Capitani & Langer (No 2)
[2022] FedCFamC2F 477
•13 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Capitani & Langer (No 2) [2022] FedCFamC2F 477
File number(s): MLC 2050 of 2021 Judgment of: JUDGE STEWART Date of judgment: 13 April 2022 Catchwords: FAMILY LAW – parenting – application for summary dismissal – forum – mother and children in Country B with no intention to return to Australia – any orders in Australia unenforceable in Country B – effect 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. Legislation: Family Law Act 1975 (Cth) ss 64B(1), 64B(2), 65D, 65D(1), 69E, 69E(1)(c), 69E(1)(d), 111CA(c), 111CC, 111CC(b), 111CD, 111CD(1)(e), 111CD(1)(e)(i), 111CD(1)(e)(ii)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 10.11(1)(a)
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, opened for signature 19 October 1996, 2204 UNTS 95 (entered into force 1 January 2002) Cases cited: Alfarsi & Elhage [2016] FamCA 428
Amad & Hadi [2020] FamCA 1041
Bunyon & Lewis (No.3) [2013] FamCA 888
LK & Director General, Department of Community Services (2009) 237 CLR 582
Punter v Secretary for Justice [2007] 1 NZLR 40
Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57
Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 35 Date of hearing: 23 November 2021, 3 December 2021 & 7 February 2022 Place: Melbourne Solicitor for the Applicant: Mr Raniga of RRR Lawyers Solicitor for the Respondent: Mr Kennedy of Kennedy Partners ORDERS
MLC 2050 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAPITANI
Applicant
AND: MS LANGER
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
13 APRIL 2022
THE COURT ORDERS THAT:
1.The Applicant Father’s applications dated 25 February 2021 be and is hereby summarily dismissed.
2.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STEWART
On 8 December 2021, I delivered reasons for Judgment in relation to these proceedings (“my reasons”), being the Applicant Father’s application dated 25 February 2021 to spend time with the two children X born in 2014 (“X”) and Y born in 2015 (“Y”) (collectively known as “the children”). The children are aged 8 years and 7 years old respectively. On this date, I ordered further written submissions from each of the parties in relation to the habitual residence of the children. Neither party during the hearings on 23 November 2021 or 3 December 2021 made reference to section 111CD of the Family Law Act 1975 (Cth) (“the Act”), specifically section 111CD(1)(e) of the Act, which is relevant in relation to this Court’s primary jurisdiction.
The background of the matter is set out in my reasons from paragraph 3 to 14. In essence, the Respondent Mother and the children relocated to Country B, where both of the parties were born, in early 2021. The Father has sought parenting orders in Australia, accepting that such orders would not be enforceable in Country B. The Father accepts that the children are residing with the Mother in Country B, but does not accept that the Mother and children will remain in Country B. The Mother’s application is an application for summary dismissal and/or an application that Australia is not the appropriate forum for litigation with respect to the children and therefore that the matter should be dismissed.
LEGISLATION AND CONVENTIONS
As stated in my reasons from paragraphs 15 to 18, the Court has jurisdiction to make parenting orders relating to X and Y pursuant to sections 69E and 65D of the Act as the Father was ordinarily resident in Australia on the date the application was filed. The note to section 69E of the Act reads as follows:-
Note:Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
The note to section 65D(1) of the Act reads as follows:
Note:Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.
The Full Court of the Family Court of Australia’s decision in Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173, states that this division must be applied in light of Australia’s ratification 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 (“the 1996 Convention”).
Each of the parties have made written submissions in relation to Division 4 of Part XIIIAA, which I turn to now.
DOES SUBDIVISION B OF DIVISION 4 OF THE ACT APPLY PURSUANT TO SECTION 111CC OF THE ACT?
Before assessing the relevant factors in section 111CD of the Act, it must first be determined whether subdivision B applies. Section 111CC of the Act provides as follows:-
111CC 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.
