Yaling & Tsen (No 2)
[2022] FedCFamC1F 676
Federal Circuit and Family Court of Australia
(DIVISION 1)
Yaling & Tsen (No 2) [2022] FedCFamC1F 676
File number(s): SYC 6940 of 2019 Judgment of: HARPER J Date of judgment: 7 September 2022 Catchwords: FAMILY LAW – JURISDICTION – Where child is habitually resident in China with mother – Mother commenced property proceedings in this Court and father seeks parenting orders in this Court – Previous judgment found that this Court had jurisdiction the exercise of which was not prevented by the application of Subdivision B of Division 4 of Part XIIIAA of the Family Law Act – Mother seeks summary dismissal of father’s parenting application – Where mother has commenced parenting proceedings in China– Father seeks anti-suit injunction – Where there was previously no evidence of Chinese law – Expert evidence tendered – Mother seeks orders permitting her to renew child’s Australian passport – Where child may otherwise be deported from China– Welfare power under s 67ZC invoked – The best interests of the child are the paramount consideration in exercising the welfare power – Deportation would likely be traumatic for the child – Forum non conveniens – Mother’s application for summary determination invokes Court’s inherent jurisdiction – Mother argues Australia is a clearly inappropriate forum – Paramountcy principle only applicable where prescribed by the Act – Where forum non conveniens test applies, best interest of the child remain a weighty consideration, but not paramount – Where nature of orders sought means best interests of the child remain the paramount consideration – Australian proceedings would not be in child’s best interests – Father’s application for parenting orders and anti-suit injunction dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 64B(1), 67ZC, 111CC Cases cited: B v B (Re jurisdiction) (2003) FLC 93-136; [2003] FamCA 105
Bletch & Douglas [2011] FamCA 568
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33
Dickson & Dickson (2015) FLC 93-632; [2015] FamCAFC 11
EJK & TSL (2006) 35 Fam LR 559; [2006] FamCA 730
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Joubert & Verhoeven [2020] FamCA 53
Mohan & Modi [2017] FamCA 5
Mosman & Taylor-Mosman [2018] FamCA 842
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
Pascarl & Oxley (2013) FLC 93-536; [2013] FamCAFC 47
Re Golding (2020) 384 ALR 204; [2020] HCA 38
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Vallans & Vallans (2019) 60 Fam LR 193; [2019] FamCAFC 260
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Withers & Russell (2016) 55 Fam LR 447; [2016] FamCA 793
Yaling & Tsen [2022] FedCFamC1F 347
Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173
ZP & PS (1994) 181 CLR 639; [1994] HCA 29
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 17 August 2022 Place: Sydney Counsel for the Applicant: Ms Cotter-Moroz Solicitor for the Applicant: Edwards Family Lawyers Counsel for the Respondent: Ms McMahon Solicitor for the Respondent: O’Sullivan Legal ORDERS
SYC 6940 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YALING
ApplicantAND: MR TSEN
Respondent
order made by:
HARPER J
DATE OF ORDER:
7 September 2022
THE COURT ORDERS THAT:
1.The Applicant Mother (“the mother”) be and is hereby authorised to do all acts and things and sign all documents as may be necessary to ensure that the Child, X (born 2015) has a current Australian Passport from time to time, and the consent of the Respondent Father (“the father”) shall not be required.
2.The father’s application for interim and final parenting orders sought in his Further Amended Response filed 12 August 2022 be dismissed.
3.The mother’s Applications in a Proceeding filed on 2 March 2022 and 2 August 2022 be otherwise dismissed.
4.In the event there is no application for costs filed and served within 28 days of these orders, there shall be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yaling & Tsen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
Introduction
On 17 May 2022, I delivered a judgment in this matter on specific questions of jurisdiction and the habitual residence of the child the subject of these proceedings, X (born 2015): Yaling & Tsen [2022] FedCFamC1F 347 (“the first judgment”).
The child is an Australian citizen.
