Mohan and Modi
[2017] FamCA 5
•13 January 2017
FAMILY COURT OF AUSTRALIA
| MOHAN & MODI | [2017] FamCA 5 |
| FAMILY LAW – PRACTICE & PROCEDURE – stay – where the mother seeks to stay the proceedings commenced by the father in the Family Court of Australia – where proceedings relating to the child were finalised in India in November 2016 – whether Australia is a clearly inappropriate forum – where the proceedings are stayed. |
| Kwon & Lee (2006) FLC 93-287 Pascarl & Oxley (2013) FLC 93-536 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| APPLICANT: | Ms Mohan |
| RESPONDENT: | Mr Modi |
| FILE NUMBER: | BRC | 11056 | of | 2011 |
| DATE DELIVERED: | 13 January 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 11 January 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Cameron |
| SOLICITOR FOR THE RESPONDENT: | MCH Family Law |
Orders
The Initiating Application filed by the father on 25 August 2015 is stayed.
All Applications are to be removed from the list of cases awaiting a hearing.
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 Mohan & Modi 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 BRISBANE |
FILE NUMBER: BRC 11056 of 2011
| Ms Mohan |
Applicant
And
| Mr Modi |
Respondent
REASONS FOR JUDGMENT
This is an application by Ms Mohan (“the mother”) for a stay of the parenting proceedings commenced by Mr Modi (“the father”) on 25 August 2015.
The application is opposed by the father.
background
The mother and father married in 2006 and separated on a final basis in November 2012. They were divorced in India in January 2015.
The mother and father have one child, B (“the child”) born in 2007.
The mother is thirty-six years of age and registered in Australia as a medical practitioner. She is in Australia on a student visa. The mother is currently undertaking a Master’s Degree and about to submit her final piece of assessment within the next two to three weeks. Thereafter she will be returning to live permanently in India.
The father is forty-two years of age and practises in Australia as a health professional.
The mother and father were born in India and have extensive family still living in India.
The child was born in India but lived in the United Kingdom with her parents for two months in 2008 and two months in 2009. She also lived with her parents in Australia from August 2010 until 5 December 2011. The mother and child returned to India in or about April 2012. At all times the child was not living in United Kingdom or Australia she has lived in India with the maternal grandmother although at times the mother also lived in India with the child.
It is common ground that when the mother and child left Australia in 2012 it was agreed that she and the child would return within a year. That did not occur although the reasons for that are in dispute.
Apart from a brief encounter in October 2016 it seems the father has not spent any time with the child since her return to India in 2012 and has had very little, if any, communication with her.
The child is attending a prestigious school in India and is performing well. She is well settled and well provided for in India.
The parties and the maternal grandmother have been involved in parenting proceedings in India since July 2015. A hearing in November 2016 involved all parties being subjected to cross-examination and the child was interviewed by the judge. An order was made on 22 November 2016 which provides as follows:
It is decreed that the petitioner [the father] is the legal guardian of the minor girl till she attains majority and the custody of the minor girl shall be with respondent No.2 [the mother]. … the respondent No.2 and respondent No.1 [the maternal grandmother] shall honour the visitation rights of the petitioner on the following terms:-
(1)During long holidays/vacations covering more than two weeks the minor girl will be allowed to be in the company of the father (petitioner) for a period of seven days to be effected at the cost of the petitioner ([Mr Modi])
(2)The period shall be fixed by the father (petitioner) after due information to the mother who shall permit the minor girl to go with the father for the aforesaid period.
(3)During visits of the petitioner to India, mother shall allow the minor girl to visit the father from morning to evening. The petitioner shall take the minor girl and leave her back at the mother’s place on such days.
mother’s case
The mother contends that the Australian proceedings should be stayed for the following reasons:
a)Australia is a ‘clearly inappropriate forum’;
b)There has already been an extensive court process conducted over a period of eighteen months on the same issue in India;
c)A decision has now been made by the court in India;
d)The mother will complete her study in two to three weeks and will thereafter be returning to live in India with her daughter;
e)The mother will comply with the visitation order made by the Indian court;
f)The father has misled the Australian court on numerous occasions, for example:
i)When he commenced his Australian proceedings he did not disclose, as required, that there were pending parenting proceedings in India;
ii)He said he did not know where the child was living or with whom when in fact he knew at all relevant times;
iii)He said that the Indian proceedings had not been served when in fact they had not only been served but there had been interim hearings;
iv)He said that he had concerns about the mother’s parenting ability without stating any evidence and in fact had stated to the mother that he wanted the child to have both the mother and maternal grandmother always;
v)He said that the mother had broken the agreement to return to Australia in 2013 when in fact it was as a result of the changes made by him to his visa that she and the child were unable to return;
vi)He falsely claimed in August 2015 that his efforts to pursue the matter through the Indian courts had proved fruitless when no such proceedings had been undertaken by him at that time;
vii)He represents that the mother has stood in his way in having a relationship with the child when that is not the case as he has not made requests to spend time with the child and has chosen not to be part of her life at least in part because of his concern that the mother would interfere with his application for Australian citizenship if he pursued a relationship with the child;
viii)The father did not mention that there were Indian court proceedings on foot when he obtained an ex parte injunction against the mother in September 2015 preventing her from leaving Australia thereby causing her to miss the birthday celebrations for the child;
ix)The father said that he had attended at the child’s school but their letter states he has never contacted the school;
x)The father said that he was in the process of withdrawing his application in the Indian proceedings and that it was because the mother objected that he was unable to do so when this is incorrect as the mother had no power to prevent the father withdrawing his petition in the court in India.
