Sandstrom and Sandstrom

[2008] FamCA 180

FAMILY COURT OF AUSTRALIA

SANDSTROM & SANDSTROM [2008] FamCA 180

FAMILY LAW – JURISDICTION – Hague Convention – Consent to jurisdiction – Estoppel
FAMILY LAW – INJUNCTIONS – Anti-suit injunction

Convention on Civil Aspect of International Child Abduction
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law (Child Protection Convention) Regulations 2003 (Cth)

CSR Limited v Cigna Insurance Australia Limited (1996) 189 CLR 345

Dobson and Van Londen (2005) 33 FamLR 525

Henry v Henry (1996) 185 CLR 571

Lederer & Anor and Hunt (2007) FLC 93-311
Re D (a child) [2006] UKHL 51
Re L [1999] 1 Fam LR (Eng) 433
Re O [1997] 2 Fam LR (Eng) 712

APPLICANT: Mrs Sandstrom

RESPONDENT: Mr Sandstrom

FILE NUMBER: SYC 7280 of 2007

DATE DELIVERED: 19 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 6 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Jack Rigg Solicitor

COUNSEL FOR THE RESPONDENT: Mr Corish

SOLICITOR FOR THE RESPONDENT: Staunton & Thompson

Orders

1. The wife’s application filed the 5th February 2008 be dismissed insofar as it seeks an injunction against the husband.

IT IS NOTED that publication of this judgment under the pseudonym Sandstrom & Sandstrom is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7280  of 2007

Mrs Sandstrom

Applicant

And

Mr Sandstrom

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is that filed by the wife on the 5th of February 2008 and is titled “Application in a Case”. That application seeks the following orders:

   “That pending further order the husband be restrained by injunction from taking any further steps in, other than discontinuing or adjourning, and from doing any act or thing to further prosecute, the proceedings filed by him or on his behalf in the United States District Court, District of […] submitted 28th November 2007 or commencing proceedings in relation to the child of the marriage namely […] born […] December 2002”.

2. The wife also seeks an order for costs. The costs application has not been argued before me.

3. Apart from the abovementioned application the wife has before the Court an application for final orders which was filed on the 19th of October 2007. That application seeks parenting orders in relation to the child born in December 2002.

4. On the 19th of December 2007 the husband filed in this Court a response to the wife’s application for final orders. That response sought the following:-

   “1.      That pursuant to Rule 9.03 of the Family Law Rules, the respondent husband objects to the jurisdiction of the Family Court of Australia to hear the parenting application, or objects to the application proceeding, pending the determination of the Hague Convention application brought on his behalf by the Central Authority in the United States of America.

   2. The respondent husband objects to the jurisdiction of the Court or objects to the application proceeding in respect of the financial orders sought by the applicant wife being paragraphs 18, 19 and 20 of her application because they relate to issues of maintenance and the application could properly have been made under the Child Support Assessment Act 1989.”

5. The husband filed a response to the wife’s “Application in a case” on the 21st of February 2008. That response seeks that the wife’s application be dismissed with an order for costs in favour of the husband. The costs application has not been argued.

Background Facts

1. The background facts in this case are largely uncontentious.

2. The parties were married in October 2002 in the United States of America.

3. In December 2002 the parties’ child (a daughter) was born in the United States of America.

4. In late 2003 the husband accepted employment in Australia. The husband contends that this involved a transfer of his employment to Australia on a temporary basis for an anticipated period of three years. I am told that there is an issue of fact between the parties about that matter.

5. In February 2004 the parties travelled to Australia with their child.

6. The parties took up residence at a Sydney suburb.

7. In about September or October 2004 the parties separated but remained living under the one roof.

8. In March 2005 the wife and child vacated the property.

9. In May 2007 the husband returned to the United States of America having first advised the wife that flights had been scheduled for them all to return permanently to the United States of America.

10. In May 2007 the husband commenced divorce proceedings in the United States District Court in the United States. At the end of that month, the husband says the wife advised through her lawyers that she intended to stay in Sydney and that she would not permit the father to take the child back to the Untied States of America.

11. On the 9th of June 2007 the husband returned to the United States of America alone following the expiry of his visa which had allowed him to remain in Australia.

12. In July 2007 the husband made an application to the United States Central Authority for the return of the child to the United States pursuant to the Hague Convention.

13. In September 2007 the United States District Court issued a judgement determining that that Court was without jurisdiction to address and grant a dissolution of marriage and also without jurisdiction in relation to custody issues. This related to the proceedings commenced by the husband in May 2007.

