AGATE & MAHATO - [2021] FamCA 273

FAMILY COURT OF AUSTRALIA

AGATE & MAHATO

[2021] FamCA 273

FAMILY LAW – PRACTICE AND PROCEDURE – Where application related to appropriate forum but raises question of jurisdiction – Whether Court has power to exercise the relevant jurisdiction for a child who is present in a non-Convention country – Consideration of whether the child is habitually resident in Australia – Where Court is not satisfied that it has jurisdiction to entertain this application – Consideration of application if Court does have jurisdiction – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 64B, 69E, 111CA, 111CC, 111CD
Juvenile Justice (Care and Protection of Children) Act 2015 (India) s 2

Bunyon & Lewis (No.3) [2013] FamCA 888
Duckworth & Jamison (2014) Fam LR 471
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906
Sun & Long [2019] FamCA 3
Zanda & Zanda [2014] FamCAFC 173
Killam & Loeng [2015] FamCAFC 41

APPLICANT:

Mr Agate

RESPONDENT:

Ms Mahato

FILE NUMBER:

PAC

382

2019

DATE DELIVERED:

30 April 2021

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:	14 April 2020
DATE OF SUBMISSIONS	11 August & 27 October 2020, 11 February 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blank

SOLICITOR FOR THE APPLICANT:

CB Jai Lawyers

COUNSEL FOR THE RESPONDENT:

Respondent In Person

SOLICITOR FOR THE RESPONDENT:

Respondent In Person

Orders

The application for interim or procedural orders in the Amended Initiating Application filed 9 March 2020 is dismissed.
The application for final orders sought in the Amended Initiating Application filed 9 March 2020 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Agate & Mahato has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 382 of 2019

Mr Agate

Applicant

And

Ms Mahato

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings were commenced in January 2019 by the father of the parties’ 10 year old daughter (“the child”). They concern the future parenting of the child following her unilateral removal to India by her mother in December 2018.
Not long after the father commenced proceedings in Australia, the mother filed an application in relation to the child’s future parenting in India. The father participated in those proceedings (“the Indian proceedings”) arguing that the court in India had no jurisdiction to deal with the application as the child did not “ordinarily reside” in that country, being a requirement to invoke the court’s jurisdiction. The court in India dismissed the father’s application, holding that the court was validly seized of jurisdiction. The father appealed against this decision and the orders made in the Indian proceedings (“the Indian orders”) and that appeal is yet to be determined.
Notwithstanding that the Indian proceedings have not yet been resolved, the father seeks an order that Australia is the appropriate forum to determine the parenting dispute.
The mother, who initially attended various court events in this Court by telephone, filed an affidavit in February 2020 in which she made it clear that she did not intend to participate any further in the proceedings in Australia. She has not participated in any further court event or filed further submissions when given the opportunity to do so. Accordingly this application is being determined on an undefended basis.
The question the father seeks that I determine is whether Australia is the appropriate forum to determine his application for parenting orders. The application also raises the more fundamental question of whether this Court has jurisdiction to entertain the father’s application for parenting orders.

