I. Introduction—The New Case
The utility of stay proceedings in private international law proceedings is both well known and documented.Footnote 1 However, their use in family matters and, especially, proceedings involving children and, as well as in overseas proceedings, is less well known. However, the decision of the Full Court of the Family Court of Australia in Kwon and Lee Footnote 2 has brought the issue, together with other issues in Australian law, into stark relief. Some of the matters which were raised in that case are of more than local interest.
Kwon and Lee involved an appeal by a mother against orders for the return of the child of the parties to Korea, which was not a signatory to the Hague Convention on Civil Aspects of International Child Abduction,Footnote 3 and also considered the mother's application for parenting orders. The parties, the mother and father, as well as the five-year-old child, were Korean citizens. The parties had married in Korea in 2000. In 2003, the mother began divorce and parenting proceedings in Korea following an alleged assault on her by the father which had left her hospitalized. The mother was granted contact with the child and, when exercising such contact, removed the child from Korea without the husband's consent or knowledge and, ultimately, brought the child to Australia.
She then began parenting proceedings in Australia and sought orders that the child live with her. Contrarily, the father sought orders for the return of the child to Korea and for the mother's applications to be stayed or dismissed.
The applications were dealt with on the papers on a summary basis. The father asserted that the ‘clearly inappropriate forum’ test, as enunciated in Voth v Manildra Flour Mills Footnote 4 by the High Court of Australia, should be applied. The mother argued that, in the absence of express statutory guidance, the relevant test was the test in common law—namely, the best interests of the child being the paramount consideration. The trial judge held that the ‘clearly inappropriate forum’ test was applicable and found in favour of the father. She also found that, even were that not so, it was in the child's best interests to be returned to Korea. Further, the trial judge ordered that the mother's application be stayed on the grounds that, if the proceedings were not finalized in Korea and the mother returned to Australia, the proceedings could be reinvigorated.
The mother appealed unsuccessfully to the Full Court, arguing that the principles which had been set out in B v B (Re Jurisdiction),Footnote 5 which decided that an application for a stay in respect of whether a parenting case should be determined on the ‘clearly inappropriate forum’ test, was factually distinguishable form the present case or, alternatively, should be overruled. In addition, it was argued by the mother that the trial judge had erred in her discretion in assessing the child's best interests.Footnote 6
The first major support for the mother's argument that the ‘clearly inappropriate forum’ test was inapplicable to proceedings of the kind in contemplation in Kwon and Lee was the decision of the High Court of Australia in ZP v PS; Re PS; ex parte ZP.Footnote 7 In that case, Brennan and Dawson JJ had taken the viewFootnote 8 that once the jurisdiction of the Family Court of Australia had been invoked, the provision in the Family Law Act 1975 which requires the best interests of the child to be regarded as the paramount consideration was applicable.Footnote 9 Consequently, Brennan and Dawson JJ regardedFootnote 10 the courts as being in fundamental error in regarding matters other than the child's best interests as being of comparable importance to that principle.
In relation to the test expounded in Voth, those judges were of the strongly expressed viewFootnote 11 that any attempt to meld, as the Full Court of the Family Court of Australia appeared earlier to have done in ZP v PS, was, in their own word, ‘misconceived’. The Voth test, they considered, determined whether in particular classes of case courts should decline to exercise jurisdiction. On the other hand, the best interests principle governed the manner in which the jurisdiction should be exercised. Excepting cases to which the Hague Convention applied,Footnote 12 the judges took the view that the tests were not an alternative: in such cases the Family Law Act regarded the child's best interests as the Footnote 13 paramount consideration and, hence, it followed that the abduction was only relevant in so far as it affected those best interests.
In Kwon and Lee,Footnote 14 the Full CourtFootnote 15 noted that any Footnote 16 order made under the relevant part of the legislationFootnote 17 in force at the time ZP v PS was decided, would be subject to the paramouncy principle. This brought the Court in Kwon v Lee Footnote 18 to consider whether the jurisdiction to grant a stay of proceedings was based upon the inherent jurisdiction of the Court, which was regarded as analogous to the parens patriae jurisdiction of the Court of Chancery,Footnote 19 or was only applicable to particular types of orders. Thus, the issue arose directly in respect of the application for a stay.
II. Kwon and Lee and Previous Authority
In B v B (Re Jurisdiction),Footnote 20 the Full Court had said that they were
.. not persuaded that there is sufficient elasticity in the language of the Act for us to conclude that an application in respect to the exercise of jurisdiction is in fact an application for a parenting order nor is it an application made under any other section of the Act in respect of which an order is required to be made having regard to the paramouncy principle.
