FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chawla & Dutta [2021] FedCFamC1F 256
File number(s): SYC 4238 of 2018 Judgment of: ALTOBELLI J Date of judgment: 8 December 2021 Catchwords: FAMILY LAW – CHILDREN – Jurisdiction – Habitual residence – Whether the Court has jurisdiction to make parenting orders about the child – Where there are competing parenting proceedings overseas – Considerations of s 69E and s 111CD of the Family Law Act 1975 (Cth) and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children – Whether the child is habitually resident in Australia – Where the evidence is that the child is habitually resident in Australia – Finding that the Court has jurisdiction. Legislation: Family Law Act 1975 (Cth) ss 69E, 111B, 111CD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Kingsley & Secretary, Department of Communities and Justice (No. 2) (2021) FLC 94-010; [2021] FamCAFC 144.
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9.
Division: Division 1 First Instance Number of paragraphs: 46 Date of last submission/s: 15 October 2021 Date of hearing: 15 October 2021 Place: Sydney (via videoconference) The Applicant No appearance The Respondent: Self-represented Litigant ORDERS
SYC 4238 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHAWLA
Applicant
AND: MR DUTTA
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The mother’s Application in a Case filed on 19 May 2020 is dismissed.
2.The final hearing of this matter is expedited.
3.This matter is listed for mention on 25 January 2022 at 9am.
4.Within seven days of the date of these orders, the father do all things necessary to notify the mother of these orders.
THE COURT NOTES THAT:
A.The provisions of r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 may apply to this matter.
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 the pseudonym Chawla & Dutta has been approved pursuant…
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CaseChat Overview and Summary
In the case of Chawla & Dutta, the father sought to challenge the mother’s unilateral relocation of their two children to Country H, arguing that the Court should make certain parenting orders. The mother opposed the father’s application, contending that the children had become habitually resident in Country H, which would deprive the Court of jurisdiction to make the orders sought by the father. The central legal issue before the Court was whether the Court had jurisdiction to hear the father’s application for parenting orders, given the children’s alleged habitual residence in Country H. The Court needed to determine if the children were habitually resident in Country H, which would invoke section 111CD of the Family Law Act 1975 (Cth) and potentially limit the Court’s jurisdiction.
The Court found that the evidence did not support the mother’s assertion that the children had become habitually resident in Country H. The Court held that the children’s presence in Country H was temporary and due to specific circumstances such as border restrictions and financial constraints, rather than a permanent change in residence. The Court also noted that the children had not severed ties with Australia and maintained a routine and established existence in Country H only due to the temporary circumstances. The Court concluded that the children were not habitually resident in Country H and thus s 111CD did not apply to prevent the making of the orders sought by the father. The Court held that it had jurisdiction to hear the matter and dismissed the mother’s application seeking a dismissal or permanent stay of the father’s claims. The Court further ordered that the father must notify the mother of the orders made within seven days and requested its associate to communicate the outcome to the mother at her last known email address.
The Court found that the evidence did not support the mother’s assertion that the children had become habitually resident in Country H. The Court held that the children’s presence in Country H was temporary and due to specific circumstances such as border restrictions and financial constraints, rather than a permanent change in residence. The Court also noted that the children had not severed ties with Australia and maintained a routine and established existence in Country H only due to the temporary circumstances. The Court concluded that the children were not habitually resident in Country H and thus s 111CD did not apply to prevent the making of the orders sought by the father. The Court held that it had jurisdiction to hear the matter and dismissed the mother’s application seeking a dismissal or permanent stay of the father’s claims. The Court further ordered that the father must notify the mother of the orders made within seven days and requested its associate to communicate the outcome to the mother at her last known email address.
Orders
Orders of the court
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Background
Background to the litigation
The matter proceeded on the papers with oral submissions from the father. It is clear, with respect to the father, that he did not understand the legal complexity arising from the matter before the Court. Nonetheless, he did the best he could to assist the Court.BACKGROUND In setting out matters of background, and in referring to facts, it is important to recognise that the Court will rely predominantly on the mother’s evidence, and the father’s evidence where it is not put in contention by the mother, or is otherwise corroborated. The mother’s Case Outline filed 22 January 2021 was prepared by her solicitor and contains this helpful summary of the relevant background, from the mother’s perspective:1.The parties were married in 2006 in Country H and are both aged 38. There are two children of the relationship. Namely X, born in 2010 aged 10 and Y born in 2013 aged 7 years. 2.Both children were born in Australia after the parties came to Australia between February 2006 and May 2006.3.The Respondent mother has been the primary carer of the children since birth till her departure to enable the applicant to work and provide financially for the children.4.In December 2013, the parties were evicted from their home in Suburb C.5.The mother and the children remained living with her friend Ms D for a while and thereafter it was agreed for the Applicant and the children to travel back to Country H.6.The mother and children went to Country H in December 2013 and returned in February 2014, some two months later.7.In August 2014, the party's relationship began to deteriorate. The father moved to Melbourne in July 20168.The Applicant moved out of the matrimonial home between January 2017 until March 2017. The mother considers the date of separation to be 28 March 2017.9.After this date the father moved to Sydney and the mother moved to Ms F. 10.The father visited the children twice, once in 2017 and once in 2018 up until 26 December 2018 the date the mother travelled with the children to Country H.11.The mother was due to return on the 27 January 2019 but was married in 2019.12.The mother lives with her husband at G City in Country H.13.Her husband has three children aged 11, 7 and 5 respectively.14.The children have a strong attachment to the mother's husband and all attend school in G City known as "B School" and have made many friends.15.Both children visit their grandparents and their cousins.16.Both children are Country H citizens.