Bajek & Bajek
[2024] FedCFamC1F 466
•15 July 2024
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 LR 437; [2022] FedCFamC1F 347
ZP v PS (1994) 181 CLR 639; [1994] HCA 29
Division: Division 1 First Instance Number of paragraphs: 75 Date of hearing: 3 & 8 July 2024 Place: Newcastle Counsel for the Applicant: Mr Levick Solicitor for the Applicant: Koulouris & Associates Pty Ltd Solicitor advocate for the Respondent: Ms McMullen Solicitor for the Respondent: Legal Aid NSW ORDERS
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bajek & Bajek has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings concern a dispute between the applicant father and the respondent mother over their two children, now aged nine and seven years.
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.
The mother concedes jurisdiction exists under the Act in respect of the children (ss 69E(1)(b), 69E(1)(c) or 69E(1)(d)), but she contends it cannot now be exercised because Country B courts are seized of jurisdiction and the children are now habitually resident in Country B (s 111CC(b) and s 111CD(1)(e)). Alternatively, if it is found the children are still habitually resident in Australia, then she contends the Court, exercising statutory discretion (s 111CD(1)(e)), should decline to make orders because they would be unenforceable in Country B and, hence, the Australian litigious process would be futile.
The mother seeks this alternate relief:
1.The father’s amended application filed 21 May 2024 (“the father’s application”) seeking interim and final parenting orders in relation to [the children] of [the Act].
And the Court notes:
A.That [the children] are habitually resident in [Country B].
In the event the Court finds that it has jurisdiction to make parenting orders with respect to the children, the mother seeks the following order in the alternative:
1.That the father’s application seeking interim and final parenting orders in relation to [the children] is dismissed or stayed…
(Emphasis in original)
(Mother’s Further Amended Response to Initiating Application filed 27 May 2024)
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).
Given those considerations, together with the father’s acquiescence to the mother’s application, the expert evidence was admitted.
Evidence
In support of her application, the mother relied upon:
(a)her affidavit filed on 24 June 2024; and
(b)the affidavit of the expert filed on 26 June 2024.
In rebuttal, the father relied upon:
(a)his affidavit filed on 25 June 2024; and
(b)paragraphs 79–82 of the mother’s affidavit filed on 25 January 2024, the contents thereof being admissions by her (Exhibit F1).
Neither party nor the expert was required for cross-examination on the jurisdictional issue.
Jurisdictional conflict
Original jurisdiction under Pt VII of the Act was formerly conferred on the Federal Circuit and Family Court of Australia (Division 1) by s 69H of the Act, but that provision was repealed and replaced by s 132 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) conferring original jurisdiction instead upon the Federal Circuit and Family Court of Australia (Division 2).
These proceedings were commenced in the Federal Circuit and Family Court of Australia (Division 2), but later transferred to the Federal Circuit and Family Court of Australia (Division 1) in March 2024 pursuant to s 149 of the FCFCA Act. This Court therefore has jurisdiction. The question is whether it can or should be exercised.
Under cover of Pt XIIIAA, Div 4, Subdiv B of the Act, s 111CC provides this:
Application of this Subdivision
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.
(Emphasis added)
The effect of s 111CC is to ensure the provisions within Subdiv B apply only in the event of jurisdictional conflict between an Australia court and a “competent authority” in another country. The courts of Country B, it being a non-Convention country, are defined as being “competent authorities” for that purpose (s 111CA).
According to the expert’s evidence, albeit in various different ways, Country B courts do have jurisdiction to take measures directed to the protection of the person of a child. Assuming acceptance of such opinion evidence, either in whole or in part, there is a jurisdictional conflict with Australian courts and so the provisions of Subdiv B of the Act would apply.
The parties disagreed over the precise meaning and effect of the expert opinion evidence, so it is necessary to deal with it in deeper detail.
The expert asserts there are “three codified laws” which apply throughout Country B to govern all matrimonial causes, including disputes over “guardianship and child custody”.[1] Those laws are the Protection Act, the Guardian and Wards Act 1890 (India) (“the Guardian Act”), and the Hindu Marriage Act 1955 (India) (“the Marriage Act”).