In Kwon and Lee, the Court acceptedFootnote 21 that view and went on to comment that if it is appropriate for a court, in the exercise of its inherent power to grant a stay, then the best interests principle is not the paramount consideration, although in particular situations it might be highly relevant or deserving of the greatest weight in considering whether the court is a clearly inappropriate forum. There can be no clearer example of an attempt to meld the ‘clearly inappropriate forum’ test with the best interests approach which had been severely criticized in ZP v PS.Footnote 22
The Court in Kwon and Lee Footnote 23 then continued by pointing out that the ‘clearly inappropriate forum’ test had been consistently applied in other stay proceedings, notably those involving property and maintenance.Footnote 24 Though at the same time they had noted without suggesting its instant relevance, that courts had increasingly recognizedFootnote 25 that cases involving the welfare of children were not strictly inter partes litigation. If that is directly pertinent to the issue under discussion, it would seem to suggest that, if the ‘clearly inappropriate forum’ test is applicable to more traditional litigation, then it might not be to cases involving the welfare of children. However, it was also notedFootnote 26 that in ZP v PS itself neither party had been seeking a stay pursuant to the Court's inherent jurisdiction but were seeking residence orders. When one takes their earlier comments regarding the relationship between the competing notions into account,Footnote 27 the situation is more than a little confused. Indeed, it became more so as the Court turned its attention once again to the decision in B v B (Re Jurisdiction), which, it must be said, has given this writer more than a little concern in a broader context.Footnote 28
The first point made by the Court in B, which was the subject of direct consideration in Kwon v Lee, was the statementFootnote 29 that, in view of the 1995 amendments to the Family Law Act, the test propounded by the High Court in ZP v PS was no longer applicable and the test was that laid down in Voth v Manildra Flour Mills.Footnote 30 On that issue, first, I have argued elsewhereFootnote 31 that that argument was thoroughly misconceived. The amendments of 1995 do not seem to have any bearing at all on the present issue and have not been so regarded, and no new normative structure was intended by them.Footnote 32 Secondly, the Court in B then stated that the importance to be attached to the children's best interests would vary according to the case. The Court then particularized that generality by noting that in a case such as B, which involved an abduction from New Zealand, the welfare of the child might be of little importance, whereas in a case involving a country which was not a party to the Hague Convention it might be a very important consideration. Kwon and Lee, of course, involved the latter, but there are issues, such as the possibility of a return to a hostile or violent environment in a country which is a party to the Convention,Footnote 33 which should not be discounted.
Thirdly, the Court in B sought to encapsulate their views when they stated that, in general, it could 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 best interests will normally be a relevant matter in exercising discretion in such matters and may, in many situations, be the most important matter.Footnote 34
In Kwon and Lee, the Court pointed outFootnote 35 the factual distinctions between that case and B: namely, that the earlier case came before the Court by way of case stated, whilst in Kwon and Lee the issue of the return of the child to Korea focused attention on the actual orders which had been made at first instance. In addition, they expressed the view that the statements which have been considered earlierFootnote 36 were made obiter and were too widely stated for general application. Accordingly, they required some clarification and refinement. Given the fundamental error which it has been suggested that the Court in B made,Footnote 37 the approach of the Court in Kwon and Lee seems both disappointing and evasive. In addition, it should be noted that the 1995 amendments, for which reliance was placed on B, have themselves been replaced by legislation where a new normative approach may be asserted.Footnote 38
However, in Kwon and Lee, the Court set out eight principles which they considered could be distilled from prior authority. The first of these was that, where an Australian court's jurisdiction under the Family Law Act 1975 is invoked in 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 stay or anti-suit injunction are those applicable in common law. This is surely as it must be and as it had been clearly enunciated by the Court in B v B (Re Jurisdiction),Footnote 39 after having examined both ZP v PS and JWB.Footnote 40 Also it was not the issue in either B or Kwon and Lee.
Secondly, in cases which involved competing applications for differing types of relief arising from the breakdown of a marriage or a de facto relationship, where there are children as a result of that relationship, including applications for some orders,Footnote 41 it may be appropriate, pursuant to the court's inherent power, to grant a stay or anti-suit injunction based on common law principles. Again, that statement is not surprising, although it is not clear from the paragraph itself what is meant by some parenting orders, which has to be clarified by reference to the remainder of the specified criteria.Footnote 42
Thirdly, the grant of a stay of proceedings is more likely to be appropriate where the children, who are the subject-matter of the proceedings, are resident in the foreign forum and there is no necessity to make any order other than a stay so as to determine the application before the court.
