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 consent to the child having such a document is dispensed with.
4.Until further order, the mother is to hold the child’s passport and/or other travel document.
5.The mother and father are permitted to provide copies of the following documents to a lawyer representing them in proceedings in India in respect of the child and the older child Y born in 2016, or a court hearing such proceedings:
(a)A copy of these Orders and the Court’s Reasons for Judgment dated 16 May 2022;
(b)Any other orders made in these proceedings; and
(c)Any document filed or tendered in these proceedings, including any affidavit and any document exhibited or annexed to it.
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 Hazra & Sekhar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
This judgment concerns the question of this Court’s jurisdiction to determine a parenting dispute between the parties (“the mother” and “the father”) who are parents of two young boys now aged six and three (“the children”).
Proceedings concerning the future parenting of the children (“the substantive proceedings”) were commenced by the mother in the Federal Circuit Court of Australia (as it was then known) in March 2021 and were subsequently transferred to this Court in September 2021.
The father who has recently moved to India has engaged in the substantive parenting proceedings before this Court including by filing a Response and agreeing to interim orders providing that both children live with the mother and spend time with him as agreed between the parents.
Since around late 2020 the younger son (“the younger child” or “the child”) has been cared for by his maternal grandparents who reside in the parents’ country of birth, India. Both parents consider this to be a temporary arrangement. Although the parties dispute the circumstances in which the younger child came to be in the care of the maternal family in India, it is common ground between them that when the mother made attempts to have this child returned to Australia the father refused to provide his consent to the relevant authority in India to allow for this to occur.
Despite the father’s initial engagement in the parenting proceedings, it is now his case that this Court lacks jurisdiction to resolve the dispute between he and the mother about future parenting arrangements for the younger child on the basis that he contends the child is not habitually resident in Australia.
In August 2021 the mother filed an Application in a Case seeking in summary that the younger child be declared habitually resident in Australia and that he be returned to live with her in Australia. In October 2021 she subsequently amended her interim application to seek a further order that the younger child be issued an Australian travel document and that the father’s consent in this regard be dispensed with.
In his Response to the mother’s application filed 4 November 2021, the father maintains that pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth) (“the Act”) the Court does not have the jurisdiction to make parenting orders in relation to the younger child and seeks a declaration that the child is habitually resident in India. The Independent Children’s Lawyer (“ICL”) appointed to the proceedings generally supports the father’s application.
The first question for me to determine is whether pursuant to s 111CD of the Act the Court has jurisdiction to make Commonwealth personal protection measures for the younger child which includes making orders relating to his parenting arrangements. The determination of this question of jurisdiction involves considering whether this child is habitually resident in Australia or in India.
If I am satisfied that the Court is seized of the relevant jurisdiction, I must then determine whether Australia is the appropriate forum to determine the parenting dispute. If I consider that Australia is the appropriate forum to determine the dispute, the mother seeks orders for the younger child to return to live with her in Australia.
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.
The father’s evidence in relation to this travel has shifted in the course of the proceedings. It was initially his case (as can be gleaned from his affidavit dated 19 March 2021 tendered by the mother in these proceedings)[1] that the parties and the children travelled to India for a holiday. No suggestion was made by him in that affidavit that the family intended to relocate to India and resettle there.
[1] Exhibit 3.
In his affidavit filed for the purposes of the current application,[2] the father now deposes that a few days before travelling to India he and the mother agreed to moving back to India and living there indefinitely. He deposes that their decision to return to India was due to the lack of support in managing the children (in Australia) and because the mother was “homesick”. He deposes that the parties had applied for an Indian passport for the younger child so that the child could “remain an Indian citizen” and that the older child was enrolled in a local school in India in order for this child to “continue his studies” until the father returned to India “after winding up things (sic) in Australia”.
[2] Dated 4 November 2021.
The family departed Australia on 23 October 2019. The mother deposes that from this time the father kept the Indian passports of herself and the children in his possession.
Returning to Australia
The father returned to Australia in November 2019 after a short time in India, while the mother and the children remained in India with the maternal family.
Although the mother had intended to return to Australia with the children in May 2020, this was not possible as she had no access to either her own or the children’s passports.
Text messages exchanged between the parties on 24 January 2020[3] indicate that the mother made an unsuccessful attempt to have the father return her passport to her. She says the father refused to organise this to prevent her and the children from leaving India. The father deposes that those passports were confiscated by police in India as a result of an investigation into claims of the mother’s allegedly fraudulent conduct.
[3] Exhibit 2, p.6.
By about mid-2020, the parties’ relationship had significantly deteriorated and the mother at least considered the marriage to be at an end. In July 2020, the mother commenced divorce proceedings in India, which were “objected to” by the father.
As a result of being unable to return to Australia the mother twice extended her leave from work. Due to restrictions associated with the COVID-19 pandemic she was also unable for some time to obtain new passports for herself or the children.
It was not until August and September 2020 that the mother successfully obtained new Indian passports for herself and the older child respectively.
It is the mother’s case that she did not apply for a new Indian passport for the younger child as she held concerns that she would not be able to obtain all relevant documents required for that application without the father’s consent. Instead, the mother applied for an Australian passport for the younger child and also obtained an Australian citizenship certificate for him as required by that application. There is no dispute between the parties that the mother applied for these documents without the father’s consent.
On 19 October 2020, the younger child was issued a limited validity Australian passport. The mother deposes that she was advised by an Indian government agency (“the Indian government agency”) that a further ‘exit permit’ was required before the younger child could leave India.
The mother applied for an exit permit for the younger child, which she says also involved her applying for a ‘surrender certificate’ relating to the child’s Indian passport. The permit was denied by the relevant agency in India on the basis that it could not be issued in the absence of the father’s consent or court orders.
