Hazra & Sekhar - [2022] FedCFamC1F 332

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hazra & Sekhar [2022] FedCFamC1F 332

File number(s): PAC 1118 of 2021

Judgment of: HANNAM J

Date of judgment: 16 May 2022

Catchwords: FAMILY LAW – CHILDREN – JURISDICTION – Where the applicant mother seeks a declaration that a child has at all times been habitually resident in Australia and thereby this Court has jurisdiction to determine his parenting arrangements – Where the child is currently in the care of the maternal grandmother in India under a temporary arrangement – Where India is a non-convention country – Where if a declaration is made the Court must determine whether it is the appropriate forum – Where the mother also seeks orders for the child’s return and the issuing of a passport – Where a declaration is made as sought by the mother – Where Australia is the appropriate forum – Where it is in the child’s best interests for an order to be made for his return to Australia – Where orders are made as sought by the mother – Where leave is granted for certain documents to be provided to an Indian Court or legal representative

Legislation:
Family Law Act 1975 (Cth) ss 60CC, 64B, 69E, 111CA, 111CC, 111CD

Australian Passports Act 2005 (Cth) s 11

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children

Cases cited:
Bunyon v Lewis (No.3) [2013] FamCA 888

Duckworth & Jamison (2014) Fam LR 471

LK v D.G. Department of Community Services (2009) 232 CLR 582

Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701

State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906

Sun & Long [2019] FamCA 3

Zanda & Zanda [2014] FamCAFC 173

Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147

V & M (A Child: Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466 (Fam)

Division: Division 1 First Instance

Number of paragraphs: 159

Date of hearing: 24 February 2022

Place: Parramatta

Solicitor for the Applicant: Legal Aid Nsw Sydney Central Family Law

Solicitor for the Respondent: Wiltshire & Wroughton Legal

Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist
ORDERS

PAC 1118 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HAZRA

Applicant

AND:
MR SEKHAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

16 MAY 2022

THE COURT ORDERS THAT:
1.A declaration is made that the child X born in 2019 (“the child”) is and has at all times been habitually resident in the jurisdiction of the Commonwealth of Australia (“Australia”). By reason of the child’s habitual residence in Australia, it is further declared that this Court has jurisdiction to determine issues in relation to the child’s parenting arrangements.
2.Pending further order, the child shall be returned to Australia.
3.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the child is permitted to have an Australian travel document and the father’s…

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 Hazra & Sekhar

Details

AGLC: Hazra & Sekhar [2022] FedCFamC1F 332
Case: [2022] FedCFamC1F 332
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Hazra & Sekhar revolves around a dispute between the parents of a child born in India while the parents were residing in Australia. The primary issue before the court was whether the child should be issued an Australian passport without the father’s consent, and whether the parties should be allowed to provide certain documents related to the proceedings to their lawyers in India. Both parents, born in India, had migrated to Australia, with the father obtaining permanent residency before the mother joined him on a partner visa. The child in question was born in India while the mother was visiting her parents there, and has remained in India since the parents' separation.

The court needed to determine the legal status of the child, specifically whether the child had established a habitual residence in Australia or India, which would affect the jurisdiction and the issuance of an Australian passport. The court also had to consider the implications of permitting the parties to provide documents to their lawyers in India, which could potentially involve breaching Australian court orders or compromising the integrity of the Australian legal process.

In reaching its decision, the court examined the evidence regarding the family's travel to India in October 2019 and the intentions of the parents at the time. The court noted that the mother had enrolled the older child in a local preschool in India, suggesting a temporary stay rather than a permanent relocation. The court also considered the father's guilty plea to assaulting the mother and the existence of a final Apprehended Violence Order against him. Ultimately, the court determined that the child had not established a habitual residence in Australia and thus, an Australian passport could not be issued without the father's consent. Additionally, the court decided that providing documents to lawyers in India could potentially undermine the Australian court's jurisdiction and ordered that no such documents be shared without further court approval.

