2019

   ·an order in these terms on 5 June 2019:

   3.The Complainant and the Defendant shall utilise the emergency accommodation provided by the Complainant's employer, G Limited on a week on/week off equal parenting time arrangement until the final determination of this proceeding.

1. On 5 June 2019 a warrant was issued for the arrest of the mother in Country B in relation to charges of "unlawful assault (x 2) and damaged property".  The father deposed that the mother was arrested, charged by police and released on bail on 1 May 2019.  The mother left Country B and travelled to Australia on a tourist visa on 1 May 2019.

2. The father and the children travelled to Australia for a holiday visit on approximately 29 June 2019 and were due to return to Country B on 14 July 2019.  On 29 May 2019 the father filed an Initiating Application in the Family Court of Australia, by which he sought the following orders:

   1.The Mother and her servants, agents or nominees are restrained from removing or attempting to remove or causing or permitting the removal of X (DOB:…2013) and Y (DOB:…2016) ("THE CHILDREN") from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watch List until the Court orders its removal, or the children attain the age of 18 years.

   2.That the children X (DOB:…2013) and Y (DOB:…2016) ("the children") be permitted to travel with the Applicant Father, Mr Maylin from the Commonwealth of Australia pursuant to section 65Z and pursuant to section 65Y of the Family Law Act 1975.

   3.The Australian Federal Police are requested to maintain the names of the children on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and retain the children's name on the Airport Watch List unless the permanent or temporary removal of the children's name is for travel with the Applicant Father, Mr Maylin allowed by an Order of the Court (including the current Order) or the written consent of both parties to remove the children's names.

   4.That pursuant to s 114 and forward/or ss 68B(a) and 68(b)(i) the Court grant an injunction restraining the mother from doing all acts and things to place the said children on the Airport Watch List and/or PACE Alert in place at all points of arrival and departure in the Commonwealth of Australia.

   The father sought orders in identical terms on an interim basis.

3. On 19 June 2019 the following orders were made on an ex parte basis on the application of the father:

   1.The mother and her servants, agents or nominees are restrained from removing or attempting to remove or causing or permitting the removal of X born in… 2013 and Y born in… 2016 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's name on the Watch List for a period of two years.

   THE COURT NOTES THAT:

   a.The father intends to take the children back to Country B which is their habitual place of residence.

4. The father deposed that he sought these orders because he feared that the mother would take the children to Country H.  The mother was born in Country H and holds citizenship of no other country.  The father and the parties' two children are Australian citizens.

5. The mother filed a Response to Initiating Application in the Family Court of Australia in July 2019, by which she sought numerous orders in relation to parenting issues and property settlement.  The mother sought interim orders which may be summarised as follows:

   1.the children live with her in Sydney

   2.the children spend time with the father for a maximum of four nights per fortnight and during school holidays

   3.the father deliver to the children to the mother in Sydney within 48 hours of the date of orders

   4.each of the parties be prevented from removing the children from Australia and that their names be placed on the family law watch list

   5.the father pay to the mother spouse maintenance of $2,000 per week

   6.the father pay to the mother a sum of $20,000 as a partial property settlement.

Background

1. The father and the mother, who are aged 57 and 35 respectively, met in Country H in 2006 and commenced a relationship in 2009.  They married in 2010 in Queensland, at which time they lived in Country H.

2. Following the marriage, the parties lived in Country H until 2015 when they moved to Country F.  They lived in Country F from 2015 until 2017 and then took up residence in Country B.  In March 2017 the father entered into a contract of employment with a company known as G Limited.  He works as the manager in Country B.

3. The parties and the children lived in City D until the mother left and travelled to Australia on 1 May 2019.  Their accommodation in City D is provided by the father's employer G Limited.

4. In July 2017 the child X began to attend an international school in City D.  In August 2018 Y commenced day care for three days per week, which has now increased to five days per week.

5. On 28 January 2019 the government of Country B issued to the mother a "general long term work permit" (page 21 of the annexures to the affidavit of the father).  The mother deposed that she "undertook some employment training" between October 2018 and January 2019.

6. The Country B work permit was addressed to a company known as K Pty Ltd and referred to the mother as an "employee" of that company, in the position of "corporate services manager".  The father deposed that the mother did not take up this offer of employment.

7. In 2014 the parties purchased vacant land and constructed a house in Country H.  The mother is the sole registered proprietor of this property.  In 2017 they purchased an apartment in Brisbane, of which the father is the sole registered proprietor.