14. The request from the United States Central Authority was received by the Central Authority in Australia. On the 17th of September 2007 the Director-General of the Department of Community Services (who in the State of NSW is delegated with the function of the Australian Commonwealth Central Authority for the purpose of the United Nations Convention on Civil Aspects of International Abduction) through his delegate Mr K wrote to the solicitors at that time apparently acting for the mother advising that their instructions were to file an application for the child’s return to the Untied States within the course of a week. The letter then referred to a recent telephone conversation with the wife’s solicitor about “information which may preclude the father from being able to seek the return of [the child] via the Central Authority.” A copy of that letter is in evidence and marked as Exhibit W1. As part of Exhibit W1 there is a copy of an email from Mr K to the wife’s then solicitor. The body of the email includes the following:

    “Having considered the material you have forwarded on behalf of your client, I am writing to advise you that the Australian Commonwealth Central Authority has requested the United States Central Authority and [the father] to obtain a declaration under Article 15 of the Hague Convention on Civil Aspects of Child Abduction from the relevant court or authority in [the United States].”

15. Article 15 of the Convention on Civil Aspects of International Child Abduction says as follows:

    “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

16. On the 19th of October 2007 the wife filed her application in the Family Court seeking final orders, inter alia, relating to parenting orders for the child.

17. In November 2007 the husband’s attorney in America prepared a verified petition for a determination pursuant to Article 15 of the Hague Convention. That petition was served on the wife on or about the 18th of December 2007.

18. On or about the 23rd of January 2008 the husband became aware that his verified petition for Article 15 determination had been listed for hearing before the United States District Court Judge on the 25th of March 2008. It is this determination which the wife seeks to prevent by the application filed by her on the 5th of February 2008.

19. The Applicant argues the following matters:

    (1)That there is jurisdiction to make the anti-suit injunction;

    (2)That the injunction should be granted because to do otherwise would allow the proceedings to continue in the United States and consequently “interfere with proceedings in this Court”;

    (3)That to allow the proceedings to continue in the United States permits the husband to engage in unconscionable conduct;

    (4)The wife cannot afford to participate in the proceedings in the United States of America;

    (5)The findings necessary to provide a declaration under Article 15 of the Convention may well establish the basis for jurisdiction in the United States to make custody or parenting orders in respect of the child, a jurisdiction which has hitherto been found not to exist by earlier determination of the United States District Court.

    (6)A finding in the United States District Court under Article 15 of the Convention, which is likely to prompt the Central Authority in Australia to commence proceedings for the return of the child under the Regulations, would operate as a estoppel against the wife seeking to argue that the child was not wrongfully detained in Australia, was not habitually resident in the USA immediately before the retention or that the husband had rights of custody to the child and was exercising those rights immediately before the alleged retention of the child in Australia by the mother.

Determination of the Issues

That There Is Jurisdiction To Make The Anti-Suit Injunction

1. This Court In the Marriage of Dobson and Van Londen (2005) 33 FamLR 525 clearly confirmed that the Court has jurisdiction to grant an anti-suit injunction in respect of proceedings commenced outside of Australia. The Full Court relied on the High Court decisions in CSR Limited v Cigna Insurance Australia Limited (1996) 189 CLR 345 and Henry v Henry (1996) 185 CLR 571.

Henry v Henry

1. In Henry v Henry (1996) FLC 92-685 per Dawson, Gaudron, McHugh and Gummow JJ discussed the principles which should govern the grant of a stay of Australian proceedings because of pending foreign proceedings:

   (at paragraph 25) “In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of ‘seriously and unfairly burdensome, prejudicial or damaging’, or, vexatious, in the sense of ‘productive of serious and unjustified trouble and harassment’.”

2. This test was cited with approval in Dobson and Van Londen (2005) FLC 93-225 per Finn, May and Boland JJ (at paragraph 40).

CSR Limited v Cigna Insurance Australia

1. The joint judgment (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) in CSR Limited v Cigna Insurance Australia (1997) 189 CLR 345 provided the following discussion of the relationship between such stay orders and anti-suit injunctions:

   (at 389-390) "The question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country. The phrase `anti-suit injunction' is now in common use and, at least in some instances, resembles an injunction granted to protect the legal or equitable rights of the plaintiff or a common injunction to protect the processes of the Chancery Court against interference by the processes of other courts.... The test which, in this country, governs a stay of proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills Pty Ltd.” [Emphasis added]

“Amenable to the jurisdiction”

1. The majority judgment in CSR also provided some guidance as to the meaning of this phrase (emphasis is my own):

   (at 400) “Moreover, the main protagonists, CSR and Cigna Australia, are Australian companies which carry on business in this country and all the other parties, save perhaps CSR America, are amenable to or have submitted to the jurisdiction of the Supreme Court of New South Wales.”

