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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AGATE & MAHATO

Details

AGLC: AGATE & MAHATO [2021] FamCA 273
Case: [2021] FamCA 273
Decision Date: 30 April 2021

CaseChat Overview and Summary

This matter concerned an application before Hannam J in the Family Court of Australia, brought by the father, relating to parenting orders for a child. The core of the dispute involved questions of the appropriate forum for the proceedings, and crucially, whether the Court possessed the jurisdiction to hear the case, particularly given the child's presence in a non-Convention country.

The legal issues before the Court were whether it had the power to exercise jurisdiction for a child present in a non-Convention country, and whether the child was habitually resident in Australia. The Court was also required to consider the application for interim and final orders, and if jurisdiction were found, whether Australia was the appropriate forum for the parenting dispute.

Hannam J considered the limited evidence regarding Indian law, noting that the paramount consideration in parenting matters in India appeared to be the child's welfare and best interests, a principle consistent with Australian law. The Court was not satisfied that it had jurisdiction to entertain the application, finding that it was not necessary to undertake a detailed examination of foreign law. Even if jurisdiction were established, the Court was not satisfied that Australia was the appropriate forum for determining the parenting dispute. Consequently, the applications for interim and final orders were dismissed.

Orders

Orders of the court

Orders

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

2. 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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.