Echolls & Rinna
[2024] FedCFamC1F 275
•24 April 2024
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).
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 Echolls & Rinna has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
On 25 November 2022, the applicant father commenced proceedings against the respondent mother, seeking future parenting arrangements for their only daughter (almost five years of age). The child currently lives with the mother in Country B and the father lives in Australia.
In his Amended Application for Final Orders filed 19 June 2023, the father seeks equal shared parental responsibility, the return of the child to Australia, and orders for regular contact by way of electronic communication. In her Response to Final Orders filed 31 July 2023, the mother seeks the child live with her in Country B and for child maintenance (expressed as a “monetary contribution from the applicant” in relation to expenses of the child). Whilst she also seeks the provision of documents concerning the child, there is nothing in her affidavit clarifying what documents are sought.
It is the father’s case that the mother unilaterally decided to remain in Country B with the child after travelling there for a holiday. The mother contends that the father wilfully deserted her and the child, and that the father’s abusive and violent behaviour is a threat to the child’s wellbeing.
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.
The mother said that she returned to Australia in mid-2018 to visit the father as she “intended to work on [her] marriage”. The birth of the parties’ only child was in 2019. The mother says that this was followed by the father assaulting her, as the father and the extended paternal family were not happy with a baby girl, and that they immediately started planning for another child. The mother gives a long history of what she says was an oppressive and violent relationship marked by many incidents of family violence. The mother annexes to her affidavit an email conversation between her and the father titled “divorce petition” where the father calls her names such as “ugly piece of shit”, “bloody beggar” and tells her to get “locked with another street dog” and he will “make [the mother] rot in hell”. The mother calls the father a “moron” and “asshole”.
The mother explains that she returned to Country B in late 2019 when the father asked her to book tickets for a trip to Country B to attend his cousin’s wedding and to see the maternal grandparents. The mother says that while she was in Country B the father “promised to send the [return] tickets soon” but cut off all communications with her once he returned back to Australia.
The father relies upon a Contempt Application heard before the Country B Courts in mid-2023. The father obtained orders from the Country B Courts for him to see the child by way of video conferencing two days a week (mutually decided by the parents), for 30 minutes in each occasion, which he says the mother has refused to facilitate.
Both the mother and father are un-represented.
THE RELEVANT LEGISLATION
Pursuant to s 69E(1) of the Family Law Act 1975 (Cth) (“the Act”), parenting proceedings can be instituted in this Court where, relevantly:
Child or parent to be present in Australia etc.
(1) …
(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;
…
In this case, the child has always been an Australian citizen and is therefore within the ambit of s 69E(1)(b) of the Act.
Whilst s 69E provides for when proceedings can be instituted under the Act, s 111CD of the Act subsequently limits the circumstances in which the jurisdiction of the Court may be exercised, providing (relevantly) that:
Jurisdiction relating to the person of a child
(1)A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
…
(e) a child who is present in a 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; or
…
(Emphasis added)
Country B is not a signatory to the Hague Convention on Parental Responsibility and Protection of Children, made on 19 October 1996, and therefore is a “non-Convention country” (see s 111CA of the Act).
A “commonwealth personal protection measure” relating to a child means a measure (within the meaning of the Convention) that is directed to the protection of the person of the child: see s 111CA). The “measures” identified in the Convention include (Article 3(b)):
(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;
(emphasis added)
As the application concerns parenting orders, it is an application within the ambit of s 111CD of the Act. As a result, jurisdiction may only be exercised by this Court if the child is habitually resident in Australia.
WHETHER THE CHILD IS ‘HABITUALLY RESIDENT’ IN AUSTRALIA
There is no definition of “habitual residence” in the legislation. In LK v Director-General, Department of Human Services (2009) 237 CLR 582, the High Court considered the term, noting that the “expression ‘habitual residence’, and its cognate forms, have long been used in international conventions, particularly conventions associated with the work of the Hague Conference on Private International Law”, and that although “the concept of habitual residence [has] been frequently used in other Hague Conventions, none of those instruments has sought to define the term” (at [21]). Whilst noting that the term has “repeatedly been presented as a notion of fact rather than law…to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts” (at [21]), the High Court explained:
22To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term “habitual residence” is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
The High Court went on to identify that, at least for that case:
23… it is sufficient for present purposes to make two points. First, application of the expression ‘habitual residence’ permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.
