ZEGNA & ZEGNA
[2015] FamCA 340
•11 May 2015
FAMILY COURT OF AUSTRALIA
| ZEGNA & ZEGNA | [2015] FamCA 340 |
| FAMILY LAW – PARENTING – CHILD PROTECTION CONVENTION - Whether or not s 111CD(1)(c)(v) of the Family Law Act 1975 (Cth) (“the Act”) allows the court to exercise jurisdiction in this case - Whether the requirement of s 111CD(3)(c) of the Act has been satisfied by the mother accepting that this court exercise jurisdiction – Whether an exercise of jurisdiction by this court is in the best interests of the children (s 111CD(3)(d) of the Act) – Whether Australia is the appropriate forum to hear the father’s application in relation to the children – Consideration of the interpretation of s 111CD(1)(c)(v) and s 111CD(3)(c) of the Act by Justice Tree in Duckworth & Jamison - Where s 111CD(1) of the Act does not allow the court to exercise jurisdiction – Where the mother has not accepted that the court exercise jurisdiction – Where it is not in the best interests of the children to exercise jurisdiction – Where Australia is not the appropriate forum to hear the father’s parenting application |
| Family Law Act 1975 (Cth) The Marriage Act 1961(Cth) |
| B v B (Re jurisdiction) (2003) FLC 93-136 ZP v PS (1994) 181 CLR 639 |
| APPLICANT: | Mr Zegna |
| RESPONDENT: | Ms Zegna |
| FILE NUMBER: | SYC | 3648 | of | 2011 |
| DATE DELIVERED: | 11 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 17 February 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd, SC |
| SOLICITOR FOR THE APPLICANT: | MGA Law |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney, SC with Mr Gramelis |
| SOLICITOR FOR THE RESPONDENT: | York Law |
Orders
The father’s application for parenting orders filed 21 March 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zegna & Zegna has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3648 of 2011
| Mr Zegna |
Applicant
And
| Ms Zegna |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
In June 2011 Ms Zegna (“the mother”) and Mr Zegna (“the father”) consented to parenting orders in respect of their two children, now 12 and 11 years old. Those orders, made pursuant to the provisions of the Family Law Act1975 (Cth) (“the Act”), allowed the children to relocate to Spain where they have habitually resided since July 2011.
The parents now seek that this court resolve disputes between them about financial matters. The father seeks to also have new parenting orders made by this court. The mother challenges the court’s ability to exercise jurisdiction to do so or alternatively, the mother says the court should not exercise jurisdiction, even if it could.
The 1996 Hague Child Protection Convention (“the Child Protection Convention”)[1] has entered into force in Spain. It has force in Australia by virtue of Division 4 Part XIIIAA of the Act.
[1] As defined in s111CA(1) of the Act the Child Protection Convention means the “Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children” signed at the Hague on the 19 October 1996, a copy of the English text of which is set out in Schedule 1 of the Act.
Given that the children are habitually resident in Spain, s 111CD(1) of the Act provides that this court can only exercise jurisdiction to make the parenting orders sought by the father in limited circumstances; in this case the circumstances as described in s 111CD(1)(c)(v) of the Act, and only if jurisdiction to make the orders is accepted by the parents (s 111CD(3)(c) of the Act.
Justice Tree in Duckworth & Jamison [2014] Fam CA 308 discussed how those subsections should be interpreted. His Honour gave a broad meaning to the words “proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage” (s 111CD(1)(c)(v) of the Act) and a narrow meaning to the word “accepted” (s 111CD(3)(c) of the Act). A focus of this hearing was whether his Honour’s interpretations of these subsections were correct.
MATTERS FOR DETERMINATION
The questions for consideration are:
6.1.Whether or not s 111CD(1)(c)(v) of the Act allows the court to exercise jurisdiction in this case;
6.2.If the answer to question 1 is yes, whether or not the provisions of s 111CD(3)(c) of the Act have been activated by the mother accepting that this court exercise jurisdiction;
6.3.If the answers to 1 and 2 are yes, is an exercise of jurisdiction by this court in the best interests of the children (s 111CD(3)(d) of the Act);
6.4.Is Australia the appropriate forum to hear the father’s application in relation to the children?
As discussed below, since the fourth question is answered by reference to best interest considerations in respect of the children, the third and fourth questions are answered in similar terms.
DOCUMENTS RELIED UPON
The documents relied upon by each party are set out in Schedule 1.
AGREED FACTS
The father was born in 1970. The mother was born in 1970.
The parties commenced to live together in 2000 and were married in 2000.
There are two children of the marriage, B born in 2002 (aged 12), and C born in 2004 (aged 11).
The parties separated on 15 February 2011. The parties are not divorced nor has either party filed a divorce application.
On 20 June 2011 parenting orders were made by consent. The orders provided for the parties to have equal shared parental responsibility and for the children to live with the mother, and that the mother be permitted to relocate with the children to Spain. The orders made other provisions relating to the children including a provision that the children spend time with their father, both in Spain and in Australia, but when that would be was not precisely defined and was subject to future mutual agreement between the parties,
The children permanently relocated to Spain in July 2011 and have been habitually resident in Spain since that time. The children have not been back to Australia since January 2014. The father has made requests for them to return to Australia and spend time with him. The parties have not been able to reach agreement in respect of common dates coinciding with the children’s school holidays.