Country B is not a signatory to the 1996 Convention and is therefore a non-convention country for the purposes of this division. “A competent authority” of a non-convention country is defined in section 111CA(c) of the Act as follows:-
(c)competent authority of a non‑Convention country means an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child’s property.
“Measures or make decisions about protecting the person of a child”, or otherwise known as a “Commonwealth personal protection measure” in section 111CD of the Act, includes a parenting order as defined by section 64B(1) and (2) of the Act.
The Father relies on the decision of Foster J in Alfarsi & Elhage [2016] FamCA 428, which is set out as follows:-
It is important to note the provisions of s 111CC of the Act as set out above that relevantly provides that the provisions of Subdivision C (Jurisdiction for the Person of a Child) of Division 4 International Protection of Children) of the Act applies only if an issue under this Act is whether a court, as opposed to a “competent authority of a non-Convention country” has jurisdiction to take measures directed to the protection of the person of a child.
In the context of these proceedings no such issue arises. There is no evidence of any such jurisdictional conflict or issue that needs to be resolved by the application of the Subdivision C. Indeed there is no evidence as to existence or otherwise of any such competent authority in Iraq that may or may not or has sought to exercise jurisdiction over the children.
The conclusion must be that the Convention has no application to the present matter.
The Father argues that there is a close factual matrix between the matter of Alfarsi & Elhage [2016] and the present proceedings and therefore this Court should come to the same conclusion as Foster J. For reasons I shall come to later, I do not agree with this position as there are a number of factual differences that are relevant to the outcome of these proceedings.
The Mother relies on the earlier decision of Bennett J in Bunyon & Lewis (No.3) [2013] FamCA 888, which is set out as follows:-
It was further submitted by Mr Strum that Division 4 of Part XIIIAA of the Act has no application in the absence of the father having sought to exert any rights in any court or authority in The Netherlands. I was referred to the Explanatory Memorandum and, in particular, to the following paragraph:-
Section 111CC – Application of this Subdivision
45.Section 111CC provides in effect that the rules of jurisdiction in subdivision B [which includes s111CD of the Act] apply only in the event of conflict between a court in Australia and a competent authority in another country. This provision implements the preamble to the Convention (which makes clear that the Convention is directed to the protection of children in international situations) and article 46 of the Convention which provides that a Convention country is not obliged to apply the provisions of the Convention to conflicts solely between different systems of law in that country. …
Counsel also referred to the General Outline of the Explanatory Memorandum which describes the 1996 Convention in the following terms:-
The Convention establishes conflicts of law rules to be applied in parental responsibility litigation which has an international aspect. These rules govern the questions whether a court has jurisdiction to hear an international parental responsibility dispute, which country’s law is to be applied in determining international parental responsibility dispute, what conditions must be satisfied to ensure international recognition and enforcement of parenting orders and what obligations courts in Australia overseas(sic) have to co-operate in the protection of children.
Conflict of laws rules are not predicated on proceedings having been instituted in two jurisdictions which have a connection with the dispute but, rather, on there being two jurisdictions which have a connection with the dispute and which could hear and determine the dispute. In my view, the reference in the General Outline and in paragraph 45 of the Explanatory Memorandum to conflict of laws is not, as Mr Strum’s submission suggests, a reference to duelling courts. Nor does it presupposes that parties must engage in litigation before more than one competent court before conflict of laws rules operate. Conflicts of law rules is merely a reference to the jurisprudence or set of rules to be applied to determine which one of two or more competent jurisdictions should be used to resolve an issue in dispute between parties [emphasis added].
The Mother argues that this Court should follow the approach taken by Bennett J due to Her Honour’s detailed consideration of the background to and purpose of the 1996 Convention, which includes an analysis of the Explanatory Memorandum.