Lederer & Anor and Hunt

1. In Lederer & Anor and Hunt (2007) FLC 93-311 the Full Court (Bryant CJ, Finn and Boland JJ) made reference to the principles in Cigna relating to stay of proceedings on forum non conveniens grounds: 

   (at paragraph 39) “In CSR under the heading "Principles governing stay of proceedings on forum non conveniens grounds and the grant of anti-suit injunctions" (at 389-390) the majority explained that:

   …. [a]lthough stay orders and anti-suit injunctions are not governed by the same principles, ... in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings...[a]nd ... that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.”

Conclusion on this Issue

1. The conclusion to this question of jurisdiction is connected to the husband consenting to the jurisdiction of this court. He has not done so. This may simply be a tactic without merit; however, it may also be a proper position to take.   As I understand the husband’s case, it includes a submission that, it is not appropriate to consider the question of whether he could or should participate in proceedings under the Family Law Act1975 (Cth) until there has been a conclusion in relation to any proceedings brought by the Australian Central Authority under the Family Law (Child Abduction Convention) Regulations. Without the husband being “amenable to the jurisdiction” one of the primary requirements which entitle this court to consider making an anti-suit injunction is not present. I make no conclusion at this time about whether such a missing requirement would render the court powerless to nonetheless make the injunction. For other reasons stated hereafter I conclude that it is unnecessary for me to consider this matter further.

A finding in the United States District Court under Article 15 of the Convention, which is likely to prompt the Central Authority in Australia to commence proceedings for the return of the child under the Regulations, would operate as an estoppel against the wife seeking to argue that the child was not wrongfully detained in Australia, was not habitually resident in the USA immediately before the retention or that the husband had rights of custody to the child and was exercising those rights immediately before the alleged retention of the child in Australia by the mother

Sub-Issues

1. Would the granting of the declaration by the husband in the United States Court prevent the wife from arguing in Hague Convention on the Civil Aspects of International Child Abduction proceedings that, at the time of the alleged wrongful removal or retention, the child was not habitually resident in the USA and/or the husband didn’t have and was not exercising rights of custody?

Relevant provisions of the Hague Convention

1. I restate here for convenience Article 15 of the Convention on Civil Aspects of International Child Abduction:

   “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

2. Article 3:

   “The removal or the retention of a child is to be considered wrongful where-

   a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

   b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

   The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

The Doctrine of Issue Estoppel

1. The granting of a declaration under The Hague Convention in one country and the impact of this declaration on subsequent proceedings in another country raises for consideration the doctrine of issue estoppel. The doctrine, in broad terms, prevents the same parties to litigation from re-litigating issues which have already been determined in earlier litigation between them, or, in certain circumstances, where an issue should/could have been the subject of earlier litigation and was not at that time raised for determination in the earlier litigation. The doctrine of issue estoppel under the Hague Convention has been the subject of judicial consideration by the English Courts.

English Case Law

1. There are two cases which point to the doctrine of issue estoppel regarding Hague Convention cases. The English High Court in the cases of Re O [1997] 2 Fam LR (Eng) 712 and Re L [1999] 1 Fam LR (Eng) 433 concluded that the doctrine of issue estoppel applies to Child Abduction Convention cases. The Courts in these cases held that there can be no re-run of Convention litigation where the issues are the same, irrespective or whether the prior litigation or determination of the issue occurred in the same jurisdiction as the initial application or a foreign jurisdiction.

2. Wilson J in Re L (Abduction) [1999] 1 FLR at 437 cited Holman J in Re O (at 719 E-H) with approval:

   “One objective of the Convention is to provide an effective mechanism for the prompt return of children through administrative and judicial procedures so that people in the position of the father in this case do not resort to self-help and secondary abduction. In my judgement it would run quite counter to this objective if a parent who had failed to procure the return of his child from one Contracting State could successfully obtain a re-run of his application by himself by abducting the child to or via another Contracting State….

