Chandra and Chandra
[2017] FCCA 451
•10 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHANDRA & CHANDRA | [2017] FCCA 451 |
| Catchwords: FAMILY LAW – Jurisdiction – application for parenting orders where the subject child was born in Australia, is an Australian citizen, but is living in India – consideration of the meaning of “habitual residence” in these particular circumstances – where the court finds that the child is habitually resident in India and that therefore the court has no jurisdiction in this matter. |
| Legislation: Family Law Act 1975, ss.69E; 111CA; 111CC; 111CD 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 Articles 1-3 |
| Cases cited: Alfarsi & Elhage [2016] FamCA 428 Bunyon & Lewis (No.3) [2013] FamCA 888 |
| Applicant: | MS CHANDRA |
| First Respondent: | MR CHANDRA |
| File Number: | MLC 3933 of 2016 |
| Judgment of: | Judge Small |
| Hearing date: | 8 December 2016 |
| Date of Last Submission: | 6 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Raniga |
| Solicitors for the Applicant: | RRR Lawyers |
| Counsel for the Respondent: | Mr Joshi |
| Solicitors for the Respondent: | Joshi Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Johnston |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
Paragraph 3 of the Orders made 8 December 2016 is hereby discharged.
The order appointing the Independent Children’s Lawyer made 24 May 2016 is hereby discharged.
AND THE COURT NOTES:
A.That the effect of Order 1 is:
To confirm the Court’s order of 8 December 2016 that all parenting applications in relation to the child X born (omitted) 2011 be dismissed for want of jurisdiction; and
To render all previous orders which purport to be parenting orders in relation to the child void ab initio.
IT IS NOTED that publication of this judgment under the pseudonym Chandra & Chandra is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3933 of 2016
| MS CHANDRA |
Applicant
And
| MR CHANDRA |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings in relation to the court’s jurisdiction to hear an application filed by the wife Ms Chandra (“the wife”) on 4 May 2016 for parenting orders in relation to the child X born (omitted) 2011.
The Independent Children’s Lawyer argues that the court does not have jurisdiction to hear the application and the husband, Mr Chandra (“the husband”) argues that it does.
I assume that the wife would agree with the submissions of the Independent Children’s Lawyer, although she did not file any written submissions on her own behalf.
The sole issue before the court is whether the jurisdiction created by section 69E of the Family Law Act 1975 (“the Act”) is constrained by Division 4 of Part XXIIIAA of the Act such as to deny jurisdiction to this Court. The answer to that question revolves around the issue of whether X is or was “habitually resident in Australia”.
Background
The wife is 39 years old having been born in India on (omitted) 1978. She came to Australia on a student visa in 1998 and is now an Australian citizen.
The husband is 37 years old having also been born in India on (omitted) 1979. He came to Australia in (omitted) 2008 on a student visa after the parties had met through an online dating service in 2007 while he was living in India. He is also now an Australian citizen.
The parties were married in Melbourne on (omitted) 2008 in a civil ceremony.
On (omitted) 2009 they were married in a Hindu marriage ceremony in India.
X, who was born in Australia, and is an Australian citizen, is the only child of the marriage.
Until 13 January 2016 the parties and X lived in Australia. On that date they travelled to India and X has lived in India ever since.
The parties separated on 25 January 2016 in India. As far as the court is aware, they are not yet divorced.
The parties returned to Australia separately in March 2016. X was left in the care of the extended maternal family in India.
The wife returned to India in June 2016 and remains there with X.
The husband remains in Australia.
Procedural History
As already stated, the wife filed an application for parenting and property orders on 4 May 2016.
That application came before me in the duty list on 24 May 2016 and interim parenting and property orders were made on that day by consent. The court also made an order for the appointment of an Independent Children’s Lawyer.
The orders made on that day which are relevant to these proceedings are the parenting orders which state:
Until Further Order:
1. That the wife ensure that the child, X born (omitted) 2011, return to Australia within six weeks.
2. That the child reside with the wife.
3. That the wife have sole parental responsibility for the child.
4. That the child spend time and communicate with the husband at (omitted) Child Contact Service at times as directed by that centre.
5. That the parties forthwith do all things necessary to register with (omitted) Child Contact Service.
6. That contact in 4 above shall not occur until the husband has produced drug screen clear of illicit drugs.
7. That the Husband undergo random supervised urine drug screens within 48 hours of being requested to do so by the wife’s solicitor (or the ICL, if appointed) and provide the results to the wife’s solicitor (and the ICL) as soon as they become available and the husband shall be required to do no more than 6 screens in any 3 the month period.
The matter next came before me on 8 December 2016, and after hearing submissions from the party’s solicitors and the Independent Children’s Lawyer I made the following orders:
1. The matter be adjourned to Federal Circuit Court of Australia on 10 March 2017 at 9:30 a.m. for mention.
2. All applications for parenting Orders in relation to the child X born (omitted) 2011 (“the child”) are dismissed for want of jurisdiction.
3. Order 2 herein be suspended pending the Court’s judgement on the issue of jurisdiction.
4. The Husband shall file submissions and any Affidavit material in support by 15 January 2017 and the Wife and the Independent Children’s Lawyer shall file any response by 31 January 2017.
The husband filed his written submissions on 16 January 2017 and the Independent Children’s Lawyer filed her submissions on 6 February 2017. Neither party has filed any further affidavit material.
