Dirty Dozen rules of international family law
Wednesday, March 23, 2016
International family law can be tricky. Many family lawyers have not done it, or not done much of it. Two weeks ago I was privileged to deliver a paper to the Legalwise family law conference in Brisbane. Here is that paper. A quick note- if there are competing jurisdictions between Australia and New Zealand, careful thought ought to be given to the Trans-Tasman Proceedings Act in each country.
LEGALWISE FAMILY LAW CONFERENCE
9 March 2016
BRISBANE
THE DIRTY DOZEN APPROACH TO INTERNATIONAL FAMILY LAW
THE DIRTY DOZEN APPROACH TO INTERNATIONAL FAMILY LAW
By Stephen Page[1]
THE DIRTY DOZEN APPROACH TO INTERNATIONAL FAMILY LAW[2]
RULE 1– You need a local
I will assume for the moment that you are an expert on family law, including international matters. If you are not, get assistance from someone who is. The starting point is to retain counsel, preferably counsel who has undertaken international matters, assuming, however, that you have a matter that has a problem here and also somewhere else. If you are lucky, you have a problem only in one other place. If you have a problem in a series of places, then you need to obtain expertise from anyone who is an expert over there.
The more information you have from someone who is an expert over there, and on the ground there, the better run your case will be.
Do not make the mistake of assuming that if you are dealing with an overseas country, like the US or the UK that by having an international family lawyer in the US or UK that you have solved the problem of getting advice from over there. While some aspects of a matter in the UK, for example, can be dealt with entirely via lawyer in London, if there are issues to do with Scotland, Northern Ireland or the Channel Islands, for example in Jersey, you will also need assistance from a lawyer in one of those jurisdictions.
Similarly in the United States, we think that Australia is overgoverned by having three levels of jurisdiction Federal, State and local. The US typically has four levels of jurisdiction Federal, State, county and local. Do not assume if you have an international family lawyer in New York that you will solve the problem if you are dealing with a matter in Illinois, for example. While the US has full faith and credit meaning allowing the portability of orders made in one particular part of the United States to take effect throughout the United States, each state has its own particular rules to do with family law and often there are different rules that apply from county to county. If you manage to find an international family lawyer in New York and then find a specialist family lawyer in Chicago, you may discover that the lawyer in Chicago, while appearing in family law matters in Cook County does not do so in Calhoun County and therefore you need to get another lawyer from there.
While you may have found the expert international family lawyer in New York and a family lawyer in Chicago and the local lawyer in Calhoun County it may be the case that the international family lawyer is the only one in the team who has undertaken international matters and the expert family lawyer in Chicago simply hasn’t, and nor the local lawyer in Calhoun County.
Do not make the mistake that you living in Queensland can advise a client about the laws of Calhoun County, or of Scotland, for example. These areas are outside your area of expertise and if you think you can advise about these matters then almost certainly you have breached your professional obligations to your client and set yourself up, if something goes wrong, with an otherwise avoidable professional indemnity claim.
The illustration of getting a local is best demonstrated when I went to Memphis in 2010.
In July 2010 after 20 odd hours of travel I arrived in Memphis from Brisbane. Within a few hours of getting out of the plane, I was walking down Beale Street. I am a keen photographer. I was approached by a teenage girl wearing what appeared to be two tea towels which I then recognised were skimpy items of clothing. She asked if I were the official photographer for Beale Street, the entertainment precinct. I said that I was a tourist from Australia. To my complete bemusement, she insisted that I take her photograph and those of her friends.
After the photos were taken, this girl asked me what I did for a living. I said that I was a lawyer. She then said “Can you help me? I’m in trouble with the county? I might go to jail.”I protested that I was from Australia and that I was not a local lawyer. Her friend said: “No
Lurline he ain’t a local. You need a local lawyer.”
Rule 2 – Knowing Who to Ask
Well you say, it is all very well and good Stephen you giving that advice, but how on earth do I find a lawyer over there? For those of us who undertake international family law matters, such as myself, the task is relatively easier. I know who to ask, and hopefully get an answer reasonably quickly, usually within hours. However, even I get stuck. The four key places (if I don’t have anyone to ask specifically, or as a checking mechanism) are:
· Ask someone who is an international family lawyer that you know. I am certainly happy to help referrals to any other colleague seeking a referral to lawyers overseas;
· Go to the International Academy of Family Lawyers website: www.IAFL.com. The IAFL is the leading body of family lawyers worldwide. It has a listing of international family lawyers. Membership is by invitation only. If you want to be a member, I encourage you to do so but if the Academy consider that you don’t have enough expertise in international matters, you won’t get there. The rules of the Academy require that if there is an accreditation scheme in your jurisdiction you must be accredited before applying. Therefore in Queensland and New South Wales, for example, you must be an accredited family law specialist. The listing at its website is extensive. However, it still doesn’t solve all of the problem because of the need to get a local. As I indicated in the previous heading, you may be able to find an international family lawyer in New York, but you may not be able to find someone where it is needed on the ground. However, that international family lawyer in New York may have a connection and be able to refer you onto another lawyer in that area.