On the other hand, fourthly, in proceedings involving competing fora where the child is in Australia and the Family Court's jurisdiction is 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 a stay or anti-suit injunction are not the appropriate principles, so the court must make such orders as are in accord with the child's best interests as the paramount consideration.Footnote 43 Likewise, fifthly, if an order is sought in addition to, or ancillary to, a stay in a parenting order, it must be instituted under the Family Law Act and determined in accordance with its provisions.Footnote 44
Sixthly, in particular circumstances, notably an abduction from a non-Hague Convention country, it may be appropriate for the matter to be dealt with by means of a rapid summary hearing and an order for return being made thereby. In making that order, courts will have regard to the child's best interests, which are the paramount consideration.Footnote 45
Seventhly, in cases such as those mentioned in the second criterion,Footnote 46 where the Act does not prescribe the requirement of ‘best interests’, those best interests will frequently be a significant and weighty matter to be taken into account; and, finally, as litigation involving children is not strictly inter partes litigation,Footnote 47 children's best interests would almost inevitably be a significant matter.
As regards the facts of Kwon and Lee, the Court were of the viewFootnote 48 that, since the mother had invoked the Court while she and the child were present in the jurisdiction, and, as it was necessary to make parenting orders in order to provide effective relief,Footnote 49 the matter ought not to have been decided on the basis of the ‘clearly inappropriate forum’ test, but rather by the application of the best interests principle. At the same time, the Court were cognisantFootnote 50 of the difficulties faced by the trial judge and the decision in B v B (Re jurisdiction).
However, despite that finding, it will be remembered that the mother's appeal was ultimately unsuccessful. On the general issue the Court emphasizedFootnote 51 that although the trial judge was in error in applying the ‘clearly inappropriate forum’ test, in determining that it was in the child's best interests that a summary order be made for the child to be returned to Korea, she had not acted outside the limits of her discretion in so determining.
On that question, it was argued on the mother's behalf that the trial judge's discretion had miscarried on two major grounds.Footnote 52 The first of these was that the trial judge had not assessed the issue independently, but rather had done so against the background of competing fora. Secondly, and rather more disturbingly, it was argued that the trial judge had failed to give adequate weight to matters which favoured that the child remain in Australia, which included his attachment to his mother and that the child was now happy and settled.Footnote 53
The present writer finds this disturbing because it is redolent of the terms of the Hague Convention on Civil Aspects of International Child Abduction. In Article 12 of the ConventionFootnote 54 it is provided that the return of the child must be ordered ‘… unless it is demonstrated that the child is settled in its new environment’. Without seeking analysis of that specification, McClean, in an important article,Footnote 55 has urged that criteria found in the Convention not be used in dealings where non-Convention countries are involved. The reason being that central authorities are not involved in processes with the latter countries. Although the mother's argument did not ultimately succeed, the very fact that it was raised at all should give cause for concern.
III. Stay Applications and a Child's Best Interests
That apart, it was not longFootnote 56 before the criteria set out in relation to the best interests principle and stay applications were considered by the Full Court of the Family Court of Australia once again. In K and B,Footnote 57 a case which, it should be said, was far more readily factually distinguishable form Kwon and Lee than that case was from B v B (Re Jurisdiction), the judge at first instance had made orders following a contested hearing which, inter alia, provided that the father should have unlimited and unsupervised contact with the four-year-old daughter of the parties. The child suffered from a severe genetic diseaseFootnote 58 and the mother opposed all unsupervised contact on the grounds that the father lacked the knowledge and was an unsuitable person to provide adequate and proper care for the child. The mother's application for a stay of orders pending appeal was refused and she mounted the present appeal against that refusal.
The mother, for the purposes of this discussion, argued on appeal that the failure to grant a stay would render any successful appeal nugatory and that the trial judge had erred in regarding the status quo as being the situation after the making of the contact order. The father filed a Notice of Contention and claimed that the trial judge ought to have distinguished the earlier case of W and W Footnote 59 either because of the 2006 amendments to the Family Law Act 1975Footnote 60 or on the facts of the case. In W and W, Ellis J, with whom Baker and O'Ryan JJ agreed, had stated that ‘the present circumstances of the child’ referred to the circumstances prior to the making of the order, of which the stay was sought, rather than the circumstances after the making of the order when it had been put into effect.