The Respondent Father (“the father”) contended that this Court had jurisdiction to determine a parenting dispute between the parties, whilst the Applicant Mother (“the mother”) contended that the application of Subdivision B of Division 4 of Part XIIIAA of the Family Law Act 1975 (Cth) (“the Act”) prevented the Court from exercising its jurisdiction. Alternatively, she argued the parenting application of the father should be permanently stayed on the basis that this Court was a clearly inappropriate forum.
I found this Court had jurisdiction. I also held that on the evidence, s 111CC was not satisfied, with the consequence that Subdivision B did not apply to the proceedings so as to limit the circumstances in which jurisdiction could be exercised. However, in case I was wrong about the application of Subdivision B, and in light of receiving evidence, including cross examination, and argument, I made findings concerning the habitual residence of the child, who is in China.
It should be repeated that it was common ground that China is a non-Convention country for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction and the Child Protection Convention.
I set out the background at [3]–[25] of the first judgment. I incorporate those matters in this judgment by reference and will not repeat them.
I also incorporate the [77]–[90] of the first judgment setting out the reasons for concluding the habitual residence of the child is China.
It is also relevant to record that on 10 March 2022, I made a direction for the parties to submit joint proposed orders to progress the proceedings in the event it was found the Court had jurisdiction. These proposed orders, marked Exhibit A, were submitted on 4 April 2022, before delivery of judgment, in the following terms:
1. That, if the Court determines that it has jurisdiction to hear the parenting matter between the parties in relation to the child, [X] born […] 2015 (‘the child’), and decides to exercise such jurisdiction, then the parties’ competing interim parenting applications be listed for Interim Hearing with priority on a date suitable to the Court.
2. That the property proceedings between the parties be listed for Final Hearing following the Interim Hearing of the parties’ competing parenting applications.
In relation to the mother’s application for a stay, taking account of the order jointly proposed in Exhibit A, at [95] of the first judgment I said:
The applicable test for a permanent stay of parenting proceedings is not necessarily the well-known clearly inappropriate forum test. Where an application is made under provisions of the Act which prescribe the best interests of the child as the paramount consideration, the test of whether or not a child is within the jurisdiction will be the question of the child’s best interests, as determined in accordance with ss 60CC(2) and (3), not the test of forum conveniens: Pascarl & Oxley (Edited) (2013) FLC 93-536 at [86]; ZP v PS (1994) 181 CLR 639; Henry v Henry (1996) 185 CLR 571; B v B (Re jurisdiction) (2003) FLC 93-136; and EJK v TSL (2006) 35 Fam LR 559; and Karim & Khalid (2007) FLC 93-348. The father accepted this is the correct test.
Then, I expressed the following reasons for refusing the stay:
99. I am not prepared to grant a permanent stay of the proceedings in this Court at this stage. One fundamental difficulty is that, as already concluded, there is no evidence of a conflict in jurisdiction, no evidence that China has a domestic court system which is available to deal with these parenting issues, or evidence of how parenting orders of this Court would be treated in China. On the present state of the evidence, the Court cannot be satisfied any parenting orders could or would be made in China in respect of a child who is an Australian citizen.
100. Another fundamental difficulty is that the Court at best is presently only able to entertain an interim assessment of the best interests of the child, upon a mandatory consideration of the factors set forth in ss 60CC(2) and (3) of the Act. The parties agreed there should be a further interim hearing for parenting orders in the event the Court finds it has jurisdiction. Amongst other things, the Court will be required to consider the question of a meaningful relationship with each parent, the nature of the relationship with each parent, any allegations of risk factors as well as practical difficulties impeding the child spending time with each parent. Orders may be appropriate requiring the child to participate in interviews for a child impact report and to come to Australia for that purpose. In those circumstances, it would be unsafe and inappropriate to order a permanent stay of parenting proceedings at an interim stage before any hearing to determine the best interests of the child.