As in both cases above, the Mother has not initiated any legal proceedings in relation to the children in Country B. However, as in Bunyon & Lewis (No.3) [2013], the Father did not seek to persuade this Court that there would be any reason for the Mother to institute any proceedings in Country B. Further, the Father has initiated these proceedings in Australia and has conceded if the Court makes the orders he is seeking, those orders would not be enforceable in Country B, meaning there is understandably no real reason for the Mother to initiate parenting proceedings in Country B. Despite this, a jurisdictional issue still arises due to the fact that Country B is a jurisdiction which has a connection with the dispute as the Mother and children currently reside in Country B and both parties. The Father originally commenced proceedings in Country B in 2019 thereby conceding that Country B has the ability to hear and determine the dispute, however the case was dismissed due to non-appearance. I am satisfied that the initiation of proceedings by the Mother in Country B is not required for Division 4 of the Act to apply pursuant to section 111CC(b).
I am therefore satisfied that Subdivision B of Division 4 of the Act applies.
DOES THE COURT HAVE JURISDICTION PURSUANT TO SECTION 111CD OF THE ACT?
As previously stated, Country B is a non-convention country meaning the relevant section of the Act is section 111CD(1)(e). Section 111CD(1)(e) of the Act provides as follows:-
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:
(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
It is agreed between the parties that “Commonwealth personal protection measure” includes parenting orders as previously set out in these reasons. It is agreed between the parties that section 111CD(1)(e)(ii) is satisfied as the Father is an Australian citizen and was present in Australia the day his application was filed pursuant to sections 69E(1)(c) and (d). The issue for determination is therefore whether X and Y are habitually resident in Australia pursuant to section 111CD(1)(e)(i) of the Act.
Relevant date of assessment
Before exploring the issue of whether the children are habitually resident in Australia, the relevant date of assessment must be determined.
The Father argues that the assessment of whether the children are habitually resident in Australia should be determined from the date of his initiating application on 25 February 2021 as if this were not the case then “it would render the relevant part of Division 4, Part XlllAA nugatory inasmuch as the time elapsing between initiating proceedings and a final hearing would ensure that the subject children were no longer habitually resident in Australia.”
The Mother argues the assessment should be determined at the time the Court is to make parenting orders, being the date of the relevant hearing on either 23 November 2021 or 3 December 2021. The Mother relies on precedent in Bunyon & Lewis (No.3) [2013] as follows:-
In any event, s 111CD requires a finding as to habitual residence contemporaneously with the Court exercising its jurisdiction to take a Commonwealth personal protection measure. Therefore, I am required to determine where the child is habitually resident now rather than, say, on 6 December 2012 when she was removed to The Netherlands, or on 14 December 2012 when the applicant made her first application or on 8 January 2013 or 8 February 2013 when this Court purported to make parenting orders.
The Mother also refers this Court to the recent decision of Tree J in Amad & Hadi [2020] FamCA 1041 which provides as follows:-
Ultimately I am persuaded that the proper construction of s 111CD requires habitual residence to be determined at the date of the relevant hearing. Particularly, such a construction is more aligned to the apparent purpose of the provision, namely that child related litigation should be determined in the place where they are habitually resident. It could not promote that objective to have the parenting arrangements for a child who was habitually resident in Australia at the commencement of the proceedings, but perhaps many years later, when incontrovertibly habitually resident elsewhere, determined in Australia.
Therefore the determination of a child’s habitual residence should be assessed from the date of the relevant hearing, and I propose to do the same in this case.
Being that neither of the parties addressed the Court in relation to habitual residence on 23 November 2021 or 3 December 2021, I propose to assess habitual residence at the date of the most recent hearing on 7 February 2022 as both parties had submitted their written submissions and had the opportunity to address the Court in relation to habitual residence on that day.
Are the children habitually resident in Australia pursuant to section 111CD(1)(e)(i) of the Act
“Habitual residence” is not defined in the Act.
Both parties rely on the High Court decision of LK & Director General, Department of Community Services (2009) 237 CLR 582 (“LK & Director General”) which provides a number of relevant considerations in relation to the assessment of habitual residence. Those considerations are as follows:-
22If 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.
23…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.
27When 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.