On 21 March 2014 the father commenced proceedings in the Federal Circuit Court of Australia at Sydney. The father sought orders that the children return to Australia, with or without the mother, within 28 days of the order. If the mother returned, the father sought that the children be with him week about and if she did not, he sought that the children live with him, with further provision for the children to spend time with their mother and other consequential orders relating to parenting.
On 16 June 2014 the mother filed a Response seeking that the Federal Circuit Court of Australia make property orders under the Act. Further she sought that, “The Family Court orders dated 20 June 2011 be affirmed”. Two days later the mother filed a document entitled “Mother’s case outline document” noting her opposition to the father’s application and submitting that the court should decline to exercise jurisdiction to hear the father’s March 2014 parenting application, in part, on the basis that Australia was no longer an appropriate forum to entertain the application.
On 19 June 2014 the Federal Circuit Court transferred the proceedings to this court.
The parties and the intervenors have pending applications for final orders in relation to financial matters. The parties and the intervenors resolved all interim financial matters before me by consent.
QUESTION 1: DOES s 111CD(1) ALLOW THE COURT TO EXERCISE JURISDICTION?
The parties agree that the father had the right under s 69E of the Act to institute proceedings seeking parenting orders under the Act as the children have dual Australian/Spanish citizenship (s 69E(1)(b) of the Act) and the father is an Australian citizen; is ordinarily resident in Australia and was present in Australia on the day of the filing of his application (s 69E(1)(c) of the Act).
Division 4 Part XIIIAA of the Act governs how this court may proceed when dealing with an application for parenting orders in cases where children are habitually resident in a country in which the Child Protection Convention has entered into force. As Spain is a Convention Country, Division 4 Part XIIIAA of the Act has effect in this case despite the rest of the Act[2].
[2] Section 111CB of the Act
The father’s application for the children to ordinarily live with him in Australia is an application for a Commonwealth personal protection measure as that term is defined in the Act[3] and in the Child Protection Convention[4].
[3] Section 111CA of the Act
[4] Article 1(a); Article 3(a) and (b) of the Convention; see Schedule 1 of the Act (also see Bunyon & Lewis (No. 3) [2013] FamCA 888 at [76] per Bennett J)
Section 111CD(1)(c) of the Act sets out the limited circumstances in which the court may exercise jurisdiction when a child is habitually resident overseas. The only subsection which would permit the exercise of jurisdiction in this case is s 111CD(1)(c)(v) of the Act which is in the following terms:
(1) The Court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
…
(c) A child who is present in a Convention country, if:
…
(v) the child is habitually resident in a Convention country and the Court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3));
…
[emphasis added]
Section 111CD(3)(e) of the Act provides:
(3) A court may only exercise jurisdiction in accordance with subparagraph (1)....(c)(v) for a Commonwealth personal protection measure relating to a child if:
…
(e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.
The meaning of the words “proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage” was the source of contention before me.
The only decision in relation to the interpretation of those words of which senior counsel for each party were aware, or which I am otherwise able to find, is a decision of Justice Tree in Duckworth & Jamison [2014] FamCA 308. At [40], Justice Tree identified the two competing interpretations in the following way:
... The first is that they relate to any other cause arising out of the marriage or relationship, so that the reference to “proceedings concerning the divorce or separation … or the annulment …” where used in the Family Law Act is intended to be descriptive, in a broad sense, of the sorts of proceedings which, amongst the various Convention States, or prospective Convention States, can ensue from relationship breakdown. The second is that it is only actual divorce, separation or annulment proceedings which need to be on foot. That second construction would seek to restrict the proceedings that are described to the formal, legal means by which the marriage or a relationship is brought to an end, but not encompassing the associated or incidental proceedings which might arise as part of the judicial termination of the relationship....
Justice Tree concluded at [52] that a broader interpretation of s 111CD(1)(c)(v) of the Act was to be preferred:
.... it is not the acts or decrees of divorce, legal separation or annulment alone which are intended to be encompassed by such terms, but rather the overall process by which the court addresses all issues arising from separation, including the division of the parties’ property, parenting issues and any other thing associated with or incidental to the divorce, annulment or legal separation.
Again, at [53], [54], [59] and [60] of his reasons, Justice Tree concludes that the Child Protection Convention was intended to potentially have a broad application and that the phrases divorces, legal separation and annulment were intended to, and do capture all proceedings of a matrimonial character between married spouses and de facto partners arising out of the termination of their relationship.
Senior counsel for the mother submits that Justice Tree’s broader interpretation does some damage to what is otherwise the plain language contained in the phrase used in the legislation. Senior counsel for the father asks that I accept Justice Tree’s interpretation.
The purpose of s 111CD(1) of the Act
The intent of Parliament when introducing Division 4 of Part XIIIAA was to enact into Australian law the provisions of the Child Protection Convention and specifically Article 10 of that Convention.
