Echolls & Rinna

Case [2024] FedCFamC1F 275

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Echolls & Rinna [2024] FedCFamC1F 275

File number(s): PAC 6492 of 2022
Judgment of: RIETHMULLER J
Date of judgment: 24 April 2024
Catchwords: FAMILY LAW – PARENTING – Jurisdiction – Application for parenting orders where child lives in Country B with the mother – Where child is an Australian citizen and was born in Australia –Whether the child is habitually resident in Australia – Where the child lived in Australia for the first seven months after birth and has lived in Country B for over three years – Where the child is in the primary care of mother, who does not intend to return to Australia – Father obtained parenting orders in Country B and is pursuing contempt proceedings in Country B – Finding that the child is “habitually resident” in Country B – Parenting proceedings dismissed.
FAMILY LAW – CHILD MAINTENANCE – Where mother is seeking child maintenance – Where mother and child live in Country B – Where father lives in Australia – Child is Australian citizen – Relevant “overseas authority” – Mother should apply for child support in Country B – Australian court has no jurisdiction – No power to make maintenance order if party may apply for child support – Application dismissed.
Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 4, 24, 29B

Family Law Act 1975 (Cth) ss 66E, 69E, 111CA, 111CD

Child Support (Registration and Collection) Regulations 2018 (Cth) r 10, Sch 2

Cases cited:

Bunyon & Lewis (No 3) [2013] FamCA 888

Capitani & Langer (No 2) [2022] FedCFamC2F 477

Chawla & Dutta [2021] FedCFamC1F 256

Department of Communities, Child Safety and Disability Service & Bogovic [2017] FamCA 462

LK v Director-General, Department of Human Services (2009) 237 CLR 582; [2009] HCA 9

Mendelson & Kerner [2018] FCCA 3344

Mhambrey & Vairaja [2018] FamCAFC 120

Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701; [2016] FamCAFC 57

State Central Authority & Metin [2020] FamCA 535

Division: Division 1 First Instance
Number of paragraphs: 46
Date of last submission/s: 20 March 2024
Date of hearing: 16 November 2023
Place: Parramatta
The Applicant: Litigant in person
The Respondent: Litigant in person (did not participate)

ORDERS

PAC 6492 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ECHOLLS

Applicant
AND:

MS RINNA

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

24 APRIL 2024

THE COURT ORDERS THAT:

1.All outstanding applications be dismissed and the matter be otherwise removed from the list of active cases.

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).

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Details
AGLC
Echolls & Rinna [2024] FedCFamC1F 275
Case
[2024] FedCFamC1F 275
Decision Date

CaseChat Overview and Summary

The matter before the Court involved Mr Echolls and Ms Rinna, who were married in Country B in late 2016. Their child was born in Australia in 2019, and the family lived in Australia until the parents separated in October 2019. The child is an Australian citizen. The mother returned to Country B with the child, and there has been a dispute as to whether the mother unilaterally chose to retain the child in Country B. The father brought proceedings in Australia seeking parenting orders in relation to the child and child maintenance from the mother. The mother sought child maintenance from the father.

The court was required to determine whether it had jurisdiction to determine a parenting arrangement and whether that jurisdiction could be exercised. The court also needed to determine whether it had jurisdiction to determine a child maintenance arrangement, and if so, whether that jurisdiction could be exercised.

The court found that the child is habitually resident in Country B, and therefore, the father's application for parenting orders was dismissed pursuant to s 111CD of the Family Law Act 1975 (Cth). The court found that the mother could apply for child support in Country B, and that there was an overseas authority as contemplated by s 29B(1)(a) of the Child Support Act 1988 (Cth). Therefore, the court had no jurisdiction to determine a child maintenance arrangement, and the mother's application was dismissed.

All outstanding applications were dismissed, and the matter was removed from the list of active cases.

Orders

Orders of the court

PAC 6492 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ECHOLLS

Applicant

AND:

MS RINNA

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

24 APRIL 2024

THE COURT ORDERS THAT:

1. All outstanding applications be dismissed and the matter be otherwise removed from the list of active cases.

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.

Background

Background to the litigation

The first issue to determine is whether the Court has jurisdiction to determine a parenting arrangement in relation to the child and if so, whether that jurisdiction may be exercised. BACKGROUND In late 2016, the parents married in Country B. The mother arrived in Australia in mid-2017 on a spousal visa. The child was born in Australia in 2019. The father and the child are Australian citizens. The mother is a citizen of Country B and is not a citizen nor a permanent resident of Australia. On 16 October 2019, the parents separated when the mother returned to Country B with the child. The mother and the child have not returned to Australia since. There is a dispute as to whether the mother unilaterally chose to retain the child in Country B. The father alleges that the mother and the child left Australia for Country B without his consent. In the ensuing months, the father says he visited Country B to bring the mother and the child back to Australia, but the mother “refused to return”. The father says that the mother was willing to return to Australia on the condition that the paternal grandmother and uncle are removed from their household, which the father refused. The father returned to Australia and has not travelled back to Country B since the COVID-19 travel restrictions. The father contends that he has not been allowed to have a meaningful relationship with the child, that the mother has not made the child available during video calls or phone calls, and that he has been blocked from the child’s social media account. The father says the mother has used “foul and offensive language” against him on social media and has said that he is not the biological father of the child. He says the mother has extended the name calling to the paternal grandmother and uncle. The mother makes allegations of family violence perpetrated by the father, the paternal grandmother, and the paternal uncle. She says that shortly after the wedding, the paternal grandmother asked her to hand over all gifts, including cash and gold ornaments, and that the paternal grandmother was verbally abusive and had publicly humiliated her by shouting and calling her names such as “useless and infertile who is incapable of giving a child to the family”. The mother says that when she complained to the father about the paternal grandmother’s actions, the father became physically violent “slapping and thrashing [the mother] on the floor”. The mother reported the incident to police. Following the wedding, the mother states that the father left for Australia by himself and did not initiate any visa application for her to come to Australia and live with him. She says that only after “insistence, argument and family interactions for over three months over telephone” the father agreed to apply for a spouse visa. The mother says that the process for a spouse visa takes approximately eight to twelve months, and as a result, she left her job as a health professional in Country B and applied for a visitor’s visa and arrived in Australia in mid-2017, returning to Country B when her visitor’s visa expired in late 2017.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the material currently before the Court, it appears that the mother can apply for child support using the form available on the internet and lodge it with the court in Country B and that court may give it to the Australian Child Support Registrar. The mother has not disputed this claim. I am therefore unable to conclude that there is not an “overseas authority” as contemplated by s 29B(1)(a) of the Child Support Act, on the material before me. In these circumstances it is appropriate to summarily dismiss the application for child maintenance made by the mother.CONCLUSION When the circumstances of this case are viewed as a whole it is clear that, even taking the father’s case at its highest, the child is now habitually resident in Country B. As s 111CD of the Act prevents the father from pursuing parenting proceedings with respect to the child in the Australian Courts in the circumstances of this case, it is appropriate that his application be dismissed. Just as s 111CD of the Act prevents the father from obtaining parenting orders with respect to the child whilst the child remains habitually resident in Country B, it similarly prevents the mother from obtaining parenting orders. The Country B Courts are seized of jurisdiction, and have already exercised that jurisdiction. The dispute must be litigated in the courts in Country B, not in Australia. As the mother may apply for a child support assessment (by lodging an application with the overseas authority in Country B) there is no power to make a child maintenance order. I therefore make orders dismissing all outstanding Applications and Responses in this matter.

Ratio Decidendi

Legal Principle Established

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