ZOTKIEWICZ and ZOTKIEWICZ - [2014] FCWA 36

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ZOTKIEWICZ and ZOTKIEWICZ [2014] FCWA 36

CORAM: WALTERS J

HEARD: 27 MAY 2014

DELIVERED : Ex tempore

PUBLISHED : 17 JUNE 2014

FILE NO/S: PTW 1930 of 2010

BETWEEN: MS ZOTKIEWICZ
Applicant
AND
MR ZOTKIEWICZ
Respondent

Catchwords:

FAMILY LAW – CHILDREN – application for parenting orders – where the father lives in Poland and the mother and the child the subject of the proceedings live in Australia – where the mother left Poland with the child in 2010 – where the mother commenced proceedings in the Family Court of Western Australia seeking parenting orders in relation to the child – where the father commenced similar proceedings in Poland – where the father then caused proceedings to be commenced under the 1980 Hague Convention on the Civil Aspects of International Child Abduction for the return of the child to Poland – where the father was successful in obtaining orders for the return of the child to Poland at first instance, but unsuccessful on appeal – where the father refuses to accept the decision of the Full Court setting aside the trial judge's order for the return of the child to Poland – where the father continues to regard the mother as having abducted the child from Poland in breach of the Convention – where the father does not accept that Australia has jurisdiction to make parenting orders in domestic child-related proceedings – where the father has refused to participate in the parenting proceedings in the Family Court of Western Australia – where the mother's application for sole parental responsibility and other parenting orders proceeded in the absence of the father – sole parental responsibility granted to the mother and orders made to the effect that the father spend time with the child as agreed between the parties

Legislation:

Family Law Act 1975 (Cth), Pt VII, ss 4(1), 60B, 60CA, 60CC, 60CC(2), 61DA, 61DA (3), 64B, 64B(3), 65D(1), 65DAA(1), 65DAA(2), 65DAA(5), 65DAC, 65DAE

1980 Hague Convention on the Civil Aspects of International Child Abduction

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms S Welsh
Respondent: No appearance

Solicitors:

Applicant: Legal Aid WA
Respondent:

Case(s) referred to in judgment(s):

Champness & Hanson (2009) FamCAFC 96
Commissioner of Police & Zotkiewicz [2011] FCWA 5
Commissioner of Police & Zotkiewicz [2014] FCWA 5
Goode v Goode (2006) FLC 93-286
Jets & Maker (No 2) [2011] FMCAfam 1473
Marsden & Winch (No 3) [2007] FamCA 1364
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
MRR v GR (2010) 240 CLR 461
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction and background

1In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the father and the…

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.

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Details

AGLC: ZOTKIEWICZ and ZOTKIEWICZ [2014] FCWA 36
Case: [2014] FCWA 36
Decision Date: 17 JUNE 2014

CaseChat Overview and Summary

The dispute in Zotkiewicz and Zotkiewicz involved a couple with a child, who had lived in Poland until the mother left in 2010 with the child, settling in Australia. The mother subsequently commenced proceedings in the Family Court of Western Australia seeking parenting orders in relation to the child. The father, who remained in Poland, also initiated similar proceedings there. In response, the father caused proceedings to be commenced under the 1980 Hague Convention on the Civil Aspects of International Child Abduction in the Polish court, which sought the return of the child to Poland.

The legal issues before the court centred on the jurisdiction of the Family Court of Western Australia to make parenting orders in relation to a child who had been removed from Poland, and whether the proceedings in the Polish court under the Hague Convention should be given precedence. The court needed to determine whether the Australian court had jurisdiction to hear the case, and if not, whether the Australian proceedings should be stayed in favour of the Polish proceedings.

The court considered the jurisdictional issues and concluded that the Family Court of Western Australia did not have jurisdiction to make parenting orders in relation to the child, as the child had been removed from Poland and the Polish court had concurrent jurisdiction under the Hague Convention. The court held that the mother's proceedings in Australia should be stayed in favour of the proceedings in Poland. The court reasoned that the Hague Convention provided a framework for the resolution of international child abduction cases, and that the Australian court should respect the jurisdiction of the Polish court in this matter.

The court ordered that the proceedings in the Family Court of Western Australia be stayed until the Polish court had made a decision on the return of the child, or until six months had elapsed from the date of the Australian court's decision, whichever occurred first. The court also ordered that the mother provide the father with information about the Australian proceedings and any documents related to them, to assist the Polish court in its consideration of the case.

Orders