The Submissions and the Law
The husband’s submission is that the court’s jurisdiction is found in section 69E of the Act and he sets out subsections (1)(b), 1(c) and (1)(d) which read as follows:
(1) Proceedings may be instituted under this Act in relation to a child only if:
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia and the relevant day;
The husband submits that as X is an Australian citizen, and both parties were present in Australia on the relevant day (which is defined in section 69E(2) as “the day on which the application is filed”), and both parties are Australian citizens, the court has jurisdiction to make parenting orders about X despite the fact that X herself was not in Australia on the relevant day.
That particular submission is accepted by the Independent Children’s Lawyer and there is little doubt as to its force.
However, the Independent Children’s Lawyer submits that the jurisdiction conferred by section 69E is “constrained” by Division 4 of Part XIIIAA of the Act which deals with “International protection of children”.
That submission is supported by the Note which follows section 69E(2) which states:
Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
Further support for that contention is found in Alfarsi & Elhage [2016] FamCA 428 (“Alfarsi”), where Foster J stated that “s69E must be read subject to the provisions of ss111CC and 111CD of the Act that provide a ‘series of qualifying connections’ that must apply before this court can exercise jurisdiction”.[1]
[1] Alfarsi paragraph 49
S.111CC states as follows, under the heading “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 the child:
(a) a central authority or competent authority of a Convention country;
(b) a competent authority of a non-Convention country.
S.111CD, under the heading “JURISDICTION RELATING TO THE PERSON OF A CHILD” states as follows (relevant subsections only):
(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a) a child who is present and habitually resident in Australia; or
(b) a child who is present in an 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.
A “Commonwealth personal protection measure” is defined in s.111CA as:
…a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child.
“Child Protection Convention” means “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…”
Articles 1 to 3 of the Child Protection Convention state as follows:
Article 1
(1) The objects of the present Convention are -
a)
to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
b)to determine which law is to be applied by such authorities in exercising their jurisdiction;
c)to determine the law applicable to parental responsibility;
d)to provide for the recognition and enforcement of such measures of protection in all Contracting States;
e)to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.
(2) For the purposes of this Convention, the term ‘parental responsibility' includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.
Article 2
The Convention applies to children from the moment of their birth until they reach the age of 18 years.
Article 3
The measures referred to in Article 1 may deal in particular with -
a)
the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
b)rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence;
c)guardianship, curatorship and analogous institutions;
d)the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child;
e)the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;
f)the supervision by a public authority of the care of a child by any person having charge of the child;
g)the administration, conservation or disposal of the child's property.
There is no doubt that India is a non-Convention country as it is not a signatory to the Hague Convention on the Civil Aspects of the International Child Abduction.
Therefore, when all of that legislation is read together, this court can only find that it has jurisdiction to make a parenting order in relation to X if she is “habitually resident in Australia” and any of paragraphs s69E(1)(b) to (e) applies to her situation.
I accept the submission of the husband, supported by that of the Independent Children’s Lawyer, that s69E(1)(b), (c) and (d) do apply to X’s situation.
Therefore, in order to found jurisdiction in this matter, I must find that X is “habitually resident in Australia” within the meaning of s111CD, which, as set out above, must be read in conjunction with the terms of the Child Protection Convention.
In Bunyon & Lewis (No.3) [2013] FamCA 888 (“Bunyon”), Bennett J noted that “the concept of habitual residence is pivotal to the operation of the 1996 Convention”.
Nevertheless, neither the term “habitual residence” nor “habitually resident” is defined either in the Child Protection Convention or the Act.
In Bunyon, Bennett J pointed out that the language of s.111CD “requires finding as to habitual residence contemporaneously with the court exercising its jurisdiction”.
That is, Her Honour found, the question is whether a child is “habitually resident” in Australia at the time the matter comes before the court, rather than whether a child has previously been “habitually resident” in Australia over an historical period.
Her Honour distinguished the requirements for satisfaction of the term “habitually resident” in the Child Protection Convention from those in the Hague Convention, where the term is usually approached from an historical perspective.
It is usual in cases where jurisdiction is an issue that the proceedings arise from one party having unilaterally removed a child to another country.
In this case, X was taken to India by her parents when their marriage was intact, albeit less than a fortnight before they separated. There is scant evidence in any of the affidavits filed in these proceedings as to whether the parties intended X to remain in India, and while their separate returns to Australia without her could be interpreted as meaning that they did, it is difficult to know in retrospect.
In Bunyon, Bennett J referred to a Handbook in relation to habitual residence where it is noted that “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”[2].
[2] Bunyon, paragraph 180
The lack of clarity about whether the parties intended to return X to Australia leads me to find, on balance, that their travel to India was “potentially open-ended”.
Conclusion
Overall, taking the facts of this case and applying the law as set out above to those facts, I find that at all relevant times to this Court’s proceedings (those being the date on which the wife filed her application, the relevant dates when this particular matter was considered by this court, and today), X has been habitually resident in India.
The husband’s submissions claim that, in any event, the wife has submitted to the jurisdiction of this Court by the very fact of her filing her Initiating Application, and that the husband has done the same by filing his Response.
However, as Bennett J pointed out in Bunyon, where a similar submission was made:
This submission appears to be predicated on the misconception that jurisdiction can be conferred on the court by acquiescence or agreement of the parties. That is not the case. This court either has jurisdiction or it does not have jurisdiction.
Her Honour when went on to say that the submission to jurisdiction argument might be relevant where the issue is whether the court in Australia or a court in another country is the appropriate forum for issues to be determined, but not where the issue is the court’s jurisdiction per se.
I therefore find that this court has no jurisdiction to hear any application for parenting orders in relation to X, and I will therefore discharge the Order made on 8 December 2016 which suspends the Order dismissing all extant applications for parenting orders for want of jurisdiction.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 10 March 2017
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