· The American Bar Association Family Law Newslist – if you are lucky enough to be a member (as I am) the newslist is a wealth of knowledge of being able to locate a family lawyer in sometimes the most obscure locations. The American Bar Association has a number of family law newslists and a particular one focused on international matters. Other organisations can also be of assistance, such as the International Bar Association.
· Asking the Embassy in that country. Australian diplomatic missions overseas often keep lists of expert lawyers that they can refer Australian companies and individuals too. Of course the Department of Foreign Affairs and Trade does not vouch for these lawyers, but the list is often a very useful starting point. Most of the lawyers on these lists are commercial lawyers.
Do not make the mistake, however, that you will without doubt be able to find a lawyer quickly and easily.
During the Baby Gammy saga in August September 2014 when I was the apparent expert du jour for the world’s media, I made several enquiries of Thai lawyers to provide assistance for Australian intended parents who looked like they were getting stuck there. Almost invariably they did not respond. While English is the international language for business, do not assume that your foreign counterpart will speak English or, ultimately located, will respond to your enquiries. It is possible that despite everything that you have done you may be unable to locate someone or if you are able to locate someone they are non responsive. If you are trying to find an international family lawyer in Mogadishu, for example, it might be a tall order. Indeed finding any lawyer in Mogadishu might be a tall order.
Rule 3 – Brainstorm please!!!
I cannot emphasise enough how important it is to brainstorm a problem. The best lawyers in my view are those who engage in option generation. What other ways are there that we can solve this problem? What potential other solutions are there, no matter how wacky they might be at first glance? Brainstorming is one of those activities to make sure that you identify other solutions that you have not originally thought of, which may be a way of helping solve your client’s problem.
Rule 4 – Consistency is the key to teamwork
You have a client who has a problem. That problem might be:
· Getting divorced;
· Property settlement;
· Children’s matters
It is essential, despite different jurisdictions, that your client’s team is consistent in its approach.
Example of Inconsistency
In a current matter I act for the father who lives in Queensland. The mother some months earlier returned to New Zealand, leaving the children in the father’s care. No orders were in place, but the children travelled to New Zealand during school holidays to spend time with their Mother.
On the last occasion when the children travelled to New Zealand the mother retained them. The mother commenced proceedings in the Federal Circuit Court in Brisbane for the children to live with her in New Zealand (including on an interim basis). My client responded, not surprisingly, both seeking a Recovery Order in the Federal Circuit Court and also making a Hague Convention Application in New Zealand.
Gone are the days when the Department of Child Safety would prepare outgoing Hague matters. That job has been contracted by the Federal Government to International Social Services, a multi-national NGO. Those applications are dealt with in Sydney and apparently take 5 weeks to process. I prepared the application (instead of relying on ISS) resulting in lopping off about a month’s delay.
Both applications were coming on in court one day apart. The matter in Brisbane was a day ahead of the matter in New Zealand.
I sought from the Australian Central Authority the details of the barrister in New Zealand handling the matter on behalf of the New Zealand Central Authority. Following a series of email exchanges, I was told that this is a matter handled by the New Zealand Central Authority and by the expert counsel over there and I wouldn’t be told who was counsel. I considered that this was wholly deficient and that there needed to be a great deal of co-ordination between the two court cases. My client somehow found out the name and phone number of the New Zealand counsel for the Central Authority. I managed to talk with him. We swapped notes about the matter and next thing you know we seemed to be living out of each other’s pockets when things heated up.
The other side did not have that consistent approach. The starting point is that the mother commenced proceedings in Australia when she was living in New Zealand. On the first return date when the Australian Judge said given the mother was seeking the assistance of the Australian court that he should insist that she and the children return to Australia for the purposes of the proceedings so that he could make a determination on an interim basis.
In the Australian proceedings, the mother filed a Notice of Risk in which she said there was no risk from the father. She was not alleging any domestic violence nor child abuse, nor risk of either.
Then, in defence to the Hague proceedings, the mother said that her defence to the proceedings (although unspecified) was that there was a grave risk to the children. In the meantime my client had spent time with the children in New Zealand after the holidays on several weekends on an unsupervised basis.
The mother’s conduct in alleging risk or no risk and then allowing unsupervised time showed a clear inconsistency in approach. The presiding judge in Brisbane stated later that the mother was “gaming the system”.
The day after the judge in Brisbane insisted on the return of the mother and the children to Brisbane for court, the mother’s New Zealand counsel said in a court in New Zealand that the mother was defending the Hague proceeding, based on grave risk.
Within about an hour:
· An email was sent from the New Zealand counsel for the mother to the counsel for the New Zealand Central Authority, stating that the mother was opposed to return, based on grave risk and
· The mother’s Australian Solicitor said that the mother was consenting to the return of the children in accordance with his Honour’s order!