Background

The parties married in India, their country of birth, in 2008. It appears from an affidavit filed by the father’s lawyer that the mother came to Australia in 2009 where the father was already living and subsequently became an Australian citizen.
The parties’ only child was born in Australia in 2010.
Little is known of the arrangements for the child prior to separation other than that both parents were employed and both were involved in the care of the child who attended day care when the parents were at work. It can be gleaned from the father’s affidavit that the mother alleges he perpetrated family violence against her throughout the marriage and deposes in her affidavit to numerous incidents of such violence, all of which are denied by the father.
It is also apparent from the affidavit of the father’s lawyer that the parties and the child are Australian citizens and hold Australian passports.
The parties separated in March 2016 and later divorced in August 2017. Following separation the parties agreed that the child would live with the mother and spend six consecutive nights with the father each fortnight. Although no orders were made to this effect this arrangement was in place for over two years with no issues reported by the father. It is apparent from the father’s affidavit however (as he responds to an affidavit filed by the mother) that the mother has alleged that the child was exposed to conflict between the parents at changeover and that in the course of one incident, the child was harmed by the father’s actions, allegations which the father also denies.
On 10 December 2018 the father delivered the child to school. The father understood that the child returned to the mother’s care at the conclusion of the school day in accordance with the parties’ arrangement.
Over the next few days the father unsuccessfully tried to make contact with the mother as the child’s birthday was soon to be celebrated and it seems he wanted to make plans for this event. After receiving no response from the mother, the father contacted the child’s school on about 12 December 2018 and was informed that the child had been absent from the school for the previous couple of days. The father notified police about the child’s disappearance.
Police made inquiries and later notified the father that the child had departed from Sydney Airport but were unable to confirm the destination or date of travel. The father subsequently contacted the maternal grandfather living in India who confirmed that the mother and child had travelled there. The father was then able to speak to the child by telephone on 14 December 2018.
In early January 2019 the father made inquiries with the Indian Foreign Affairs Department and was informed that the child held a visa which had recently been extended, permitting her to remain in India for 12 months.
The father commenced proceedings in this Court on 25 January 2019 seeking, amongst other things, interim orders for the return of the child to Australia as well as interim and final orders that the child live in an equal shared care arrangement and for the parties to share parental responsibility for the child.
On 14 February 2019 the mother initiated the Indian proceedings. The father who engaged in those proceedings and was legally represented sought orders for the mother to return the child to Australia. He also argued in those proceedings that the Indian Court did not have jurisdiction to entertain the mother’s application as the child did not “ordinarily reside” in India and as the Australian jurisdiction had already been validly invoked. It is not clear however that he sought any order in the nature of an anti-suit injunction in the Indian proceedings at that stage.
Orders were made at some stage in the Indian proceedings that the father spend time with the child for three hours each Saturday in the precincts of the court which is apparently open on a Saturday in that jurisdiction.
The father spent time in India between March and June 2019 for the purpose of engaging in the court proceedings in India and spending time with the child in accordance with the orders, though he contends that the mother did not always make the child available for that time.
According to the affidavit of the lawyer engaged by the father for the purposes of the Indian proceedings, the Family Court at B City dismissed the father’s application objecting to jurisdiction on 23 October 2019. The father then filed an appeal to the High Court for C State B City (“the High Court”).
The father spent further time in India from August to December 2019 for the purpose of ongoing engagement in the Indian proceedings and to spend time with the child.
The proceedings initiated by the father in this Court were dealt with by a Registrar on a number of occasions between 20 March 2019 and November 2019. At each court event up until November 2019, the father was represented and no application was made for the proceedings to be listed before a trial judge for determination of any application. It appears that the proceedings continued to be adjourned pending the outcome of the appeal in the Indian proceedings relating to jurisdiction.
At a court event before a Registrar in these proceedings in November 2019 the Indian orders first became available to this Court. At that court event the Registrar made directions for the purpose of readying an interim or preliminary application for hearing before a judge, although the father had not identified that the issue to be determined related to the appropriate forum for the dispute and did not seek orders to this effect. The Registrar also made a notation to the effect that she had concern about whether this court had jurisdiction to determine the application.
The father last spent time with the child in India on 3 December 2019.
The Indian orders were stayed by the High Court on 19 December 2019 pending determination of the jurisdictional issue.
At a court event on 16 January 2020 before a Registrar it became apparent that neither party had complied with directions for the filing of documents. Subsequently the father filed his affidavits as required and his application was listed before me on 17 February 2020.
On 17 February 2020 the hearing did not proceed as the father’s appeal against the Indian orders was expected to be heard three days later and he had not proposed any particular orders on the question of forum. It subsequently came to light that the hearing of the father’s appeal in India did not take place on 20 February 2020 as scheduled but was adjourned to 20 March 2020.
The father filed an Amended Initiating Application on 9 March 2020 for the purposes of the hearing before me on 14 April 2020 which included an application for orders that this Court is the appropriate forum to determine the parenting dispute in relation to the child and an anti-suit injunction in relation to the Indian proceedings.