28… 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…
Their Honours in their combined judgment later cite the New Zealand Court of Appeal decision of Punter v Secretary for Justice [2007] 1 NZLR 40 which provides as follows:-
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 [22], the underlying reality of the connection between the child and the particular state.
Their Honours summarise as follows:-
Moreover, the approach described in P accords with the general tenor of decisions in the United States of America (71). 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 (72). When it is also observed, however, that the resolution (73) 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” (74) (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 P, which should be followed.
The Father further relies on Alfarsi & Elhage [2016], in which Foster J takes into consideration the importance of the High Court’s decision to consider the child’s perspective when determining habitual residence. His Honour refered to the Full Court decision of Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57 which provides:-
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.
Foster J then came to the following conclusion:-
68.The circumstances of the children in Iraq cannot in any way be described as settled particularly having regard to the uncertainty of their physical circumstances and to the present intentions of both of the parents for them to be returned to Australia.
69.It is clear that the children from their perspective have remained habitually resident in Australia with the result that if the Convention as implemented into the Act applied this Court would have jurisdiction over them s 111CD(1)(e).
The Father argues that the factual matrix between Alfarsi & Elhage [2016] and the current proceedings are so close that this Court should follow the decision of Alfarsi & Elhage [2016] in finding the children are subject to the discretion of this Court pursuant to section 111CD(1)(e).
As stated in my previous reasons at paragraph 9, the Father has not seen the children since separation in 2017 and has video called them once in early 2018. There is no doubt that the Mother has been the primary carer for the children since separation and therefore, in accordance with LK & Director General (2009), the Mother’s intentions are important when assessing whether the children are habitually resident in Australia.
From the beginning of the Mother’s involvement in these proceedings, she has been clear that she intends to permanently reside in Country B and has no intention of returning to Australia. She said in her first affidavit dated 4 November 2021 as follows:-
In 2020, with the encouragement of my employer, I had the opportunity to undertake further professional development which would enable me to advance my career. When my application was successful I sought and received approval from Australian Immigration to exit Australia and the children and I left Australia in early 2021, travelling ultimately to [Country B] (where the children now reside). At the time of departing Australia I had, and still have, no intention of returning to live there.
The Mother further confirms in her most recent affidavit dated 24 January 2022 as follows:-
Our departure from Australia in early 2021 had been planned progressively and prepared for over a lengthy period and was delayed only as a consequence of the requirement to obtain formal permission to exit from Australia. It was and remains intended to be permanent and I confirm that I have no intention of returning to live in Australia.
There is no evidence that the Mother has since returned to Australia or resided elsewhere.
Only after extensive evidence was produced by the Mother, including photos of the children in Country B and identification cards, did the Father accept that the Mother was residing in Country B. The Father however does not accept that the Mother’s intention is to remain in Country B, claiming that she will either return to Australia or relocate to Country D. In the face of the sworn evidence of the Mother this can be little more than speculation on his part.
The Mother throughout her residency in Australia travelled to Country B with the children twice; once in early 2015 for five months and again in late 2016 for 3 months. On both occasions the Mother went to Country B to seek familial support in light of significant alleged abuse perpetrated by the Father. On both occasions, the Mother allegedly left Country B following assurances by the Husband that there would be no further violence. There is no doubt that neither the Mother nor the children were habitually resident in Country B during these periods. However, these periods are clearly distinct from the Mother’s relocation in early 2021 for the reasons set out below.
The Mother initially decided to relocate to Country B permanently during the COVID-19 pandemic in 2020 for familial support. She said in her affidavit dated 24 January 2022 as follows:-
With the advent of the Covid pandemic in 2020 and the subsequent lockdowns and border closures, it became clear that I could not remain in Australia with the children without support and continue to give them the best opportunities in life, and I made a decision to relocate to [Country B] with them.
The Mother then appeared to gain employment to advance her career in Country B and then made arrangements for the children for a permanent relocation.