   ….the machinery of the Convention, read as a whole, essentially contemplates a summary procedure to be operated once only….Thus if a child is abducted to England and, within proceedings under the Convention, the court decides that, because of the discretions under Art 13, it should not be summarily returned, the force of the Convention insofar as it relates to summary return is then spent. There cannot be second or subsequent applications under the Convention.

   In my judgment, that principle and approach must apply no less forcefully just because the summary procedure under the Convention has taken place in another Contracting State.”

3. In the case of In re D (a child) [2006] UKHL 51 the House of Lords considered an application under Art 15 of the Convention. A determination in the case had already been made by the final Court of Appeal in Romania which held that the father, being the divorced non-custodial parent, did not have rights of custody in relation to the child and therefore the removal of the child by the mother from Romania to England had not been wrongful. Their Lordships held that the English trial judge should not have entertained an application by the father to challenge the Romanian Courts’ decision as to the content of his rights under Romanian law. The only exception to this embargo would be in cases where the declaration was obtained by fraud or breach of the rules of natural justice.

1. The following extract is taken from the judgement of Lord Hope of Craighead in the case of In re D (a child):

   6.  Article 15 of the Convention contemplates that the court may need to be provided with a determination from the authorities of the state of the child's habitual residence that the removal was wrongful. So a judge is not to be criticised if he decides to use this procedure because he cannot responsibly resolve the issue on the information provided by the applicant. Nevertheless if he decides on this course delay will be inevitable. Great care must therefore be taken, in the child's best interests, to keep this to the absolute minimum. The misfortunes that have beset this case show that, once the court has received the response, it should strive to treat the information which it receives as determinative.

   7. Of course it is for the court to which the application is made, not the authorities of the requesting state, to decide whether the removal was wrongful within the meaning of article 3. The court must apply its own view of the Convention as best it can in the light of what it knows. No doubt there will be situations where the court feels that there may still be room for argument as to what the article 15 determination amounts to. But, as my noble and learned friend Lord Brown of Eaton-under-Heywood makes clear it must resist calls for further evidence. The further delay that this would cause is incompatible with the objects of the Convention. Detailed scrutiny of the child's welfare must be left for later. That is a matter for the state of his habitual residence. Speed is of the essence if the child is to be returned promptly to that state. The court must take this into account when considering whether enough information as to whether the removal was wrongful is available, and whether the information that it has is reliable.”

2. The following is an extract from the judgement of Baroness Hale of Richmond:

   40.        In this case, being unable to decide between the competing experts, the judge requested the father to obtain an article 15 decision. The mother challenged the jurisdiction of the Romanian court of first instance which concluded that it did not have jurisdiction. The father appealed. The Court of (First) Appeal held that the first instance court had been wrong to refuse jurisdiction but that the father's rights did not amount to rights of custody for the purposes of article 3 of the Convention. The father launched a further appeal. In a fully reasoned judgment, the final Court of Appeal in Bucharest upheld the first Appeal Court's decision. It held that the equality of rights enjoyed by parents before their divorce is subject to exceptions. On divorce, the court is obliged to award custody to one or the other. The parent with custody shall exercise parental rights and fulfil parental duties. The parent without custody keeps his right to have personal contact with the child and to watch over his upbringing, education and professional training. The effect of divorce is to divide the bundle of rights between the parents. The agreement of the non-custodial parent is only required to certain specified measures - adoption and the loss or re-acquisition of Romanian citizenship. Otherwise, the divorced non-custodial parent does not have a right of veto of measures taken by the custodial parent relating to the child's person. His right to "watch over" is not a right to direct. Law 272/2004, which came into effect on 1 January 2005, requiring both parents to give their consent to the removal of a child from Romania, was not retrospective in its effect. Not surprisingly, therefore, the Bucharest Court of Appeal concluded that the removal of the child in December 2002 had not been wrongful. (It is perhaps worth noting that, according to a note provided by the Romanian Ministry of Justice, the Romanian central authority had originally taken the same view of the father's rights as eventually did the Bucharest court and declined to transmit the father's request. It only did so after the father had launched proceedings here.)

   41.        How then should the courts of the requested state respond to such a determination? Most certainly not as they did in this case. Having received a determination, binding between the parties, in the final court of the requesting state, the English High Court proceeded in effect to allow the father to challenge that ruling by adducing fresh expert evidence. The fact that the expert was jointly instructed does not cure the vice. This was a question on which there were known to be two views. The vice is that he was asked at all; and furthermore that he was asked to answer questions about the rights which the father enjoyed under Romanian law. The fact that a first instance court in Romania had reached a different conclusion in another case shortly before this decision (the Rada case) is not a sufficient reason for an English court to query the decision of the final Court of Appeal in Romania in the instant case. The ultimate result was that the English trial judge took a different view from the view taken in Romania. She ordered the return of the child to a country whose courts had authoritatively ruled that the mother was within her rights to remove the child to live in this country.