Notably, the use of the term “habitual residence” effectively amounts to “a rejection of other possible connecting factors such as domicile or nationality” (at [24]). It appears that the term was used to avoid some of the complexities of the law of domicile and its use of intention, domicile of choice, revival of domicile of origin, and the concept of dependent domicile of a married woman. The term admits of the possibility that “a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence” (at [25]). The High Court explained that:
27When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible is it to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing.
The High Court also emphasised the importance of a person’s intentions, meaning whether they leave a country without the intention to return (at [28]). Later, when speaking of the habitual residence of children, the Court said:
34… when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
Whether habitual residence can ever be changed by a parent unilaterally is a difficult question, particularly given the more recent international jurisprudence. Justice Bennett, in State Central Authority & Metin [2020] FamCA 535, carefully reviewed a large number of more recent cases, concluding that:
172Most respectfully, in my view is that the above authorities can be reconciled as permitting the following propositions in relation to one parent be able to unilaterally change the habitual residence of a child:
(a)First, one parent cannot, by intention alone, unilaterally alter a child’s habitual residence. It is not a matter where wishing will make it so;
(b)Second, the most important inquiry is around the child’s actual experience and perspective. Parental intention may be relevant but will not prevail over the child’s life experience and outlook;
(c)Third, any change of habitual residence will necessarily be based, in no small part, on the child’s integration into the new contracting state towards a point at which the child’s residence in that place can be characterised as habitual;
(d)Fourth, one parent can act unilaterally of the other parent to bring about a change the habitual residence of a child by facilitating the child’s integration and assimilation into the new environment. It is, however, the child’s assimilation, rather than the taking parent’s intention or mindset, which drives the change in habitual residence;
(e)Fifth, the younger the child and the more relevant parental intention may be given that a young child has a limited capacity to integrate into a community. That does not leave a young child without a habitual residence but it will likely bring other circumstances to the fore;
(f)Sixth, the fact that one parent neither sanctions nor wants a child’s move to or retention in another country will not prevent the child from becoming habitually resident in the state to which the child is taken or in which the child is retained where the change in habitual residence can be demonstrated to be based on the child’s lived experience of being integrated to some degree into the new community and any age appropriate reorientation of the child’s perspective on where the child belongs.
On the facts before the Court there is no doubt that the mother’s habitual residence is in Country B, given that she lived there before the parties’ relationship, has chosen to return to Country B, holds Country B citizenship, has no significant ties to Australia, and there is no evidence to suggest any intention on her part to leave Country B.
The child in the present proceedings is very young and entirely dependent upon the mother for care. The father says the child remains in Country B without his consent, and as such the child should be taken to be habitually resident in Australia.
The mother’s Response sets out that the child “shares a strong bond with her maternal grandparents, school friends and neighbourhood”, and has “a colourful social life with maternal uncle and aunts”. The mother identifies that the paternal family also resides in Country B. Whilst the father lives in Australia, the child’s primary carer is her mother, who lives in Country B with the maternal family. These matters are not in dispute.
The father relies upon the claim that the mother unilaterally moved to Country B. This is not a case where the child has only recently moved from Australia, such that the intentions of both parents may have a significant impact upon the determination of whether the habitual residence of the child had changed from Australia to Country B.
Where there is only a short period during which the child has lived in another country, the intention of the parents will be significant. For example, in Mendelson & Kerner [2018] FCCA 3344, the child (who was born and lived in Australia for the first ten months of their life) was found to have been habitually resident in Australia rather than the other country, where the child had been for three weeks. Similarly, see Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 where a child was well settled in the Netherlands before holidaying in Indonesia and then taken to Australia, following which an application for the child’s return was brought expeditiously. In Chawla & Dutta [2021] FedCFamC1F 256 there was a long period of residence in another country, however, in that case the mother indicated her intention to return to Australia. Even in the case of a relocation without the agreement of one parent, habitual residence may ensue: for example see decision of Tree J in Department of Communities, Child Safety and Disability Service & Bogovic [2017] FamCA 462 at [55] and Capitani & Langer (No 2) [2022] FedCFamC2F 477 at [32].
In Mhambrey & Vairaja [2018] FamCAFC 120, it was said that:
24As is illuminated in LK, the broad factual inquiry is not governed by any closed set of criteria to be considered and there is no predetermined weighting between them. Thus, for example, intentions, including parental intentions (including “settled intentions” or “settled purposes”) are not to be given controlling weight — although they can be very important, and will often have a bearing on the significance that can be placed upon other factors, such as the duration of a person’s connections with a particular place of residence.
