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STAY PROCEEDINGS AND FORUM NON CONVENIENS IN RECENT AUSTRALIAN FAMILY LAW

Published online by Cambridge University Press:  11 August 2008

Frank Bates
Frank Bates
Affiliation:
Professor of Law, University of Newcastle (NSW).
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Abstract

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Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 57 , Issue 3 , July 2008 , pp. 649 - 657
Copyright
Copyright © 2008 British Institute of International and Comparative Law

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References

1 See, eg, PE Nygh and M Davies, Conflict of Laws in Australia (7th edn, Butterworths, Sydney, 2002) 50; RG Mortensen, Private International Law in Australia (LexisNexis Butterworths, Sydney, 2006) 116; PM North and JJ Fawcett, Cheshire and North's Private International Law (13th edn, OUP, Oxford, 1999) 333.

2 (2006) FLC 93–287.

3 For some comment, see F Bates, ‘Child Abduction and Non-Convention Countries: A Comparative Analysis— England and Australia’ (2000) 10 Caribbean Law Review 189.

4 (1990) 171 CLR 538. For comment, see M Pryles, ‘Forum Conveniens—The Next Chapter’ (1991) 65 Australian Law Journal 442; L Collins, ‘The High Court of Australia and Forum Conveniens: The Last Word’ (1991) 107 LQR 182. For the immediate effects of Voth in cases involving children, see Bates (n 3) 204.

5 (2003) FLC 93–136.

6 Both parties also sought to adduce further evidence.

7 (1994) 181 CLR 639. For comment, see Bates (n 3) 208ff.

8 ibid 660.

9 At present, s 60CA, previously s 64(1), though at the time the case was decided, the relevant provision was s 63.

10 (1994) 181 CLR 639, 662.

11 ibid 663.

12 For their comments on the relevance of the Hague Convention, see ibid 666.

13 The judges' emphasis, ibid.

14 (2006) FLC 93–287, 80, 921.

15 Holden, Coleman and Boland JJ.

16 The judges' emphasis.

17 Part VII.

18 (2006) FLC 93–287, 80, 922.

19 Without the capacity to grant a wardship order. This is not the only time that this analogy has been noted in Australian law; see Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.

20 (2003) FLC 93–136, 76, 270 per Holden, Coleman and Warnick JJ.

21 (2006) FLC 93–287, 80, 922. It would probably have been surprising had they not done so as Holden and Coleman JJ were involved in both decisions.

22 Above text at n 11.

23 (2006) FLC 93–287, 80, 922.

24 See Henry v Henry (1996) 185 CLR 571; Dobson v Van Landen (2005) FLC 93–225; Cashel v Carr (2005) FLC 93–232; Khademollah and Khademollah (2000) FLC 93–050. In England, see De Dampiere v De Dampiere [1988] AC 92.

25 See U v U (2002) 211 CLR 238, 285 per Hayne J; Reynolds v Reynolds (1973) 47 ALJR 499, 500 per Mason J; M v M (1988) 166 CLR 69, 76; ZP v PS (1994) 181 CLR 639, 647.

26 (2006) FLC 93–287, 80, 923.

27 Above text at nn 13 and 21.

28 See F Bates, ‘Cave Jurisdictionem: Recent Cases on Family Law and Conflicts in Australia’ (2006) 27 Liverpool Law Review 233, 252ff.

29 (2003) FLC 93–136, 78, 272.

30 (n 4).

31 Bates (n 28) 254.

32 See the important decision of the Full Court of the Family Court of Australia in In the Marriage of B: Family Law Reform Act 1995 (1997) FLC 92–755. For comment, see F Bates, ‘Something Old, Something New—Australian Family Law in 1997’ in A Bainham (ed), International Survey of Family Law (Kluwer, The Hague, 1999) 23ff.

33 See, eg, Murray v Director of Family Services ACT (1993) FLC 92–416; Re Bassi: Bassi and Director-General of Community Services (1994) FLC 92–465.

34 As regards the facts of Kwon and Lee, the Court noted, (2006) FLC 93–287, 80, 293, that initially the father had not sought any order other than a stay or dismissal of the wife's application. When it became clear that, in Australia, neither parent would have any valid or enforceable orders in relation to the child until his departure for Korea, the father amended his claim.

35 (2006) FLC 93–287, 80, 924.

36 Above text at n 28ff.

37 Above text at n 32.

38 See Family Law Amendment (Shared Parental Responsibility) Act 2006.

39 (2003) FLC 93–136, 78, 270.

40 (n 19).

41 Author's emphasis.

42 See below text at nn 43, 44 and 45.

43 See Family Law Act 1975 s 60CA (as amended in 2006).

44 ibid.

45 Above text at n 42.

46 Above text at n 41.

47 (n 25).

48 (2006) FLC 93–287, 80, 924.

49 Above text at n 43.

50 (2006) FLC 93–287, 80, 925.

51 ibid 80, 930.

52 ibid 80, 925.

53 Author's emphasis.

54 In the Family Law (Child Abduction Convention) Regulations 1986, r 16(2)(c), which adopts the Convention into Australian law, the provision is reproduced.

55 JD McClean, ‘The Hague child Abduction Convention—The Common Law Response’ (1993) 40 Netherlands International Law Review 67.

56 Kwon and Lee was decided on 9 August 2006 and the later case on 1 September 2006.

57 (2006) FLC 93–288.

58 Crouzon's Syndrome. The child had already undergone a number of surgical procedures.

59 Unreported, 1996.

60 (n 38).

61 Warnick, May and Boland JJ.

62 (2006) FLC 93–288, 80, 937.

63 ibid 80, 940. By reference to the unreported decision in EJK and TSL (No 2) [2006] Fam CA 2006.

64 The importance of the consequence to a child of granting or refusing a stay application had earlier been recognized by Kirby J in the High Court of Australia in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329, 1332. There, the judge had stated that ‘… some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests’.

65 (2006) FLC 93–288, 80, 942.

66 For comment on that expert evidence, see ibid 80, 941.

67 (2006) FLC 93–288, 80, 939; 80, 942.

68 ibid 80, 942.

69 ibid 80, 943.

70 The Court noted, ibid, that the introduction sessions had proved successful and that the child had begun a relationship with her father.

71 (1994) 181 CLR 639. For comment, see Bates (n 3) 208ff.

72 Bates (n 28).

73 Nygh and Davies (n 1) 129.

74 See, for instance, F Bates, ‘Undermining the Hague Child Abduction Convention: The Australian Way …?’ (2001) 9 Asia Pacific Law Review 45.

75 (1990) FLC 92–182, 78, 226.

76 See F Bates, ‘Child Abduction, the Hague Convention and International Law—A Specific Overview’ (1999) 32 Comparative and International Law Journal of Southern Africa 72.