The hearing on 14 April 2020 occurred at a time when COVID-19 had been declared as a Public Health Emergency of International Concern. The circumstances in India arising from the COVID-19 pandemic at the time were unknown, and despite a subsequent request that the parties provide evidence in relation to this matter, or a source of information from which judicial notice may be taken, this was not forthcoming. It was unknown at that stage how long the circumstances arising from the COVID-19 pandemic in Australia and India would continue.
As I also understand from an additional affidavit subsequently filed by the father (9 October 2020), by the time the father’s appeal against the Indian orders was next to be heard in India on 20 March 2020 the circumstances relating to the COVID-19 pandemic in India had escalated and that hearing was once again adjourned to be determined on 16 November 2020.
Following the 14 April 2020 hearing judgment was reserved. During the period judgment was reserved, I considered that the circumstances related to the COVID-19 pandemic may be a relevant issue to the determination of this dispute. In particular, evidence of this nature was relevant to other orders sought by the father relating to the return of the child to Australia and the practicality of compliance with such an order if made. I considered it appropriate to give the parties an opportunity to make further submissions and adduce evidence if necessary concerning the impact of the COVID-19 pandemic on travel and communications between India and Australia and any other matter that may be relevant to the orders sought by the father in this dispute.
At a court event on 11 August 2020 directions were made for the father, as the only party engaged in the proceedings, to file further evidence upon which he may rely, or identify specific matters upon which he seeks that the Court take judicial notice relating to this matter.
Orders were made on 20 August 2020 by the High Court in India which provided that the father have electronic communication with the child. A document attached to the father’s affidavit of 9 October 2020 appears to contain both the orders made by the High Court and the Reasons for Judgment. In that part of the document which appears to be a statement of the court’s Reasons, the background for the making of such orders is set out as follows:
According to the Order Sheet, dated 09.08.2020, the learned counsel for both the parties had agreed that the child would be permitted to interact with the petitioner, father through video conference in the house of the child’s paternal aunt.
This Court had hoped that a convenient date, and time would be fixed by both parties, so as to permit the daughter to interact with the father.
However, the learned counsel for the respondent No.5 submits that the mother is not willing to let the child go to the paternal aunt’s house, until and unless there is a certificate issued by concerned doctor clearly stating that the members of the aunt’s house are free from Covid-19.
…
Unfortunately, in a matrimonial dispute between the parents, it is the child, who gets destroyed, both emotionally and psychologically. For, while the parents fight out their battle, both legal and social, it is the child who gets caught in the tug of war. Due to the immature age of the child, the child is not even in a position to voice her fears and concerns- fears which are caused due to the absence of the father/mother. But, unfortunately, the parents, although may be educated, they refuse to recognise the fear and concerns of the child. The child continues to suffer silently, thereby damaging its own psyche and its own future. Despite the best efforts of this Court to convince the parents to settle their disputes for the sake of welfare of the child, the respondent No.5 continues to be obdurate in her attitude. Unfortunately, even the mother does not seem to realise what emotional and psychological harm she is causing to her own child.
Since it is imperative for the child to interact with the father, this Court directs the respondent No.5 to ensure that the child does interact with the father on 29.08.2020, at a time, which is decided by the father, according to his convenience, and of course, keeping in mind the convenience of the child. The mother, respondent no.5 is directed to take the child to the house of the paternal Aunt one hour before the agreed time; to leave the child in the custody of the paternal Aunt…whom this Court expects, will look after the needs and the welfare of the child. Once the video conference is completed, in the absence of the mother, [the paternal aunt] is directed to inform the mother to come and pick up the child. It is further directed that the said video conferencing interaction shall be continued between the father and the daughter on every Saturday of each month, till further orders.
On 8 September 2020 further orders were made in the Indian proceedings by the High Court and reasons given are set out as follows:
In compliance of the order, dated 20.08.2020, [the mother], the respondent No.5 and her daughter, are present before this Court.
…the learned counsel for the petitioner informs this Court that the child’s paternal aunt…no longer wishes to be involved in the dispute between the parties. Therefore, she is not willing to appear before this Court. Therefore, the child is not permitted to interact with the father from the house of [the paternal aunt].
Since it is imperative that the child should be permitted to interact with the father, since the father happens to be in Australia, and the child happens to be in India, naturally the only way for the two to interact is through video conference.
Therefore, this Court directs that the Director, Judicial Academy, to ensure that sufficient arrangements are made to receive the respondent No.5, the mother, and her daughter, on 11.09.2020 at 3.30 p.m. The child should be permitted to interact with the father through video-conference at the Judicial Academy…from 4.00 p.m , to 5.00 p.m. During the course of interaction of the child with the father, the respondent No.5, the mother, will not be permitted to enter into the room, in order to ensure that the child can freely interact with the father. The interaction shall come to an end at 5.00 p.m…
In October 2020 I made directions for the father to file any further submissions upon which he may seek to rely in light of the additional evidence he had adduced in respect of forum.
As none of the submissions made by the father at that stage addressed the question of the Court’s jurisdiction to entertain in his application (as opposed to the forum where the application was to be heard) he was given a further opportunity pursuant to orders made 21 January 2021 to make further submissions in relation to that question. Upon receipt of those submissions on 11 February 2021, judgment was reserved.