Both the Mother and the children have strong ties to Country B. The Mother was born and raised in Country B and relocated to Australia at the age of 26 in 2013. The Mother then spent the following eight years in Australia, excluding short periods of time where the Mother lived in New Zealand for approximately three months and with the children in Country C for seven months, and the times she and the children spent in Country B as outlined earlier. The children, while born and raised in Australia, are also Country B nationals by descent of both the Mother and Father. X has spent 7 years in Australia and Y 6 years. As at 7 February 2022, both children have been in Country B for just over a year. The Mother and children have the support of the Mother’s extended family in Country B, including the maternal grandparents. The Mother said in her affidavit dated 24 January 2022 as follows:-
My parents have been a major and continuing part of the children's lives from the time of their birth and have played a significant role in assisting me in raising and caring for them, firstly on regular visits to Australia and now in [Country B]. Further, in the period between 2018 and us permanently leaving Australia in [early] 2021, I travelled frequently with the children to [Country B] and [Country D] (where my brother and sister live) to enable them to spend time with family and to develop close bonds with their aunts, uncles and cousins
While the Father alleges that it is the Mother’s intention to relocate to Country D, there is no evidence that the Mother or children have any entitlement to reside in Country D and there is no other connection to Country D other than the maternal siblings and cousins. In relation to the Father’s argument that the Mother will return to Australia, there is nothing in the evidence that indicates the Mother intends to do so. The Mother has no family (excluding the Father), property or employment in Australia. It is also unclear to me whether the Mother has any entitlement to live in Australia anymore, noting that the Father withdrew his sponsorship in support of the Mother’s application for permanent residence on spouse grounds in mid 2017. The Mother returned to Australia from Country C following separation, just before the Husband withdrew his sponsorship, however based on the available material it appears to me that the relocation was facilitated to remove the Mother and the children from the alleged domestic abuse perpetrated by the Father.
Following the Mother’s decision to relocate to Country B permanently, and the time the Mother had to wait to receive approval to leave Australia during the COVID-19 pandemic, the Mother made preparations for the children to ensure that their transition from Australia to Country B would be smooth. The Mother said in her affidavit dated 24 January 2022 as follows:-
In preparation for this I enrolled the children in their present school, which they attended by remote learning during 2020 until we were able to obtain permission to leave Australia. They also began to participate in virtual counselling with their [Country B] psychologist, who they still see regularly to assist with ongoing issues arising from the trauma experienced prior to the father and me separating. Accordingly, by the time we got to [Country B] and they were able to attend school in person, they already had an established friendship group and were comfortable with and established in the school community. They have now attended the school remotely and in person for over 1 ½ years, and have thrived socially and educationally and progressed to the degree that they have been promoted to the next class.
Based on evidence, it appears that X and Y are well-settled and well established in Country B. Both children can enjoy spending time with their extended family in Country B and have established health providers, including a family doctor and dentist. Both have been attending school full-time since early 2021, have developed social friendships and participate in sporting and other social activities.
While the children were raised mostly in Australia, they have also lived with their Mother for the entirety of their lives and the habitual residence of the children is inextricably entwined with the habitual residence of the Mother. When the Mother travelled or relocated, whether interstate or internationally, the children have followed. For children of such a young age, home for X and Y is wherever the Mother resides.
The Father states that, from the children’s perspective, the children remain habitually resident in Australia as the children were “well settled”, had friends in Australia, engaged in extracurricular activities in Australia and went to school in Australia up until early 2021. The last time the Father physically saw the children was prior to separation in mid 2017 when the family was living in Country C. Besides one video call in 2018, there Father has not communicated with the children since their relocation to Australia. Therefore, it is unclear as to how the Father can say with such certainty that the children were well-settled, had friends and engaged in extracurricular activity. Despite this, there is no question that prior to leaving Australia, the children were habitually resident in Australia. This is because they were living with the Mother, whose habitual residence was also in Australia until January 2021. In Bunyon & Lewis (No.3) [2013], Bennett J at paragraph 180, quoting the Revised Draft Practical Handbook on the Operation of the 1996 Convention, says as follows:-
A small number of trends can be noted in the international jurisprudence relating to the concept of “habitual residence”. First, where there is clear evidence of an intention to commence a new life in another State, then an existing habitual residence will usually be lost and a new one acquired. Secondly, where a move is open-ended, or potentially open-ended, the habitual residence at the time of the move may also be lost and a new one acquired relatively quickly.