The mother submitted that once her final piece of assessment is handed in she will have completed her study and will have no entitlement to remain in Australia on her student visa.
The mother further submits that the Australian proceedings have been pursued by the father as a means of harassing her and inhibiting her ability to pursue her studies given the attention she has had to give to the proceedings both in Australia and in India. She submits that a continuation of the parenting proceedings would be oppressive and costly.
The mother agrees that she was to return to Australia within twelve months of her departure in 2012 but says she was unable to do so because the father changed his visa arrangements to exclude her and the child from his visa after their separation. The letter from the father’s Australian lawyer to the mother dated 6 December 2012 states inter alia:
Although the child is not included in [Mr Modi’s] application and will not be included on his Australian visa …
The mother denies that she has stopped the father’s contact with the child and argues that he made the choice not to pursue his relationship with the child. She refers to paragraph 10 of his affidavit filed on 13 October 2015 in which he says:
During this time [between late 2013 and mid 2015] I was in the process of becoming an Australian citizen and was very concerned that if I pushed to re-establish contact with the child the [sic] [Ms Mohan] would take steps to have my citizenship application refused.
The mother denies that she has, at any time, taken any steps to interfere with the father’s attempts to gain citizenship or residency in Australia.
The mother argues that the father has at all relevant times known the whereabouts of the child as evidenced by the communications annexed to her affidavit filed 27 October 2015.
The mother submits that the order made by the Indian court is a final order and there is nothing on the face of the order which would indicate that it is other than a final order. She says however that there remain proceedings on foot in relation to financial matters.
Finally, the mother submits that the father already has the benefit of a parenting order in India that he can pursue and with which she will comply.
father’s case
Mr Cameron, counsel for the father, submits that the appropriate test to apply in considering the mother’s application is the ‘best interests of the child’ test not the ‘clearly inappropriate forum’ test. He refers to the decision of the Full Court in Pascarl & Oxley[1] and in particular to paragraph 86 where it was held:
… Where an application is made under the provisions of the Act which prescribe the best interests test, whether or not the child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
[1] (2013) FLC 93-536
He submits that the fact that there have been proceedings in India is not in itself an impediment to the continuation of the Australian proceedings and that it is only by a change of the primary living arrangements to the father in Australia that the child will be able to have a relationship with both parents.
It is contended that the order made by the Indian court is interim only.
The father will pay for the child and the maternal grandmother to come to Australia for the purposes of the Australian proceedings so that a family report may be prepared and he can spend time with the child. He conceded that this Court would have no jurisdiction to compel the maternal grandmother to come to Australia.
The maternal grandmother’s letter to Immigration dated 28 July 2014 (exhibit 1) makes it clear that she did not intend to be permanently caring for the child as she anticipated the child would join her mother in Australia.
The mother, who has been awarded custody under the Indian order, has spent most of her time outside of India and left the care of the child to others.
The mother agreed to return the child to Australia within twelve months when the father consented to the mother taking the child to India in 2012 and she breached that agreement and has caused the child to remain out of Australia since that time without the father’s consent.
The delay in commencing proceedings in India arose because there were issues about his knowing the whereabouts of the child and his finding out that the mother was back in Australia. He objected to the child being in the primary care of the maternal grandmother.
The utility of the current proceedings are that the mother is likely to be in Australia until the expiration of her visa in April 2019 although her scholarship for the completion of her PhD ends in August 2018.
The father can register any Australian order in India and it is likely to be recognised.
The father cannot enforce his rights under the Indian order against the mother while the mother is in Australia.
The father has wanted to have a relationship with the child but he has been thwarted by the mother and the maternal grandmother.
The father hopes that by restraining the mother from leaving the country, which he will seek, it will cause her to comply with an order to facilitate the child coming to Australia.
relevant legal principles
While the passage quoted by Mr Cameron might at first seem to support the proposition put by him I note that in Pascarl the application before the court was for a parenting order, in particular, a ‘spend time with’ order and not an application for a stay. The respondent in that case took no part in the proceedings.