8. The mother holds tertiary qualifications, which she acquired in Country H prior to the relationship with the father.  She also holds a diploma in accounting.  The father has been employed in roles in Southeast Asia and Country B since 2010.

9. On 28 March 2019 the father filed an application for divorce in the Federal Circuit Court.  This application has been allocated a return date of 19 August 2019.

Consideration

1. In Henry v Henry (1996) 185 CLR 571 the High Court of Australia indicated certain factors which are relevant to the determination of a "clearly inappropriate forum" issue. This list (at 592 – 593), which is not exhaustive, was as follows:

   Considerations relevant to a stay of proceedings between husband and wife with respect to their marital relationship

   Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written.  To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.  And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question.  However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees.  If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue.  However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.  As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.

   Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred.  It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.  Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.  The list is not exhaustive.  Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.

1. The High Court stated that a determination as to "clearly inappropriate forum" will "depend on the general circumstances of the case, taking into account the true nature and full extent of the issues involved" (at 572).

1. Whether the courts of the respective countries have jurisdiction with respect to the parties and the marriage

1. There was no suggestion that either Australia or Country B lacks jurisdiction with respect to the parties and their marriage. Country B has exercised jurisdiction, without demur from either party, for several months. The father and the children are Australian citizens, thus the jurisdiction of the Family Court of Australia is enlivened pursuant to section 39(4) of the Family Law Act.

1. Whether both courts will recognise the orders and decrees of the other court

1. Country B is a "prescribed overseas jurisdiction" for the purposes of section 4(1) of the Family Law Act, as that country is listed in schedule 1A of the Family Law Regulations 1984  (Commonwealth).  Accordingly, orders of the Country B Court can be enforced in Australia. There was no evidence as to whether, or by what means, orders of the Family Court of Australia would be enforced in Country B.

1. The order in which the proceedings were instituted, the stage reached and the costs incurred by the parties

1. The Country B proceedings pre-dated the litigation in Australia.  A number of orders have been made by the Country B Court, including a grant of "interim custody" to the father on 17 April 2019.  The same order provided the mother "have reasonable access and shall provide primary care to the children".

2. On 5 June 2019 the Country B Court ordered that the parties "utilise the emergency accommodation provided by the complainant's employer on a week-on/week-off parenting arrangement until the final determination of the proceedings."  On 11 June 2019 the Country B Court made directions for the filing of affidavits and ordered that "a child protection officer shall be assigned to assist the court ..."

3. It is thus abundantly clear that the Country B proceedings have reached a relatively advanced stage.  By contrast, the proceedings in the Family Court of Australia are in their infancy and will take a considerable period of time to proceed to finalisation.

4. The mother deposed that she has incurred a debt of approximately A$72,077 for legal fees in Country B.  There was no evidence of the legal costs incurred to date by the father in the Country B proceedings.

5. Effectively, the mother seeks parenting orders in a vacuum in Australia.  She entered this country on a visa and has no assured entitlement to remain in this jurisdiction.  Currently she rents a room in a shared house in Brisbane and proposed that the children live with her in unidentified accommodation in Sydney.

1. The connection of the parties and their marriage to each of the jurisdictions and the issues upon which relief may depend in those jurisdictions

1. The father and the children are Australian citizens who have lived in Country B since 2017.  The father has secure employment in Country B, with a salary package which includes accommodation and medical insurance.  X has attended the same school for two years and Y has been enrolled in day care for eleven months in Country B.

2. The mother is a citizen of Country H, who lived in Country B from June 2017 until she left for Australia on 1 May 2019.  She entered Australia on a visa and there is no certainty at all that she will be permitted to remain in this jurisdiction.  She is unable to take on paid employment in Australia and has no entitlement to social security benefits in this country.

3. The father invoked the jurisdiction of the Federal Circuit Court of Australia on 28 March 2019, when he filed an application for divorce.  He offered as his reason that the parties were married in Australia in August 2010.

4. The father commenced the present proceedings in Australia only after the mother had left Country B and travelled to Brisbane.  In his affidavit of 23 May 2019 the father deposed as follows as to his reasons for bringing the application of 29 May 2019:

   31.I express real concerns that my wife presents as a flight risk with our children.  She has said to me on numerous occasions throughout our marriage that she will take the children with her to Country H.  More recently during arguments, she has said words to the effect, "If you do not do the right thing, I am taking the children back to Country H and you can try and see them there."  She has also said to me on many occasions, "Do the wrong thing by me and I will do it back to you 100 times worse".

