Anandi & Saini
[2023] FedCFamC1F 334
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Anandi & Saini [2023] FedCFamC1F 334
File number: PAC 4837 of 2022 Judgment of: REES J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – RECOVERY ORDER – Jurisdiction –Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility (“the Child Protection Convention”) – Habitual residence – Whether a place has a degree of settled purpose from the child’s perspective – Where the child is two years old, has lived in Country B for 17 months and is cared for by his maternal grandparents – Where the child participates in extended family activities with relatives – Where the child attends school in Country B and is immersed in religion and culture – Father’s application dismissed – Watch List Order discharged. Legislation: Family Law Act 1975 (Cth) ss 69E, 111CC, 111CD,
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Hazeldell Ltd v Commonwealth (1924) 34 CLR 442
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
Division: Division 1 First Instance Number of paragraphs: 40 Date of hearing: 1 May 2023 Place: Sydney Solicitor for the Applicant: Ms Mirabito, Thurlows Family Lawyers Counsel for the Respondent: Mr Seow Solicitor for the Respondent: Toronto Legal Independent Children's Lawyer: Mr Fernie as agent, Makdo Family Lawyers & Associates ORDERS
PAC 4837 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ANANDI
Applicant
AND: MS SAINI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
REES J
DATE OF ORDER:
3 May 2023
THE COURT ORDERS:
1.That the application of the father filed 2 September 2022 is dismissed for want of jurisdiction.
2.That the Watch List Order, being Order 5 made on 28 November 2022 and extended on 30 January 2023, be discharged as and from 4 June 2023 AND THE COURT REQUESTS THAT the Australian Federal Police give effect to these Orders by removing the name of the respondent mother MS SAINI born 1989 from the Family Law Watchlist at all points of international arrivals and departures in the Commonwealth of Australia as and from 4 June 2023.
3.That, subject to Order 2, all outstanding applications are dismissed and all previous orders are discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Anandi & Saini has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
These proceedings relate to a child, X (“the child”) who was born 2021. He is now two years old.
In the substantive proceedings before the court, the father seeks an order for equal shared parental responsibility and for a week about parenting arrangement. In his interim application, before me, he seeks an order that the mother cause the child to be brought to Australia and that the child live with him.
If the court determines that it has jurisdiction, the mother’s substantive application is that she be permitted to relocate the child’s residence to the United States of America (“USA”).
X was born in Australia. His parents are Mr Anandi (“the father”) who is an Australian citizen and Ms Saini (“the mother”) who is a citizen of USA and also has Overseas Citizenship of Country B. X is a dual Australian and USA citizen and has an Australian passport and a USA passport.
The parents separated on 9 September 2021. X remained in the care of the mother.
The father last saw X or had any contact with him in November 2021.
In late 2021, X travelled to Country B in the care of a member of the mother’s family. He has remained in Country B since that date.
The father instituted these proceedings on 2 September 2022.
Before me, the mother asserts that this court lacks jurisdiction to hear and determine the parenting proceedings.
As Isaacs ACJ observed in Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446,“[t]he very first duty of any Court, in approaching a cause before it, is to consider its jurisdiction”.
JURISDICTION
On behalf of the mother, it is submitted that, by virtue of the operation of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (“The Child Protection Convention”) and the operation of s 111CD of the Family Law Act 1975 (Cth) (”the Act”) this court should not exercise the jurisdiction conferred upon it by s 69E(1)(b)(c) and (d).
Australia is a signatory to the Child Protection Convention. Country B is not.
The provisions of the Child Protection Convention are imported into law by Division 4 of Part XIIIAA of the Act.