I do not know that I accept the submission that Pascarl changes the law as expressed in Kwon & Lee[2] (also reported as EJK & TSL (2006) 35 Fam LR 559 and hereinafter referred to as EJK & TSL). Certainly, up until Pascarl the principles applicable at a hearing of a stay or anti suit injunction were dependent upon whether any order other than the stay order was necessary and whether the child was in Australia (which would require another order other than a stay order). In EJK & TSL the Full Court reviewed the authorities and summarised the relevant principles as follows:
[2] (2006) FLC ¶93-287
83. We consider the following principles can be distilled from authority:
(i) where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;
(ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti suit injunction based on common law principles;
(iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;
(iv) in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA);
(v) if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;
(vi) in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;
(vii) in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and
(viii) that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.(emphasis added)
If a parenting order as defined by s 64B of the Family Law Act 1975 (Cth) (“the Act”) or an order relating to the welfare of a child pursuant to s 67ZC is sought (e.g. that a child be returned from Australia to another country) there can be no doubt that the best interests test is paramount because s 60CA and s 67ZC state that to be the case. But an application for a stay of proceedings is neither a parenting order nor an order relating to the welfare of a child.
As held in Pascarl:
73. In our view, … the focus of the Court should be on the application which it is considering and on the principles governing that application. In particular, where that application is made directly under the provisions of the Act, such as s 63 (as then in force), or under the auspices of the welfare power in s 67ZC, the exercise of those powers is circumscribed by the best interests of the child as the paramount consideration.
The appellable error as found by the Full Court in Pascarl was that the judge at first instance had dismissed the application for a parenting order after applying the ‘clearly inappropriate forum’ test rather than the ‘best interests’ test.
In my view, given that the only order sought in the application before me is for a stay of the father’s application for a parenting order and no other order is required other than the stay order as the child is not in Australia, the appropriate test is the ‘clearly inappropriate forum’ test but of course the best interests of the child remain a significant if not determinative consideration.
If I am incorrect in that approach I will in the alternative consider the matter on the basis of the ‘best interests’ test.
The case in India
The father commenced the proceedings in India by petition dated and filed 8 July 2015. I note in passing that the father’s Initiating Application filed in Australia on 25 August 2015 does not disclose the Indian proceedings at Part F of the application and in fact says that there are no other court proceedings.
The proceedings in India were initially between the father and the maternal grandmother only but the mother was later joined.
As is apparent from the judgment of the Family Court in City C, India delivered on 22 November 2016, the best interests of the child is at least a significant consideration in adjudicating such matters. The father sought an order that the child come to Australia to live with him and he gave evidence that he had already arranged for his parents and sister to move to Australia to assist in his providing full time care for her.
Evidence was given and appears to have been accepted that the child “was of sound health and of expressive, resilient, gentle, loving, inquisitive personality and of funny, energetic and kind gesture.”
The court dismissed the father’s criticisms of the maternal grandmother’s appropriateness as an ongoing care provider noting that she is a sixty-five year old retired professor of English and “is endowed with great erudition and personality for providing guidance to the minor girl”. It is noted that under the law in India the maternal grandmother cannot be declared as the guardian of the child contrary to the wish of the father.
It is common ground that the child was interviewed by the judge and it can be gleaned from comments made in the judgment that the child opposed the order sought by the father.
I note in particular, the statements by the presiding judge:
… in the matter of deciding the custody and paramount welfare of the minor, the intelligent choice of the minor girl cannot be completely brushed aside. … giving full custody of the minor girl under his care ignoring the mother … and the current care rendered by the [maternal grandmother] is not likely to do paramount welfare to the minor girl. …
… A girl aged about 9 years is bound to have some sentiments of her own which are to be respected in keeping in view of her paramount welfare. The minor girl was found to be of good cognitive qualities and she has been performing well in her school. …
…The choice of living expressed by the minor girl personally before the Court cannot be concluded as mechanical choice by any stretch argument. …
In relation to her living circumstances it was said:
It cannot be ignored that the minor girl has been admitted into the [D School] which is one of the best schools in [E State] and [the mother] is also making financial provisions for her studies sacrificing her comforts. At this point, it is pertinent to refer to para-12 of the affidavit dated 07.12.2011 submitted by [Mr Modi] before the Federal Magistrate’s Court in Australia (marked Ext. 1/a) wherein the petitioner [Mr Modi] has also addressed [the maternal grandmother] as a very sensible lady. It appears the petitioner is also quite courteous towards [the maternal grandmother].