Jurisdiction

Section 69E(1) of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection(2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.”
(2)In this section:
"relevant day" , in relation to proceedings, means:
(a)if the application instituting the proceedings is filed in a court--the day on which the application is filed; or
(b)in any other case--the day on which the application instituting the proceedings is made.
Note:Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
The father meets the precondition for the institution of proceedings on the basis that the child is an Australian citizen.
By reason of Part XIIIAA Division 4 (International Protection of Children) of the Act, (which implements into domestic law provisions of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at the Hague on 19 October 1996) section 69E must be read subject to the provisions of sections 111CC and 111CD of the Act.

As observed by Bennett J in State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906 at [44]-[47]:
The effect of the 1996 Hague Child Protection Convention
This court must be satisfied of certain jurisdictional facts before it can make parenting orders in relation to a child who is not habitually resident in Australia. The jurisdictional facts differ depending on whether the country in which the child is habitually resident is a Convention country or a non-Convention country. A Convention country is a country for whom the 1996 Convention has entered into force with Australia. A non-Convention country is a country for whom the 1996 Convention has not entered into force with Australia.
…
Australia ratified the 1996 Convention on 29 April 2003. The Act was amended with effect from 1 August 2003 to enable the performance by Australia of its obligations under the 1996 Convention and to obtain for Australia any advantage or benefit under the Convention…
There is no dispute that India is a non-Convention country.
Section 111CC of the Act provides:
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a)A central authority or competent authority of a Convention country;
(b)A competent authority of a non-Convention country.
This subdivision applies in this case where both parties have sought parenting orders from courts in the countries where they respectively reside and there is a conflict as to whether Australia or India is to determine the parenting dispute in relation to the child.
Section 111CD(1) provides:
(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a) a child who is present and habitually resident in Australia; or
…
(e) a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child…
“Commonwealth personal protection measure” is defined in the Act in s 111CA(1) as follows:
Commonwealth personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child.
For the same reasons as articulated by Bennett J in State Central Authority & Spring-Ernest (No.2), I am satisfied that a Commonwealth personal protection measure includes a parenting order as defined by section 64B of the Act. I am therefore satisfied that the orders sought by the father being parenting orders fall within these provisions.
The next question then, is whether the child is habitually resident in Australia.