The mother has since commenced parenting proceedings in China. She also led unchallenged evidence of an expert nature from a Chinese lawyer. No objection was taken to this evidence, despite the fact it was not evidence from a single expert. The evidence established a number of relevant facts about Chinese law. According to Chinese law, post-separation, parents must attempt dispute resolution by negotiation before proceedings are commenced in a District Court. There is no presumption that a child should remain living with a parent who resides in China. Custody will be decided on the basis of a child’s best interests. Questions of fault, including neglect or abuse of a child will be considered, as will parenting capacity, the circumstances of the parents and extended family, the views of a child, and the parents’ history of fulfilling parental responsibility. Evidence is received of a range of factors including the education of parents, child support, and a child’s psychological status.
The expert stated:
Chinese courts only recognise and accept judgments of Australian courts regarding dissolution of a marriage. Australian judgments on settlement of property, living expenses, and parenting arrangements are not recognised or accepted. The parties shall file a lawsuit in a court in China.
The expert also stated:
The father in this matter has standing under Chinese law to commence and participate in custody proceedings in China because the child is habitually resident in China. He may participate in proceedings by electronic communication if necessary; otherwise he may appear in person.
The matter has been listed again before me to determine further applications concerning the question of a passport for the child, summary determination of the father’s parenting application, and his application for an anti-suit injunction in respect of the Chinese proceedings.
The father filed a Further Amended Response on 12 August 2022. He seeks interim and final parenting orders concerning parental responsibility and for the child to live with him in Australia. It is unnecessary to set those orders out in detail for the purposes of this judgment. However, he also seeks an anti-suit injunction as follows:
7. Pursuant to section 114 of the Family Law Act 1975 (Cth) the Wife be restrained from:
(a) Continuing with the proceedings commenced by her in [H District] Court of [E City] in China; and
(b) Commencing or continuing proceedings in any jurisdiction other than Australia in relation to any matters covered by these orders, including parenting matters, property matters and/or child support matters between the parties.
The anti-suit injunction sought by the father is in aid of his substantive parenting orders. These include an order that the mother return the child to Australia from a non-Convention country, ie, China.
The orders sought by the mother in her Further Amended Reply are as follows:
1. That pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth):
1.1. the child, [X] ("Child"), born […] 2015, is entitled to have an Australian passport or a travel-related document;
1.2. in accordance with, and facilitation of the above order, the Mother, [Ms Yaling], is permitted and authorised to:
1.2.1. apply for the Child’s Australian passport or a travel-related document without the consent of the Child’s father, [Mr Tsen];
1.2.2. sign any documents as may be necessary to apply for the Child’s Australian passport or travel-related document, including any declaration on the application in the form approved by the relevant Minister, without the consent of the Child’s father, [Mr Tsen]; and
1.2.3. retain possession of the child’s Australian passport or a travel-related document.
In addition to the above, the mother seeks a summary dismissal of the father’s interim and final parenting orders.
It is also worth emphasising this is not a situation where a party is seeking an order that a child be returned from Australia to a non-Convention country.
Passport
The mother invoked the welfare power in s 67ZC of the Act as the jurisdictional basis for the order she seeks regarding the child’s passport. Section 67ZC is in the following terms:
Orders relating to welfare of children
(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.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.
(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.
Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. However, for the purposes of seeking summary determination of the father’s parenting proceedings she invokes the common law principles relating to a clearly inappropriate forum.
In ZP & PS (1994) 181 CLR 639 (“ZP”) the High Court emphasised the distinction between an exercise of a power pursuant to s 67ZC, such as an application to an Australian court for an order for the return of a child to a non-Convention country, and an application for a stay or dismissal of proceedings in an Australian court. The former is an exercise of jurisdiction pursuant to the welfare power; conversely, the latter is a refusal to exercise jurisdiction on the basis of forum. In either case, the first issue for the Court is whether the welfare of the child requires the making of a summary order that the issues be tried in a foreign forum: ZP at 648.