Article 10 of the Child Protection Convention is in the following terms:
(1) Without prejudice to Articles 5 to 9, the authorities of a Contracting State exercising jurisdiction to decide upon an application for divorce or legal separation of the parents of a child habitually resident in another Contracting State, or for annulment of their marriage, may, if the law of their State so provides, take measures directed to the protection of the person or property of such child if:
(a) at the time of commencement of the proceedings, one of his or her parents habitually resides in that State and one of them has parental responsibility in relation to the child, and
(b) the jurisdiction of these authorities to take such measures has been accepted by the parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child.
(2) The jurisdiction provided for by paragraph 1 to take measures for the protection of the child ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reasons. [emphasis added]
As is apparent, when that provision was enacted in the Act, the word “legal” was not reproduced in s 111CD(1)(c)(v), so that the word “separation” is used rather than “legal separation”. I discuss below the effect this might have upon the interpretation of s 111CD(1)(c)(v).
Relevant extrinsic material
As Justice Tree says in Duckworth & Jamison at [41] to [44], the words of s 111CD(1)(c)(v) are to be interpreted with the purpose of enacting the Child Protection Convention in mind and in a way which is consistent with the terms of that international instrument. Some inexactness of the transposition of the precise words of the Child Protection Convention can be seen in s 111CD(1)(c)(v) which uses the words “proceedings concerning divorce or separation” and s 111CD(3)(e) which uses the words “the proceedings on the application for divorce or separation”, but given the almost complete transposition of the text, the Act should be interpreted, if possible, in the same way as the Convention.
When interpreting a treaty, in order to confirm a meaning or resolve an ambiguity, recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty[5]. Justice Tree identified (at [45] and [46]), two potential sources of permissible assistance. The first was the Explanatory Report in relation to the 1996 Convention by Paul Lagarde (“the Lagarde report”) and the second was the “Revised Draft Practical Handbook on the Operation of the Hague Convention” of 19 October 1996 published by the Permanent Bureau of the Hague in May 2011. The draft has now been superseded by the “Practical Handbook on the Operation of the 1996 Hague Child Protection Convention” which was published in 2014.
[5] Article 31 and 32 of the Vienna Convention on the Law of Treaties
For reasons explained below, there are two other sources of permissible assistance. The first is the Brussels II Regulation EC No. 2201/2003 of 27 November 2003 also variously called Brussels II Revised, BIIR, Brussels IIA or II bis (“the Brussels II Regulation”). The second is an Explanatory Report on the 1998 version of the Brussels II Regulation (98/C 221/04) written by Dr Alegrìa Borràs approved by the Council on 28 May 1998 (“the Borràs report”). For all relevant purposes, the current 2003 version of the Brussels II Regulation is the same as the Regulation which is referred to in [61] of the Borràs report.
I also have regard to a 1997 article written by the Honourable Peter Nygh who was a member of the Australian delegation for the 1996 Hague Convention which drafted the Child Protection Convention[6].
The Lagarde Report
[6] Hon. Peter Nygh, ‘The New Hague Child Protection Convention’ (1997) 11 International Journal of Law, Policy and the Family 344-359
At [48] of Duckworth & Jamison, Justice Tree quotes [61] of the Lagarde report, which is in the following terms:
61. The Convention of 5 October 1961 had provided the possibility for a Contracting State to make a reservation maintaining the jurisdiction of its authorities called upon to decide on an application for divorce, legal separation or annulment of the marriage of the parents of a minor, in order to take measures of protection for the minor’s person or property (Art 15). The withdrawal of this reservation by the majority of the States which had taken it has had the consequence that the divorce court no longer has the jurisdiction to take measures of protection for the child, unless it coincides with one of the fora provided for in the Convention of 5 October 1961. The Special Commission had accepted this result and had envisaged jurisdiction on the part of the divorce court to take measures of protection for the child only on a subsidiary basis, within the limited framework of Articles 8 and 9. At the time of the Diplomatic Conference, the Member States of the European Union, which were engaged in the negotiation of a convention called ‘Brussels II’ intended to extend the Brussels Convention of 27 September 1968 to ‘matrimonial causes’ and providing in particular for attribution of jurisdiction to the divorce court under certain conditions to decide on the exercise of parental authority, were afraid of too great a disparity on this point between the two conventions which were being drawn up. They therefore requested and obtained the insertion in the new Hague Convention of an article giving the divorce court jurisdiction to take measures of protection for the person and the property of the minor. This is the purpose of Article 10, to which is added, in Article 52, a co-called ‘deconnection’ clause authorising one or more Contracting States to conclude agreements on matters dealt with by the Convention, in respect of children having their habitual residence in one of the States Parties to these separate agreements.
At [53] and [54] of Duckworth & Jamison, Justice Tree relies upon [61] of the Lagarde Report as support for his broad interpretation:
53. .... I conclude that it likely that it was the total processes associated with curial resolution of the consequences of the termination of the domestic relationship that were intended to be captured by Article 10. I so conclude because firstly, such an interpretation would better achieve the objects of the 1996 Convention, and secondly, because of the relevant part of the Lagarde Report recited above, and particularly the reference to the non-specific notion of “the Divorce Court,” would support a broad meaning. Simply, it makes more sense for a court seized of any aspect of proceedings arising from the conclusion of the parties’ relationship, to also potentially exercise jurisdiction for matters relating to their children as well, rather than restricting it only to a court terminating the formal, technical legal relationship between them.