In November 2020 the mother and the older child returned to Australia. The mother believed she could resolve things with the father in Australia where the father lived so that the younger child could also be returned. The younger child was left overseas in the care of the maternal grandparents under a temporary arrangement and has lived there ever since.
Events leading up to the proceedings
Upon returning to Australia, the mother continued to make attempts to have the younger child returned from India. Further text messages sent between the parties in December 2020[4] show that the father was initially somewhat agreeable to helping the mother facilitate the younger child’s return to Australia, although this did not ultimately come to fruition.
[4] Exhibit 2, p.20.
In February 2021 the father moved into the home of mother and older child, though the parties did not resume their relationship. During this time the mother continued to plead with the father to assist her in retrieving the younger child to no avail.
On 28 February 2021 the mother was charged with assaulting the older child and a provisional Apprehended Domestic Violence Order (“ADVO”) was made against her for the protection of that child. As a result of the ADVO which precluded her from living in the same residence as the older child, the mother moved into separate premises and the older child was left in the father’s care. Subsequently in appeal proceedings the finding of guilt in relation to this offence was quashed and the ADVO was set aside.
The proceedings
On 3 March 2021 the mother initiated proceedings in the Federal Circuit Court seeking urgent parenting orders including interim orders that she have sole parental responsibility for the children and that in exercise of that sole parental responsibility she be authorised to cause the children to travel to and from Australia and cause the renewal of any of their passports without the father’s signature. She also sought orders that the children live with her and spend time with the father as agreed between the parties in writing.
In the same month the mother discontinued her divorce application in India with a view to applying for a divorce in Australia. She was ultimately successful in applying for a divorce in Australia.
At the first return date of the mother’s parenting application on 9 March 2021, the proceedings were allocated into the Evatt List[5] and an ICL was appointed. The parties were also ordered to attend upon a family consultant for the purposes of a Child Dispute Conference.
[5] Matters are transferred into the Evatt List if they return as ‘high risk’ in the Family DOORS Triage screening process. This is an administrative process that has been in place since the pilot commenced on 7 December 2020 (Lighthouse Project and Evatt List (FAM-LHP) Family Law Practice Direction).
The father filed a Response on 19 March 2021 seeking interim orders that he have sole parental responsibility for the children and that they live with him and spend time with each parent as agreed between the parties. In his affidavit filed in support of this application (Exhibit 3 referred to at [21] of these Reasons) the father deposed to holding concerns about the safety of the older child in the mother’s care and indicated similar concerns about the younger child whom he then alleged was “intentionally left in India by [the mother] to separate him from [the father]”. He made no mention of any planned relocation when the parties travelled to India in October 2019 and also said there was no reason why the mother and children could not have returned to Australia on their original passports.
Following hearing on 30 March 2021, interim orders were made with the consent of the parties (“the March 2021 orders”) providing in summary that the children live with the mother and that a declaration be made that the ADVO then protecting the older child from her is invalid to the extent that it is inconsistent with the terms of the March 2021 orders. The parties also agreed on orders that the children spend time with the father as agreed between them, and failing agreement, for four hours each fortnight supervised by a contact centre. The proceedings were otherwise listed for a future court event which was noted to be for the purposes of ascertaining “whether any issue has arisen with respect to the documentation to be executed by each of the parties to enable the return of [the younger child] to Australia”. In other words, it appears that at that stage there was a common intention between the parties that relevant documents would be executed by each of them to facilitate the younger child’s return to live with the mother in Australia.
After the interim hearing the mother again applied to the relevant Indian government agency for travel documents for the younger child and provided that agency with a copy of the interim orders. She also put in place arrangements for the maternal grandmother to accompany the younger child on his return to Australia and to stay with her. Despite the March 2021 orders and these steps taken by the mother, the younger child has not been returned to Australia.
By email dated 27 May 2021 to the mother’s solicitor, it was indicated on the father’s behalf that he had “no plan to seek court orders from the Federal Circuit Court to relocate the children outside the [Australian] jurisdiction”.[6] The mother’s solicitors requested in response that the father cooperate with the mother in exhausting every avenue to secure the necessary documents for the younger child’s return. While it was also noted in that response email that there was “a degree of uncertainty in relation to what exactly the Indian government required for the younger child’s exit from India”, it was requested on the mother’s behalf that the father provide his written consent to an exit permit for the younger child to be issued by the Indian government agency.
[6] Exhibit 2, p.24-25.
The father did not provide his consent as requested by the mother and at a court event before a Registrar that same day indicated to the Court that he was hesitant in providing his consent due to confusion over the younger child’s citizenship. He subsequently sought an adjournment of the proceedings so that he could “pursue and understand his rights and [the younger child]’s rights in India”.
In June 2021 the father travelled to India to assist in the care of his ill father. During this stay, the father made an application for habeas corpus against the maternal family whom he alleged unlawfully held the younger child in their care. Tensions between the father and maternal family then intensified with the parties deposing to at least one occasion when interactions between the father and members of the maternal family led to police intervention and claims that the father and maternal grandmother were each physically harmed in the course of this altercation.
In August 2021 the father’s habeas corpus application was dismissed by the High Court in India following a hearing. The High Court in India also made interim orders allowing the father to spend time with the younger child during weekends, although it is unclear how much time has occurred under this arrangement.
On 31 August 2021 the mother filed an Application in a Case seeking on an urgent basis that the proceedings be transferred to this Court, that declarations as to jurisdiction and the younger child’s habitual residence in Australia be made, and that other orders be made facilitating the younger child’s return to Australia.
On 7 September 2021 the matter was transferred to this Court on the Court’s own motion and with the consent of the mother and the ICL.
Later that month the father commenced proceedings in a District Court in India concerning the future parenting of the youngest child only (“the Indian parenting proceedings”). The mother has not ever participated in the Indian parenting proceedings, and they remain on foot. No application has been made by her or on her behalf to stay those proceedings.