Specifically, s 111CD specifies when this court may exercise jurisdiction in the following terms:
111CD Jurisdiction relating to the person of a child
(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
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child’s protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii) the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or
(v)a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in a Convention country, if:
(i) the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or
(iv)a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(d) a child who is present in Australia and is a refugee child; 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; or
(f) a child who is present in Australia, if:
(i)the child is habitually resident in a non‑Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
(Emphasis added)
It is not in dispute that X has lived in Country B, a non-convention country, since late 2021, in the care of the maternal grandparents. The mother asserts that X is habitually resident in Country B and that, as a consequence, the provisions of s 111CD(1)(e) are not satisfied.
On behalf of the father it is submitted that X was habitually resident in Australia on the day he filed his Initiating Application, 2 September 2022.
The High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) held:
[21]The expression “habitual residence”, and its cognate forms, have long been used in international conventions, particularly conventions associated with the work of the Hague Conference on Private International Law. Although the concept of habitual residence was used in a Hague Convention (on civil procedure) as long ago as 1896, and has since been frequently used in other Hague Conventions, none of those instruments has sought to define the term. Rather, as one author has put it, the expression has “repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts”. Thus the Explanatory Report commenting on the Abduction Convention said that “the notion of habitual residence [is] a well‑established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile” (emphasis added).
(Footnotes omitted)
Further, in LK the High Court drew the distinction between domicile which is an idea of law and habitual residence, which is a matter of fact, stating,
[23]… 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.
[25]… it may be accepted that “[h]abitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities”.
In LK the High Court stated,
[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.
And further,
[34]Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day‑to‑day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. 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]It follows from each of the three considerations just mentioned that 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.
In LK, the High Court referred to the need to consider the question of habitual residence by reference to whether the place has “a degree of settled purpose from the child’s perspective”.
The High Court, in LK, cited with approval the decision of the Court of Appeal of New Zealand in Punter v Secretary for Justice [2007] 1 NZLR 40 (“Punter”) in the following terms:
[88]“Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state”.
[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. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified by Lord Brandon In re J, to decide the question of habitual residence “by reference to all the circumstances of any particular case” (emphasis added).
(Footnotes omitted)
It is clear that, in LK, the High Court was considering the habitual residence of children who lived in the care of a parent, rather than, as here, where the child does not live with a parent.
Where, then, is X habitually resident? The enquiry is not whether the child is habitually resident in Country B but whether he is habitually resident in Australia.
On 8 September 2021, the father signed a document, in the presence of a Notary Public, entitled “Declaration for International Travel in Custody of One Legal Parent”. The document stated that the father consented to X travelling internationally in the care of the mother. The document stated,
I, [the father] declare that she has all parental rights with regards to [X] to travel and remain in her custody. She does not legally require the consent of any other person to travel anywhere with [X] as she is the legal and biological mother of our child. I consent for her to make any decisions for medical needs or concerns of our child, and any other decisions that would pertain to [X’s] wellbeing, that would otherwise require the consent from both parents.
The father does not dispute that he signed the document. The submissions on behalf of the father as to the effect of that document are reproduced below:
[29]… the Court must consider the construction of that document in particular that the document contains no reference to a permanent relocation of the child or change of the child’s permanent residence.
[30]It is submitted on behalf of the father that the document specifically sets out that the father consented to the child travelling overseas with the mother. There is no consent given by the father to the child travelling overseas without the mother which as the father submits is what occurred …
[31]In any event, the document was allegedly signed in September 2021 however the mother’s intentions as to her travel are not clear as outlined throughout this case outline and despite the mother deposing that she relocate overseas … she deposes that she refused because she wanted to keep the family together …
In examining the intentions of the parents, it is clear that “the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged” (LK at [34]). The mother’s clear intention is that the child will live with her parents in Country B until such time as she and the child are reunited and she and the child will then move to live in the USA. That may not always have been her intention, but I accept that it has been her intention, at least, since X left Australia in late 2021.
The father’s intention now is that X live in Australia, with him. That would seem not always to have been his intention as the document he signed gave the mother the right to take X to live overseas, on its face, without fetter as to where the child lived or for what period the child lived overseas and without any requirement for him to be returned to Australia.