Habitual Residence

The question of “habitual residence” was considered by the Full Court in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”). The governing principles were discussed as follows:
WHAT PRINCIPLES GOVERNED THE APPLICATION?
31. The High Court (French CJ, Gummow, Hayne, Heydon & Kiefel JJ) dealt with the question of habitual residence under the Regulations and the Convention in LK. Having (at [21]) noted that the explanatory report on the Convention described habitual residence as a “question of pure fact, ‘differing in that respect from domicile’”, at [22] the High Court said:
22. To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
(footnote omitted)
32. In Re B (A Child) (Habitual Residence: Inherent Jurisdiction), Lady Hale and Lord Toulson supporting Lord Wilson’s decision said:
57. We fully agree with Lord Wilson’s reasoning and conclusion on the issue of habitual residence. He has described the identification of the child’s habitual residence as overarchingly a question of fact (para. 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law because the concept is a matter of law but its application is a matter of fact ...
33. Returning to LK, the High Court said:
23. Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
...
27. When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
Purpose and intention
28. Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29. First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
...
34. ... No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35. ... to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
34. In the course of its reasons in LK the High Court considered what was said by the Court of Appeal of New Zealand in Punter v Secretary for Justice (“Punter”).[10] The High Court said:
44. ... As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.
35. The shift away from the concentration on shared parental intention in determining habitual residence is evident from the UK Supreme Court’s decision in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and ors intervening),[11] AR v RN (Habitual Residence)[12] and Re B (A Child) (Habitual Residence) (above). Although not binding on us, uniformity with decisions made in other jurisdictions interpreting the same Convention is desirable at the very least, and the UK jurisprudence is consistent with what the High Court has decided in LK.
36. Crucially, the High Court went on to say in LK:
Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
(footnotes omitted)
37. It is of considerable importance that the High Court justices themselves highlighted the words “from the child’s perspective”.
38. In determining habitual residence the ultimate question for the trial judge was whether, immediately prior to 19 December 2015, the child’s presence in the Netherlands had a degree of settled purpose from the child’s perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident in the Netherlands.
The authorities support that it is the date of determination of the matter that is the relevant day in determining habitual residence[1]. For this reason, the child’s circumstances as at April 2020 is the relevant day for the determination of this question.
[1] See Bunyon v Lewis (No.3) [2013] FamCA 888, Sun & Long [2019] FamCA 3 and Duckworth & Jamison (2014) Fam LR 471.
As this application is being determined on an undefended basis, only the father’s evidence is before the court. It is his case that the child was taken to India, the country of both parents’ birth and where members of both parents’ family continue to reside, without his consent. However as discussed in Padwa, there has been a “shift away” from shared parental intention in determining habitual residence and attention should be given to whether presence at a particular place has a “degree of settled purpose from the child’s perspective”.
The evidence as to the child’s life in India is extremely limited given the mother has chosen not to participate in the proceedings in Australia, instead engaging and pursuing relief in the proceedings in India.
Doing the best I can in the circumstances, in assessing habitual residence from the child’s perspective, the first relevant factor to which I attach weight is that the child has a seemingly settled living arrangement in India, having lived there since December 2018 with her mother. Other evidence that may be gleaned from the documents attached to the father’s affidavit related to the Indian proceedings (including Reasons for various court orders), appears to indicate that members of the maternal and paternal family live near the child and are involved in her life (at the least a paternal aunt who it seems has had some involvement in the Indian proceedings). There is also evidence that the child is attending school in India as may be expected for a child of her age.
While it is beyond dispute that prior to her relocation to India the child had at all times lived in Australia and had attended a local primary school for almost three years, she was not yet eight when she was taken to India in December 2018.
The only submission made by the father in relation to the question of the child’s habitual residence relies upon a 1980 United Kingdom case[2] in which it was held by a judge of the High Court that habitual residence does not require continual physical presence within the forum and can continue with regular periods of absence. As the Full Court clearly sets out the guiding principles in relation to this issue in Padwa I attach little weight to the contention that I may find that the child is habitually resident in Australia notwithstanding that she has not been physically present in this country since her removal to India in December 2018.
[2]Ounddjian v Ounddiian (1980) 1 FLR 198.
In the foregoing circumstances, I am satisfied that the child was not habitually resident in Australia on the relevant day, being 14 April 2020. On this basis, I have no jurisdiction to determine the application.
The balance of the submissions made on behalf of the father in relation to jurisdiction were directed to parts of section 111CD of the Act which do not apply to the application under consideration. In particular, some reliance is placed upon section 111CD(1)(e) which refers to the Court having power to exercise the relevant jurisdiction for a child who is present in a non-Convention country if the child is habitually resident in Australia and any of paragraphs 69E(1)(b) to (e) apply to the child, as if that section applied to a child who has been habitually resident in Australia.
Although it is difficult to follow the written submissions made on behalf of the father in relation to other subparagraphs of section 111CD, there appears to be some reliance also upon subparagraphs (1)(b)(vi) or (1)(c)(v). Both of these subparagraphs deal with the Court’s jurisdiction in circumstances where it is exercising jurisdiction in proceedings concerning divorce of the child’s parents. Section 111CD (3) provides that a court may only exercise jurisdiction in accordance with either of these subparagraphs in certain circumstances, each of which must be satisfied, including that the proceedings on the application for divorce have not been finalised which is not the case in these proceedings.
For all of the foregoing reasons I am satisfied that I do not have jurisdiction to determine the father’s application for orders in relation to the child on any basis.