For the remainder of 2021, the mother continued to make unsuccessful attempts to obtain the father’s consent to arrangements that would see the younger child return to Australia. Although the mother had also made arrangements for the maternal grandmother to bring the younger child back to Australia, the father again withheld his consent to the necessary documents for the younger child’s return and also sought a travel ban for the child from police authorities in India.
On 7 October 2021, the mother amended her Application in a Case seeking further orders that the younger child be permitted to have an Australian travel document and that the requirement for the father’s consent to the child having such travel document be dispensed with.
On 4 November 2021 the father filed a Response to the mother’s interim application seeking a declaration that the younger child is habitually resident in India and that pursuant to s 111CD(1)(e) of the Act the Court does not have jurisdiction to make parenting orders in relation to this child.
At a court event before a Registrar on 9 November 2021 the parties and the ICL confirmed that matters relating to the question of jurisdiction and the parties’ respective interim applications were to be listed before a Judge given the nature of the issues to be determined. It was estimated that determination of these matters required “two hours of hearing time on submissions only”. Directions were then made by the Registrar for the filing of written submissions which the parties and the ICL each complied with by mid-February 2022.
The proceedings were subsequently listed before me for two hours on 24 February 2022 by way of video link utilising the Microsoft Teams platform to allow the parties the opportunity for further oral submissions in relation to their respective applications.
When this application was heard in February 2022, the father was then present in India having recently communicated an intention to reside in that country indefinitely. To date, as I understand it, he has also had intermittent electronic communication with the older child who continues to live with the mother pursuant to court orders. He apparently has also spent some time with the younger child in India but little is known about that contact.
The mother for her part deposes that she and the older child have had regular video contact with the younger child facilitated by the maternal family.
Against the foregoing background, I will now consider the issue of jurisdiction beginning first with the threshold question of the younger child’s habitual residence.
JURISDICTION
The jurisdiction of this Court in parenting proceedings is set out in s 69E of the Act which provides as follows:
(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 made.
Note:Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
In the present case, the mother meets the precondition for the institution of proceedings on the basis that the younger child is an Australian citizen (s 69E(1)(b)). She also satisfies s 69E(1)(c) of the Act in that she was present in Australia on the relevant day the current application was filed, being 31 August 2021.
However, by virtue of Part XIIIAA Division 4 of the Act, the Court’s jurisdiction as outlined in s 69E is qualified by ss 111CC and 111CD of the Act. Part XIIAA Division 4 implements into domestic law provisions of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children which was signed at the Hague on 19 October 1996 (“the 1996 Hague Child Protection Convention”).
The grounds for the exercise of jurisdiction depend upon whether the foreign jurisdiction is a convention or non-convention country. There is no dispute between the parties that India is a non-Convention country.[7]
[7] In State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906 Bennett J explained the difference between a Convention and non-Convention Country at [44]-[47].
Section 111CC of the Act relevantly provides:
Application of this Subdivision
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a) A central authority or competent authority of a Convention country;
(b) A competent authority of a non-Convention country.
Section 111CD(1) then provides:
(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
(a) a child who is present and habitually resident in Australia; or
…
(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…
Section 111CA(1) of the Act defines “Commonwealth personal protection measure” as “a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child”. For the same reasons as articulated by Bennett J in State Central Authority & Spring-Ernest (No.2) (supra), I am satisfied that a Commonwealth personal protection measure includes a parenting order as defined by s 64B of the Act.
The question therefore is whether the younger child is habitually resident in Australia. This is the central factual dispute to be resolved in this application.
Habitual Residence
The mother seeks a declaration that the younger child (hereinafter referred to as “the child”) is habitually resident in Australia thereby invoking the Court’s jurisdiction to determine issues in relation to his parenting arrangements.
The father maintains that the Court does not have jurisdiction given the child is habitually resident in India and also seeks declarations to this effect.
While the ICL expressed the view that the facts support “different narratives at different times”, he generally supports the father’s position. The ICL ultimately submitted that “on balance” the Court would be satisfied that the child’s habitual residence is in India and not in Australia.
The question of “habitual residence” was considered by the Full Court in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 (“Padwa”). Although the Full Court in that case considered the question of habitual residence in the context of the Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”), the governing principles that attach to that question similarly apply to like instruments such as the 1996 Hague Child Protection Convention. Those governing principles were discussed in Padwa as follows:
WHAT PRINCIPLES GOVERNED THE APPLICATION?
31. The High Court (French CJ, Gummow, Hayne, Heydon & Kiefel JJ) dealt with the question of habitual residence under the Regulations and the Convention in LK. Having (at [21]) noted that the explanatory report on the Convention described habitual residence as a “question of pure fact, ‘differing in that respect from domicile’”, at [22] the High Court said:
22. To 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.
(footnote omitted)
32. In Re B (A Child) (Habitual Residence: Inherent Jurisdiction), Lady Hale and Lord Toulson supporting Lord Wilson’s decision said:
57. We fully agree with Lord Wilson’s reasoning and conclusion on the issue of habitual residence. He has described the identification of the child’s habitual residence as overarchingly a question of fact (para. 46). At the risk of appearing pedantic, we would prefer to describe it as a mixed question of fact and law because the concept is a matter of law but its application is a matter of fact ...
33. Returning to LK, the High Court said:
23. Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, 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.
...
27. 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. The younger the child, the less sensible it is 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. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, 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.
Purpose and intention
28. Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
29. First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous.
...
34. ... 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.
35. ... to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
34. In the course of its reasons in LK the High Court considered what was said by the Court of Appeal of New Zealand in Punter v Secretary for Justice (“Punter”).[10] The High Court said:
44. ... As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.
35. The shift away from the concentration on shared parental intention in determining habitual residence is evident from the UK Supreme Court’s decision in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and ors intervening),[11] AR v RN (Habitual Residence)[12] and Re B (A Child) (Habitual Residence) (above). Although not binding on us, uniformity with decisions made in other jurisdictions interpreting the same Convention is desirable at the very least, and the UK jurisprudence is consistent with what the High Court has decided in LK.