During all of this process I had frequent contact with my New Zealand counterpart, counsel for the Central Authority.
The matter was put off for two days in New Zealand, enabling remarkably different approaches of the mother’s legal representatives were clarified.
Not surprisingly, by the end of that two days the mother consented to the return of the children to Australia. Ultimately, she complied with the Australian order.
Work out who is talking to whom?
You are talking to your Australian counterpart. Who is talking to your international colleague? Is it your Australian counterpart or is it another international colleague, on behalf of the opposite part?
RULE 5 – Who’s the Spoke?
It is absolutely essential, in my view, if you are having international family law litigation, or contemplated litigation, (in several jurisdictions, therefore involving a team of lawyers in several jurisdictions) to have one person as the hub or the spoke of the wheel.
We all tend to get caught up in the minutiae of our problems. It is imperative that one person has overall control and knowledge of the various parts of the whole, so that they are dealt with in a consistent manner. I found that aside from the obvious tools of the telephone and Skype enabling explanation of the philosophical differences of laws and practices in each country is useful, the most useful tool is that of email, where everybodyon the team is copied in. This will mean for the client a plethora of emails and an increase in costs at both ends as emails are sent and read between lawyers, but to keep up to date with the step by step movements of litigation as part of a giant jigsaw puzzle or creation of a mosaic, there is simply no better way in my view than this use of emails.
RULE 6
Who has jurisdiction?
There is little point discussing a topic about international family law litigation without considering the use of jurisdiction. When does jurisdiction apply?
RULE 7 – What foreign test applies?
Just because a court has jurisdiction doesn’t mean that the court should exercise it. It might be oppressive or an abuse of process to do so. The court needs to consider in an appropriate case whether it should not exercise jurisdiction, what is commonly called the forum non conveniens test. The test in Australia was set out by the High Court in Voth v Manildra Flower Mills Pty Ltd [1990] ACA55; (1990) 171CLA538, especially in a joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ when their Honours adopted the clearly inappropriate forum test.
Is Australia the clearly inappropriate forum? The adoption of this test is different from the test applied in England.
The High Court specifically rejected the approach of the House of Lords in Spiliada Maritime Corp v Cansulex Ltd(1987) AC 460. In Spiliada Lord Goff of Chieveley observed that the burden resting on the defendant seeking a start “it’s not just to show that England is not the natural or appropriate forum for trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum”. His Lordship described the court “natural forum” as being “that with which the action had the most real and substantial connection” and identified the relevant “connecting factors” pointing to the existence in some other forum as the natural forum is including “not only factors effecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transactions ….., and the places where the parties respectively reside or carry on business”. In the event that there is no other available forum which is clearly more appropriate for the trial of the action, the court will ordinarily refuse a stay. If, however, there is some other available forum which prima facie is clearly more appropriate to the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should not be granted.
Their Honours in Voth compared the clearly inappropriate forum test and the traditional test:
“32. The content of the “clearly inappropriate forum” test is more expansive than the traditional test applied by Brennan J. The former test, unlike the latter, recognizes that in some situations the continuation of an action in the selected forum, though not amounting to vexation or oppression or an abuse of process in the strict sense, will amount to an injustice to the defendant when the bringing of the action in some other available and competent forum will not occasion an injustice to the plaintiff. Thus, in order to obtain a legitimate advantage, the plaintiff may commence an action in the selected forum though the subject-matter of the action and the parties have little connection with that forum and the defendant may be put to great expense and inconvenience in contesting the action in that forum. On the application of traditional principles, a stay would be refused in such a case, notwithstanding that the selected forum was a clearly inappropriate forum. Since the traditional test is apt to produce such an extreme result, the “clearly inappropriate forum” test is to be preferred to the traditional test. In this respect, it is significant that the traditional test is no longer applied in the United Kingdom, New Zealand, Canada or the United States.
Comparison between the “clearly inappropriate forum” test and the “clearly more appropriate forum” test
Comparison between the “clearly inappropriate forum” test and the “clearly more appropriate forum” test
33. Likewise, in England, the movement away from the traditional principles to the adoption in Spiliada of the “clearly more appropriate forum” test began with a recognition that those principles did not always produce acceptable results and that the key to the solution of the problem was to be found “in a liberal interpretation of what is oppressive on the part of the plaintiff”, to use the words of Lord Reid: see The “Atlantic Star”, at pp 453, 454. From this beginning, Lord Diplock restated the traditional principles and, in restating them, required the defendant to satisfy the court that there is another forum (the “natural forum”) in which justice can be done between the parties at substantially less inconvenience or expense: see MacShannon, at p 812. That restatement has since given way to the Spiliada formulation in which the “natural forum” and “more appropriate forum” are treated as interchangeable expressions: see Spiliada, at p 477. The natural forum has been understood to mean “that with which the action (has) the most real and substantial connection”: The “Abidin Daver”, at p 415.