[1] Expert’s affidavit at pp.62–63 of 124
In the current proceedings before the Chief Judicial Magistrate under the Protection Act, the jurisdiction to make orders in respect of the children’s care is limited to only interim relief as an adjunct to orders for the protection of the applicant.[2] No cause of action between the parties in respect of their children can be finally resolved by orders made under the Protection Act, in which event I accept the father’s submission that the Chief Judicial Magistrate does not have jurisdiction under the Protection Act which competes with this Court’s jurisdiction under the Act to completely quell the parties’ controversy over the children’s future.
[2] Expert’s affidavit at pp.62–67
By her silence on the point, the mother seemed to accept the father’s submission that the Family Court at City C, Country B would have no jurisdiction under the Guardian Act to make orders in respect of the children if they do not “ordinarily reside” in Country B.[3] The mother did not try to argue that the children do “ordinarily reside” in Country B.
[3] Expert’s affidavit at pp.66 and 71 of 124
The Family Court at City C, Country B has jurisdiction under the Marriage Act because the parties are both Hindu by religion. Upon recourse to the Marriage Act for their divorce, the Country B court then has ancillary jurisdiction to make orders in respect of the custody of their children,[4] thereby setting up a competing jurisdiction with Australia. The expert’s opinion to that effect seems to coincide with the text of s 26 of the Marriage Act.[5]
[4] Expert’s affidavit at pp.66 and 67 of 124
[5] Expert’s affidavit at p.116 of 124
The father contended that only the wife has recourse to such jurisdiction, because he could not necessarily invoke the “fault” conditions for divorce under s 13 of the Marriage Act,[6] but the submission is rejected. He alleges in these proceedings that the mother treated him cruelly by committing family violence and he alleges she has suffered from some form of mental disorder in the past, for which she has received treatment, and he could now be anticipated to allege he cannot reasonably be expected to live with her. His concern that he could not invoke the jurisdiction under the Marriage Act and that the mother could voluntarily abstain from so doing, thereby precluding the use of the Marriage Act in respect of the children, is misplaced.
[6] Expert’s affidavit at p.109 of 124
In any event, the issue of the existence of competing Country B jurisdiction is put beyond doubt by the prospect of the father’s resort to articles of the Country B Constitution for relief. The parties accept the father could rely upon such Constitutional articles to seek a writ of habeus corpus, requiring the children’s surrender to the Country B court, and the concurrent exercise of the parens patriae jurisdiction by either the regional High Court or the Supreme Court of Country B to make orders in respect of the children, including their return to Australia.[7] That jurisdiction has been exercised in other cases, analysed and explained most recently in Rajeswari Chandrasekar Ganesh v State of Tamil Nadu (Supreme Court of Country B 14 July 2022).
[7] Expert’s affidavit at p.73 of 124
In Rajeswari, the respondent clandestinely took the parties’ children from the USA to Country B. In proceedings then brought by the applicant in the USA, the American court terminated the existing shared parenting plan and ordered that the children live with the applicant, that the respondent return the children to the USA, and that he ensure the children’s communication with the applicant in the meantime. With those orders in hand, the applicant started proceedings in Country B seeking a writ of habeus corpus in respect of the children, together with such further orders the court was prepared to make. The respondent was duly served and, once the parties were unable to compromise their dispute, the court ordered the children’s return to the USA.
The Country B court observed how parenting remedies ordinarily lie under the Guardian Act or the Hindu Minority and Guardianship Act 1957 (India), the latter of which is curiously not one of the “three codified laws” mentioned by the expert, though petitions for habeus corpus in the exercise of inherent jurisdiction will be entertained when the circumstances are exceptional. In such circumstances, the court must determine whether a “summary” or “elaborate” enquiry into the children’s best interests is warranted. Given the circumstances in which those children had been abducted to Country B and the need for Country B courts to act in accordance with “principles of comity” with foreign courts, the Country B court felt “no manner of doubt” that the children had to be returned to the USA without the need for any elaborate enquiry about their best interests.