54. Accordingly, in my view, the words “legal separation” where they appear in Article 10 encompass not only the process by which a formal judicial order for legal separation is made, but also the attendant and ancillary orders which may be associated with, or arise in consequence of, that exercise of jurisdiction.
I do not agree that [61] of the Lagarde report supports a broad meaning and, in fact, in my view [61] points in the opposite direction.
For the purposes of understanding [61] of the Lagarde report, it is useful to note that most European countries are subject to two conventions, relating to jurisdiction about protective measures for the minor’s person, namely, the Brussels II Regulation and the Child Protection Convention. There may be some differences between European States depending upon how a particular European country has enacted the conventions into domestic law. For cases within the European Union, the Brussels II Regulation takes precedent over the Child Protection Convention[7]. So, in the case of Spain, the Brussels II Regulation applies in relation to any controversy between Spain and the other European countries who are signatories to Brussels II (almost all of them) and the Child Protection Convention applies between Spain and other non-European countries who have adopted the Child Protection Convention.
[7] See [36] of the Borràs report
Paragraph 61 of the Lagarde report:
40.1.Indicates that what is being created is a “subsidiary basis” for making child protection orders within a general framework which recognises the pre-eminence of the jurisdiction of a child’s habitual residence.
40.2.Explains that up until the introduction of Article 10 in 1996, the majority of States under the 1961 Hague Convention had not taken up the reservation which allowed their divorce court to take protective measures for the minor’s person who was not habitually resident in that State. The 1996 Convention sought to give the divorce court this jurisdiction.
40.3.Describes how in 1961 the framers of the Brussels II Regulation, were for the first time considering introducing a regulation for the European Union to deal with matrimonial causes and that an in principle decision had been taken to allow divorce courts in the European union, under certain conditions, to decide on the exercise of parental responsibility.
40.4.Makes clear that the drafters of the Child Protection Convention had been requested and had agreed for their convention to be as consistent as possible with the Brussels II Regulation, so that the same European State would apply the same test whether or not the other contracting State was a European or non-European country.
It is consequently, in my view, permissible, when construing the meaning of the Child Protection Convention, to also have reference to the Brussels II Regulation and supplementary material available in relation to the meaning of the Brussels II Regulations, given the intent as expressed in the Lagarde report that the Child Protection Convention was to be consistent with the Brussels II Regulations.
The Brussels II Regulation
Paragraph 10 in the preamble to the earlier version of the Brussels II Regulations (and paragraph 8 in the current Regulation) in the following terms:
10. This Regulation should be confined to proceedings relating to divorce, legal separation or marriage annulment. The recognition of divorce and annulment rulings affects only the dissolution of matrimonial ties; despite the fact that they may be interrelated, the Regulation does not affect issues such as the fault of the spouses, property consequences of the marriage, the maintenance obligation and other ancillary measures.
Dr Borràs discusses at [9] of her report the communications that took place between the drafters of the two conventions and describes the resolution of those differences in a similar way to the description contained at [61] of the Lagarde report.
At [22], Dr Borràs says:
The Convention is confined to proceedings relating to the marriage bond as such, i.e. annulment, divorce and legal separation. So the recognition of divorce and annulment rulings affects only the dissolution of the marriage link. Despite the fact that they may be interrelated, the Convention does not affect issues such as, for example, fault of the spouses, property consequences of the marriage, the maintenance obligation or other possible accessory measures (such as the right to a name, etc).....
At [39] of her report, Dr Borràs explains that the Convention chose not to enshrine perpetuatio jurisdiccionis for the divorce forum in relation to protection of the child of both spouses and provided that the jurisdiction of the divorce court would cease upon the conclusion of the application for divorce, legal separation or marriage annulment, provided parenting proceedings instituted during the divorce can continue even though the divorce has been finalised. She notes divorce proceedings can come to an end by a means other than the divorce being allowed or refused (for example, the application for divorce is withdrawn or one of the spouses dies). Importantly Dr Borràs says this provision follows Article 10(2) of the 1996 Hague Convention, the object being to avoid any contradiction between the two texts. This provision is incorporated at s 111CD(3)(e) of the Act which is set out above.
The Borràs report corroborates both the intention of the 1998 Brussels Convention to provide only a narrow exception and to make it consistent with the Child Protection Convention.
The Brussels II Regulation consequently explicitly excludes the broad interpretation of the words “divorce, legal separation or marriage annulment” as adopted by Justice Tree.
Practical Handbook on the Operation of the 1996 Hague Child Protection Convention P & C
At [49] of Duckworth & Jamison, Justice Tree refers to the “limited assistance” to be obtained from what has now been published as the “Practical Handbook on the Operation of the 1996 Hague Child Protection Convention”. His Honour quotes the following passage:
Factors that the authorities in Contracting State A could take into account in coming to the conclusion that it is in the best interests of the children for them to exercise jurisdiction might include: … that organising the custody and access arrangements with the divorce proceedings is simpler and quicker than waiting for the outcome of a second set of proceedings in Contracting State B, the State of their habitual residence.[8]
His Honour also observes at [50]:
Plainly that contemplates the practical opportunity in those proceedings in Contracting State A for there to be parenting orders made.
