Yalpat and Yalpat (No 3)
[2019] FamCA 717
•20 September 2019
FAMILY COURT OF AUSTRALIA
| YALPAT & YALPAT (NO. 3) | [2019] FamCA 717 |
| FAMILY LAW – JURISDICTION |
| Family Law Regulations 1984 (Cth) Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters opened for signature 15 November 1965, 658 UNTS 163 (entered into force 10 November 1969) |
| ZP v PS (1994) 181 CLR 639 Pascarl & Oxley [2013] FamCAFC 47 Chen v Tan [2012] FamCA 225 |
| APPLICANT: | Mr Yalpat |
| RESPONDENT: | Ms Yalpat |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Robinson |
| FILE NUMBER: | CAC | 1305 | of | 2018 |
| DATE DELIVERED: | 20 September 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 29 August 2019 & 20 September 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-representing |
| SOLICITOR FOR THE RESPONDENT: | Infinity Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robinson McGuinness |
Orders
The Father’s challenge to Australia as the forum for the determination of issues relating to X and the property of the parties is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yalpat & Yalpat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1305 of 2018
| Mr Yalpat |
Applicant
And
| Ms Yalpat |
Respondent
REASONS FOR JUDGMENT
These proceedings were commenced by Initiating Application filed by the Mother on 5 July 2018 in which she sought orders relating to the parties’ child, X, born in 2017, associated injunctions, unspecified property orders and orders in relation to child support. Since that time the Mother has withdrawn her application in so far as it relates to matters other than their child and property relief between them.
Initial orders were made on an ex parte basis that provided for X to live with his Mother and put in place protections to prevent X's removal from Australia. I directed that those orders and the Reasons for Judgment be sent to the Father by email by the Registrar of the Court. The proceedings were then adjourned to 10 September 2018.
On 9 July 2018 the Father was placed on notice of the proceedings by the Mother’s solicitor emailing various documents to the Father[1]. Those orders did not comply with the provisions for international service set out in Part IIAB of the Family Law Regulations 1984 (Cth) which enact processes for service in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (‘Hague Service Convention’), a Convention to which both Turkey and Australia are signatories. The service of initiating process overseas in this instance is governed by the Hague Service Convention and Regulations 21AE and following of the Family Law Regulations 1984 (Cth). The Regulations provide for service of process using the mechanisms of the Convention which utilise the services of a Central Authority in Turkey for the service of such documents.
[1] Exhibit M2
The Father then commenced proceedings in the 12th Family Court in City G on 10 July 2018 (‘the City G Court’). The Mother denies having been served in relation to these proceedings. The City G Court made orders on or about 12 July 2018 that, on an interlocutory basis, provided for X to live with the Mother and spend time with the Father.[2]
[2] Exhibit F1
On 10 September 2018 the Father appeared with the assistance of a duty lawyer. Orders were made for parentage testing and for the Father to file and serve any response and material that he wished to rely upon in the proceedings. The proceedings were then adjourned to 4 February 2019.
On that next occasion the Father appeared in person. He raised the issue of service, complaining that he had not been served lawfully. He was correct in this contention. At the same time he sought orders in relation to spending time with his son, on an interlocutory basis. He also indicated that he sought that this court make orders about the fixed property in Australia. He indicated that he sought that the final decision about X, and the property, should take place in Turkey (save as to the fixed property in Australia).
Judgment was then delivered on 8 February 2019 providing for orders for X to spend time with his Father and also for the Mother to file and serve upon the Father at his Australian address her Initiating Application and affidavit translated into the Turkish language. The proceedings were then adjourned to 19 March 2019 with the Father again appearing on his behalf and further orders being made in respect of the Father spending time with X. An Independent Children’s Lawyer was appointed.
The Father indicated during a Child Inclusive Conference, that it was his intention to live in Australia, and to spend time with X.
The matter was relisted on 15 July 2019. The Father appeared in person again with directions made noting that the parties would attend mediation and in the event that the Father wished to pursue an application challenging Australia as the appropriate forum to hear these matters for that to be filed and served by 4pm on 15 August 2019. The case was then heard, or rather commenced to be heard on 29 August 2019 and then continued to be heard on 20 September 2019, again with the Father appearing for himself.
The Father continued his challenge to the mode of service of the Initiating Application in these proceedings and challenged Australia as being the correct forum, at least in respect of X.
The Father did, however, accept that despite the deficits in service he had submitted to the jurisdiction of the Court. Given his ultimate pursuit of remedies in relation to property in this Court, and his pursuit of, and obtaining of remedies in relation to X, this concession was appropriately made. Although accompanied by protests in relation to service and jurisdiction, his conduct in the pursuit of these remedies was inconsistent with a protest against jurisdiction. The conduct went beyond the mere seeking of orders in a Response while objecting to jurisdiction as identified in Rule 9.03[3].
[3] A provision helpfully identified by the ICL
The Father appeared to maintain that as he had not been served appropriately with the initiating process then any decision flowing from the matter would be illegal. However, a number of factors counter that position. The Father has submitted to the jurisdiction. For the bulk of the proceedings the Father has been present in Australia. There appears to be no issue that he has not been provided with all documents in the proceedings. He has had adequate opportunity to participate in, and has participated in the proceedings. These factors tell against his complaint in relation to the ongoing proceedings.