34. From an abstract (and international) standpoint there is much to be said for the “more appropriate forum” test. It is designed to ensure that the cause of action is litigated in the natural or more appropriate available forum and litigation in that forum will generally reflect the balance of convenience between the parties. The justification for the selected forum declining to exercise its jurisdiction is that it defers to the exercise of jurisdiction by another available and more appropriate forum.
35. But it is important to recognize that the actual question posed for decision by Spiliada is: what is the natural and appropriate forum in the sense already discussed? In the light of all the potential factors which may be relevant to the resolution of that question, it is in some cases a question by no means easy to answer, particularly at an interlocutory stage of proceedings. Indeed, it is desirable to discourage the litigation of such a difficult issue as an interlocutory question by means of what has been described as a war of affidavits. The complexity of modern transnational transactions and relationships between parties is such as to indicate that in a significant number of cases there is more than one forum with an arguable claim to be the natural forum, that is, the forum with which the action has the most real and substantial connection.
36. The “clearly inappropriate forum” test is similar and, for that reason, is likely to yield the same result as the “more appropriate forum” test in the majority of cases. The difference between the two tests will be of critical significance only in those cases – probably rare – in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one. But the question which the former test presents is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum rather than on the need to make a comparative judgment between the two forums. That is not to deny that considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum. The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question, the court may more readily conclude that it is not a clearly inappropriate forum.
37. The availability of relief in a foreign forum will always be a relevant factor in deciding whether or not the local forum is a clearly inappropriate one. But such a decision neither turns upon an assessment of the comparative procedural or other claims of the foreign forum nor requires the formation of subjective views about either the merits of that forum’s legal system or the standards and impartiality of those who administer it. Indeed, circumstances could well exist in which the local court was a clearly inappropriate one notwithstanding that there was no other tribunal which was competent to entertain the particular proceedings: e.g., a claim for damages for injury in a road accident in circumstances where the courts of the only country with which the parties or the accident had any real connection were denied jurisdiction to entertain any such claim by reason of the express provisions of a general legislative scheme providing for limited benefits and compensation for all road accident victims from public funds.
38. In contrast, a conclusion that some suggested foreign tribunal is, in the judgment of the local court, the appropriate or more appropriate forum necessarily involves assumptions or findings about the comparative claims of the competing foreign tribunal, including the standards and impartiality of its members. Thus, Lord Goff recognized in Spiliada (at p 478) that one factor to be considered in determining whether a stay should be granted under the Spiliada test “can be the fact, if established objectively by cogent evidence that the plaintiff will not obtain justice in the foreign jurisdiction”. In a context where the relevant test will fall to be applied in accordance with the individual perception of a primary judge, the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience.
39. Moreover, there are powerful policy considerations which militate against Australian courts sitting in judgment upon the ability or willingness of the courts of another country to accord justice to the plaintiff in the particular case. Those policy considerations are not dissimilar to those which lie behind the principle of “judicial restraint or abstention” which ordinarily precludes the courts of this country from passing upon “the provisions for the public order of another State” (see generally Attorney-General (United Kingdom) v. Heinemann Publishers Australia Pty. Ltd.[1988] HCA 25; (1988) 165 CLR 30, at pp 40-44).
40. As Deane J. pointed out in Oceanic Sun (at pp 252-253), principle and authority (in the form of the decision in Maritime Insurance) favour the test adopted by his Honour. The selected forum’s conclusion that it is a clearly inappropriate forum is a persuasive justification for the court refraining from exercising its jurisdiction. Granted that there is an obligation on the domestic courts of this country to exercise jurisdiction which is conferred upon them – a matter on which the majority in Oceanic Sun was united – it does not extend to cases where it is established that the forum is clearly inappropriate. To say, in line with the Spiliada approach, that the selected forum is justified in refraining from exercising its jurisdiction when it concludes no more than that another available and competent forum is more appropriate is to acknowledge that a court can decline to perform its obligation to exercise jurisdiction even though it is an appropriate or not inappropriate court. That proposition is by no means easy to sustain as a matter of legal principle, though we acknowledge that the argument deriving from the obligation to exercise jurisdiction has less force in its application to cases falling within the extended jurisdiction where the plaintiff is required to obtain leave to serve outside the jurisdiction. The court then has a discretion to exercise and in exercising that discretion it may have regard to appropriate forum considerations.
41. Deane J. also examined the policy considerations (at pp 253-255) and found them to be “persuasive but not compelling”. There is no point in repeating that examination on this occasion. It is, however, necessary to deal with two specific arguments advanced by the appellant.