Thus the intentions of the parents are not helpful in determining whether X is habitually resident in Australia, rather, one must look to the other matters referred to in Punter.
The mother deposed,
[113]My mother met [X] at the airport at [City C]. My parents [Mr D] and [Ms E] rang as soon as [X] arrived in [City C] and we video called. Since that day I video call with [X] three maybe four times a day. I also have 3 nanny cams set up in my parent’s home, one in the kitchen, one in his play area and one in his bedroom, I can, and do speak to him through the nanny cams and he knows my voice well and recognises me very well. When he learns something new, he shows me through the nanny cam or takes my mother’s mobile phone and specifically motions for me and she calls me immediately. I am fully accessible to my son and present however not physically at this moment, as I am trapped in Australia.
[115]In [Country B], [X] has his maternal grandparents, he visits his uncles, my sister [Ms F] and her husband [Mr G] visit from the USA twice a year. We have a nanny who attends to [X] from 7am to 7pm most days and a housekeeper who is there early in the morning until evening.
[118]My son’s paediatrician recommended I get him evaluated as soon as he turns 2 so I arranged for an appointment with a specialist psychologist [in] [early] 2023 this was due to his delayed motor skills and being non-verbal. I attend all [X’s] appointments virtually. [In early] 2023 the specialist psychologist diagnosed [X] with Autism Spectrum Disorder (“ASD”) for which we attend therapy every day for 90 minutes each. [X] has been attending for a month now. The treatment is costing about $550.00 a month which I am expected to pay back to my parents who are using their retirement savings to support [X]. [X] has shown only mild improvements and in 6 months I will have him re-evaluated by the specialist psychologist.
[120][X] is enrolled in [H School], which is affiliated with the UK Education system. English is the spoken language at [H School]. The school is costing about A$12,621.00 a year, which I am expected to pay back to my parents who are using their retirement savings to support [X]. Should [X] not acclimate at [H School], I will be looking for a special needs school for him.
[121][X] understands [Country B language] and English equally well, even though he is non-verbal he communicates effectively with me and his nanny and the maternal grandparents.
[122][X] is immersing in [Country B] culture in particularly [our religion], he has a prayer room next to his playroom and learning how to pray according to our religion. In [our religion and] culture, boys and girls do not cut their hair, we pray twice a day, we wear certain artefacts to mark religious practice. [X] loves prayer hymns being played to him while he goes to sleep. Whilst it is my desire that [X] follow [our religion and] culture, [the father] refused to allow me or [X] to freely practice our cultural rights. [The father] had always threatened to cut [X’s] hair. [The father] does not believe in any God.
(As per the original)
X was 10 months old when he left Australia. He is now aged 27 months.
For the past 17 months he has not participated in any social, cultural or economic pursuits in Australia. He is cared for by the maternal grandparents and a nanny in Country B; he attends H School in Country B; he participates in extended family activities in Country B with Country B relatives; his treating medical practitioners are in Country B; he is being immersed in the family’s religion and culture.
He is, for all intents, settled in Country B and the persons who have control of him cannot be compelled to return him to Australia. There is no suggestion that the persons who are caring for X are habitually resident in Australia.
No order made in Australia can be registered or enforced in Country B.
X is not habitually resident in Australia.
On behalf of the father, it is submitted that the provisions of s 111CD(1)(e) do not apply because there is no evidence before the court that there is a court in Country B which “has jurisdiction to take measures directed to the protection of the person of the child” as is required for the provision to have effect by virtue of s 111CC.
I reject that submission.
It is not reasonably open to dispute that there exists, in Country B, a legal system where courts deal with the care, welfare and protection of children.
It follows from this determination that the father’s Initiating Application must be dismissed and that any orders made consequently must also be dismissed, including the order made on 28 November 2022 which restrained the mother from leaving Australia and the order made on 30 January 2023 extending the operation of that order.
Those orders will be discharged at the expiration of one month from the date of judgment.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 3 May 2023
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