[8] This passage is now at page 49 of the 2014 handbook
It is true that this passage does contemplate a practical opportunity in the context of “divorce proceedings” but with respect, the passage which his Honour quotes is not supportive of his broader interpretation. The passage and examples given in the Handbook at pages 48 to 50 refer only to “proceedings for divorce” and initiating “divorce proceedings”. Nothing in the handbook contemplates this practical opportunity being afforded in proceedings for property settlement or in subsequent proceedings initiated after an application for divorce (or annulment or proceedings seeking a declaration about the validity of a marriage, a divorce or an annulment) has been finalised.
The Honourable Peter Nygh’s article “The New Hague Child Protection Convention”
In 1997 the Honourable Peter Nygh wrote an article which examined in detail the clauses of the Child Protection Convention. Relevantly he said:
A. Habitual Residence as the Principal Rule
.... Article 5 determines the primary basis for the jurisdiction of judicial and administrative authorities: the habitual residence of the child. If that habitual residence changes, the authorities of the State of the new habitual residence have jurisdiction[9].
....
[9] The Hon. Peter Nygh, above n 6, 347
D. The Divorce-related Jurisdiction
As we have seen, the fundamental jurisdictional principle is that of the habitual residence of the child.... But Article 10 introduces a jurisdiction which is independent of the habitual residence of the child and is, while it lasts, exclusive of it. That is the so-called divorce-related17 jurisdiction. [footnote 17 reads: “It extends, of course, to applications for annulment and legal separations, as well as divorce”]
This aspect of the Convention has been controversial. There had, at the Special Commission stage, been considerable pressure from certain States for a provision which would give the court granting a divorce, legal separation or annulment to the parents, an independent jurisdiction with respect to the guardianship, custody or access of their children. Arguments in favour of such a jurisdiction were based on convenience in allowing a ‘one-step’ jurisdiction to deal with all matrimonial issues, and a desire for a unified solution where children were residing in different countries.
Other States, most notably those with a common law background, strongly opposed it as a serious breach of the principal role of the habitual residence of the child. It could also lead to the use of an exorbitant jurisdiction, such as the State of the nationality of one of the child’s parents which might have little or no relevance to the child’s circumstances. Such a jurisdiction might also be involved collusively by both parents in order to defeat the parental responsibility of a third party such as a grandparent or child welfare authority granted under the law of the child’s habitual residence.
Article 10 represents a compromise between the conflicting views. This provides for an independent jurisdiction based on the divorce jurisdiction over the parents’ marriage, ....
The jurisdiction is exclusive of that of the habitual residence for as long as it is effective. However, under Article 10(2) the jurisdiction ceases once a determination is made granting or refusing the divorce or annulment, or the application is otherwise terminated. The court of the habitual residence of the child would thereupon resume its jurisdiction. What Article 10 therefore does is to grant a convenience to parents who want a one-stop tribunal to wind up their marital affairs, including custody and access issues, usually by consent orders. While it does not sit easily with the overall scheme of the Convention, the conditions imposed by its exercise reduce considerably the opportunities for abuse and disregard of the child’s interests[10].
[10] Ibid, 350-351
This commentary, and particularly footnote 17, emphasises that habitual residence is the primary basis for jurisdiction under the Child Protection Convention and that there is only limited jurisdiction given to the court dealing with the parties’ divorce, legal separation or annulment.
The use of the word “separation” in s 111CD(1)(c)(v)
At [55] to [59] of Duckworth & Jamison, Justice Tree discusses the fact that the word “separation” rather than the words “legal separation” has been used in s 111CD(1)(c)(v) of the Act. His Honour comments that the use of the word separation instead of legal separation at [55] “may potentially go beyond enacting Australia’s obligations under the 1996 convention, or alternatively, not achieve or precisely replicate Australia’s obligations under the convention either”.
An answer to the question as to why the framers of the amendment to the Act used the word “separation” and not “legal separation” might be found in an historical context.
Prior to 1975, s 52 – s 59 of the Matrimonial Causes Act 1959 (Cth) (which was repealed in 1975) set out the legislative basis and effect of a decree for judicial separation. Such a decree relieved a petitioner from the obligation to cohabit with the other party to the marriage while the decree remained in operation, but, did not otherwise affect the marriage or the status, rights and obligations of the parties to the marriage. The grounds for the granting of a judicial separation set out in s 52, were similar to the grounds specified for obtaining a divorce, and included adultery, cruelty, refusal to consummate, drunkenness and insanity[11]. The relief afforded by decree of judicial separation (together with the relief afforded by a decree of restitution of conjugal rights) was repealed in 1975 with the introduction of the Act.[12]
[11] See Paul Toose, Ray Watson and David Benjafield, Australian Divorce Law and Practice, (The Law Book Company Limited 1968) at [581]-[596]
[12] Although a remnant remains in s 114(2) of the Act which allows a court, still to this day, to make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights. I am unaware of any use being made of this subsection since its introduction in 1976.
