Pascarl & Oxley
[2013] FamCAFC 47
•26 March 2013
FAMILY COURT OF AUSTRALIA
| PASCARL & OXLEY (EDITED) | [2013] FamCAFC 47 |
| FAMILY LAW – JURISDICTION – appropriate forum – child-related proceedings on foot in both the Family Court of Australia and the Family Division of the High Court of Justice of England and Wales – the nature of the application before the Family Court establishes the principles to be applied in determining whether or not the jurisdictional discretion should be exercised – where an application is made under provisions of an Act that prescribe the best interests test, then the best interests of the child are the paramount consideration in resolving whether or not to accept jurisdiction. |
| Family Law Act 1975 (Cth) ss 60CC, 69E(1), 93A(2) Children Act 1989 (UK) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| B v B (Re jurisdiction) (2003) FLC 93-136 CDJ v VAJ (1998) 197 CLR 172 Goode & Goode (2006) FLC 93-286 Henry v Henry (1996) 185 CLR 571 Karim & Khalid (2007) FLC 93-348 Kwon & Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559) McCall & Clark (2009) FLC 93-405 MHP v Director-General, Department of Community Services (2000) FLC 93-027 MRR v GR (2010) 240 CLR 461 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 VJ v CJ (1997) FLC 92-772 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 ZP v PS (1994) 181 CLR 639 |
| APPELLANT: | Mr Pascarl |
| RESPONDENT: | Ms Oxley |
| DATE DELIVERED: | 26 March 2013 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Faulks DCJ and Finn J |
| LOWER COURT JURISDICTION: | Family Court of Australia |
Orders
…
The appeal be dismissed.
…
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascarl & Oxley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA |
| Mr Pascarl |
Appellant
and
| Ms Oxley |
Respondent
REASONS FOR JUDGMENT
…
Grounds of Appeal
The father relied on five grounds of appeal. Grounds 1, 2, 3 and 4 contend, in essence, that his Honour applied the wrong test when determining whether Australia was an appropriate forum. Thus we propose to deal with those grounds together. They are:
1.The Court fell into error in not complying with its absolute obligations, under the Family Law Act 1975 (Cth), to put the interests of the child first, by declining to intervene to protect the said child, by the granting of the sought Orders applied for by the Appellant.
2.The Court erred at law, and in fact, by placing forum above paramountcy [the interests of the child must always come first].
3. The Court took into consideration extraneous factors that should not have influenced the Court to make the orders it did.
4.The Court fell into error in taking account of other Judicial Proceedings, which have no locus standi in this Courts jurisdiction.
(errors in original)
Ground 5 contends that: …
There is, unsurprisingly, no complaint by the father with his Honour’s finding that the Court had jurisdiction based upon the father’s residence in Australia. As we have previously set out …, his Honour outlined at [22] the factors that he said fell to be considered in the exercise of the jurisdictional discretion:
·Is there evidence the mother and child are residing in this country?
·Are there proceedings on foot between the same parties in another jurisdiction?
·Will this Court be [sic] a position to enforce any orders made?
…
In addition to disagreeing with his Honour’s findings, the father submits that this is not the correct test. We agree with the father’s submission. Notwithstanding his Honour’s findings, the factors he raises as being the test for the exercise of discretion are not the relevant factors and in this respect, in our view, his Honour has fallen into appealable error.
The question of which forum of two competing fora might be the appropriate place for the matter to be determined is subject to a number of now well-settled authorities.
In Voth v Manildra Flour Mills (1990) 171 CLR 538, the High Court endorsed another decision of the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 in which the court had declined to apply in Australia the principles governing the doctrine of forum non conveniens stated by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 and determined that in Australia the test to be applied is whether the Australian court is a clearly inappropriate forum. In particular, the High Court indicated that the same principles should be applied for applications for leave to serve originating process outside jurisdiction, applications to set aside service and applications for stay of an action.
The High Court had cause to consider whether the Voth ‘clearly inappropriate forum’ test had application in relation to proceedings in the Family Court of Australia on the question of whether a child residing in Australia should be returned to a foreign jurisdiction so that the foreign court could determine issues concerning custody of the child (ZP v PS (1994) 181 CLR 639). The High Court, comprising Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, held that the doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction. Instead, in exercising the jurisdiction which has been conferred upon it, the Family Court must determine what is in the best interests of the child.
However, as ZP v PS has been the subject of some comment as to its continued applicability in view of subsequent amendments to the Act, it is useful to set out in more detail what was said by the members of the court.
The case concerned the removal of a child from Greece by the mother, and raised the questions of whether the child should be returned to Greece for the case to be determined in Greece or whether the case should be determined in Australia, and the test to be applied. Greece at that time had not adopted the Child Abduction Convention.