36. Crucially, the High Court went on to say in LK:
Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
(footnotes omitted)
37. It is of considerable importance that the High Court justices themselves highlighted the words “from the child’s perspective”.
38. In determining habitual residence the ultimate question for the trial judge was whether, immediately prior to 19 December 2015, the child’s presence in the Netherlands had a degree of settled purpose from the child’s perspective, in all the circumstances of the case, to result in the conclusion that the child was habitually resident in the Netherlands.
The effect of the foregoing authorities is that there has been a shift away from shared parental intention in determining habitual residence and that attention should be given to whether presence at a particular place has a “degree of settled purpose from the child’s perspective”.[8] That is not to say, however, that intention does not fall within the wide range of circumstances that can bear upon where a child is habitually resident. Rather, while it remains a relevant consideration, it must not be given “controlling weight”.[9]
[8] L.K v D.G Department of Community Services (2009) 232 CLR 582 (‘L.K’) [45].
[9] Ibid [28].
In accordance with the authorities,[10] the relevant day in determining habitual residence is the date of determination of the issue. For this reason, 24 February 2022 is the relevant day for the determination of this question.
[10] See Bunyon v Lewis (No.3) [2013] FamCA 888, Sun & Long [2019] FamCA 3 and Duckworth & Jamison (2014) Fam LR 471.
The competing submissions
In submissions contained in the mother’s Outline of Case[11] it is argued on her behalf that at the time of his birth the child was habitually resident in Australia by virtue of the parents residing in Australia “on a settled basis”. The mother contends that notwithstanding the child’s extended presence in India from late 2019, his habitual residence in Australia did not change to India as argued by the father for the following reasons.
[11] Exhibit 1.
First, the mother contends that the father sought unilaterally to relocate the family to India. It is her evidence that she herself had no intention to settle permanently in India and that the family’s travel to India in October 2019 was for a temporary visit as discussed. While the mother acknowledges that matters relating to intention alone are not determinative of habitual residence, it is submitted on her behalf that there is authority to support that a consideration of the intentions of both parents is still necessary when determining the question of a child’s habitual residence when parents do not live together. She cites the general rule articulated by the High Court in L.K (supra) that neither parent can unilaterally change a child’s place of residence, and that the assent of the other parent, or a court order, is required.[12]
[12] L.K [34].
It is also the mother’s case that the matter under consideration shares similarities with the Full Court decision of Zotkiewicz & Commissioner of Police (No. 2)[13]. In Zotkiewicz, the Full Court was not persuaded that the forces of geography and duration had sufficiently come into play to justify a finding that the subject child was habitually resident in Poland where the child had been living for five months.
[13] [2011] FamCAFC 147 (‘Zotkiewicz’).
In finding that the child was not habitually resident in Poland, the Full Court referred to several relevant factors including:
(a)The mother’s case was that the stated intentions of the father (that the family had moved to Poland permanently) were duplicitous;
(b)The fact that the stated intentions of the father in that case were very recent in origin and had undergone significant change; and
(c)The reality that for most of the period in which the child was present in Poland, one parent had been making every effort to remove the child from that country.
It is the mother’s case that this father’s intention was for she and the children to remain in India while he returned to Australia and he continues to pursue that goal through this litigation. She contends that the bona fides of the father’s intentions are open to question in particular when his differing accounts of the family’s travel to India in October 2019 are considered.
In particular, the mother highlights that at the commencement of the proceedings the father deposed that following the family’s travel to India in 2019, the mother had “intentionally left” the child in India against the father’s wishes in order to “separate the child” from him, with the clear inference that the father’s intention was for the child to live in Australia. The mother submits that this is in stark contradiction with the father’s evidence now that just prior to their departure in October 2019, he and the mother had come to an agreement to relocate to India and settle there indefinitely.
When asked about this contradictory evidence at the hearing, the legal representative for the father suggested that on its face the affidavit prepared by the father’s previous lawyers and containing the father’s earlier evidence, appeared to be ill-prepared. The father’s legal representative ultimately conceded, however, that there was no evidence to support such a submission, and that, more importantly, such inconsistency in the father’s evidence had not in any way been addressed by the father in the current proceedings.
The mother also refers to the father’s conduct in the months following her return to Australia in late 2020 and throughout the proceedings to demonstrate that his stated intentions had undergone considerable change that may reflect on his bona fides as is contemplated in Zotkiewicz. It is submitted on her behalf that the following matters not only illustrate the inconsistency in the father’s approach to the child’s (as well as his own) intended residence over time, but also cast some doubt on the father’s assertion that the family’s travel to India in 2019 was other than for the purposes of a holiday:
·In December 2020, after returning to Australia without the child, the mother deposes to requesting the father’s help in bringing the child back to Australia and communicating to him that she had applied for the relevant documents and subsequently required his consent and the child’s passport. The mother relies upon copies of the messages exchanged between the parties at the time in which the father can be seen to have responded with “[the child] has to be with us” and otherwise assuring the mother that he would do what is necessary to facilitate the child’s return;[14]
·On 30 March 2021, at a time when the father lived in Australia and had recently filed a Response seeking orders that the children live with him, he consented to interim orders providing that the children live with the mother and spend time with him as agreed between the parties;
·In correspondence sent to the mother’s solicitor and ICL dated 27 May 2021, the father’s lawyer informed the parties that the father did not intend to “seek orders from the Federal Circuit Court to relocate the children outside the [Australian] jurisdiction”;[15]
·In June 2021 the father applied for an exemption to travel to India not for the purposes of permanently leaving Australia but in order to care for his ill father;
·In August 2021 the father’s lawyer sent further correspondence to the mother’s solicitor and ICL stating that the father did not plan to return to Australia “in the near future” due to a shoulder injury he was receiving treatment for at the time;[16] and
·In September 2021 the father filed a Notice of Address for Service in the substantive proceedings in which he stated “[a]t the moment I am in India, once I arrive in Australia I (sic) update you with my residential address”.[17]
[14] Exhibit 2, p.20.
