Chandra and Chandra - [2017] FCCA 451

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chandra and Chandra

Details

AGLC: Chandra and Chandra [2017] FCCA 451
Case: [2017] FCCA 451
Decision Date: 10 March 2017

CaseChat Overview and Summary

In the matter of *Chandra and Chandra*, heard before Judge Small, the dispute concerned parenting applications in relation to a child, X, born in 2011. The court was required to determine the validity and effect of previous orders made concerning the child.

The central legal issue before the court was whether it possessed jurisdiction to make parenting orders in relation to child X. This question arose in the context of applications to dismiss existing parenting orders and discharge the appointment of an Independent Children’s Lawyer.

Judge Small reasoned that the court lacked jurisdiction to make parenting orders concerning child X. Consequently, the court ordered the discharge of paragraph 3 of the orders made on 8 December 2016 and the order appointing the Independent Children’s Lawyer made on 24 May 2016. The court further noted that the effect of these orders was to confirm the dismissal of all parenting applications for want of jurisdiction and to render all previous purported parenting orders void *ab initio*.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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