The Law: Forum

Although for the reasons given I am satisfied that this Court does not have jurisdiction to make parenting orders as sought by the father, I will give brief consideration to the question of whether Australia would be the appropriate forum to determine the dispute (if it were the case that this Court did have jurisdiction) given the ongoing proceedings in India, as this was the focus of the hearing in April 2020.
The Full Court decision in Zanda & Zanda[3] sets out the principles to be applied in an application such as this as follows:
[3] [2014] FamCAFC 173.
106.The correct test for determination of forum when dealing with children’s issues has not been in doubt since ZP v PS (1994) 181 CLR 639 at 660 where Brennan and Dawson JJ said:
Once the jurisdiction conferred by s. 63 of the Family Law Act 1975 (Cth) (“the Act”) on the Family Court in custody proceedings is effectively invoked — and there is no doubt that both parties invoked that jurisdiction in this case — s. 64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court's power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country.
107.As the Full Court clearly stated in Pascarl & Oxley (2013) FLC 93-536:
65. The question of which forum of two competing fora might be the appropriate place for the matter to be determined is subject to a number of now well-settled authorities.
…
108.After considering the authorities the Full Court in Pascarl & Oxley said:
86. …the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
(emphasis in original)
It is therefore settled law that the principle upon which the Court determines the appropriate forum for a parenting application is that the best interests of the child is the paramount consideration.
The matters to be considered in determining a child’s best interests are set out in section 60CC of the Act and are described as primary considerations and additional considerations.
Virtually none of these considerations have any relevance with respect to determining the appropriate venue, other than section 60CC(3)(m) which provides that the Court is to consider “any other fact or circumstance that the court thinks is relevant”.
Unfortunately the father has approached his submissions as if the determination of the appropriate forum to hear the parenting dispute was based on the “clearly inappropriate” forum test. Doing the best I can, I will address the submissions advanced by him to the extent that they relate to the paramount consideration being the best interests of the child.

The progress of the proceedings in India and delay in this Court

The father has fully participated in the Indian proceedings. He has been represented throughout those proceedings where orders have previously been made that provided for him to spend time with the child in that country. The father continues to be engaged in those proceedings having filed an appeal and pressing the argument that the court in India does not have jurisdiction to determine the parenting dispute. He contends that the appeal on foot before the High Court relates to the issue of forum, the stay on orders pertaining to parenting orders made in the Indian proceedings and habeas corpus “due to removal of the child from Australian jurisdiction”. Orders have since been made by the High Court for the father to have electronic communication with the child while he is present in Australia.
In submissions, the father set outs that the next court event in the appeal (which appears to be of a procedural nature) was to take place in November 2020 and that the substantive hearing was not likely to proceed until early this year.
The father annexes to his affidavit an affidavit sworn by his legal representative in the proceedings in India in October 2020 but not filed with the Court. This affidavit details that the High Court determining the dispute is hearing matters through video conferencing only and there is no mandatory requirement for the parties to appear in person before the Court.
The father does not raise any concern about his ability to participate in the proceedings in India and asserts that “both the court systems have the capacity and capability to conduct the hearing through Audio Visual links”. He further concedes that both parties are able to participate in each of the proceedings on equal footing.