Watts J held in Withers & Russell (2016) 55 Fam LR 447 at [469], upon which the mother relied, that the welfare power in s 67ZC or s 64B could be invoked to make an order permitting a child to have a travel document. The mother contended that an order made pursuant to s 67ZC was not a parenting order, even though in making such an order, the best interests of the child are the paramount consideration: s 67ZC(2). She pointed out that Gill J held in Mosman & Taylor-Mosman [2018] FamCA 842 (“Mosman”) at [24] that an order under s 67ZC “does not contain the same constraints as to presumption and reasoning process”, ie is not a parenting order.
In Mosman, the children, who were Australian citizens resident with their mother in a foreign country, were at risk of being deported because their Australian passports were about to expire. The father did not consent, and Australian Passports Authority refused renewal. As a result, the mother required a Court order. She applied for an order that she be permitted to obtain and renew passports for the children. Following ZP, Gill J relied upon the welfare power in s 67ZC and concluded that although the best interests of the children were the paramount consideration, the issue of passports for the children was appropriate for a summary form of determination to enable them to remain in the relevant overseas country. He gave a brief analysis of the best interests of the children. This did not include a broader inquiry by the Australian Court into parental responsibility and what might flow from that: see [25]–[34].
I accept that it is appropriate to rely on the welfare power in s 67ZC and use a summary approach to the child’s best interests to determine whether the mother’s proposed orders should be made. The child’s best interests are the paramount consideration in determining this question, requiring an assessment of the mandatory considerations set out in s 60CC. But it is unnecessary to conduct a broader enquiry, concerning parental responsibility or other statutory requirements which are otherwise necessary when making parenting orders under Part VII.
In making the necessary determination of the child’s best interests, I have considered each of the s 60CC factors, but will discuss only those which are relevant: Tibb & Sheean (2018) 58 Fam LR 351 at [68] and [87].
It was not disputed that the child would benefit from a meaningful relationship with both parents (s 60CC(2)(a)). The child is now habitually resident in China and lives with her mother, who is the primary attachment figure. While the evidence showed both parents had a warm relationship with the child up to August 2019, it can be inferred the child’s relationship with her father is compromised to some extent by his continued presence in Australia.
I am satisfied that there is a risk the child would suffer deportation from China without an Australian passport. Such a coercive expulsion from the country where she is habitually resident is likely to be traumatic for the child (s 60CC(3)(d)). The same reasons which led to my finding that the child’s habitual residence is China also leads to the conclusion that the child should be provided with the necessary travel document to prevent the stress and dislocation of deportation from China. The father resisted any order for the child to obtain a passport. As noted, without a passport, the child is likely to be deported from China to Australia. The father’s resistance to a passport was also based on the perception that the child would be forced to return to Australia without one and would therefore come more concretely within the purview of the jurisdiction of this Court. Somewhat inconsistently, he nevertheless expressed his own opinion that the child would not necessarily be deported from China without a passport. The father gave no evidence that this opinion was based on his own experience, knowledge or expertise. I prefer the evidence of the expert.
Although the father claims that he cannot travel to China for political reasons, he can make contact with the child electronically (s 60CC(3)(e)).
As discussed below, the evidence of the expert shows that there is good reason to conclude this Court would be a clearly inappropriate forum in any event. In addition to the fact that China is the child’s habitual residence, no parenting orders of this Court, such as a recovery order, allocation of parental responsibility or orders for the child to live with either parent, will be recognised in China. This is a factor which should be considered and given weight under s 60CC(3)(m).
It is also true that if the child is ever to travel back to Australia, she will need a passport (s 60CC(3)(m)).
It is in the best interests of the child to have a passport. I will make the orders sought by the mother for the child to obtain a passport.
Summary Determination
It was common ground that the mother’s application for summary determination should be dealt with before the father’s application for an anti-suit injunction, since if she succeeds, the application for an anti-suit injunction would inevitably fail.