   42.        How could this have happened? On 28 July 2005, the Court of Appeal handed down its decision in Hunter v Murrow (Abduction: Rights of Custody) [2005] 2 FLR 1119. The English court had made an article 15 request to the New Zealand court concerning a child whose unmarried parents had separated before he was born and had never lived together, although father and child had had considerable contact by informal agreement with the mother. It appears that the father had neither parental responsibility nor rights of veto. Nevertheless, the New Zealand court held that the access which the father had enjoyed by virtue of the agreement with the mother amounted to 'rights of custody' for the purpose of the Convention. As the researches of counsel demonstrated, this takes the concept of 'rights of custody' further than it has been taken in other common law jurisdictions.

   43.        The Court of Appeal declined to accept that ruling. But their reasoning is important. They did not challenge the ruling as to the content of the father's rights in New Zealand law. They merely challenged the characterisation of those rights as rights of custody for Convention purposes. This was on the basis, long established in the English application of the Convention, that rights of custody are to be distinguished from mere rights of access: see, most recently, In re V-B (Abduction: Custody Rights) [1999] 2 FLR 192 and In re P (Abduction: Custody Rights) [2004] EWCA Civ 971; [2005] Fam 293. Hunter v Murrow afforded no warrant at all for allowing the father to challenge the Romanian court's decision as to the content of his rights under Romanian law. Save in exceptional circumstances, for example where the ruling has been obtained by fraud or in breach of the rules of natural justice, it must be conclusive as to the parties' rights under the law of the requesting state.

   44.        Indeed, article 15 might be thought to go further. The foreign court is asked to rule on whether the removal is wrongful in Convention terms. The Court of Appeal relied upon the decision of this House in In re J (para 38 above), the authority cited by Lowe, Everall and Nicholls, International Movement of Children (2004), para 15.9, in support of their proposition that "a declaration made under article 15 can be no more than persuasive, and cannot bind the parties or the authorities of the requested state, who will accept as much or as little of the judgment as they choose." But In re J was not an article 15 case. It is one thing to fail to give effect to a foreign custody order which is not binding upon the courts of this country. It is another thing to fail to give effect to a ruling, which the courts of this country have themselves requested, as to the content and effect of foreign law. Given, however, that the Convention terms have an autonomous meaning, it is possible to contemplate the possibility that the foreign court's characterisation of the effect of its domestic law in Convention terms is mistaken. We are here concerned, not with domestic law, but with the effect given domestically to autonomous terms in an international treaty which are meant to be applied consistently by all member states. We, just as much as they, are bound by Lord Steyn's injunction, in the context of the Refugee Convention, in R v Secretary of State for the Home Department, Ex p Adan [2001] 2 AC 477, 517:

   "In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning."

   The foreign court is much better placed than the English to understand the true meaning and effect of its own laws in Convention terms. Only if its characterisation of the parent's rights is clearly out of line with the international understanding of the Convention's terms, as may well have been the case in Hunter v Murrow, should the court in the requested state decline to follow it.”

What Declarations Would Article 15 Of The Hague Convention On The Civil Aspects Of International Child Abduction Permit The Father To Seek In the United States?

1. It seems to me clear from the terms of the Article 15 and Article 3 that the declaration being sought by the husband in the US District Court would need to determine the following matters:

   (1)The retention was wrongful within the meaning of Article 3 of the Convention.

   (2)The child was habitually resident in the United States before the retention alleged.

   (3)Immediately before the time of any retention of the child by the wife the husband had rights of custody and was exercising those rights.

Conclusion on the issue of estoppel

1. I conclude that absent an extraordinary event or any of the circumstances referred to in the abovementioned English cases, a determination by the United States District Court on the matters required under Article 15 will be determinative of the issues in relation to the wrongful retention of the subject child in Australia, as alleged by the father, in any proceeding conducted in this court under the Family Law (Child Abduction Convention)Regulations.  If the father receives a favourable determination in the United States court then it must reasonably be expected that the Central Authority in Australia will commence the Hague Convention proceedings for the recovery of the child to the USA.

