Bajek & Bajek

Case [2024] FedCFamC1F 466

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bajek & Bajek [2024] FedCFamC1F 466

File number: NCC 2589 of 2023
Judgment of: AUSTIN J
Date of judgment: 15 July 2024
Catchwords: FAMILY LAW – PARENTING – Jurisdiction – Where the father makes an application for orders compelling the mother to return the children from Country B to Australia – Where Country B is not a signatory polity to the 1980 Convention on the Civil Aspects of International Child Abduction – Where the parties agree Australian parenting orders could not be automatically enforced in Country B – Where the Court considers the enforceability of Australian orders in Country B – Where the mother argues the Australian litigious process would be futile – Where the father contends Australian parenting orders would be influential in Country B – Where the Court finds the children are habitually resident in Australia – Where the jurisdiction of the Court will be exercised – Where the matter is listed for an interim hearing.
Legislation:

Evidence Act 1995 (Cth) s 174

Family Law Act 1975 (Cth) Pts VII, XIIAA, ss 60CA, 60CC, 69E, 69H, 70G, 70H, 70J, 70M, 70N, 111CA, 111CC, 111CD, Divs 4, 7.1.2, 7.1.3

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 132

Foreign Judgments Act 1991 (Cth)

Trans-Tasman Proceedings Act 2010 (Cth) s 66

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.02, 7.11, 7.20, 7.21, 7.22, 14.05

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Family Law (Child Protection Convention) Regulations 2003 (Cth) regs 10, 11, 12, 13, 14

Family Law Regulations 1984 (Cth) regs 14, 23, 24

Foreign Judgments Regulations 1992 (Cth)

Code of Civil Procedure 1908 (India)

Guardian and Wards Act 1890 (India)

Hindu Marriage Act 1955 (India) ss 13, 26

Hindu Minority and Guardianship Act 1957 (India)

Protection of Women from Domestic Violence Act 2005 (India) s 21

1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

1980 Convention on the Civil Aspects of International Child Abduction

Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Chand v Railcorp of NSW [2011] NSWCA 79

Cimorelli & Wenlack [2020] FamCAFC 58

Henry v Henry (1996) 185 CLR 571; [1996] HCA 51

Ishak & Koroma [2023] FedCFamC1F 272

Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34

LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9

M v M (1988) 166 CLR 69; [1988] HCA 68

Pascarl & Oxley (2013) FLC 93-536; [2013] FamCAFC 47

Rajeswari Chandrasekar Ganesh v State of Tamil Nadu

RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47

Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701; [2016] FamCAFC 57

Sterling & Sterling (2022) FLC 94-070; [2022] FedCFamC1A 3

U v U (2002) 211 CLR 238; [2002] HCA 36

Yaling & Tsen (2022) 65 Fam…

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Details
AGLC
Bajek & Bajek [2024] FedCFamC1F 466
Case
[2024] FedCFamC1F 466
Decision Date

CaseChat Overview and Summary

In the case of Bajek & Bajek, the court addressed a contentious issue of jurisdiction in family law proceedings involving international child abduction. The father, Mr Bajek, sought orders to compel the mother to return their children from Country B to Australia. Country B is not a signatory to the 1980 Convention on the Civil Aspects of International Child Abduction, and there is no straightforward process for enforcing Australian parenting orders in Country B. The mother, Ms Bajek, initially submitted to Australian jurisdiction but later objected to it, arguing that the Australian litigation process would be futile. The court was required to determine whether it could exercise jurisdiction under the Family Law Act 1975 (Cth) and whether Australian parenting orders could be enforceable in Country B.

The court considered the habitual residence of the children in Australia and the fact that the mother and children had travelled to Country B for a holiday, intending to return to Australia. The court also noted the unavailability of the 1980 Convention and the 1996 Convention for enforcement purposes in Country B. The court concluded that it could exercise jurisdiction over the matter, as the children's habitual residence was in Australia and the parenting orders sought by the father fell within the definition of "Commonwealth personal protection measures." The court found that the Australian litigious process would not be futile, as the orders could be influential in Country B. Consequently, the court decided to exercise its jurisdiction and scheduled an interim hearing for the parenting relief applications.

The court dismissed the mother's application for expert opinion evidence from a Country B lawyer, as the use of single expert evidence was preferred. However, the court allowed the mother to present adversarial expert opinion evidence about Country B law. The court also dismissed the mother's application for two alternate orders but listed the interim parenting relief applications for hearing. The court's final orders included the dismissal of the alternate orders application and the scheduling of the interim parenting relief applications for hearing on 5 August 2024.

Orders

Orders of the court

NCC 2589 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BAJEK

Applicant

AND:

MS BAJEK

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

15 JULY 2024

THE COURT ORDERS THAT:

1. The application for the first two alternate orders contained within the Further Amended Response to Initiating Application filed by the respondent on 27 May 2024 is dismissed.