[15] Ibid p.24-25.
[16] Ibid p.58.
[17] Ibid p.73.
The mother further argues that from around the time the father returned to Australia from India in November 2019 and until her own departure a year later, both children were living in her primary care albeit at the maternal family’s home overseas. She submits that throughout this period she had no settled purpose to reside in India and had instead made “concerted attempts” to return to Australia with the children as soon as practicable. Had the father not withheld the child’s passport and declined to provide his consent to an Indian travel document for the child, both children would have returned to Australia with her at this time. In other words, the mother argues that akin to the “involuntary residence” found in relation to the child in Zotkiewicz, the evidence before the Court supports the conclusion that the child in the present case remained in India from November 2020 not because of a settled intention between the parents, but because of the father’s actions in effectively preventing the child’s removal from that country.
For similar reasons, the mother says the child cannot be taken to have integrated into Indian life. She contends that she has made concerted efforts to return the child to Australia where she and the older child are living. Further there is no dispute that neither parent regarded the child’s placement in the care of the maternal grandparents as a “permanent arrangement” or that the father who has travelled to India has not been successful in assuming care of the child. There is also no dispute that the father has prevented the child from being returned to Australia.
Neither party identified any authority where a child in the temporary care of a person other than a parent has been held to be habitually resident in that place. The mother argues that the circumstances that resulted in the child remaining in the care of the maternal family are analogous to the facts in the English case of V & M[18]. In that case, the subject child was left in the care of the maternal family in an overseas country in circumstances where the father sought to “strand” the mother and child in that overseas country by withholding their passports. The legal representative for the mother submits that the mother in the English case faced a similar struggle in obtaining travel documents for the child in the absence of the father’s consent, which meant that the mother was forced to leave the child behind with her extended family overseas for some period of time.
[18] V & M (A Child: Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] EWHC 466 (Fam) (‘V & M’).
In V & M (supra) the UK High Court found that despite the subject child’s extended presence of about 12 months in the care of the maternal family in the overseas country, the child continued to be habitually resident in his country of birth.
In contending that the child in these proceedings has not settled in India in the same way, the mother points to the reality that throughout 2020 she made “concerted efforts” to remove the child from India and reunite him with herself, the father and the older child who were all then living in Australia. She reiterates that the father did not communicate any intention to live outside of Australia until after she filed the current application.
The father relies on his Outline of Case filed on 4 November 2021[19] in which he does not address the mother’s contentions explicitly but generally maintains that the child is not habitually resident in Australia on two particular bases.
[19] Exhibit 4.
The first, is that the parents, he insists, held a settled intention to move back to India when they left Australia in October 2019. In his affidavit filed for the purposes of this application he deposes that the parties agreed to leave Australia due to the lack of support in managing the children in Australia and that the mother in particular was “homesick” so the parents “decided to stay together with all our relatives [in India]”. It is also his evidence that the parents obtained an Indian passport for the child so that the child “could remain an Indian citizen” and that the older child was enrolled in a local school in India so that this child could “continue his studies” while the father wound up his affairs in Australia.
The father otherwise relies on the child’s physical presence in India to support his case that the child is habitually resident in that country. He argues that the fact that the child has lived in India since October 2019 cannot be ignored. He says such time the child has spent with the maternal grandparents in India amounts to an “appreciable period of time” having regard to the child’s young age, and that in these circumstances the child can be taken to have “assimilated” into life in India.
It was further argued on the father’s behalf that regard may be had to the fact that the habitual residence of the maternal grandparents, with whom the child is currently living, is also in India. In his written submissions, particular reference was made to the following extract from L.K (supra):
The younger the child, the less sensible it is 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 father effectively argues that the child shares the maternal grandparents’ place of habitual residence, while also conceding that in accordance with L.K that “attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child”, (which the father’s legal representative submits applies to the maternal grandparents). As I understand it, the father is contending here that while the Court can take into account the maternal grandparents’ habitual residence and their intentions given the child has remained in their care for an extended period of time, it is nevertheless necessary to consider what the parents intended for the child, being (on the father’s case) that he, along with the parents and the older child, was to permanently live in India from October 2019.
The ICL supports the father’s contention that the child is habitually resident in India rather than in Australia.
In his written submissions[20] the ICL refers to the family’s circumstances that he submits would lead to the conclusion that “on balance” the child’s habitual residence is in India, not in Australia. These circumstances include the parties’ frequent and extended travel to India, the father’s evidence of his own intentions, the child’s actual physical presence in India and the significant period of time the child has not spent with either parent.
[20] Exhibit 5.
The ICL also attaches weight to the mother’s conduct in enrolling the older child in preschool in India in order for that child to learn more of the mother’s dialect and socialise with other children and in choosing an Indian court as her preferred forum to apply for a divorce from the father. The ICL further submits that the mother “clearly felt” that the child had a sufficient bond with the maternal grandparents to leave him in their care for an extended period of time.
The ICL does also acknowledge the mother’s evidence of a desire to maintain a connection with Australia based on the availability of work and schooling which, in the ICL’s view makes it difficult to assert that either country was the “clearly preferred residence of the mother” for the entirety of her stay in India between 2019 and 2020”.
Discussion - is the child habitually resident in Australia?
Although the authorities are clear that there has been a shift away from parental intention in determining the question of a child’s habitual residence, some consideration of this matter is permitted so long as it is not given “controlling weight”.