In relation to the mother’s alleged failure to encourage a relationship between the child and the father I note:
It is submitted on behalf of the petitioner that though the [mother] produced the minor girl on 27.10.2016, she did not accept the gift given by the petitioner in spite of request. At this point, it is pertinent to stated that since the minor girl and the petitioner are staying apart for a long period, the minor girl might not be comfortable with the gift brought by her father. …
The court came to the conclusion that it was best for the child to remain in India and for the father to remain as legal guardian and the mother to be given full custody.
It is not apparent from the judgment that the case was decided on any understanding that the mother would return to India by December 2016 but I note that the mother stated very clearly in this Court that she would be returning to live permanently in India within a month.
Mr F is the father’s lawyer in India and acted on his behalf in the proceedings in India. He states that the order made by the Indian Family Court is interim only “in the sense that the Orders would only be final orders if they were made by the High Court of India in circumstances where that Court heard and determined the proceedings afresh”.
It would seem, therefore, that the current parenting proceedings in India have concluded but that the father or mother could commence further proceedings in the High Court should they choose to do so.
discussion
The ‘clearly inappropriate forum’ test as formulated by the High Court in Voth v Manildra Flour Mills Pty Ltd[3] requires a finding that to continue the proceedings in Australia would be “oppressive” in the sense of seriously and unfairly burdensome, prejudicial or damaging or “vexatious” in the sense of being productive of serious and unjustified trouble and harassment to the mother. As part of that consideration the best interests of the child is a relevant consideration in this case.
[3] (1990) 171 CLR 538
The parties have already been involved in protracted proceedings in India. There have been numerous appearances by the parties prior to the final hearing in 2016 and the mother has on many occasions returned to India for the purposes of those proceedings.
The mother contends that she will soon be returning to live in India permanently.
She is currently bearing responsibility for the financial support of the child including paying her tuition fees without assistance from the father. The father did not dispute this as the current position but maintained that he has in the past made payments to the mother and has not been asked for financial assistance.
Any proceedings in Australia would necessarily involve considerable cost not only for the mother but also for the father who proposes to cover the airfares for the child and the maternal grandmother. This Court has no jurisdiction to compel the maternal grandmother or the child to come to Australia.
The parties and the maternal grandmother were subjected to cross-examination on matters relevant to the best interests of the child and the judge spoke with the child.
The father acknowledges that he currently has no relationship with the child having spent no time with her since 2012 apart from an aborted visit in about October 2016.
The child is well settled in India. She is attending and doing well at her school. She has spent most of her life in India. The court in India has recently determined that it is in the best interests of the child to remain in India.
There is no evidence that the father has sought to spend any time with the child pursuant to the November 2016 order let alone that the mother and/or the maternal grandmother (who is also a party bound by that order) has failed to comply with the order.
While Mr F states that if the mother does not comply with the Indian orders the father will not be able to enforce the orders against her unless she is actually present in India, he does not state, as the mother points out, that the father could not enforce the orders against the maternal grandmother who is also bound by the orders and lives in India.
Even if the father’s parenting proceedings were continued in Australia any order made could not be enforced in Australia as the child is not in Australia. While it is submitted that an Australian order would be recognised in India I am not persuaded that would be so given that there has been a full hearing and determination in India.
It was submitted on behalf of the father that an order preventing the mother from leaving Australia would provide the mother with motivation to comply with the order. Leaving aside the actual position regarding her rights to remain in Australia, I see no utility in such an approach. It would not be in the child’s best interests as it would deprive her of the company of her mother.
The father has the benefit of the Indian order that he spend time with the child. There has been no change in circumstances that would warrant a re-opening of the parenting case.
Accordingly, I am of the view that Australia is a clearly inappropriate forum for the father’s parenting proceedings.
If I am incorrect as to the appropriate test and the best interests test is applicable it will be noted above that I have considered the best interests of the child as a consideration when applying the ‘clearly inappropriate forum’ test. If it were the only consideration I am satisfied for the reasons already identified that the proceedings in Australia should be stayed as being contrary to the child’s best interests.
In particular, the child has lived most of her life in India and is well settled there. She has spent most of her life living with her maternal grandmother although at times her mother has also lived with her. She is doing well at school and is opposed to moving to Australia to live with her father as found by the Indian court. She currently has no relationship with her father but the father has the benefit of an order to spend time with the child should he decide to do so.
I propose to accede to the mother’s application and stay the Initiating Application filed by the father on 25 August 2016.
I would respectfully ask any court in India that may subsequently deal with any further application relating to the child, to note the following submissions made by the mother in the proceedings before me:
a)She intends to return to India to live permanently as soon as she submits her final pieces of assessment in her current course of study in two or three weeks;
b)She will comply with the order made by the Family Court in India on 22 November 2016; and
c)She has no objection to the father and the child communicating via Skype and will facilitate that occurring should the father request it.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 January 2017.
Associate:
Date: 13 January 2017
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Stay of Proceedings
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Abuse of Process