Once it is accepted that Subdiv B of the Act applies because of the competing jurisdictions of Country B and Australian courts, s 111CD(1) then relevantly provides:
Jurisdiction relating to the person of a child
(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
…
(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; …
(Emphasis in the text added)
As can be seen, given the children’s current physical presence in Country B, this Court may (not must) exercise jurisdiction to make a Commonwealth personal protection measure in respect of the children only if they are habitually resident in Australia, it being accepted that s 69E(1)(b) of the Act applies to them because they are Australian citizens.
Consequently, if the children are habitually resident in Australia, this Court may exercise its jurisdiction and make orders in respect of them but, if the children are not habitually resident in Australia, the Court cannot make orders in respect of them.
Children’s habitual residence
The determination of the children’s place of habitual residence is an entirely factual question (Sterling & Sterling (2022) FLC 94-070 at [25]).
Given the children’s presence in Country B and the anterior finding of the competing jurisdictions of Country B and Australian courts, this Court may only exercise its jurisdiction over the children if they are habitually resident in Australia, which fact the father now bears the burden of proving because he is the moving party for the exercise of jurisdiction under s 111CD(1)(e) of the Act. He expressly accepted that proposition.
The principles of “habitual residence” in Australian family law are authoritatively established (LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”)). The use of the concept of “habitual residence” to connect a person and a particular municipal system of law entails the rejection of other possible connecting factors such as domicile or nationality. Habitual residence identifies the centre of a person’s personal and family life, as disclosed by the facts of the individual’s activities (LK at 593–594). A wide variety of circumstances influence where a person habitually resides, including the person’s past and present intentions and the duration of his or her connections with a particular place (LK at 592 and 596). While intention will usually be relevant to the consideration of where the person habitually resides, it is not necessarily dispositive (LK at 594 and 601). However, when considering where a child is habitually resident, it will usually be necessary to consider what each parent intends for the child (LK at 595–596).
More specifically in respect of a child’s place of habitual residence, the High Court said this in LK (at 595-596):
… 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.
(Emphasis added)
Without trespassing upon the authoritative pronouncement of the High Court, the Full Court of this Court later held in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 at [38], [42] and [53] (“Padwa”) that it is important to consider the place of habitual residence from the child’s perspective.
The parties accepted the children’s place of habitual residence need not be the same place as the mother’s habitual residence, even though they currently live together in Country B. That must be so because the mother’s individual intentions about her own place of residence may not necessarily align with the parties’ respective intentions about the children’s habitual residence.
The parties also agreed the children’s place of habitual residence in this instance is a binary determination – it is either Australia or Country B, but nowhere else. Even though a person may cease to reside habitually in one place without acquiring a new place of habitual residence (LK at 594–595), the parties agreed it is not open to find the children have lost habitual residence in Australia but not yet acquired habitual residence in Country B.
The parties disputed the point in time at which the determination of the children’s place of habitual residence must be made. The mother contended the determination must be temporal at the date of hearing, whereas the father contended it is a retrospective finding made at the time of either the children’s retention by the mother in Country B in mid-2023 or when he filed his application for relief under Pt VII of the Act in August 2023.
The father’s submission is rejected. His reliance upon certain provisions of the 1996 Convention is misplaced because neither it nor the Family Law (Child Protection Convention) Regulations 2003 (Cth) (“the Child Protection Regulations”) apply as Country B is not a signatory to the 1996 Convention. A child’s place of habitual residence at the time of his or her abduction or retention may well be influential in the determination of disputes under the 1996 Convention (Article 7) and the Child Protection Regulations, but not if they do not apply. The invocation of s 111CD(1)(e) of the Act is only presently relevant because the 1996 Convention and the Child Protection Regulations do not apply and, since the application of that provision is determined at the time the jurisdictional dispute is heard, it is at that point in time when the children’s place of residence becomes relevant. That point has been uniformly resolved that way in past first-instance decisions (see those cited in Ishak & Koroma [2023] FedCFamC1F 272 at [32]).