Orders

Orders of the court

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Background

Background to the litigation

The last matter to be resolved is whether, it is appropriate to make other orders as sought by the mother that this child be issued an Australian passport without the father’s consent, and that the parties be permitted to provide certain documents related to these proceedings to their lawyers of the relevant court in India.BACKGROUND The mother who is 36 and the father who is 40 were both born in India and are Indian citizens. In 2010 the father migrated to Australia and soon after obtained permanent residency. In 2013 the parties were married in India and in the following year the mother moved to live with the father in Australia on a provisional partner visa. She eventually became a permanent resident of Australia a few years later. In 2015, when pregnant with the parties’ first child (“the older child”), the mother travelled to India to stay with her parents. The older child was born in India in 2016. The father joined the mother in India for about a month after the older child’s birth, before returning to Australia in March 2016. The mother and the older child did not return to Australia until later that year. Each party alleges that throughout their seven-year relationship the other party was a perpetrator of family violence including physical abuse and controlling and coercive behaviour. Although it is outside the scope of these Reasons to explore the various allegations made by the parties in this regard, there is no dispute that in October 2018, the father pleaded guilty to assaulting the mother and a final Apprehended Violence Order (“AVO”) was made against him for her protection. In 2019 the younger child was born in Australia. Following this child’s birth, the mother took maternity leave from work and the maternal grandmother came to Australia from India to assist with the care of both children. In October 2019, a few months prior to the parties’ separation, the parties, the children and the maternal grandmother travelled to India together. As the younger child has remained in India in the care of the maternal family since this time, the following circumstances of the family’s travel to India, and in particular the purposes for it, are highly contested and relevant to the question of the younger child’s habitual residence. The family’s travel to India in October 2019 At the time the family travelled to India in 2019 the older child was almost three years old and the younger child only 14 weeks. Neither child had relevant Australian travel documents but did possess Indian passports. According to the mother, the parties and the children travelled to India for a temporary visit only. She deposes that the parties planned to visit each of their extended families and hold a religious ceremony for the children. She says that due to her concerns about the older child’s speech development at the time, she also enrolled this child into a local preschool in order for him to “learn more of [the mother’s dialect] and socialise with other children”. She says the father intended to stay in India for a few weeks while she and the children were to remain for some months whilst she was on maternity leave, and that the family would eventually return to Australia as both parents needed to return to their respective employment.

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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File number(s):	PAC 1118 of 2021
Judgment of:	HANNAM J
Date of judgment:	16 May 2022
Catchwords:	FAMILY LAW – CHILDREN – JURISDICTION – Where the applicant mother seeks a declaration that a child has at all times been habitually resident in Australia and thereby this Court has jurisdiction to determine his parenting arrangements – Where the child is currently in the care of the maternal grandmother in India under a temporary arrangement – Where India is a non-convention country – Where if a declaration is made the Court must determine whether it is the appropriate forum – Where the mother also seeks orders for the child’s return and the issuing of a passport – Where a declaration is made as sought by the mother – Where Australia is the appropriate forum – Where it is in the child’s best interests for an order to be made for his return to Australia – Where orders are made as sought by the mother – Where leave is granted for certain documents to be provided to an Indian Court or legal representative
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 64B, 69E, 111CA, 111CC, 111CD Australian Passports Act 2005 (Cth) s 11 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children
Cases cited:	Bunyon v Lewis (No.3) [2013] FamCA 888 Duckworth & Jamison (2014) Fam LR 471 LK v D.G. Department of Community Services (2009) 232 CLR 582 Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906 Sun & Long [2019] FamCA 3 Zanda & Zanda [2014] FamCAFC 173 Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147 V & M (A Child: Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466 (Fam)
Division:	Division 1 First Instance
Number of paragraphs:	159
Date of hearing:	24 February 2022
Place:	Parramatta
Solicitor for the Applicant:	Legal Aid Nsw Sydney Central Family Law
Solicitor for the Respondent:	Wiltshire & Wroughton Legal
Solicitor for the Independent Children's Lawyer:	Mark MacDiarmid Family Law Specialist

PAC 1118 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HAZRA Applicant
AND:	MR SEKHAR Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	16 MAY 2022