42. The appellant argues that, as judicial comity has replaced judicial chauvinism (The “Abidin Daver”, at p 411), the interests of justice are best served by staying an action in the selected forum so that it may proceed in the more appropriate forum. But this argument has little force. In deciding whether to grant or refuse a stay, the court does not, indeed cannot, evaluate the justice or relative merits of the substantive laws of the available forums (including the chosen forum). Consequently, the argument rests on a limited notion of the interests of justice arising from balance of convenience factors which, though relevant, have never been regarded as decisive.
43. It has been urged that the Spiliada approach has been adopted not only in the United Kingdom but elsewhere and that for this reason we should embrace it. No doubt, if Spiliada were to enunciate a principle which commanded general acceptance among other countries, it would obviously be desirable in the interests of international comity that this Court, in common with the courts of other countries, should adopt a uniform approach. However, we are not persuaded that there exists any real international consensus favouring a particular solution to the question. Nor are we persuaded that any consensus exists among countries of the common law world. For present purposes it will be sufficient to refer to the approach taken by the Supreme Court of the United States, for this aspect of the appellant’s case centred very largely on the principles sanctioned and applied in the decisions of that Court. Before doing so, we should mention that the Supreme Court of Canada has not yet had occasion to consider Spiliada. However, in Antares Shipping v. The Ship “Capricorn” (1977) 2 SCR 422, the majority appears to have applied a “more convenient and appropriate forum” test: see at pp 448, 451-454.
44. Despite the appellant’s submission to the contrary, the approach adopted by the Supreme Court of the United States differs from Spiliada. In Piper Aircraft Co. v. Reyno [1982] USSC 28; (1981) 454 US 235, Marshall J., in delivering the majority opinion, observed (at p 241) that in its earlier decisions in Gulf Oil Corp. v. Gilbert [1947] USSC 45; (1947) 330 US 501 and Koster v. Lumbermens Mutual Co. [1947] USSC 47; (1947) 330 US 518 the Court stated that, though a plaintiff’s choice of forum should rarely be disturbed,
“when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would ‘establish … oppressiveness and vexation to a defendant … out of
all proportion to (a) plaintiff’s convenience’, or when the ‘chosen forum (is) inappropriate because of considerations affecting the court’s own administrative and legal problems,’ the court may, in the exercise of its sound discretion, dismiss the case. Koster, supra, at 524.”
all proportion to (a) plaintiff’s convenience’, or when the ‘chosen forum (is) inappropriate because of considerations affecting the court’s own administrative and legal problems,’ the court may, in the exercise of its sound discretion, dismiss the case. Koster, supra, at 524.”
This test is more favourable to the plaintiff than Spiliada and, perhaps, is closer to the “clearly inappropriate forum” test but differs in that it takes account of the selected forum’s administrative problems, e.g., congested lists and lack of judicial resources, these being matters of a kind to which our courts do not usually have regard: Oceanic Sun, at p 254. Accordingly, the United States approach does not support the appellant’s case.
Should the same principles govern applications for a stay of proceedings and applications to set aside service of process outside the jurisdiction?…..
Should the same principles govern applications for a stay of proceedings and applications to set aside service of process outside the jurisdiction?…..
51. It follows that, subject to the question of onus discussed in the preceding paragraph, the principles to be applied in applications to set aside service and in applications for a stay on inappropriate forum grounds are those stated by Deane J. in Oceanic Sun, at pp 247-248. In the application of those principles the discussion by Lord Goff in Spiliada (at pp 477-478, 482-484) of relevant “connecting factors” and “a legitimate personal or juridical advantage” provides valuable assistance.
52. The fact that the onus of proof will differ according to whether the application is an application to set aside service effected outside the jurisdiction pursuant to leave or an application to stay the proceedings is inevitable: this flows from the issue to which the test is relevant. In one case, should the court assume jurisdiction? In the other, should the court decline jurisdiction? As Spiliada recognizes, there will be a difference in onus regardless of the precise content of what is seen as the appropriate test. The question whether the local court is a clearly inappropriate forum focuses, on both kinds of application, upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum. In practice, the differing onus should raise no real difficulty.
53. As regards both kinds of application and subject to one qualification, we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada (at p 465), namely, that the primary judge should “be allowed to study the evidence and refresh” his or her memory of the relevant law “in the quiet (of his or her Chambers) without expense to the parties”; that he or she should not be burdened by unhelpful reference to other decisions on other facts; and “that submissions will be measured in hours and not days”. The qualification is that we think that, in the ordinary case, counsel should be able to furnish the primary judge with any necessary assistance by a short, written (preferably agreed) summary identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it will be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non conveniens (i.e. “clearly inappropriate forum”) grounds.
54. It seems to us that Lee J. in Anglo-Australian Foods Ltd. v. Von Planta (1988) 20 FCR 34 and French J. in Green v. Australian Industrial Investment Ltd. [1989] FCA 482; (1989) 90 ALR 500 placed too much weight upon the notion that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum. That is not to deny that, in deciding whether it has been established that the chosen forum is clearly inappropriate, the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration. In this respect Gaudron J. stated in Oceanic Sun (at p 266), as a qualification to her endorsement of the view of Deane J., that the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties. We agree with Gaudron J. that the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, but the court should not focus upon that factor to the exclusion of all others.”