As outlined above, the parties are in dispute about the intention they held at the time they departed Australia with the children in October 2019. In my view, the evidence before the Court supports the conclusion that the mother’s account relating to the family’s travel at that time is more accurate than that of the father. In preferring the mother’s version over that of the father, I attach weight to the following matters.
First, I accept the mother’s submission that the bona fides of the father’s alleged intention to relocate to India is questionable having regard to his contradictory evidence in the proceedings. As touched upon earlier, the general tenor of the father’s earlier evidence was that when the mother returned from India she had left the child in the care of the maternal family overseas for the purpose of “separating the child from him”. The clear inference from such evidence is that the child was left in India against the father’s wishes and that his wish then was that the child be present in Australia where he (and the mother and older child) were then living. This inference flowing from the father’s evidence is inconsistent with the balance of his case that the parties “agreed” to permanently move to India and resettle there. This inconsistency has not been addressed or explained in the father’s evidence or submissions on his behalf.
In my view there are other unaddressed inconsistencies or anomalies in the father’s evidence. For example, the father says that the parties applied for an Indian passport for the child in order that this child “remain an Indian citizen”. The legal representative for the father conceded in oral submissions that no documentary evidence corroborates the suggestion that the child, who was born in Australia held Indian citizenship at birth or that he was otherwise capable of holding dual citizenship under Indian law. In the absence of such evidence, the suggestion that the child was an Indian citizen at birth to support that he is habitually resident in India amounts to a mere assertion. It was also conceded in the course of the hearing that at least by operation of Australian law the child was an Australian citizen.
Further, in support of his case that the younger child is a resident in India the father also relies upon evidence of the older child being enrolled in a local Indian village pre-school to “continue his studies” when the family travelled in India in 2019. Apart from being a curious expression that a three year old continue his “studies”, I also have difficulties with this aspect of the father’s case which relies on actions taken in respect of a child whom the father concedes is not habitually resident in India, to prove that another is habitually resident in that place. The legal representative for the father maintains that the actions in relation to the older child simply “show that at that particular time [being October 2019] the intention was to stay in India with both children” albeit that certain events “took over afterwards”. The fact remains however that the evidence of the father’s intention as at October 2019 is internally inconsistent and contradictory and, even if accepted, would be difficult to support a case of “settled” intention.
I also accept the mother’s submission that the father’s conduct following his return to Australia in late 2019 and throughout proceedings illustrate that his intentions in relation to his own and the child’s residence have fluctuated. In a similar manner to the father in Zotkiewicz, the nature and sequence of the father’s actions would suggest that the father has only recently adopted an intention to live overseas and make the child’s permanent residence India.
I attach particular weight to text messages exchanged between the parties in December 2020 (outlined at [79] above) in which the father effectively expresses a desire to have the child back in Australia in order that the child be with the family. Although he remained averse to providing his consent to relevant travel documents for the child, I consider it weighty that as at March 2021 the father who was then living in Australia sought orders in his Response to have both children live with him. He then ultimately consented to interim orders that the children live with the mother whose established living situation was also in Australia. It follows that the father, knowing then that the older child was living in Australia and the child was in the care of the maternal family in India, gave consent to orders which must be taken as supporting an arrangement whereby the child was to ordinarily reside in Australia. Given he was also legally represented at the time it cannot be said that he did not understand the effect of these orders.
In favouring the mother’s evidence of the parties’ travel in October 2019 and in rejecting the father’s contention that the parents held a settled intention to permanently move to India at this time, I attach weight to the reality that both parties remained employed in positions in Australia and the father returned to Australia only a month after travelling to India. Although he says that this return to Australia was “to wind things up”, he does not provide any evidence of any such “winding up” such as termination in his employment. In any event the father did not return to join the family again in India thereafter so his plans in that regard did not come to fruition.
An email interchange between the mother and her employer[21] corroborates the mother’s evidence that during her absence from Australia between 2019 and 2020 she took maternity leave. Although she was required to extend that leave in the face of restrictions associated with COVID-19 pandemic and being unable to access her and the children’s passports, it is clear from the email correspondence that the mother did not at any point relinquish her obligations as an employee in Australia which could have been reasonably expected of her if the intention was to permanently settle in India as contended by the father.
[21] Exhibit 2 p.7, p.12-15.
Such clear and consistent plan to return to Australia to resume her work duties also undermines the ICL’s argument that the mother’s choice to commence divorce proceedings against the father in India in July 2020 conveys some settled purpose on her part to live in India. It is also to be remembered that the parties were married in India and the mother subsequently discontinued her application for divorce in India.
Moreover, it is clear from the Child Dispute Conference Memorandum dated March 2021 that when interviewed by the family consultant the father expressed concerns about the child’s presence in India, telling the family consultant that “he was unclear why [the mother] had left [the child] [overseas]”[22]. This, in my view, is neither consistent with a settled purpose or “plan” the father claims the parties had regarding living in India.
[22] Exhibit 6 [14].
While I consider the above matters as to parental intention relevant in answering the question of habitual residence, as discussed, they are but one factor to be considered. The other, more significant matter that must be addressed is whether the child’s presence in India as at the relevant time has a degree of settled purpose from his perspective.
There is no dispute between the parties that the child has remained in India for an extended period of time, being over two years.
In submitting that the child has established a connection to India and life in India, the father attaches weight to the child’s young age and the reality that he was only 14 weeks old when he departed Australia in October 2019. In effect it is submitted that the child knows no other life than that which he has experienced in India.
While I accept that the child’s physical presence in India and young age may ordinarily be significant indicators that the child has assimilated into life in India, in being satisfied that the child has so integrated into life in that country, regard must also be had to the “underlying reality”[23] of any such connection the child may have in relation to that place.
[23] Zotkiewicz [113]
As was generally discussed in Zotkiewicz, the Court must weigh evidence that may suggest that a place of habitual residence was taken up “involuntarily” and as a consequence of the actions of one parent.