In the current proceedings, I am of the view that the Mother’s and the children’s habitual residence in Australia was lost upon their relocation to Country B when the Mother intended to commence a new life in Country B. I am also of the view that as the Mother was returning to her country of origin, a previous life and a country where she has the support of her parents, that upon the intention to permanently relocate that habitual residence in Country B was quickly acquired by both the Mother and the children.
The Father in his submissions relies on the decision of Alfarsi & Elhage [2016], stating that “given the close factual matrix between Alfarsi and the present case Alfarsi should be followed and the children should be regarded as being subject to the jurisdiction of the Court pursuant to s111CD(1)(e).” I agree that these two cases are similar as in both cases the children were removed from Australia by one parent to a non-convention country. However, there are a number of factual differences between these two cases that impact significantly on the determination of habitual residence, which are as follows:-
(a)In Alfarsi, the children were removed from Australia and taken to “war-torn Iraq”. In this matter, the children were removed from Australia but were not taken to a war-torn country;
(b)In Alfarsi, shortly after the children were removed from Australia, the Father (who removed the children) returned to Australia, leaving the children in Iraq without either party for just under two years. This differs greatly from the current proceedings as the Mother remained in Country B with the children and, as previously discussed, the children’s habitual residence is somewhat dependent upon the Mothers habitual residence. The fact that the Mother remained in Country B with the children is a significant factor in assessing these children’s habitual residence;
(c)In Alfarsi, the Father contended that “[the children] were removed for a temporary purpose to be returned to Australia after a period”. This is a significant difference to the current proceedings, where the Mother since the beginning of her involvement in these proceedings has said that she intends to permanently reside in Country B and has no intention of returning to Australia; and
(d)In Alfarsi, the Father asserted that he did not know who was caring for his children in Iraq while he was in Australia and also did not know whether they were attending school. In these proceedings, the Mother remains the primary carer for the children and actively ensured the children’s enrolment in school in Country B prior to leaving Australia.
These factors, while they may appear small at first blush, create significant differences between the factual scenarios of these two matters.
The intention of the primary carer of the children and the children’s degree of assimilation into the non-convention country are two key considerations when determining habitual residence pursuant to LK & Director General (2009). As the facts relating to these considerations are so different between these two cases, I do not regard Alfarsi & Elhage [2016] as being persuasive or binding upon me and prefer to follow the reasoning in LK & Director General (2009) and Bunyon & Lewis (No.3) [2013].
For all the foregoing reasons I am satisfied that X and Y are not habitually resident in Australia, but are habitually resident in Country B and therefore are not subject to the jurisdiction of this Court pursuant to section 111CD(1)(e) of the Act. As a result, the Father’s application dated 25 February 2021 will be summarily dismissed pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 10.11(1)(a).
The Mother made further submissions in the instance that the Court did have jurisdiction, which provides that while section 69E of the Act may prima facie confer jurisdiction on the Court to make parenting orders, the Court should decline to exercise its jurisdiction and dismiss the application. While an in-depth analysis is not necessary as I have found that the Court does not have jurisdiction in this matter, I note that the facts of this case in any event would lead me to come to the conclusion that making parenting orders would not be in the best interests of the children. Any orders made by this Court would not be enforceable in Country B and if the Mother remains in Country B, which it appears she will, the Father will once again have to initiate proceedings in Country B and essentially start from the beginning. It would therefore not be in the best interests of the children to subject them to any further involvement with this Court.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Stewart. Associate:
Dated: 13 April 2022
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