In Gilmore v Gilmore (1993) FLC 92-353 Fogarty J identified five elements arising from Voth v Manildra Flower Mills Pty Ltd:
1. The party who has regularly invoked the jurisdiction of the court has a prima facie right to insist upon its exercise;
2. The power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering the court to dismiss or stay proceedings which are “oppressive”, “vexatious” or “an abuse of process”. Those adjectives are to be construed liberally, in the sense already referred to.
3. The fact that the balance of convenience favours another jurisdiction or that some other jurisdiction is a more appropriate forum, will not justify a stay of the action.
4. In the application of the above principles the discussion by law Gof in Spiliada are relevant “connecting factors” and “legitimate personal knowledge or juridical advantage” provides valuable assistance.
5. In deciding whether the chosen forum is clearly inappropriate, the extent to which the law of that forum is applicable in resolving the rights and liabilities for the parties is a material consideration. The selected forum will not be seen as inappropriate “if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties”.
In Henry v Henry [1996] HCA 51; (1996) 185CLR571 the majority (Dawson, Gordon, McHugh and Gummow JJ) stated these principles may be misleading in three important respects. First the substance of the test in Voth is simply whether the chosen forum is a clearly appropriate forum. And, as already indicated, that is to be determined by considering whether continuation of the proceedings will be “oppressive” or “vexatious”, in the extended sense in which those words we use by Dean J in Oceanic Sun the passage may also be misleading in that it gives undue emphasis to the prima facie right of a party who is invoked the jurisdiction to assist upon its exercise, a consideration which appears to have been material in the decisions in Henry.
There may be cases in which the nation of prima facie right has some role in determining whether or not a stay should be granted. For example, it may well be significant in what we otherwise have a finally balanced contest. But there are also cases in which that notion can do little more than indicate that the onus lies on the parties seeking a stay to establish that the chosen forum is clearly inappropriate. Indeed, there may be cases where the forum is so clearly inappropriate that the nation of prima facie right can have no real bearing on the matter as, for example, if the cause of action arose in a country in which the parties reside or carry on business and the controversy can conveniently be litigated in that country.
The third matter to which reference should be made, although it did not have any direct bearing on Henry, is the statement of Gilmore considering the significance of the substantive law governing the matter in issue. Vothis not authority for the proposition that “(T) he selected forum will not be seen as inappropriate if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties”. Rather it was said in the majority judgment “the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, but the court should not focus upon that factor to the exclusion of all others”.
Their Honours said there was one other matter that should be observed with respect to the decision in Gilmore in particular criticism by the Full Court of the Family Court as to the clearly inappropriate forum test; Lindenmayer J stated his belief that the clearly inappropriate forum test was “bound to lead to increased forum shopping and jurisdictional conflict” between the courts of Australia and New Zealand. His Honour added:
“If the Courts of New Zealand apply the Spiliada test to such cases, as seems not unlikely, then the prospect of having numbers of cases in which parallel proceedings for similar relief for going forward to hearing in both courts simultaneously on either side of the Tasman is one which can only be regarded with great trepidation of those responsible for the administration of Family Law in both countries”.
Their Honours went onto say:
“It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. Although there are cases in which it has been held that there is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or other should be seen as vexatious or oppressive within the Voth sense of those words”.
“It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact there are, or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question where the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. It also follows that Court should strive, to the extent that Voth permits, to avoid that situation”.
Their Honours went onto say:
“Separate proceedings are commenced between husband and wife in different countries, differences in procedure, and available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be consumed with the same controversy. That will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to the marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. If the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship.”
Their Honours went onto say:
“To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. If there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries, and, if so, the relative ease with which they can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of matters involved in the parties’ controversy [40].
Other considerations include the order in which the proceedings were instituted, the state which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and the marriage with each of the jurisdictions and to have regards to the issues in which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regards to the reasonableness and the understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved”.
However in Renault v Zhang [2002] HCA 10; 210 CLR 491, the High Court rejected a comparative approach.
RULE 8 – What can happen here may not be able to happen there, and vice versa
As the High Court made plain in Henry v Henry there may be different outcomes in different places.
Example of Michael and Tatiana
Michael and Tatiana commenced proceedings for property settlement in Australia relying on the fact that on the day of filing she was present in Australia. Michael, being of the view that there were strategic reasons to commence proceedings in England, relied upon his domicile of origin files proceedings for divorce in England.
Australia is unusual in that different causes of action as to property, spousal maintenance and parenting matters aside from divorce. It is common in other common law countries that they are also subsumed as part of a divorce application. This difference needs to be considered carefully when considering where to file.
RULE 9 – Where are the children?