In the present case, the mother maintains that she intended to return to Australia with the children at the conclusion of her maternity leave but was prevented from doing so in part because of the father’s actions. She deposes that not only did the father retain the passports of herself and the children in his possession upon their arrival in India in 2019, but continued to withhold them form her despite various requests made to have them returned.
While the father maintains that these passports were confiscated by Indian authorities as a result of an investigation into the mother regarding fraud allegations, he provides no evidence in support of this serious allegation. As there is evidence of at least one text message conversation between the parties in which the mother makes numerous requests for the father to return her passport to her to no avail, I accept her version of events as to this matter.[24]
[24] Exhibit 2 p.6.
I also accept that for the balance of 2020 the mother made genuine attempts to leave India with both of the children including by applying for replacement passports (a process which was delayed as a result of COVID-19 and lockdown restrictions) and relevant travel documents for the child from both Indian and Australian government agencies. Although the mother was successful in obtaining a limited validity Australian passport for the child, she was denied the relevant Indian exit permit in the absence of the father’s consent which prevented the child from leaving India with her and older child. There is no dispute between the parties that the father withheld this consent, but his reasons for doing so remain unexplained.
Even after arriving back in Australia in late 2020, and until mid-2021, I am satisfied that the mother took active steps to arrange for the child to be returned to her care in Australia. In particular, the mother continued to correspond with the father either directly[25] or through her lawyers[26] to obtain his consent for an exit permit for the child. The father does not dispute that he continually refused to give his consent to these matters, a matter which was confirmed on his behalf at the hearing. It is also his own evidence that he subsequently sought a travel ban for the child from Indian police authorities.
[25] Ibid p.20.
[26] Ibid p.24.
Although I am not bound by the UK High Court decision of V & M (supra) upon which the mother relies, I agree that it bears great similarities to the circumstances in this application. I consider that the actions of the father in retaining and withholding passports created a situation in these proceedings in which the mother was effectively forced to leave the child behind in the care of the maternal family overseas. These actions coupled with the father’s continual refusal to provide his consent to travel documents for the child, also support an inference that he sought to unilaterally relocate the child to India which, the authorities are clear, is not permitted.
It is significant in this application that the duration of the child’s presence in India (which may in other circumstances support a finding of a settled purpose for the child) arises almost entirely due to actions of the father, who now seeks to rely upon that matter in support of his case. As concluded by the Full Court in Zotkiewicz, a court ought not strive to find habitual residence in a country where the beneficiary of such a finding had effectively prevented the other parent and child from leaving that country.[27]
[27] See Zotkiewicz [118]-[121].
The final matter in the father’s case regarding the child’s assimilation into life in India which I must address, relates to the child’s living situation with the maternal grandparents. In written submissions it is argued on his behalf that if it can be said that the maternal grandparents are “custodians” of the child then the fact that they are habitually resident in India may have bearing on the question of the child’s habitual residence.
In my view, the question of whether the maternal grandparents are ‘custodians’ of the child (whatever that expression may mean) to support a finding of habitual residence is beyond the scope of inquiry in this application and no submissions were directed to it by either party or the ICL. In any event, I am of the view that any weight that may otherwise be given to this submission is reduced by the father having instituted habeas corpus proceedings against the maternal grandparents and as the Indian High Court determined the father’s application by giving effect to and respecting the mother’s own direction of placing the child in the “temporary care” of her parents.
Having regard to all of the foregoing matters, and attaching particular weight to the underlying reality of the child’s connection to India being that he has remained overseas as a result of the father’s actions in obstructing his return to Australia, I am satisfied that as at 24 February 2022 the child is habitually resident in Australia as contended by the mother.
Accordingly, I am satisfied that the Court can exercise jurisdiction pursuant to s 111CD of the Act for a Commonwealth protection measure in relation to the child.
Although I am satisfied that the child is habitually resident in Australia and this Court is seized of the relevant jurisdiction, as the father has commenced parenting proceedings in India and those proceedings are ongoing, a question arises as to whether Australia (or India) is the appropriate forum to determine the dispute.
APPROPRIATE FORUM-AUSTRALIA OR INDIA
Although both parties focused in written submissions upon the threshold question of this Court’s jurisdiction both the legal representative for the mother and the ICL clearly addressed the next question, of the appropriate forum in their respective written submissions.
The mother contends that there is no reason why this Court having jurisdiction should not determine the parenting dispute while the ICL submits that this Court currently lacks critical evidence that would enable it to make a “safe” decision relating to parenting matters concerning the child and appears to submit that the more appropriate forum in which to determine the parenting dispute is India.
Although there were some references in the father’s written submissions to forum the main focus was on jurisdiction. Although it is not clearly contended that he “objects” to jurisdiction the tenor of his written submissions generally indicate that he opposes the Court exercising jurisdiction. At the hearing when there was an opportunity for oral submissions, nothing further was submitted in relation to the matter. The father was also given the opportunity to file further submissions relating to this issue within five days but no such submissions were filed.
The principles in relation to which of two competing fora might be the appropriate place for the matter to be determined are well settled. The Full Court in Zanda & Zanda[28] confirmed that in a parenting dispute a forum contest is resolved according to the best interests of the child.
[28] [2014] FamCAFC 173 [106]-[108].
The matters to be considered in determining a child’s best interests set out in section 60CC of the Act are described as primary considerations and additional considerations. Many of these considerations are inapplicable in the context of the dispute about forum. However, the following matters are relevant in this context.
By necessity, if the parenting dispute is to be determined in this Court, the younger child should be returned to Australia on an interim basis and such an order is sought in this application. This will be required so that the child is not further placed at risk of harm by the proceedings themselves through his continued separation from both of his parents who are parties seeking competing orders for his care. Alternatively, it seems possible or likely on the available evidence that if the parenting dispute for the younger child were to be determined in India, the child will continue to remain living in an arrangement that both parents regard as temporary in which he is being cared for by neither of them. Alternatively for the purposes of such litigation, the mother may be required to travel to India where she has no intention to reside. For this reason it can be said that determination of the proceedings in Australia fosters the younger child’s meaningful relationship with both of his parents pending final determination of the dispute.