   32.The concern that has always existed for me regarding these threats is that given my wife's nationality, she would take the children back to Country H.  Country H is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction and if my wife was to take our two children there, I would have no recourse to gain access, or custody of my children, or a fair hearing in relation to child custody or access matters.

   33.I hope to travel from Country B to Australia with the children during the Country B school holidays, which are from 29 June 2019 until 14 July 2019.  I also hope to travel to Australia with the children at least annually thereafter so that X and Y can visit their older siblings from my first marriage.

5. The mother is the registered proprietor of real estate in Country H and deposed on 1 July 2019 that she has a bank account in Country F with a balance of approximately $16,922.  The mother deposed to an intention to live with the children in Country H, in the event that she is unable to continue to live in Australia.

6. The parties and the children have never lived in Australia.  The father and the children travelled to Australia for a defined and specified period during the Country B school holidays and intended to return to City D on 14 July 2019.  They have been prevented from departing for City D as scheduled by the proceedings initiated by the mother through her Response dated 1 July 2019.

7. The children's familiar environment is in City D.  As noted, the mother sought orders that the children live with her in Australia in nebulous circumstances.  She proposed no certain accommodation and may be required to leave Australia on the expiration of her visa.  In her affidavit of 1 July 2019 the mother deposed that she would intend to take the children to live in Country H, in the event that she is required to leave Australia.  Country H is not a signatory to the Hague Convention and no orders of an Australian court would be enforceable in that country.

8. The mother's affidavit and the submissions put on her behalf contain speculation that she may not be able to return to Country B because the father may withdraw his sponsorship.  The father deposed as follows in relation to his belief as to the mother's status in Country B and his intentions as to her continuing presence in that country:

   39.I deny her allegation that [Ms Maylin] is not sponsored by me.  She continues to be sponsored by me and her Country B Dependent's visa is still valid.  However, I am of the belief she declines to return to Country B given the existence of an Arrest Warrant for her.  I have previously deposed in my Country B affidavits that I would attend court with [Ms Maylin] and make an Impact Statement in which I would do my best to ensure a non-custodial sentence was imposed.  Furthermore, I can state that a result of meetings I had with Country B Immigration when I had to get a clearance letter to leave Country B with the children, Country B Immigration has no intention of deporting my spouse.  Lastly, [Ms Maylin] was charged under the Summary Offences Act and as such, the penalty would not be harsh for a first time offender.

1. Which forum may provide more effectively for a complete resolution of the matters involved in the parties' controversy

1. Nothing in the evidence indicated any impediment to resolution of all issues in dispute between the parties in each forum.  As noted above, the Country B proceedings have reached a much more advanced stage than has the litigation in Australia.

1. Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing

1. Both parties have participated in the Country B proceedings and the mother has incurred a debt for legal fees in that country of approximately $72,000.  The mother continues to have legal representation in Country B.  During the interim hearing I was informed from the bar table by the mother's solicitor that her current representation in Country B is provided by "a community legal centre without internet facilities".  There was no evidence to that effect and no evidence from the mother as to what, if anything, prevents her from re-engaging her previous lawyers in Country B.

Conclusion

1. The reality of the mother's situation is that she may not be permitted to remain in Australia after the expiry of her visa.  Accordingly, there is a real prospect that she may not be entitled to remain in this country throughout the Australian litigation or after the making of final orders.

2. The reality of the children's situation is that they are prevented at present from returning to their familiar environment in City D.  These proceedings are obstructing the father's ongoing employment with G Limited in City D.  The father is solely responsible for the financial support of the children and derives his income from employment with G Limited.

3. The mother has participated fully in the Country B proceedings, to the extent that she has incurred a debt of approximately $72,000 for legal fees.  Effectively, she seeks to re-litigate in Australia aspects of her dispute with the father which have been addressed already by the Country B Court.  The proceedings in Country B have reached a more advanced stage than is the case with the Australian litigation.

4. For these reasons, I conclude that the proceedings instituted by the mother in Australia should be the subject of an order for permanent stay.  I will make the orders sought by the father such as to enable the children to return with him to Country B.  I see no utility in the order proposed by the father for a transfer of the proceedings initiated by the mother in Australia to the Country B Court.  The parties are at liberty to seek such orders as they consider appropriate in the litigation in Country B.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 16 July 2019.

Associate: 

Date:  16 July 2019