A central feature of the Act was to introduce a new regime for divorce in Australia based on the ground that the marriage had broken down irretrievably[13]. That ground was to be held established if, and only if, the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months.[14] Separation became the only ground for divorce.
[13] Section 48(1) of the Act
[14] Section 48(2) of the Act
In exercising jurisdiction in proceedings concerning the divorce of the child’s parents, the court is exercising jurisdiction conferred by s 39(1) in respect of the proceedings which are defined in (a)(i) and (b)(i) and (ii) of the definition of matrimonial cause in s 4 of the Act. The ground upon which a divorce is granted is set out in s 48 of the Act and the power to make a declaration of the validity of a marriage or divorce is set out in s 113 of the Act.
Section 48(2) of the Act provides that the ground for divorce is satisfied when parties are separated for a continuous period of not less than 12 months. Section 49 of the Act has the title “MEANING OF SEPARATION” and deals with the ability of the court to hold that the parties were separated notwithstanding any action or conduct by only one of the parties and further deals with the ability of a court to recognise a separation notwithstanding the parties have continued to reside in the same residence or that one party has rendered some household services to the other.
Seen in its historical context, the words “exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents” means proceedings for divorce under s 48 of the Act or declarations of validity of divorce under s 113 of the Act.
Similarly in relation to proceedings concerning the annulment of a marriage, the jurisdiction to institute an application for a decree of nullity of marriage is contained in s 39 of the Act when read in conjunction with definition (a)(ii) of matrimonial cause in s 4 of the Act. Section 51 of the Act sets out the ground for a decree of nullity. Section 39 and definition (b)(iii) of matrimonial cause in s 4 of the Act together with s 113 of the Act provides the basis upon which a declaration can be made as to the validity of the annulment of a marriage.[15]
[15] Currently the Federal Circuit Court does not have the power to pronounce a decree of nullity of marriage nor make a declaration as to the validity of a marriage a divorce or the annulment of a marriage (s 38(1A) of the Act).
Justice Tree at [56] of Duckworth & Jamison comments that if the broader interpretation is not given to the Child Protection Convention, the exception “may be to restrict its operations to married or civil union couples, as distinct from de facto couples, and hence see proceedings in relation to the children of de facto couples potentially governed by a quite different statutory regime. There is nothing in the extrinsic material which would suggest that was the intention of parliament in enacting Division 4”. Whilst that might be true, that is the effect and intent of the Child Protection Convention and Brussels II Regulation.
There is in fact a relevant distinction in the Act between married and non-married couples. It is contained in s 55A of the Act which provides that a divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied that proper arrangements in all the circumstances have been made for children of the marriage who have not attained 18 years of age or that there are circumstances by reason of which a divorce order shall take effect even though the court is not satisfied that such arrangements have been made. Axiomatically, there is no provision in the Act for such declarations to be made in respect of children of de facto couples. Civil unions are yet to be given any formal status under the Act or The Marriage Act 1961(Cth).
Justice Tree at [40] of Duckworth & Jamison suggested that a declaration under s 90RD(2) of the Act that a de facto relationship has ended at a particular date, might be a section which would attract a narrow interpretation of the words “proceedings concerning the....separation of the child’s parents”. He comments, “but that would be a relatively unusual proceeding”. The Child Protection Convention was written into the Act in 2002. The de facto property laws were introduced into the Act in 2008. Section 90RD(2)(d) of the Act allows a court to make a declaration about when a de facto relationship has ended. That power was given to the court in aid of establishing the gateway jurisdictional requirement of there being a de facto relationship for two years and might also be relevant to the questions as to whether or not a separation happened before or after the implementation of the de facto property amendments, and whether or not a period of two years has elapsed since the separation which would trigger the requirement of leave being sought pursuant to s 44(5) of the Act. Whilst it is arguable that proceedings under s 90RD(2)(d) of the Act would be proceedings concerning the separation of the child’s parents, relying upon that section would produce an unintended consequence. Section 90RD(2)(d) was introduced into the Act for the purposes of dealing with financial matters relating to de facto relationships and not to deal with the continuing status of the parties as a couple. The issue as to whether or not an application for such a declaration under s 90RD(2)(d) of the Act would attract the provisions of s 111CD(1)(c)(v) of the Act is not a matter which I need to decide.
Conclusion
I find that s 111CD(1)(c)(v) of the Act provides an exception allowing the court to exercise jurisdiction in circumstances where the court is dealing with the end of a married couple’s relationship during applications for divorce or annulment or proceedings seeking a declaration about the validity of a marriage, a divorce or an annulment.
I do not accept it is the intent of the Child Protection Convention nor of the subsequent Australian legislation to broaden the opportunity for the exercise of jurisdiction to circumstances where parenting proceedings are recommenced, or where the parties are engaging in litigation in respect of financial matters or even more generally where, for example, the court is exercising accrued jurisdiction or original jurisdiction in bankruptcy or corporations law.
Confronted squarely in submissions with a challenge to Justice Tree’s reasoning, I respectfully disagree with his Honour’s conclusion as to the meaning of the words in Article 10 of the 1996 Convention and consequently the meaning of the words in s 111CD(1)(c)(v) of the Act. In my view, the words are to be construed narrowly. The words “proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage” describe proceedings which end the parties’ relationship in a formal sense or otherwise formally deal with the parties’ status.