The mother submitted the children were now habitually resident in Country B because they have lived with her there for the “appreciable period” of nearly 12 months and are now integrated into life in Country B, living with maternal family members, attending school, participating in extra-curricular activities, and speaking local languages. Her submission is rejected.
The period of time a child has spent in another country is not determinative of whether the child has become habitually resident in that country (Padwa at [57]). In any event, the children’s integration into life in Country B is not really as well established as the mother contends. The family trip to Country B was intended by both parties as only a holiday. Return tickets to Australia were booked a few weeks later. Even when the mother withheld the children in Country B, she only intended their extended stay to be temporary. They were not then settled in Country B. The mother deposed as recently as January 2024 that she intended to return to Australia with the children, but she changed her mind at some indistinct point between January and May 2024, which must mean her belief in the children’s change of place of habitual residence to Country B has only been formed within the last few months. Of course, the mother is free to change her mind in so far as her decision affects only her, but her change of mind is not unilaterally determinative of the children’s place of habitual residence or their future.
The children are Australian citizens and, save for the last 12 months, have lived all their lives with the parties in Australia. The father acquiesced to the children staying with the mother in Country B for a short period following his return to Australia, but he has always objected to them living permanently in Country B. His immediate commencement of these proceedings in August 2023 seeking orders for the children’s return to Australia and his primary care of them is eloquent proof of his sentiment. The children’s recent experiences in Country B, entirely cut off from the father, are not such as to displace their former long-standing experience of habitual residence in Australia.
The children are habitually resident in Australia.
Exercise of jurisdiction and power
Since the two pre-conditions to the operation of s 111CD(1)(e) of the Act are fulfilled, the parties agreed that whether the Court now proceeds to make orders in respect of the children, defined as “Commonwealth personal protection measures”, is a matter of discretion – that being because the statutory provision stipulates that the Court may make such orders.
In ZP v PS (1994) 181 CLR 639, the High Court determined that when a child is brought to Australia and a dispute over the child’s custody falls within the jurisdiction of the Act, the doctrine of forum non conveniens has no application to the dispute. Nothing subsequently said by the High Court in Henry v Henry (1996) 185 CLR 571 about the forum non conveniens test impinges upon the principles developed in ZP v PS.
As stated in ZP v PS, the child’s best interests are the paramount consideration. If the child’s abduction to Australia from overseas is not covered by the 1980 Convention and the Family Law (Child Abduction Convention) Regulations 1986 (Cth), then the abduction is relevant only by reason of the effect it has upon the child’s welfare (ZP v PS at 647, 651, 653, 663–664 and 669). Policy considerations, such as the deterrence of international child abduction, are relevant but subservient to the best interests of the child (ZP v PS at 666 and 669–670). It may in those circumstances be necessary for the Australian court to conduct a summary hearing to speedily determine whether an order should be made for the return of the child to the non-Convention country or whether the court should exercise its jurisdiction to determine the parenting dispute (ZP v PS at 647–648, 653, 664 and 671).
But the factual circumstances in ZP v PS were different to those in this case. In ZP v PS, the subject child was abducted from a non-Convention country and was living in Australia with the mother, who applied for parenting orders in respect of the child under the Act. In this instance, the parties’ children are not “within the jurisdiction” in the sense of being present in Australia, yet the father is seeking orders in respect of the children upon the assumption that such orders will be enforceable outside Australia if they are disobeyed.
The Full Court has extended the reach of the ZP v PS principles to those cases in which the subject children are not within Australia (Pascarl & Oxley (2013) FLC 93-536 at [85]–[88]). In particular, the Full Court said:
86.We do not understand anything said by the Full Court in Karim & Khalid (including at [60]) to be inconsistent with what we have earlier said at [73], being that 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.
87.…For these reasons, even though the child may not be within Australia, the principle upon which to decide whether the court should exercise its jurisdiction must be determined by best interests of the child as being the paramount consideration.