2. The applications for interim parenting relief under the Family Law Act 1975 (Cth), contained within the Amended Initiating Application filed on 21 May 2024 and the Further Amended Response filed on 27 May 2024, are listed for hearing before the Court at 9.30 am on Monday 5 August 2024.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Presently, the mother and children are living in Country B, where she wants to stay with them. The father lives in Australia and he wants the children returned to Australia. Proceedings between the parties are pending in both countries and the initial issue requiring determination is whether jurisdiction under the Family Law Act 1975 (Cth) (“the Act”) can or should be exercised.Background The parties are of Country B heritage. They married in Country B in early 2014 and began cohabitation in Australia in late 2014. Their two children were born in Australia in 2015 and 2017. The parties and the children are all Australian citizens. None is a Country B citizen, though there is no immediate legal impediment to the mother and children continuing to live in Country B for the foreseeable future. It is unnecessary to explain why. The parties and the children travelled to Country B in mid-2023 for a holiday. They intended returning to Australia some weeks later and had return flights booked for that purpose. While in Country B, following an argument between the parties, the mother and children went to stay with maternal relatives. In mid-2023, the mother commenced proceedings in Country B seeking a domestic violence injunction against the father, an order granting her “temporary custody” of the children, and an order granting her legal guardianship of the children pursuant to s 21 of the Protection of Women from Domestic Violence Act 2005 (India) (“the Protection Act”). The Country B proceedings were commenced by the mother several days before the father returned alone to Australia, in mid-2023, though there is a factual dispute about precisely when he was served with process in the Country B proceedings. So far as can be discerned, the father has not engaged with the Country B proceedings, which are still pending. Soon after the father’s return to Australia, in mid-2023, he commenced these proceedings under the Act seeking parenting orders in respect of the children. The mother engaged with the proceedings in January 2024, initially submitting to the Australian jurisdiction and seeking competing parenting orders but, by May 2024, she raised an objection to the exercise of jurisdiction by this Court under the Act. Unlike Australia, Country B is not a signatory polity to the 1980 Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”) and so its provisions cannot be invoked by a central authority in Country B, securing orders to enforce the children’s return to Australia. Nor is Country B a signatory polity to the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”), so there is no easy process for enforcing Australian parenting orders in Country B. Subject to the fulfilment of certain conditions imposed by Pt XIIIAA, Div 4, Subdiv B of the Act, this Court is able to exercise jurisdiction and power to make orders in respect of the children which fall within the definition of “Commonwealth personal protection measures”. It is uncontentious the parenting orders sought by the father in these proceedings fall within that definition. Any orders made by an Australian court (and presumably the reasons delivered to explain such orders) would be admissible in evidence in any separate Country B proceedings in respect of the children.

Evidence

Evidence Before The Court

Consideration of the parties’ pending applications for parenting orders in respect of the children under the Act was consensually put to one side pending determination of the anterior questions about the Court’s exercise of jurisdiction.Expert opinion evidence By an Application in a Proceeding filed on 26 June 2024, the mother sought leave under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to adduce expert opinion evidence from a Country B lawyer (“the expert”) about the operation of relevant Country B law. The application was made to call the expert as an adversarial expert rather than as a single expert. The application of s 111CC and s 111CD of the Act depends upon consideration of whether a Country B court has jurisdiction to take measures directed to the protection of the children, which is not a question capable of answer without either expert opinion evidence or by resort to s 174 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Neither party was equipped with any document to tender in evidence in conformity with s 174 of the Evidence Act, so expert opinion evidence is the only viable alternative. The use of expert opinion evidence to resolve the pivotal question is orthodox (Yaling & Tsen (2022) 65 Fam LR 437 at [58]–[59]). To avoid litigants’ reliance upon duelling adversarial witnesses, the Rules express a clear preference for the use of single experts, so far as is practicable and without compromise to the interests of justice (r 7.02). The Rules set out the regime for the procurement of single expert evidence (Div 7.1.2). However, a party may apply to adduce evidence from an adversarial expert upon meeting certain conditions (Div 7.1.3). On 19 June 2024, the registrar dismissed the mother’s oral application to appoint the expert as a single expert, which decision was not reviewed by the mother under r 14.05 of the Rules. The reasons for dismissal of the application are unknown to me. In any event, the former dismissal of the mother’s interlocutory application to appoint the expert as a single expert did not preclude her interlocutory application to appoint the expert as her adversarial expert. No estoppel is created by an evidentiary ruling (Kuligowski v Metrobus (2004) 220 CLR 363 at [25]; Chand v Railcorp of NSW [2011] NSWCA 79 at [52]). In late May 2024, the mother raised with the father the need for expert opinion evidence about Country B law. In early June 2024, the father agreed to the appointment of a single expert witness for that purpose, on condition that the costs were met by the mother. The expert was engaged by the mother, but he did not report back until after her former application for his appointment was dismissed. The expert’s report was served upon the father in June 2024. The affidavit filed in support of the application for leave to adduce the adversarial expert opinion evidence ostensibly complies with the Rules (r 7.11(2)). In respect of other relevant considerations (r 7.11(3)), the cost of the expert has already been borne by the mother in conformity with the father’s earlier demand, the use of the expert evidence will not delay the proceeding, the expert evidence will certainly aid the determination of the dispute, there is no contest as to the expert’s qualifications or experience, and the father formerly agreed that the admission of expert opinion evidence was desirable. No objection was raised by the father to the form of the expert’s report (rr 7.20, 7.21 and 7.22).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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