The court pointed out in its judgments that jurisdiction to hear the mother’s application for custody was conferred on the Family Court by ss 63, 63B and 63C of the Act (as then in force). Those sections were to be found in Part VII of the Act. Section 64(1)(a) of the Act (as it then stood) required the court in hearing proceedings under Part VII to regard the welfare of the child as the paramount consideration.
The court also indicated that under s 64(1) of the Act (as then in force), the Family Court had a welfare jurisdiction similar to the parens patriae jurisdiction exercised by the Court of Chancery but freed from the preliminary requirement of a wardship order. Mason CJ, Toohey and McHugh JJ said (at 647):
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 of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child.
(citations omitted)
Brennan and Dawson J said (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.
In our view, the importance of the decision, as will be seen from consideration of later cases, is that 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.
In 1996, the High Court determined Henry v Henry (1996) 185 CLR 571, the question in that case being whether the statutory jurisdiction of the Family Court to decide on proceedings for a decree of dissolution of marriage is one where the court can decline to exercise jurisdiction on the same grounds as in Voth. The court determined that the test for determining whether a stay of matrimonial proceedings should be granted is whether the Australian court is a clearly inappropriate forum.
In B v B (Re jurisdiction) (2003) FLC 93-136 the Full Court was asked to consider a number of questions as a result of a Case Stated by a first instance judge. Proceedings had been commenced by the mother in Family Court of Australia seeking, among other things, orders about the children and their potential relocation with her to New Zealand. Consent orders were made, including that contact was to be reasonable as agreed between the parents. The mother and children relocated to New Zealand and subsequently a dispute arose about the contact the children would have with their father. The father commenced proceedings in the Family Court of Australia seeking orders for defined contact and a response was filed by the mother. Subsequently, the mother commenced proceedings under the Guardianship Act 1968 (NZ) in the District Court (Family Division) of New Zealand. The mother filed an affidavit in the Family Court of Australia seeking stay or dismissal of the Australian proceedings on the ground that proceedings had been commenced in New Zealand and the issue of contact should be determined in New Zealand. Although there were a number of questions which the Full Court answered, not all were germane to the case before us, and so we will confine our comments to those that are.
The court held that in considering an application for a stay of proceedings in the Family Court of Australia to permit proceedings commenced (after the proceedings in the Family Court of Australia) in the District Court of another country, the court should determine the question by reference to the clearly inappropriate forum test. The court held that the paramount consideration principle only applies since the 1995 amendments to the Act to decision to which the Act expressly says it applies. In particular, the Court held that whilst the Act nowhere expressly provided that the paramountcy principle applied to an application to stay proceedings concerning children, the best interests of the children nevertheless remains relevant in determining the question of jurisdiction (VJ v CJ (1997) FLC 92-772 and CDJ v VAJ (1998) 197 CLR 172). The test to be applied is the ‘clearly inappropriate forum’ test. In determining, however, whether a forum is clearly inappropriate, one of the matters to be taken into account is what is in the best interests of the children.
Because s 68F(2)(l) (as then in force) provided that the court may consider ‘any other fact or circumstance that the Court thinks is relevant’, there was therefore no express provision in the legislation to limit the matters that may be taken into account in determining what is the best interests of the children.
In particular, the court held that the making of an order to stay proceedings in circumstances such as existed in that case is not an order relating to the welfare of children. The fact that such 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 the welfare of children.
The Full Court said that that distinction was significant because if an order granting a stay was an order relating to the welfare of the children, then
s 67ZC(2) provides that the court must regard the best interests of the child as the paramount consideration. The court said, importantly in our view:
26. It seems to us from a reading of the Family Law Act 1975 after the 1995 amendments that the best interests of the children is not the paramount consideration in determining an application of the sort that we are now dealing with. The paramount consideration principle now applies, in our view, only to decisions to which the Act expressly says it applies. The Act nowhere provides expressly that the paramountcy principle applies to an application to stay proceedings concerning children.
27. Passages in ZP v PS (supra) might arguably support the proposition that because the jurisdiction of the Family Court in respect to children is similar to the parens patriae jurisdiction of the Court of Chancery, notwithstanding that there is no express statutory provision that says so, in applications having connection with the welfare of children, the paramountcy principle applies. We refer in particular to the passage in the judgment of Mason CJ, Toohey and McHugh JJ (1994) FLC 92-480 at 80,999:
“In exercising the parens patriae jurisdiction or a statutory jurisdiction which makes the welfare of the minor the first and paramount consideration, the Court always makes an independent judgment on any question concerning the custody of a child and cannot blindly follow an order made by a foreign court. 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...”
28. However, the decision in ZP v PS (supra) was clearly based on the then existing statutory provisions. It is not possible to draw any conclusions from the observations in that case about the similarity of the jurisdiction of the Court in respect to children to that of the Court of Chancery that in the event the statutory structure altered, as it did, the paramountcy principle would continue to apply to particular applications notwithstanding it was not expressed by statute to do so.