If the children are in Australia, at least one of the parties will be seeking that the children remain in Australia. Common steps employed to ensure that occurs:
· Notice to Department of Foreign Affairs and Trade to ensure that a new passport does not issue for the child;
· Depending on the jurisdiction (as countries decide whether they wish to issue a passport are not bound by Australian orders) – notice to the foreign country through its embassy or consulate to seek it to prevent a further passport issuing;
· Injunction to remove the children to prevent the removal of the children from Australia;
· Placing the children on the watch list;
· Notices under s.65ZA and 65ZB Family Law Act to each and every carrier;
· Possession as they say is 9/10ths of the law and part of this you would want to make sure that your client has the care of the children and has possession of the children’s passports.
There are only two ways of leaving Australia – by plane or by boat. It should never be forgotten that it is possible to leave Australia by boat. There are two infamous cases in which children were abducted from Australia by boat – the Gillespie children where they were abducted by their father, driven from Melbourne to Weipa, placed on a boat and with the assistance through bribes of Indonesian naval captains were able to get to the father’s residence in Malaysia. Their father is a Malaysian prince. Malaysia being a Muslim country is not a signatory to the Hague convention meant that the children were not able to leave there.
The other infamous case was Ibbotson and Wincen [1994] FamCA103; (1994) FLC 92-496. The husband cooked up a scheme to abduct the children. In 1992 orders were made that the wife have custody of the child and the husband have access for 2 weekends out of 3 and half the school holidays. About a year later the husband sold his home unit in Townsville and placed his furniture in storage. He changed the name of his yacht and took it to Indonesia. Although the husband lived and worked in Townsville the yacht was registered in New Zealand. The husband told a friend that he intended to take the child to Disneyland and then return to Indonesia and live on his yacht near Bali and that his new wife would educate the child while they were living on the yacht.
Just before the September October school holidays the wife, after initial reluctance, consented in writing to the husband taking the child to California to go to Disneyland during the school holidays. The child was to be returned 2 weeks later. The husband, his wife and child travelled to California via Indonesia. The day before the child was to be returned the husband’s solicitors received a fax in which he said that he had “decided to extend his stay in America” and that it would be appreciated if his solicitors would inform his wife of his decision. The husband’s solicitors quite properly wrote to the husband by fax at the hotel which he had been staying saying that to unilaterally extend the time of possession of the child would amount to contempt of court and advised him to return to Australia at the earliest possible time. It was unclear whether or not the husband received that letter. The child wasn’t returned. In December that year and February the next year the wife received letters from the child postmarked California, although it later appeared that the husband and child had left California well before then.
The wife made extensive enquiries in efforts to ascertain the whereabouts of her son. A private inquiry agent was engaged. It was discovered in May 1994 that the yacht had travelled to Larnaca, Cyprus. In May 1994 the private agent and the wife saw the child aboard the husband’s renamed yacht. Two days later they approached the yacht and spoke to the husband. He said he was ready, if necessary, to sail from Larnaca for an undisclosed destination and that there was no way that she could take A as he had been advised that if she intended to do so she would be charged with kidnapping under the laws of Cyprus. He also said he was aware of all the Hague convention countries and had kept in contact with his solicitors. He also said he had over $200,000 US in cash on board. For some reason the following day the husband agreed to A going with the mother. As soon as the wife obtained possession of her son she, her son and the inquiry agent went to the airport, obtained a flight to Athens and then to Australia.
The gig was up. Four days later the husband returned to Australia, was arrested by the Australian Federal Police and subsequently jailed for contempt for 12 months, to be suspended after 6 months if he paid $70,000 costs to the wife. It appears that the husband, in getting to Indonesia made sure that he travelled to different non-Hague countries so as to minimise the chance of the son’s return to Australia.
RULE 10 – Getting them back
Prevention is better than cure. It’s always better to prevent children from being abducted than having to take steps to get them back.
As I said about brainstorming, don’t just be stuck on the obvious answers. There may be some less obvious answers that might be able to assist. Local knowledge of the other country is invaluable.
The obvious starting point is to find out if the country is a Hague country i.e. it has signed the 1980 Child Abduction Convention. Don’t rely on the Family Law Regulations or CCH to tell you which country has or hasn’t signed, When looking at the relevant convention, go to the website of the Hague conference on private international law www.hcch.net/en/instruments. There are three instruments that may be immediately relevant:
· 10 Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants”.
Comment –Australia is not a signatory but the other country may be. This convention has largely been assumed by the 1996 convention:-
· 28 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. This is the convention that we commonly call the Hague Convention;
· 34 Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children.
Comment– The 1996 convention is often forgotten but it may contain tools that are more powerful than the 1980 Convention in having the child returned quickly. Thought ought to be given as to which of either (or both) is relied upon.
To then see who has signed, click on the name of the convention, which is a hyper link to the home page for that Convention. On the right hand side there will be an index. Click on status table.
