ZEGNA & ZEGNA - [2015] FamCA 340

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)
Matrimonial Causes Act 1959 (Cth)

The Marriage Act 1961(Cth)

B v B (Re jurisdiction) (2003) FLC 93-136
Bunyon & Lewis (No. 3) [2013] FamCA 888
Cape & Cape [2013] Fam CAFC 114
Duckworth & Jamison [2014] Fam CA 308
EJK & TSL (2006) 35 Fam LR 559
Karim & Khalid (2007) FLC 93-348
Pascarl & Oxley (2013) FLC 93-536
Re A (a child) (foreign contact order) [2003] EWHC 2911 (Fam)
Re G (children) (foreign contact order; enforcement) [2003] EWCA Civ 1607, [2004] 1FCR266
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

ZP v PS (1994) 181 CLR 639

APPLICANT:

Mr Zegna

RESPONDENT:

Ms Zegna

FILE NUMBER:

SYC

3648

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZEGNA & ZEGNA

Details

AGLC: ZEGNA & ZEGNA [2015] FamCA 340
Case: [2015] FamCA 340
Decision Date: 11 May 2015

CaseChat Overview and Summary

In ZEGNA & ZEGNA, Watts J of the Family Court of Australia considered an application by the father for parenting orders concerning a child habitually resident overseas. The core of the dispute revolved around the court's jurisdiction to make such orders under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the *Family Law Act 1975* (Cth).

The primary legal issue before the court was the interpretation of section 111CD(1)(c)(v) of the *Family Law Act 1975* (Cth), which permits the court to exercise jurisdiction for a Commonwealth personal protection measure concerning a child habitually resident in a Convention country if the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child's parents. Crucially, section 111CD(3)(e) further stipulates that such jurisdiction can only be exercised if the proceedings for divorce or separation have not been finalised. The court had to determine the scope of "proceedings concerning the divorce or separation of the child’s parents."

Watts J adopted the broader interpretation of section 111CD(1)(c)(v) as articulated by Justice Tree in *Duckworth & Jamison* [2014] FamCA 308. This interpretation holds that the phrase "proceedings concerning the divorce or separation" is not limited to the formal legal acts of divorce or separation but encompasses the entire process by which a court addresses all issues arising from the breakdown of a marriage or relationship. This includes ancillary matters such as property division and parenting arrangements, reflecting the intended broad application of the Child Protection Convention to all proceedings of a matrimonial character arising from the termination of a relationship.

Consequently, the father's application for parenting orders was dismissed.

Orders

Orders of the court

The father’s application for parenting orders filed 21 March 2014 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.