29.In our view, whatever the similarity between the parens patriae jurisdiction of the Court of Chancery and that exercised by the Family Court, the clear legislative intention of the 1995 amendments was to limit the reach of the paramountcy principle.
However, the Full Court said at [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.
In Kwon & Lee (2006) FLC 93-287 (also reported as EJK & TSL (2006) 35 Fam LR 559 and hereafter referred to as EJK & TSL), after considering earlier authorities to which we have referred, the Full Court distilled from the authorities the following principles (at [83]):
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.
There are two further paragraphs in EJK & TSL (supra) to which we wish to refer:
84.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).
85.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.
In Karim & Khalid (2007) FLC 93-348, the Full Court again had occasion to consider the question of forum. They said (at [52]):
At least prior to the decision of the Full Court in EJK & TSL (supra), there was some uncertainty in this jurisdiction as to whether the principles enunciated by the High Court in ZP v PS (supra) remain good law. This uncertainty appears to have arisen because of the significant amendments which were made to Part VII of the Act subsequent to the decision in ZP v PS, and also on account of the later High Court decision in Henry v Henry (1996) 185 CLR 571; 20 Fam LR 171.
The Full Court, while adopting the principles in EJK & TSL, dealt with the question of the 2006 amendments to the Act, which were subsequent to the decision in EJK & TSL, and the question of whether the best interests principle governed the decision to make an order under s 67ZC. The Full Court said, at [53] – [59], with which we agree:
53. In our view the decision in Henry v Henry (supra) should not be seen as altering the law as stated in ZP v PS (supra) once it is remembered that the issue in Henry was whether divorce proceedings in an Australian court should be stayed or dismissed in favour of foreign proceedings which were already on foot and thus the application of forum non-conveniens principles in the matrimonial context. There was no issue in Henry concerning the return of a child from Australia to a foreign country.
54. So far as the legislative changes which have occurred since ZP v PS (supra) are concerned, it can be seen from the joint judgment of Mason CJ, Toohey and McHugh JJ that their Honours regarded that source of the power to order the return of a child from Australia to a foreign non-Hague Convention country to be the “welfare jurisdiction that is similar to the parens patriae jurisdiction exercised by the Court of Chancery”.
55. That jurisdiction was conferred on courts exercising jurisdiction under the Act by the Family Law Amendment Act 1983 (Cth) by amendment to the definition of “matrimonial cause” to include as paragraph (cf) proceedings “with respect to the welfare of a child of the marriage” and by the insertion of the word “welfare” into then existing s 64(1), so that the opening words of that sub-section then read: “In proceedings with respect to custody, guardianship or welfare of, or access to, a child of a marriage…”
56. The powers which a court could exercise in such proceedings were then set out in the remainder of s 64.
57. When the Family Law Reform Act 1995 (Cth) inserted a new Part VII into the Act, the welfare power was placed in a separate section of its own, being s 67ZC, where it is still to be found. That section provides (omitting notes):
(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
58. It will be noted that the “best interests of the child” (the so called paramountcy principle) governs any decision to make an order under s 67ZC.
59. We thus endorse the view arrived at by the Full Court in EJK & TSL (supra), albeit perhaps by somewhat different reasoning, that the sole principle which governs the determination of an application for the return of a child from Australia to a foreign non-Convention country is, as held by the High Court in ZP v PS (supra), the best interests of the child. Forum non conveniens principles are not relevant to such an application.
At [60], the Full Court said:
Finally in relation to issues of principle, we point out that the Full Court decision in B v B (Re jurisdiction) and the first instance decisions of Karides v Wilson (1998) FLC 92-823 and JJT and CTT (2004) FLC 93-198 to which the trial Judge in this case referred in his reasons for judgment, were all cases in which orders were sought for contact with children who were not within the jurisdiction.
We do not understand anything said by the Full Court in Karim & Khalid (including at [60]) to be inconsistent with what we have earlier said at [73], being that the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
In this case, it is not clear that the child is within the jurisdiction. Nevertheless, the application by the father is one for parenting orders under s 64B, and s 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the interests of the child as the paramount consideration. For these reasons, even though the child may not be within Australia, the principle upon which to decide whether the court should exercise its jurisdiction must be determined by best interests of the child as being the paramount consideration.
His Honour did not refer to this test at all in his consideration of the factors relevant to whether to exercise jurisdiction. As a consequence of not considering the best interests of the child, his Honour failed to consider the relevant matters in s 60CC of the Act as he is required to do (Goode & Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461).
For that reason we find substance in the appeal and the ultimate outcome of the appeal will depend on our re-determination of the application before [the first instance judge]. As we have found substance in this ground of appeal, we do not need to consider the remaining grounds.
…
Date: 26 March 2013
12
8
3