That the injunction should be granted because to do otherwise would allow the proceedings to continue in the United States and consequently “interfere with proceedings in this Court”

1. The first thing which needs to be said is that the proceedings in the United States Court are of a different nature to those in this Court. The proceedings in this Court are proceedings for parenting orders sought under the Family Law Act 1975 (Cth). The proceedings in the United States court are proceedings for a declaration under the Convention on Civil Aspects of International Child Abduction.

2. The two proceedings, although being about the same child, are of an entirely different nature. They are as different as proceedings for damages for breach of contract and proceedings seeking damages for a tort.

3. There is another matter at play in the hearing of this application for the anti-suit injunction which seems to me to be of fundamental importance and that is Australia’s obligations under an international treaty. Further, the court needs to consider the wider implications of making the injunction sought by the wife on the operation of the Hague Convention itself.   It seems to me that if the court were to make the injunction sought by the wife in this case it would have the potential to destroy the treaty as a whole. That would be very much contrary to this country’s best interests and, speaking broadly, not in the best interests of children throughout the world.

4. It may be that the husband, (or the USA equivalent of our Central Authority) wastes time by pursuing the Article 15 proceedings in the United States District Court; however, it is a course of action requested by the Australian Central Authority who were at an earlier time poised to commence proceedings in this court under the Family Law (Child Abduction Convention)Regulations for the return of the child to the USA. The Australian Central Authority shows every indication of being serious about commencing and prosecuting those proceedings on behalf of the USA Central Authority if a positive determination is made by the United States District Court.  There seems to be a degree of perversity in a situation where one Australian authority is requesting the husband or USA Central Authority to take proceedings in the United States District Court and another Australian Authority (if the Family Court of Australia could be described as such) is seeking to restrain that action.

5. It also needs to be borne in mind that one of the circumstances which enables the wife to seek an order against the husband is that he has commenced the proceedings for the declaration under Article 15 in his own name. It really should be the USA Central Authority bringing such proceeding. Article 15 by its terms suggests that the participating member countries being signatories to the convention had agreed the proceedings should be assisting with the obtaining of the declaration. That assistance might reasonably be expected to be that the Central Authority would commence and prosecute the proceedings itself. This type of delegation to parents by a Central Authorities around the world has given rise to comment, if not criticism, by the Courts of different lands considering cases involving the Convention. It is a matter for the signatories to the Convention to address. It appears to be a product of sufficient funding.

6. On this issue I conclude that the proceedings, as I have said earlier, are of a different nature to those commenced by the wife in this Court. The finding of the United States District Court has the potential to impact on the proceedings in this court under the Family Law Act only in the sense that a decision of this court under the Family Law (Child Abduction Convention)Regulations could see the child returned to the USA and in those circumstances the proceedings under the Family Law Act could become redundant. However, in my opinion, the proper approach of this court should be to determine any application under the Family Law (Child Abduction Convention)Regulations prior to considering an application under the Family Law Act for parenting orders in relation to the same child or children.

That to allow the proceedings to continue in the United States permits the husband to engage in unconscionable conduct

1. Given what I have said elsewhere in these reasons I do not regard the behaviour of the husband as being in any way unconscionable conduct.   He is doing nothing more than following the request of both the Cental Authorities in Australia and the USA.

The wife cannot afford to participate in the proceedings in the United States of America

1. I accept that the wife may not be able to be present or represented in the proceedings in the United States District Court because of her financial circumstances. I have not been informed that her financial circumstances would prevent her filing an affidavit in those proceedings or making written submissions. I have not been told that the wife could not participate in the proceedings by telephone. It seems at least possible that any one of those avenues may be available to her. I accept the wife’s evidence that she has a limited legal aid grant for the purpose of pursuing the injunction in the application now under consideration by me.

The findings necessary to provide a declaration under Article 15 of the Convention may well establish the basis for jurisdiction in the United States to make custody or parenting orders in respect of the child, a jurisdiction which has hitherto been found not to exist by earlier determination of the District Court in the United States

1. This concern of the wife is speculative and premature. It is not appropriate to deal with this issue at this time.

Overall Conclusion

1. The above determinations lead me to the conclusion that this court should not, in the circumstances of this case, grant the relief sought by the wife, namely, an anti-suit injunction restraining the husband continuing the proceeding in the United States District Court for a declaration under Article 15 of the United Nations Convention on Civil Aspect of International Child Abduction. The wife’s application therefore should be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  19 March 2008