Despite this complaint the Father indicated that he wished the Australian Court to deal with the property that is located in Australia, that is to exercise jurisdiction in relation to Australian property. He says that there is real property held in the Mother's name, purchased with funds provided by him. The location of that real property is within the Australian Capital Territory. He denies that there is any real property or any assets at all held by him in Turkey. He says that the Australian Court should not deal with any Turkish property (albeit he asserts that there is none).
The Mother alleges that there has previously been property in Turkey, including real property, but that it does not appear to exist any longer. Her position is that any order that takes into account property in Turkey (in the event that there is evidence of such) would be able to be met by orders directed to the Australian real property.
The Father says that the Australian Courts should not deal with custody, residence, maintenance or divorce as he has a case proceeding in Turkey in relation to those matters and that they are a matter for Turkish jurisdiction. I note that there are no divorce proceedings on foot in Australia, nor proceedings for maintenance. The non-property matters relate to X.
The Father acknowledges that he has requested that this Court make orders about X. He says those orders were not for custody or residence but were for him to have his “natural right” of spending time with X. Hence, he says, he asked this Court to make decisions about that matter. He says that the Turkish courts will not recognise orders made by this Court.
The Father has said that his position, if the Australian Courts determine the matter in relation to X, is for orders to be made that share parental responsibility, that transition to equal time, and that allow overseas travel to Turkey and otherwise.
The Father accepts that X has both Turkish and Australian citizenship, being born in Australia. He accepts that X has been in Australia except for a period between when X was three months old and seven months old. He asserts that the Mother has a right of temporary residence in Turkey until 2020 and that he has permanent residency in Australia. The Mother disputes that she has a right of entry into Turkey.
It is in this context that questions of forum fall to be determined.
Relevant Legal Principles
The principles in relation to forum vary in relation to the two aspects of the case. Different principles apply in relation to determining issues relating to X and determining issues in relation to property.
Turning firstly to the proceedings as they relate to X, the High Court in ZP v PS held that where a child is in the jurisdiction, the doctrine of forum non conveniens is not applicable and the paramount consideration is the best interests of the child.[4] More recently in Pascarl & Oxley [2013] FamCAFC 47 the Full Court of this Court said the following:
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.[5]
[4]ZP v PS (1994) 181 CLR 639.
[5]Pascarl & Oxley [2013] FamCAFC 47, [86].
In this case, despite the currency of proceedings regarding X in Turkey, the circumstances point to it being in X’s best interests to determine the matter in Australia. X lives in Australia, along with his Mother who is his primary carer. He has lived in Australia almost all of his life. The Father currently lives in Australia. The Father has demonstrated the ability to participate in the proceedings, whilst it is unclear as to the manner in which the Mother could participate in proceedings in Turkey. These matters point to Australia as being the appropriate forum to determine the issues regarding X.
While the Father pointed to the marriage having taken place in Turkey, the married life having taken place in Turkey, and that he says Turkish Courts look to fault based circumstances of marriage breakdown, these did not point to resolution in Turkey being in X’s interests.
Turning secondly to the proceedings as they relate to property, the principles are different. The question is whether, where the jurisdiction of the Court has been regularly invoked (as it has here), Australia is a clearly inappropriate forum. The law relating to this question was neatly encapsulated in Chen & Tan[6] where Kent J said:
[6]Chen v Tan [2012] FamCA 225.
[38] The essence of both Deane J's judgment in Oceanic and the majority of the High Court in Voth is that where Australia is a clearly inappropriate forum, allowing a case to proceed in Australia becomes oppressive or vexatious and thus the court should decline to exercise jurisdiction to prevent abuse of its processes. Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following (non-exhaustive) factors (derived from Lord Goff's factors in Spiliada Maritime Corporation v Cansulex Ltd31. as approved of in Voth and as added to by Henry at 592-593):
Factors of convenience and expense, such as the location of witnesses;
Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
Whether the other potential forum will recognise Australian Orders and vice versa and the ease of enforcement in each country;
Which forum may provide more effectively for a complete resolution of the matters involved in the parties' controversy;
The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
The governing law of the dispute;
The place of residence of the parties;
The availability of an alternative forum; and
Any legitimate juridical advantage to litigating in either jurisdiction.
Of the matters most prominently raised by the parties, it may be seen that it is onerous for the Father to conduct litigation in Australia given he is a resident of Turkey, albeit living in Australia. English is not his first language, leading to dealing with documents and Court being burdensome. He is, however, provided with an interpreter in Court. There are disadvantages for him vis-a-vis the Mother in conducting the litigation here.
However, even acknowledging that matter fully, the position of each of the parties that the real property in Australia should be the subject of orders, and that this Court is the appropriate court to achieve that, is determinative of the issue. Where the Father says the whole of the assets are in Australia, and the Mother says that orders directed to the Australian assets will be sufficient to dispose of the issue, it cannot be sustained that Australia is a clearly inappropriate forum even if some property is ultimately identified as being in Turkey.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 September 2019.
Associate:
Date: 20 September 2019
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