(As per the original) The mother’s Case Outline filed 28 September 2021 in anticipation of the hearing was prepared by herself. It states as follows:1.The children have been resident in Country H since December 2018, a period of about two years and two months. 2.X was aged 8 and Y aged 5 upon their departure from Australia, 3.The children have lived a relatively settled existence in Country H and during their stay have never once visited Australia. 4.It is conceded X would have some memory of Australia although Y may have none. 5.The children’s caregivers are living in Country H. 6.Their routine appears established in Country H. 7.It is likely to be very difficult for the children to return to Australia and fit into an established routine without their mother 8.The children reside in an established household and their mother stays at home to care for them. 9.As stated in my initial response to the application submitted by the father, I do not intend to stay in Country H indefinitely. 10.The delay has been circumstantial and the relocation needs to be a planned one to ensure it has no impact on kids and our financial situation. 11.I have been planning my return back to Australia since May 2021 but my plans are affected by border restrictions and financial constraints. I have kept Kids father updated of my plans. 12.It should be noted that, travel expenses including quarantine stay, and cap on incoming travelers by the Australian government has significantly impacted residents’ return. 13.I am currently dependent on my husband who is our sole financial provider. I need to ensure that this relocation is not a burden on him. 14.Accordingly, it is submitted that the children are in fact habitually resident in Country H with their mother and thus they are not habitually resident in Australia.(As per the original)
Evidence
Evidence Before The Court
The father’s second affidavit was filed 2 November 2020. The relevant paragraphs are [26]–[36] and [47]–[48]. Of particular interest are annexures Y and Z to this affidavit which comprise copies of SMS messages exchanged with the mother. Thus on 26 May 2020 at 10.19 pm, the mother messaged the father: “I am ready to send the kids to live with you until the time I come back. They will be safer there!” The message exchange includes the following comments by the mother: “When I come back, I want to keep my home to be their primary home. We can get the basic consent plan ready a legal one. Simple that due to current global situation we are deciding this for the betterment of the kids to live in their home country.”EVIDENCE In support of his case, the father relied on the following documents:(a)His Application in a Case filed 18 April 2019;(b)His Affidavit filed 18 April 2019;(c)The mother’s Amended Application in a Case filed 30 July 2020;(d)His Response to an Application in a Case filed 2 November 2020;(e)His Affidavit filed 2 November 2020; and(f)His Case Outline filed 28 September 2021. In support of her case, the mother relied on the following documents:(a)Her Response filed 14 March 2020;(b)Her Affidavit filed 13 March 2020; (c)Her Affidavit filed 30 July 2020;(d)Her Amended Application in a Case filed 30 July 2020;(e)Her Case Outline filed 22 January 2021; and(f)Her Case Outline filed 28 September 2021.APPLICABLE LAW Section 69E of the Family Law Act 1975 (Cth) (“the Act”) states the general rule that a child or parent must be present in Australia.69E Child or parent to be present in Australia etc.(1) Proceedings may be instituted under this Act in relation to a child only if:(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or(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, on the relevant day; or(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.(2) In this section:relevant day, in relation to proceedings, means:(a) if the application instituting the proceedings is filed in a court—the day on which the application is filed; or(b)in any other case—the day on which the application instituting the proceedings is madeNote:Division 4 of Part XIIIAA (International protection of children) has effect despite this section.(Emphasis in original) The children are not present in Australia. If the mother is correct in asserting that the children now have Country H citizenship, it is possible that they are no longer Australian citizens. It would strain the facts to suggest that the children are ordinarily resident in Australia. The father is ordinarily resident in Australia and is present here. Prima facie, the Court has jurisdiction to hear the parenting proceedings.
Decision
Reasons for decision
Their father commenced this litigation on 19 April 2019, about four months after the mother unilaterally relocated with the children. Reviewing the procedural history of this matter, the Court discerns no delay in prosecuting these proceedings that cannot be explained by reference to the father becoming unrepresented at times, the difficulty of conducting proceedings when the respondent is overseas, and the seemingly ever-present problem of Court delays.CONCLUSION Having regard to the above, this Court concludes on the evidence that the habitual residence of the children is not Country H, and thus s 111CD of the Act does not prevent the making of the orders sought by the father. This Court clearly has jurisdiction. Accordingly, the mother’s Application in a Case seeking either dismissal of his claim, or a permanent stay, is dismissed. This matter has lingered long enough and needs to be brought to a conclusion. On the Court’s own motion, the Court expedites the final hearing of this matter, and the matter will be allocated to my docket. An order will be made that the father do all things necessary to notify the mother of the orders made today, within seven days of today’s date. Out of the abundant caution, my associate will be requested to communicate the outcome of the proceedings, and provide a copy of these orders, to the mother at her last known email address. Once again, it is so noted that the provisions of r 10.13(1)(a) of the Rules may apply to this case.
Ratio Decidendi
Legal Principle Established
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