Chivers and Katagi

[2013] FamCA 291

FAMILY COURT OF AUSTRALIA

CHIVERS & KATAGI [2013] FamCA 291

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the mother and child have not returned from a holiday in India – best interests – order that the mother return to Australia with the child – order that the child is to live with the mother – order that the father is to spend time with the child as agreed between the parties.

Family Law Act 1975 (Cth) s 111CS

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Chivers

RESPONDENT: Ms Katagi

FILE NUMBER: DNC 108 of 2013

DATE DELIVERED: 23 April 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 23 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Orwin

SOLICITOR FOR THE APPLICANT: Margaret Orwin Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The mother and father have joint parental responsibility for the child S born on … June 2012.

2. Within twenty-one [21] days from today the mother return the child to Australia and advise the father of the residential address of the child and within forty-eight [48] hours of any change of the residential address advise the father of any such change.

3. During the period of the adjournment the child is to live with the mother in Australia PROVIDED THAT she complies with the Orders of this Court.

4. The father is to spend time with the child as agreed between the parties.

5. Further consideration of the matter is adjourned to Tuesday 4 June 2013 at 9.15 am before the Honourable Justice Dawe by either telephone link or video link to the Adelaide Registry.

6. The mother file any response and affidavit upon which she seeks to rely before 4.00 pm on 28 May 2013.

7. Service of this Order be effected forthwith by personal service either upon the mother by hand in India or in the alternative by service upon the mother’s solicitors acting for her in the Indian proceedings.

8. If there are any proceedings commenced in India concerning parenting orders for the child that the father serve a sealed copy of today’s Order upon the Registrar of that Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chivers & Katagi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 108 of 2013

Mr Chivers

Applicant

And

Ms Katagi

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the application brought by the father for orders in relation to the child of the parties S, (“the child”) born in June 2012.  The applications have been brought and listed on an urgent basis, initially, on the basis that it would be heard without the mother being served. 

2. I have this morning, however, been given an affidavit of service which provides evidence that the mother was served in India on 18 April 2013 by the father’s brother.  There is no appearance by or on behalf of the mother this morning. 

3. I am proceeding to hear the matter because of the issues which are raised in the affidavit filed on 22 March 2013.  That affidavit sets out the fact that the mother and father were married in India in January 2011.  The wife travelled to Australia in October 2011. 

4. The child of the parties is the daughter, S,  The parties lived in Town B, Queensland until December 2012.  The father has now moved to Town C in the Northern Territory where he has employment. 

5. The affidavit sets out the particulars concerning the travel of the parties and the child to India in December of last year.  The affidavit also makes allegations which raise issues about the mother having planned to remain in India at the time, rather than merely travel on a holiday. 

6. Apparently, proceedings have been commenced in the Court in India and counsel for the father has indicated the father’s intention to return to India to participate in those matters. 

7. What appears on the face of the evidence before the Court at this time is that the habitual residence of the child was and is still Australia.  The child was born in Australia and has Australian citizenship.  The father did not at any time consent to the child being retained in India.  Regrettably, India is not a country which is a signatory to either of the relevant Hague Conventions so the provisions of those Acts, as they apply through the Family Law Act 1975 (Cth) (“the Act”) are not relevant to these proceedings. They are however, based upon what is in the best interests of the children to ensure that the proceedings in relation to children which have international aspects are applied in an appropriate way.

8. Due to the child’s residence, citizenship and the father’s presence and residence in Australia I have jurisdiction.

9. I am also satisfied that notwithstanding that there are proceedings apparently commenced in India, that it is appropriate and in the best interests of the child for this Court to make an order indicating that this Court will assume jurisdiction and determine, pursuant to the Act, what is in the best interests of the child upon the return of the mother and child to Australia.

10. The orders which I propose to make would be for the child to be brought back to Australia and remain living in Australia until there is a determination of all matters relating to the best interests of the child after appropriate consideration of the tested evidence.

11. The provisions of the Full Court decision of Goode & Goode (2006) FLC 93-286 make it clear that there is certainly a difficulty on an interim application in drawing conclusions about, and making findings of, fact.

12. In this matter however, it appears on the face of the documents that it would be in the best interests of the child (and certainly not contrary to the relevant principles of forum conveniens) for this Court to order that the parties have joint parental responsibility for the child and for the mother to forthwith return the child to this jurisdiction in order that the necessary decisions concerning what is in the best interests of this child can be made by the country in which the child has habitual residence.

13. I have taken into account the provisions of section 111CS and the principles contained in the rules which allow me to declare the service upon the mother by the father’s brother to be deemed to be appropriate service notwithstanding the provisions that would normally apply to service pursuant to the international provisions arranged through consulate services.  In these circumstances I am satisfied that it is appropriate for me to hear the matter and to adjourn it to give the mother an opportunity to place before the Court facts upon which the further determination should be made.

14. The orders I have made take into account the best interests of the child pursuant to the provisions of the Act for the reason that the age of the child and the factors which are considered primary considerations, namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from any harm in relation to family violence. I have erred on the side of caution and made an order which requires the mother to return the child to Australia but that the child continue to reside with her until such time as the allegations referred to can be appropriately tested to ensure that orders are made which are in the best interests of the young child.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 April, 2013.

Associate: 

Date:  2 May 2013