Pursuant to s 111CD(3)(e) of the Act, the exception provided is a limited temporal one to allow the divorce court to entertain applications relating to children instituted at the time the divorce, annulment or the validity of a marriage, divorce or annulment, is being considered.
It follows that the answer to the first question is that s 111CD(1) does not allow the court to exercise jurisdiction in this case and accordingly on that basis the father’s application for parenting orders should be dismissed.
QUESTION 2: ACCEPTANCE
Section 111CD(3)(c) of the Act is in the following terms:
A court may only exercise jurisdiction in accordance with subparagraph .... (c)(v) for a Commonwealth personal protection measure relating to a child if:
…
(c) the jurisdiction of the court to take the measure is accepted by the parents ....
[emphasis added]
If a narrow interpretation of the words “proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage” is correct, then the word “acceptance” must also be considered in a narrow way. The acceptance by both parties for there to be parenting proceedings needs to be in the context of the other proceedings that the divorce court is hearing (namely, proceedings in respect of divorce, annulment or the validity of a marriage, divorce or annulment).As the Honourable Peter Nygh suggests in his 1997 article, both parties are more likely to accept the exercise of parenting jurisdiction by the divorce court, if they seek consent parenting orders.
If I am wrong and Justice Tree’s broader interpretation of proceedings concerning separation is correct, I need to consider what is meant by “accepted”. On this question senior counsel changed allegiances with Justice Tree. Senior counsel for the mother submitted that Justice Tree’s analysis of the meaning of “acceptance” is correct and senior counsel for the father challenged Justice Tree’s interpretation.
Justice Tree deals with the meaning of “accepted” at [80] to [84] of his reasons in Duckworth & Jamison. His Honour concludes in that case:
84. There is no reason why an acceptance of the exercise of jurisdiction by the court to take the particular protection measure should be irrevocable. Particularly because, in my view, the acceptance needs to be considered on a measure-by-measure basis, a party would need to be able to revise their position depending upon the particular measures being sought from time to time. I am therefore of the view that seeking parenting orders in his Response to Initiating Application did not foreclose the father thereafter not accepting the exercise of jurisdiction.
In this case, the father’s primary submission was that the parties had adopted and accepted the jurisdiction of this court when consent parenting orders were made in 2011. The father submits that the mother can now not walk away from the acceptance of jurisdiction under the Act. Further, he relies upon the mother’s fleeting acceptance in her Response to the father’s fresh application, in which she sought a ratification of the consent orders. He further relies upon the mother’s acceptance of the court’s jurisdiction to determine property settlement proceedings.
In relation to the argument of senior counsel for the father based on the fact that the mother was a party to earlier orders, this argument is similar to the argument advanced by the father in Re A (a child) (foreign contact order) [2003] EWHC 2911 (Fam). In that case, the parties were divorced in Spain in June 2001 and the Spanish Court made orders permitting a mother to change a child’s residence to the United Kingdom. The father appealed that order in Spain. Whilst that appeal was pending, the mother made an application to the English Court for a change of the contact order on the basis that it had become unworkable. The father’s appeal to the Spanish Court failed. The father then brought proceedings in the Spanish Court for enforcement of the original orders and for variation of the original orders so that he be granted custody of the child. Sumner J held that when the father was unsuccessful in the Spanish Appeal Court, the Spanish judgment had become final. Thereafter, the English court was able to exercise jurisdiction on the mother’s application and [10] of the preamble to the Brussels II Regulation meant that the Spanish Courts could no longer exercise jurisdiction, notwithstanding the existing Spanish parenting order. In so finding, Sumner J relied upon obiter comments by Thorpe LJ in Re G (children) (foreign contact order; enforcement) [2003] EWCA Civ 1607, [2004] 1FCR266.
In this case, an earlier consent final parenting order, without more, does not amount to an acceptance of jurisdiction for the hearing of a new application for enforcement orders or different parenting orders in the court that made the consent order.
Nygh’s Conflict of Laws in Australia (eighth edition) at pages 63 and 64 succinctly discusses how a party might submit to jurisdiction by taking steps in the proceedings. A person does not accept jurisdiction in this court by a mere failure to object to it at the first opportunity. The mother, by filing her initial Response in the Federal Circuit Court, did not irrevocably accept the exercise of the court’s jurisdiction, particularly in circumstances where two days later she filed a case outline and summary of argument which raised the question of forum. At best in this case the mother’s filing of a response was an equivocal engagement with the jurisdiction. I find that it was not an acceptance that the court might exercise the jurisdiction.
The mother’s submission to the court’s jurisdiction to deal with property settlement can in no way be seen as an acceptance by her for the court to hear the parenting proceedings.
In addition, I accept Justice Tree’s conclusion that depending upon the parenting measure that is sought, it is possible to initially accept the court exercising jurisdiction in relation to a particular parenting measure but then withdraw acceptance if the basis of the application fundamentally changes. Senior counsel for the mother gave the example of a respondent accepting the court exercising jurisdiction in relation to some minor variation to contact arrangements but then refused to accept the court’s exercise of jurisdiction if the applicant subsequently sought the children be relocated back from their place of habitual residence.