The father’s proposal for the proceedings to be determined in Australia, despite his fulsome engagement in the proceedings in India which have been ongoing for two years already would see further litigation and delay in finally determining the child’s parenting arrangements. On the limited information known to me, it is difficult to see how such ongoing litigation would be in the best interests of the child.

Enforceability of orders made in Australia in India

The father concedes that because India is not a signatory to relevant the Hague Convention, direct enforcement of this court’s orders is not probable. Although the father also relies upon a judgment of the Supreme Court of India (in which that court apparently placed important weight upon the judgment of a foreign court) and the opinion of his solicitor in the Indian proceedings expressing confidence that the Indian Courts have the capacity to make “mirror orders”, I attach weight to the father’s concession that it is unlikely that any orders made in Australia will be enforced in India.

The capacity of the mother and child to return to Australia

The mother has expressed a clear intention to remain in India and not return to Australia.
Despite the effluxion of time since the hearing and the opportunity given to file further evidence and make further submissions after the judgment was initially reserved, the evidence before the Court as to the current situation regarding travel and communication between India and Australia is still quite limited and somewhat unclear.
The father deposes that travel between India and Australia is ongoing under Government of India sponsored expatriation mission called “Vande Bharat”. He asserts that “the primary purpose of these flights is to evacuate Indian citizens stuck in foreign countries and repatriate foreign nationals stuck in India”. He also deposes that Air India, Emirates and Singapore Airlines are running some flights between Delhi and Sydney. He annexes to his affidavit and relies upon a document titled “Air India Evacuation schedule flights arrival into India ex foreign stations”. From this document it can be gleaned that some flights are operating between India (Delhi) and Australia (Sydney) but no further details are provided. There is no information before the Court as to eligibility for these flights and thus no certainty that the mother and child would in fact be able to return to Australia to engage in proceedings here.
Although there is no evidence before the court to this effect, it can be taken as undisputed that in the weeks preceding delivery of this judgment the circumstances relating to the COVID-19 pandemic in India have significantly deteriorated and there are currently no flights from India to Australia.
It is also undisputed that there is currently a mandatory quarantine period of 14 days for people returning to Australia including for Australian citizens[4].
[4] See smarttraveller.gov.au.
If the Court were to determine that the proceedings should be heard and determined in Australia, it is likely that the parties would need to physically attend upon either an expert or family consultant for the preparation of an expert or family report so that the expert or family consultant could observe the child’s interactions with the parents and make appropriate recommendations.
On the evidence available, I cannot be satisfied that the mother and child would be able to return to Australia while the COVID-19 pandemic is ongoing for the purpose of engagement in the proceedings. I also consider that the mandatory quarantine period and possible associated cost are factors relevant to the determination of whether it is in the best interests of the child for this Court to determine the dispute.

The child’s life in Australia

The father asserts that the child who lived in Australia from her birth until December 2018 (at which stage she was almost eight) was involved with her school community and peers.
The father does not address the reality that the child has now been living in India for almost two and a half years. For the reasons given, I consider that she is likely to be in settled living circumstances in that country. Further, for some time during that period the father through his legal representative in these proceedings continued to seek that these proceedings be adjourned pending further steps being taken in the Indian proceedings. In this sense he bears some responsibility for delay in the progress in these proceedings.