What one sees with each of these is who signed when, but also if there are any reservations, declaration or notifications. They will also specify if there are any denunciations of the convention. For example, with Andorra the reservation of the Principality of Andorra declares that it will not accept the applications, communications and other documents sent to its authority unless they are accompanied by a translation into Catalan or, where that is not feasible, a translation into French. Similarly, the Principality of Andorra declares it will not be bound to assume any costs referred to for legal counsel or advisers or from court proceedings except in so far as costs may be covered by the Andorra system of legal aid and advice. In other words, your client will be paying for a lawyer there.
The United States similarly has reservations about Articles 24 and 26 requiring all documents to be translated into English (which isn’t a problem for Australians) and you are paying for your own lawyer. Lawyers in the US are typically paid considerably higher than here and we have the exchange rate to take into account. Undertaking Hague proceedings in the US can be an extremely expensive process.
In April every year the US State department compiles a very useful report, (from a US perspective) on compliance with the Hague Child Abduction Convention. The report can be found easily by Googling US State Department Hague report. For example, the US has identified in the 2014 report that there are three countries that are non-compliant: Costa Rica, Guatemala and Honduras, two countries that have patterns of non-compliance: The Bahamas and Brazil. Australia has previously been on the list. For example the red flag about Costa Rica says:
“Costa Rica demonstrated non-compliance of the Hague convention in the areas of judicial and central authority performance. The US Central Authority (USCA) and the Costa Rican Central Authority (CRCA) maintain a cordial relationship, and communication improves slightly in 2013. However, the CRCA continues to fail to expedite abduction cases, compounding already systemic case delays within the Costa Rican judiciary.
First and second instances at courts generally deliver verdicts that are consistent with Hague principle. However, once those cases reach Costa Rica’s Supreme Court, they are reversed base on interpretations of Costa Rican law and international treaty standards, creating decisions that are inconsistent with Hague principles. The USCA remains concerned regarding a precedent-setting in September 2011 decision by the Constitutional Court in division of the country’s Supreme Court, which ruled the court should consider “the best interests of the child” rather than habitual residence when deciding Hague convention cases and reversed a return order. In June 2013, that court reversed another return order based on similar rationale, citing the September 2011 decision, international treaties and Costa Rican law”.
You may have to take the plunge and litigate in another country. You will obviously want to ensure that doing so is not a waste of time and energy. You may need to obtain an order in Australia first such as a recovery order and an order granting your client’s sole parental responsibility and the child to live with your client, so as to assist those overseas processes. You may have to have made a publication order and then search the globe to try and identify, locate and recover the missing children.
The use of an experienced private investigator who plays the role of a child abductor to take action and have the child returned may be effective, as seen in Ibbortson and Wincen, but one needs to be very careful with that approach so that you haven’t discovered your client is locked up for child trafficking in a jail in Cambodia, for example, without any real chance of release any time soon.
Whatever pressure can be applied to the abductor, that pressure should be applied so as to ensure that the child is returned as quickly as possible.
RULE 11 – First In, Best Dressed
When you have an international matter, as identified in Voth often the person who commences proceedings first (wherever that may be) has the upper hand. This may assist in any forum non conveniens argument. It may assist in the sense of being the aggrieved party whom the court wishes to assist and is not seen as having engaged in forum shopping.
The usual processes are putting the other side on notice by negotiating and setting out statements of position might instead flag them to commence proceedings there first, which, in turn, can be used to commence proceedings there to support an anti-suit injunction against your client here (or there).
It may well be seen that your applying second is an engagement in forum shopping and the use of tactics to deny a litigant his or her legitimate expectations.
If you need to get advice, you get it quickly, preferably from the most expensive counsel that your client can afford so that the decision as to whether to leap or not leap into the unknown can be made in as knowing manner as possible as soon as possible.
RULE 12
Remember the Pennies
Whilst cases are often won on detail, it is absolutely essential to focus on what is important by having a case plan and case theory. I can’t emphasise how important this is.
With international matters it is easy, like Don Quixote to tilt at windmills and in the process soak up large amounts of your client’s resources but not have anything to show for it. It is important to focus on what is important and to strike as hard as you possibly can with as many resources as you have available to you.
© Stephen Page
Harrington Family Lawyers
18 February 2016
[1]Stephen Page is a partner at Harrington Family Lawyers, Brisbane, Australia. Stephen is a Fellow of AAARTA. He was admitted as a solicitor in 1987, and has been an accredited family law specialist since 1996. He is an international representative on the American Bar Association’s Artificial Reproductive Technologies Committee and is the principal advocate and co-author of that committee’s paper on the proposed Hague surrogacy convention adopted as policy by the American Bar Association. He loves international family law!
[2] With apologies to the film The Dirty Dozen (1967) when a US Army Major played by Lee Marvin is assigned a dozen convicted murderers to train and lead them into a mass assassination of German Officers in World War