(Emphasis added)
The relevant test then for the exercise of jurisdiction and power is what the best interests of the children require. The determination of their best interests in accordance with the paramountcy principle (s 60CA and s 65AA), requires advertence to s 60CC of the Act (Pascarl & Oxley at [88]). However, since none of the parties’ conflictual evidence was tested in cross-examination, their competing parenting applications were put to one side, and their submissions on the issue were brief, the consideration of s 60CC of the Act need not be unduly intricate at this juncture.
The mother contends both she and the children require sanctuary from the father to promote their safety (s 60CC(2)(a)). She alleges they are at risk of family violence committed by him, which he denies. No finding to resolve the stark conflict is possible, but the Court must be alive to at least the risk (M v M (1988) 166 CLR 69). The allegations cannot be ignored just because they are denied and unresolved (Cimorelli & Wenlack [2020] FamCAFC 58 at [80]–[81]).
The mother contends the children have made statements which either expressly or implicitly reveal they would prefer no interaction with the father (s 60CC(2)(b)). That may be so, but it would be unsurprising for such young children to react to their primary carer in the manner they perceive is expected of them. Children are renowned to be vulnerable to the influence of their carers, even if the influence is only inadvertent (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]–[41]; RCB v Forrest & Ors (2012) 247 CLR 304 at [52]).
Assuming the father does not pose any threat to the children’s safety, their emotional needs are best met by their enjoyment of healthy relationships with him (s 60CC(2)(c) and s 60CC(2)(e)). Ordinarily, children benefit from the development of good relationships with both their parents (U v U (2002) 211 CLR 238 at 285–286).
Subject to the unresolved allegations about the father’s commission of family violence, both parties seemingly have the capacity to provide adequately for the children’s developmental, psychological, emotional and cultural needs (s 60CC(2)(d)).
The mother’s case was that the unenforceability of any Australian orders in Country B tipped the balance against this Court making any orders (s 60CC(2)(f)). She admitted it would make sense for this Court to hear and determine the parties’ parenting dispute, but only if Country B would recognise and enforce the Australian orders but, since it does not, there is no point to the Australian litigation. What would be the point of an Australian court hearing and determining the cause if its judgment is unenforceable?
Conversely, the father contended jurisdiction should be exercised and the parties’ parenting applications entertained because the mother should be presumed to comply with any orders binding her in personam. Even if she belligerently refuses to comply with any Australian orders, he asserts the orders are liable to be persuasive in any Country B proceedings he is thereafter impelled to commence, just as was the case in Rajeswari.
The expert’s evidence in respect of the enforceability of Australian orders in Country B was not as clear as it could have been. He gave evidence that no order made by this Court in respect of the children can be registered and enforced in Country B in isolation from fresh litigation conducted in Country B to determine the orders which promote the children’s best interests, saying this:
In [Country B], an independent judicial remedy will have to be invoked in a Court of competent jurisdiction in [Country B] for a fresh adjudication and determination on the basis of the principle of the welfare of the child and the best interest rule. The foreign court order granting custody or visitation will be only one valid consideration before the [Country B] Court to determine rights of parties.[8]
…
…Any Australia Court Order or declaration about the children, if sought to be implemented in [Country B], will be only one consideration before a [Country B] Court for fresh evaluation and independent assessment by a [Country B] Court for adjudication of the best interest and welfare of the children. There is no mirror order jurisprudence in [Country B], and any Australian Court Order or declaration about the children will not find mechanical application in a [Country B] Court.[9]
[8] Expert’s affidavit at p.72 of 124
[9] Expert’s affidavit at p.73 of 124
Yet, the expert also distinguished between the enforceability of Australian “interim” and “final” parenting orders under the Code of Civil Procedure 1908 (Country B) (“Code of Civil Procedure”), saying this:
…it may be stated that enforcement of any foreign judgment of any court overseas is possible in [Country B], upon the said foreign judgment satisfying the tests and conditions prescribed in [the Code of Civil Procedure]…[10]
…
…any final judgment or final Order, as and when passed by the Federal Circuit Court of Australia or any other Australian Court of competent jurisdiction, relating to final parenting…orders, whenever sought to be implemented before Courts at [City C], will be tested on the anvil of the statutory provisions of [the Code of Civil Procedure]. The enforcement of any such final judgment/order of an Australian Court can be sought in a court of competent jurisdiction at [City C] by filing a application and seeking its enforcement.[11]
…
That in so far any interim, interlocutory or ex-parte child custody order passed by a court of competent jurisdiction in Australia is concerned, since it would not be a final order or judgment, it would not be governed by the tests provided under [the Code of Civil Procedure] for implementation in [Country B].[12]
[10] Expert’s affidavit at p.72 of 124
[11] Expert’s affidavit at p.72 of 124
[12] Expert’s affidavit at p.73 of 124
Nobody sought to clarify the apparent inconsistency in the evidence about the enforceability of Australian parenting orders in Country B, depending upon their characterisation as being either final or interlocutory.