25Moreover, when speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live — where those persons have their habitual residence — albeit that it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
Having regard to the period of time involved in this case, the connections of the child with family in Country B, parenting proceedings having been pursued in Country B (resulting in parenting orders), it can no longer be said that the child’s “habitual residence” is in Australia, even if the move to Country B was without the consent of the father, or the result of subterfuge by the mother. This case is very different to those where the proceedings are brought soon after the child remains in another country, such as occurred in Mendelson & Kerner or Padwa, or those where the location of the child has only recently been discovered.
It is difficult to see how the child’s habitual residence in the present proceedings could be seen as any place other than Country B, given that Country B is the place of habitual residence of the child’s primary carer, that both the child and the primary carer have been living in Country B for over three years, and the child is well integrated into the community in Country B (at least with respect to extended family). How the child came to be living in Country B must be seen as being of less importance as time passes, at least in a case such as the present, where the father has been aware that the child has been living in Country B for over three years and he has litigated in Country B concerning parenting orders. This is the natural consequence of the enquiry concerning “habitual residence” being a primarily factual one, unlike the complex legal and factual enquiry that would be undertaken if the law of domicile were to be applied.
The fact that the mother has responded to the proceedings in Australia does not overcome the restrictions imposed by s 111CD of the Act: see Bunyon & Lewis (No 3) [2013] FamCA 888 at [148].
THE RESPONDENT’S CHILD MAINTENANCE APPLICATION
The respondent seeks maintenance for the child of the parties.
If “an application could properly be made” by the respondent mother for child support under the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”), the Court may not make a child maintenance order: see s 66E of the Family Law Act.
Country B has been designated as a “reciprocating jurisdiction” for the purpose of the child support scheme in Australia: see r 10 and Sch 2 of the Child Support (Registration and Collection) Regulations 2018 (Cth). The respondent may apply for child support under the Child Support Act as the child is an Australian Citizen (see s 24(1)(b) of the Child Support Act). The application for child support must be “given to the [Child Support] Registrar” by an “overseas authority” (s 29B(1)(a) of the Child Support Act). The definition of “overseas authority” is set out in s 4 of the Child Support Act as follows:
overseas authority means a judicial or administrative authority of a reciprocating jurisdiction that is responsible for giving effect to an international maintenance arrangement.
There is no “overseas authority” identified on the Services Australia website (the agency that now has responsibility for child support within Australia) or within the Child Support Regulations, with respect to Country B. Country B does not appear to be a party to the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, and thus has no central authority for the purpose of that Convention.
Accordingly, submissions from the parties and the Australian Child Support Registrar were sought as to whether there is an “overseas authority” (within the meaning of the term used in the child support legislation) in Country B, and if so, the identity of that authority (or the relevant authority for the area in which the respondent resides if there is more than one authority in Country B).
The Child Support Registrar’s submissions went no further than supposition as to what “appears” to be the relevant authority, saying merely:
6.The Registrar confirms that, for residents of [Country B], payees can contact their local court that deals with child or spousal maintenance. It appears that the ‘overseas authority’ relevant here is the Family Court, or the District Court, in the […] region. The respondent should make inquiries with these courts.
7.Once the respondent has identified the relevant court in her region, she can complete the form found here, and request the overseas authority to complete page 11 and forward the document to Services Australia (see page 2).
…
10.The Registrar notes that further detail in response to the questions asked by the Court possibly raise questions of the interpretation of a foreign law, which will generally require expert evidence. The Registrar will, if the Court so directs, cause this evidence to be obtained. However, if the above responses are sufficient, the Registrar would be grateful if the Court can advise accordingly.
(Child Support Registrar’s Written Submissions, dated 20 March 2024)
It appears from these submissions that the Child Support Registrar takes the view that determining the identity of the relevant “overseas authority” that is “responsible for giving effect to an international maintenance arrangement” is a question to be determined by the law in Country B. It is entirely unclear how the Child Support Registrar determines whether an application form has been “given to the [Child Support] Registrar” by an “overseas authority” as required by s 29B(1)(a) of the Child Support Act. In their Written Submissions dated 20 March 2024, the Child Support Registrar submitted (in a footnote) that “In the event [further evidence] is required, the [Child Support] Registrar anticipates that consultation with various stakeholders will be required.”
The parties were provided a copy of the Child Support Registrar’s Written Submissions and invited to make submissions in reply to the Child Support Registrar’s response, on the basis that it appears the mother can make a Child Support Application through an authority in Country B. The parties did not provide any submissions in reply.
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.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 24 April 2024
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