I do not place any weight on the submission by senior counsel for the father that a relevant consideration is that the mother has failed to take proceedings in a Spanish court. In the proceedings before me she is responding to a parenting application the father has instituted. The father has not commenced proceedings in the Spanish court. Section 111CZ of the Act allows for regulations to be made to enable the performance of the obligations of Australia or to obtain for Australia any advantage or benefit under the Child Protection Convention. Regulation 10(3) Family Law (Child Protection Convention) Regulations allows the father to request the Spanish court to recognise and enforce the 2011 Australian order in accordance with Chapter IV of the Child Protection Convention[16]. Further, any order made in Spain could be registered and enforced in this court pursuant to Regulation 12 of the Family Law (Child Protection Convention) Regulations.
[16] See Cape & Cape [2013] Fam CAFC 114
I conclude that the mother has not accepted that the court exercise jurisdiction and consequently the requirement of s 111CD(3)(c) of the Act has not been satisfied.
QUESTIONS 3 AND 4: BEST INTERESTS AND FORUM
If I am wrong about the answers to the first two questions and s 111CD(1) of the Act allows the court to exercise jurisdiction and the mother has accepted this court exercising jurisdiction, I need to consider whether or not an exercise of jurisdiction by the court is in the best interests of the children and whether or not Australia is the appropriate forum to hear the current parenting dispute in relation to the children.
Section 111CD(3)(d) is in the following terms:
A court may only exercise jurisdiction in accordance with subparagraph (c)(v) for a Commonwealth personal protection measure relating to a child if:
…
(d) the exercise of jurisdiction to take the measure is in the best interests of the child....
The test in respect of forum is the same. In Pascarl & Oxley (2013) FLC 93-536, the Full Court comprehensively reviewed the development of the test in earlier authorities (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; ZP v PS (1994) 181 CLR 639; ZP v PS (1994) 181 CLR 639; B v B (Re jurisdiction) (2003) FLC 93-136; EJK & TSL (2006) 35 Fam LR 559; Karim & Khalid (2007) FLC 93-348) and concluded at [86]:
.... 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.
The father’s application in this case relies upon s 69E, s 69H, s 64B(1) and s 65D of the Act to seek parenting orders. If the court were to decide the father’s application, s 60CA of the Act would require the court to regard the best interests of the child as the paramount consideration. Consequently, the test to apply to whether Australia is the appropriate forum to hear the father’s parenting application, is the best interests of the child.
Neither senior counsel specifically addressed, either in their written or oral submissions, specific considerations under ss 60CC(2), (2A) and (3) of the Act.
The children have been habitually resident in Spain for nearly four years. Any hearing in relation to their current best interests would involve consideration of their current relationships and the effect of change upon the children. That in turn would involve some careful consideration of their current living arrangements including arrangements in relation to schooling, sport and social networks. Given their ages, their views are likely to be of some considerable weight, and the court would ordinarily seek expert evidence in relation to those views and other relevant s 60CC(2) and (3) considerations and that evidence would best be obtained from Spain. These considerations, based upon the child’s best interests, underscore the natural advantages enjoyed by the court of the country of a child’s habitual residence.
Spain has a domestic court system which is available to deal with these issues. It is agreed that the father has the ability to institute and participate in proceedings in Spain. He has deposed to the fact that he intends to regularly travel to Spain and that he has sought legal advice and obtained representation in Spain.
I find that it would not be in the children’s best interests for litigation in relation to their future parenting to be conducted half a world away.
CONCLUSION
For all the above reasons the mother’s objection to the court exercising jurisdiction to entertain the father’s application for parenting orders is successful and the father’s application filed 21 March 2014 must be dismissed.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 11 May 2015
Associate:
Date: 11 May 2015
SCHEDULE 1
The applicant father relied on:
Case outline dated 8 October 2014
Summary of Argument dated 8 October 2014
Supplementary Submissions dated 7 November 2014
Submissions dated 18 December 2014;
Affidavit of the father filed 3 February 2015 (the father did not read [2], [3] and [4] or annexure A of his affidavit sworn 3 February 2015)
Affidavit of father filed 5 November 2014
Affidavit of the father filed 1 October 2014
Affidavit of the father filed 27 June 2014
Financial Statement of the father filed 27 June 2014
Affidavit of Mr D filed 21 March 2014
Affidavit of Dr E filed 21 March 2014
Affidavit of Mr F Zegna filed 27 June 2014
Affidavit of Mr G filed 1 July 2014
The respondent mother relied on:
Case outline and submissions dated 18 June 2014
Case outline and submissions dated 15 September 2014
Case outline and submissions dated 22 October 2014
Submissions dated 19 December 2014
Affidavit of the mother filed 17 October 2014
Affidavit of the mother filed 7 August 2014
Mother’s financial statement filed 8 August 2014
Affidavit of Mr H filed 7 October 2014
Affidavit of Mr H filed 8 August 2014
Affidavit of Ms I filed 8 August 2014
Affidavit of Mr J filed 8 August 2014
Affidavit of Mr K filed 6 November 2014
0
4
3