The mother’s application for summary determination of the father’s parenting application invokes the Court’s inherent jurisdiction, not any statutory provision or rule. The mother relies on the well-known common law “clearly inappropriate forum” principles set out in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241 and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391, the High Court made clear that application of those principles may ground either a permanent stay or dismissal of proceedings, since those remedies express an aspect of the inherent or implied power of a court which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice. The mother argued that where the “clearly inappropriate forum” principles apply, the best interests of the children are but one, albeit important, consideration, but not the paramount consideration.
In B v B (Re jurisdiction) (2003) FLC 93-136, the Full Court dealt with a situation where a child was located in a foreign jurisdiction. The Court held that as a result of amendments to the Act in 1995, the best interests of the child are no longer paramount except where the Act expressly says they are, and consequently, the paramountcy principle may not operate in respect of an application to stay parenting proceedings. The 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.
The mother also referred to some of the statements of principle set forth in EJK & TSL (2006) 35 Fam LR 559 (“EJK”). The full statement is as follows:
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)
In EJK at [84] the Full Court continued:
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). These authorities make clear that where the Court’s parenting jurisdiction has been regularly invoked, and a parenting order is necessary to provide appropriate relief, the best interests of the child are the paramount consideration, but the Court can assess the best interests either by a summary or full hearing.
There is an initial question which should be addressed. The father argued that the mother had already failed in her application for a stay. The father contended the Court should not entertain a further application, which in substance sought different relief based on the same considerations.
There is a well-known principle of finality which can apply to serial interlocutory applications. I set out the applicable principles in Joubert & Verhoeven [2020] FamCA 53 at [30] and [31]. A second application for the same or similar relief must usually be founded on a change of circumstances, or the discovery of new material which could not reasonably have been put before the Court. Second interlocutory applications can be an abuse of process: Re Golding (2020) 384 ALR 204 at [11].
Unlike the position in the first judgment, there is now before the Court evidence of the relevant laws in China. I accept this could have been brought forward in support of the first application for a stay. That evidence demonstrates that no parenting orders of this Court will be recognised or enforced in China. The child is habitually resident in China. This is a factor which strongly suggest this Court is a clearly inappropriate forum. It is clear from my reasons in the first judgment that the question of a stay was not foreclosed. The best interests of the child dictate, in my view, that the Court should not hold the mother’s further application to be an abuse of process.
It is a live question whether in determining the mother’s application the best interests of the child, determined by a summary or full hearing, are the paramount consideration.
In Bletch & Douglas [2011] FamCA 568, in which a child was resident in a foreign country, the father applied to this Court for the discharge and variation of earlier parenting orders pursuant to s 64B(1)(b). His application required application of the paramountcy principle. The mother sought a stay of the proceedings. Watts J held the forum non conveniens test to be the appropriate test, although the best interests of the child remain a weighty consideration, but not paramount.
However, in Pascarl & Oxley (2013) FLC 93-536 the Full Court said at [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 Full Court continued at [86]:
… 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 Zanda & Zanda (2014) FLC 93-607 at [106] the Full Court said:
The correct test for determination of forum when dealing with children’s issues has not been in doubt since ZP v PS (1994) 181 CLR 639 at 660 where Brennan and Dawson JJ said:
Once the jurisdiction conferred by s. 63 of the Family Law Act 1975 (Cth) ("the Act") on the Family Court in custody proceedings is effectively invoked - and there is no doubt that both parties invoked that jurisdiction in this case - s. 64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court’s power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country.
It must be remembered here that the mother has invoked the jurisdiction of this Court to hear and determine property adjustment issues between the parties. She seeks summary dismissal only of the interim parenting application.