The Full Court of the Family Court of AustraliaFootnote 61 identifiedFootnote 62 three issues. These were: first, the correct principles to be applied in determining a stay application in parenting proceedings; secondly, whether there was any appealable error by the trial judge in the exercise of his discretion to grant a stay; and, thirdly, what was the effect, if any, of Part VII of the Family Law Act in dealing with stay applications. The Full Court dismissed the mother's appeal.
As regards the approach to stay proceedings, the Court, without making specific reference to Kwon and Lee, seemed to adopt a similar approach and commentedFootnote 63 that the ‘… child's best interests, even if not the paramount consideration … are a significant consideration.’Footnote 64
A central part of the father's argument was the trial judge's approach to W and W. In K and B, the Court was satisfiedFootnote 65 that Ellis J, in the earlier case, did not seek to entrench a definition of the present circumstances as a binding presumption which was incapable of displacement in a stay application. W and W, the Court considered, involved a situation where the trial judge was dealing with a stay application against an interim order and where there was no contest that the children had been in a long-standing satisfactory care arrangement. Those matters required very significant weight to be attached to them. Whatever the surface resemblances were to K and B, the Court found four features which distinguished W from that case. The first was that, in K and B, the trial judge was determining an application at the end of final proceedings where he had heard all of the evidence and had observed the parties. Secondly, the trial judge had made findings, based on the expert evidence,Footnote 66 that the existing arrangements for the child's care were not satisfactory and, hence, structured arrangements for contact should be put in place as soon as was possible. Thirdly, that the father's evidence about his introductory contract was not the subject of any challenge; and, finally, the orders for contact, although they might have been unusual, had been designed to meet the child's best interests.
When all of that was taken into account, the Court emphasizedFootnote 67 that the grant or refusal of a stay involved an exercise of discretion. Concerning the exercise of the discretion, the Court statedFootnote 68 that such discretion must be exercised judicially, but in cases involving children, they accepted that
… from time to time circumstances in existence at the date of the orders, or which occur from the date of the orders until the hearing of the stay application, may be very relevant matters to be considered in the exercise of discretion in deciding whether or not to grant a stay.
The Court continued by commenting that the interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders which were the subject of the stay application or to ignore unsatisfactory arrangements at the time of the orders, or, indeed, significant effects which had occurred after the orders had been made.
The Court took the viewFootnote 69 that although the orders relating to contact might have been regarded as controversial,Footnote 70 at the same time they did not regard the trial judge as having erred in the exercise of his discretion in his consideration of matters relevant to the grant or refusal of a stay.
IV. Conclusions
Since the decision of the High Court of Australia in ZP v PS,Footnote 71 the issue of the test to be applied in respect of forum non conveniens in cases involving parenting orders, and orders ancillary to them, has caused difficulty in Australian law. Any such difficulty in Australian law is, by the very nature of the subject-matter, contagious and, hence, was bound to affect jurisdictions with which Australia has regular dealings in the area.Footnote 72 The rejection of Voth v Manildra Flour Mills in cases involving parental orders affected by ZP v PS should be welcomed for various reasons, particularly as the editors of the leading Australian test on conflict of laws are critical of the Voth decision at a basal level.Footnote 73 That did not, though, resolve the issue of ancillary matters, such as stay proceedings. Finally, the decision in Kwon and Lee appears to have done that, at least in such a way as to have an effect on stay proceedings at large, which do not have a forum non conveniens element. Taken together, then, the cases discussed in this article have been useful in their clarification of some difficult issues, both internationally and domestically.
Kwon and Lee also emphasizes the distinction to be drawn between dealings between Australia and countries parties to the Hague Convenion on Civil Aspects of International Child Abduction and those which are not. Whilst it may be that curial attitudes in Australia towards children's best interests in Hague Convention cases have softened,Footnote 74 they seem very much a secondary consideration when compared with the major aims expressed by Nygh J in Director, Family and Community Services v Davis,Footnote 75 in a dictum which has seemingly provided the basis for the resolutionFootnote 76 of Hague Convention cases in Australia. There, the judge stated that, in cases involving the Convention
… the question of the welfare of the child as the paramount consideration does not apply. For the Convention is not directed to that question. It is directed, in my view, to two main issues: firstly, to discourage if not eliminate, the harmful practice of unilateral removal or retention of children internationally; and secondly, to ensure that the question of what the welfare of the child requires is determined by jurisdiction in which they were habitually resident at the time of their removal.
However, after Kwon and Lee and K and B, it does seem fair to say that the hearing of stay applications has been significantly more humanized—which in itself can be no bad thing—and made more usefully flexible in the situations with which the cases were concerned.