The father’s alleged perpetration of family violence

In his affidavit the father refers to an affidavit filed by the mother (which is not being considered as the application is being dealt with undefended) and addresses allegations of family violence that have been apparently raised by her. He first addresses an incident which occurred in May 2012 which he does not appear to dispute resulted in an “injury to the [mother’s] eye”. In his affidavit the father describes this injury arising from a “pure accident” and deposes that:
[The mother] was lying on the left-hand side of the bed. I was turning to her side to ask her to stop saying abusive things about my mother. She also turned the same time towards my side. She bumped onto me and my hand poked her eye/ I took her to [name of hospital].
I believe that she has updated the document in 2016 in [name of hospital] after we separated to say it was a domestic violence related injury.
The father refers to a further incident in March 2014:
I refer to the incident in March 2014 where the Respondent alleges that I grabbed her, pulled her to the lounge and slapped her across the head. I completely deny this allegation.
The father addresses another allegation of violence as follows:
Where the Respondent alleges that in November 2014, I twisted her hand, spat on her, broke her phone and glass frames and beat her, I deny this allegation…
The father also refers to allegations apparently made by the mother that he perpetrated abuse towards the child:
…where it is alleged, I caused abuse to [the child], I deny this as I do the allegation that I attempted to run my car over the Mother’s feet.
…
I deny having ever physically or mentally abused our daughter.
I refer to the email forming part of the Respondent’s List of Documents dated Nov 27, 2017 …to the police, referencing bruising to the child’s leg and photos…
The father then proceeds to give an account of his version of the events surrounding bruising to the child that was reported to the police.
Although I cannot make any findings in relation to the veracity of either party’ s account concerning instances of alleged family violence, particularly where the mother’s accounts of such violence is not before the Court, such matters would undoubtedly assume some significance in parenting proceedings. It may be expected that such matters will require full exploration at hearing, which also highlights the likelihood of the need for the mother to travel to Australia for that purpose if this hearing were to occur in this jurisdiction.

Other relevant factors

Only very limited evidence is available concerning the law of India that would guide the determination of parenting proceedings.
It is submitted on behalf of the father that because India is a “common law adversarial system just like Australia” the child’s rights and involvement of both parents in the protection and upholding of those rights is given due consideration, albeit he contends that a child’s rights are more narrowly interpreted in India than in Australia.
In this regard the father refers to Section 2 subsection 9 of the Juvenile Justice (Care and Protection of Children) Act 2015 (India), which he contends is the relevant provision in relation to the best interests of the child. This subsection provides:
“best interests of child” means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.
It is further submitted on the father’s behalf in relation to factors relevant to the child’s best interests, including the nature of the child’s relationship with the father, that:
There is no evidence before the court to suggest how the courts in India would view these factors or what weight they would give to these factors. Indeed, the only evidence of how the Indian Courts approach the matter is put by the father’s Indian lawyers who say, that the court will determine the matter in the best interest of the child…
The reasons for judgment in relation to the orders of 23 October 2019 by the court in India that the Indian court had jurisdiction to hear the parenting dispute includes some limited discussion of relevant case law which gives some small insight into the applicable law of India as to such matters:
Respondent has also relied on another citation between Sarita Sharma v Sushil Sharma in 2000 (2) ALD Crl 110 wherein Hon’ble Apex Court has observed as “Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as natural guardian of a minor son. But that provision can not supersede the paramount consideration as to what is conductive to the welfare of the minor”. (sic)
In my view, although the evidence as to these matters is somewhat limited, it seems apparent that the paramount consideration for parenting matters in India is the child’s welfare and best interests.
In Killam & Loeng[5] the majority of the Full Court suggested that it is not a requirement in determining the issue of forum of parenting proceedings for there to be a “detailed examination of foreign law”.
[5] [2015] FamCAFC 41, [155] – [157].
On the limited evidence available, it would appear that principles such as the best interests of the child and the child’s welfare guide the court’s determination in India. In the absence of any evidence to the contrary, I cannot be satisfied that it would not be in the child’s best interests for the dispute to be determined in India on this basis alone.

Conclusion

In my view, it was not necessary to undertake any consideration of most of the submissions made on behalf of the father as for the reasons given I am not satisfied that the Court has jurisdiction to entertain this application. If that threshold issue were not correct and the Court does have jurisdiction in relation to this application, for the foregoing reasons I am not satisfied that Australia is the appropriate forum in which to determine this parenting dispute.
For the foregoing reasons, I make the order set out at the forefront of this judgment.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 April 2021.

Associate:

Date: 30 April 2021