In Dickson & Dickson (2015) FLC 93-632, the Full Court dealt with an appeal from a decision in which the parenting issues were split from property issues. At [56], the Court stated the applicable test:
It is conceded by the husband that if her Honour was correct in splitting the forum question in the way that she did, her Honour applied the correct test, namely what is in the best interests of the children (Pascarl & Oxley (Edited) (2013) FLC 93-536 at [81]; Zanda & Zanda (2014) FLC 93-607 at [106] to [108]). It is also beyond doubt that if her Honour had not split the forum question as she did, then the correct test to be applied is that of the common law, namely whether Australia is the clearly inappropriate forum (Voth & Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538; Henry v Henry [1996] HCA 51; (1996) 185 CLR 571), which test, if children are involved, would include a consideration of their best interests (Kwon & Lee [2006] FamCA 730; (2006) FLC 93-287).
In Mohan & Modi [2017] FamCA 5 (“Mohan”) at [40], Carew J said:
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.
I note that in Mohan, Carew J also undertook an assessment of the child’s best interests against the possibility her Honour was wrong about the applicable test.
It is worth emphasising that the difference between the two tests is whether the best interests of the child are paramount, as opposed to being one important and weighty consideration among others. Whichever test is adopted, an assessment of a child’s best interests will be necessary.
In light of these authorities, since the mother seeks an order under the welfare power in s 67ZC which mandates the best interests of the children as the paramount consideration, and the father seeks interim and final parenting orders in this Court, in determining the mother’s application, the best interests of the child are the paramount consideration, as opposed to one important consideration for the purposes of the forum non conveniens test.
Two other matters, already mentioned, support this conclusion. First, this was the common position of the parties for the purposes of the first judgment. Secondly, the parties’ proposed minutes of order (Exhibit A) for the progress of the proceedings presupposed an interim assessment of the child’s best interests.
The next question is whether it is appropriate to undertake an assessment of the best interests of the child in a summary fashion. The mother argues that it is, because summary determination can also be part of the question of the child’s best interests. In ZP, the High Court (at 648) accepted the proposition that, ordinarily, a decision as to the custody of children is best decided in the jurisdiction in which they have normally been resident. Accordingly, a decision regarding return from Australia to a foreign jurisdiction can be made summarily in the best interests of the child. As Gill J held in Mosman at [33], there is no relevant difference in this regard between a situation in which the child is present in Australia or present in another country. In Mosman, the children were not present in Australia, and were habitually resident in another country. I accept this is correct.
In particular, where the child is habitually resident in China, any orders of this Court will not be recognised in China, and according to Chinese law the Chinese court will undertake an assessment of the interests of the child in any event, it is hard to see how fully exploring and making findings about the best interests of the child in this Court would serve her best interests. A summary assessment is appropriate for the purposes of determining the mother’s application.
I have made an assessment of the child’s best interests above at [26]–[28] above. In my view, these considerations, coupled with the particular considerations referred to at [53] above, demonstrate that the father’s application for interim parenting orders in this Court are not in the child’s best interests and should be dismissed.
In my view, even if I am wrong about the applicable test, this is the appropriate conclusion regardless of whether the child’s best interests are the paramount consideration or but one weighty consideration.
I note here that the father argued the child’s habitual residence has become China because the mother deceived him and in effect abducted the child. He argues the Court should not countenance an abduction. He pointed to delays in this Court as unfairly benefitting the mother. However, I considered in detail the circumstances whereby the child travelled to China with the mother in the first judgment: at [82]. I concluded the father did not “consistently and unequivocally” object to the mother’s move to China, at least until he filed a Response on 24 March 2020: at [83]. This was some seven months after the mother travelled to China with the child on 22 August 2019. Abduction is not demonstrated. The evidence of the expert shows that there would have been good reasons why this Court would not make a recovery order, as the father sought, even if there had been an earlier hearing, in circumstances where such an order would have been ignored in China. The father further argued that it was open to this Court to make it a condition of the mother continuing her property proceedings here that she cause the child to return to Australia. Even assuming there is power to make such an order, a proper basis has not been shown by the father.
I am satisfied that an order should be made dismissing the father’s application for parenting orders.
For the same reasons, the father’s application for an anti-suit injunction should be dismissed.
I will order that any application for costs is to be made within 28 days of the date of this judgment.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 7 September 2022
12
0