Australian law makes no provision to facilitate the registration and enforcement of Australian parenting orders in Country B, but does do so for other countries and foreign States (s 70M and s 70N of the Act; regs 14(a) and 24 of the Family Law Regulations 1984 (Cth) (“the Family Law Regulations”); reg 10 of the Child Protection Regulations).
However, it is not uncommon for parenting judgments to be incapable of registration and enforcement in foreign countries without fresh proceedings in the foreign country to enquire into the children’s best interests. While Australia will register and enforce some “overseas child orders” without the need for any fresh enquiry, it is only the orders of “prescribed overseas jurisdictions” (ss 70G, 70H and 70J of the Act; reg 23 of the Family Law Regulations; regs 11–14 of the Child Protection Regulations), and Country B is not so prescribed. Not even New Zealand parenting orders are capable of registration and enforcement in Australia if they fall outside those narrow parameters (s 66(2)(g) of the Trans-Tasman Proceedings Act 2010 (Cth)). Australia will only otherwise register and enforce civil judgments if they are “money judgments” of foreign countries with reciprocal enforcement mechanisms (Foreign Judgments Act 1991 (Cth); Foreign Judgments Regulations 1992 (Cth)).
The parties eventually proceeded upon the common basis that any Australian parenting orders could not be automatically registered and enforced in Country B and it would be necessary for one party to initiate fresh parenting proceedings in Country B. They accepted the Country B courts would then separately assess the children’s best interests, which enquiry could be conducted either summarily or comprehensively, though any Australian orders would be admissible in evidence in the Country B proceedings and would attract some level of influence. In reliance upon Rajeswari, the father contended that, while he will need to bring proceedings in Country B if the mother disobeys orders made by this Court, such orders would be influential and may persuade the Country B court that only the summary consideration of the children’s best interests would be necessary. The finding the children are habitually resident in Australia would also be helpful.
The father ambitiously seeks orders in his Amended Initiating Application filed on 21 May 2024, on both an interim and final basis, to enforce the children’s repatriation to Australia and the reversal of their residence so that they instead live with him. The children’s best interests may not be served by interim orders of that sort, fundamentally re-structuring their residential arrangements against a background of controversial and untested evidence. But neither is the mother’s proposal for the permanent elimination of the father from the children’s lives evidently in their best interests. Significantly, the Court is not confined to the binary choice between the parties’ unrealistically polarised applications (U v U at 284–285). The children’s best interests will likely be promoted if orders are made on an interim basis to at least restore some form of interaction between the children and the father.
Disposition
Applying s 111CD(1)(e) of the Act, the jurisdiction of the Court will be exercised.
The application made by the mother for the first two alternate orders set out within her Further Amended Response to Initiating Application filed on 27 May 2024 is dismissed.
I will proceed to determine the father’s application for interim parenting orders, as set out in his Amended Initiating Application filed on 21 May 2024, which will entail consideration of the mother’s alternate application for interim parenting orders, as set out in her Further Amended Response to Initiating Application filed on 27 May 2024. Those applications are fixed for interim hearing several weeks hence.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 15 July 2024
2
13
17