Otherwise, the following matters have relevance in relation to the child’s best interests as I regard them as other relevant facts and circumstances to be considered under s 60CC(3)(m) of the Act.
The progress of proceedings in Australia
I accept the mother’s submission that the parenting proceedings in Australia are well-progressed. There is a clear pathway to a final hearing which requires only that a Family Report be prepared. I also note that the preparation of such a report may be expedited with the result that a final hearing could be listed within a few months. Both parties have fully participated in the parenting proceedings in Australia from the time the mother initiated them in early March 2021. This includes the parties being assessed by a family consultant in a Child Dispute Conference. Both parties have also been legally represented at all stages of the proceedings.
Relevantly, interim orders were also made with the consent of the parties on 30 March 2021 providing that the children live with the mother and spend time with the father as agreed between the parents. As noted by the mother, should the father return to Australia, there is a clear regime in place for the children to spend time with him.
Given that the father only instituted proceedings in India in late September 2021, it cannot also be said that the proceedings in that country have progressed to any significant extent. It is the father’s own evidence that the next hearing for his application in the District Court of India was to occur in late April 2022 and it is common ground between the parents that the mother has not ever participated in those proceedings.
It is clearly for the children’s benefit that proceedings relating to their parenting be resolved as soon as possible particularly as the children have been significantly affected by that dispute including through the younger child’s separation from both parents for a long period in his life.
‘Forum shopping’
For reasons given when considering matters relating to habitual residence, I am also satisfied that the father’s intentions about matters relating to his own and the children’s residence has fluctuated. In late May 2021 he confirmed no intention to relocate the children outside the Australian jurisdiction as evidenced in correspondence sent from his lawyer to the mother’s solicitor and ICL at that time. A month later he travelled to India for personal reasons rather than permanently moving to India. The father also did not commence parenting proceedings relating to the younger child in India until late 2021 and his intention to live in India indefinitely was not articulated until just prior to the hearing of this matter in February 2022.
Against this background of changing expressions of intention, I accept the mother’s submission that this would suggest that the father’s preference of India as the appropriate forum has only recently arisen, and his conduct in this regard could therefore amount to some form of ‘forum shopping’.
It is also significant that the parenting proceedings commenced by the father in India only relate to the younger child and not the older child. This means that the father effectively contends that there are two separate fora in which it is in each respective child’s best interests for the parenting dispute for that child alone to be determined. In my view, this is a difficult argument to maintain especially where there is a clear pathway in this Court for addressing and managing parenting issues relating to the two siblings together. Moreover, I accept the mother’s submission that an Indian court making orders about the younger child alone is self-evidently unlikely to promote the best interests of both children in circumstances where the father has not deposed to being the primary carer of the younger child and has seen very little of him in the past two years and where there is some evidence to support a concern that he will not support a relationship between the younger child and the mother.
The father otherwise raises no concern about his ability to participate in proceedings in Australia. It is clear from court records that he has been legally represented at all stages of these proceedings and has also personally appeared electronically for the purposes of the hearing in this Court in February 2022.
Assessing and addressing risk
I also consider it weighty that both parents make serious allegations of family violence against the other. In their affidavit evidence, each depose to instances of aggressive and violent behaviour during their relationship and following separation, including some more recent incidents involving members of the maternal family.
As raised by the ICL, as a result of allegations made by the parties in their interviews with the family consultant in the course of the Child Dispute Conference, the family consultant alarmingly noted in his recommendations that “the possibility that neither parent represents a suitable carer for the children cannot be excluded”.
Court records indicate that the Department of Communities and Justice (“the Department”) has been invited to intervene in the proceedings in accordance with the statutory framework under s 91B of the Act relating to the welfare of children. Notwithstanding that the Department declined to accept such invitation, this Court is nevertheless capable of dealing with risk issues such as family violence including by, as submitted by the ICL, requiring expert evidence to assist the Court in its assessment of risk and determination of what may be in the child’s best interests. What is less clear is how an Indian court deals with a dispute where neither parent is found to have adequate parenting capacity, or risk issues more broadly.
While the father’s legal representative stated during oral submissions that it would appear from Indian case law that principles such as the best interests of the child and the child’s welfare also guide the court’s determination in India[29] and numerous Indian cases are relied upon, there is otherwise no evidence concerning the way in which Indian courts approach parenting matters generally.
[29] Transcript dated 24 February 2022, p.31-32.
For all of the foregoing reasons, I am satisfied that it is in the child’s best interests for his parenting dispute to be determined in this Court.
The interim orders sought for the return of the child
If I determine that this Court has jurisdiction to resolve the parties’ parenting dispute in relation to the younger child and that it is in that child’s best interests for the dispute to be determined in Australia rather than in India (as is the case), the mother seeks that I exercise that jurisdiction by making an order for that child’s return to Australia.
As is correctly observed by the mother’s legal representative having determined the foregoing matters, the onus is on the father to persuade this Court not to exercise its jurisdiction.
It is contended by the mother that in relation to this order weight should be attached to the fact that the father has not sought a stay of the proceedings or opposed the return order on best interests grounds. It is also argued by the mother that the best interests of the younger child support the exercise of this Court’s jurisdiction by making the order that he return to Australia pending final determination of the proceedings.
The earlier submissions made by the mother as to why it is in the child’s best interests that this Court determine this parenting dispute are equally relevant in relation to the order for the younger child’s return. The proceedings in Australia are well progressed, and the return of the younger child will restore him pursuant to the interim orders to the care of the mother and allow him to resume his relationship with her and his brother. As earlier touched upon, the mother has made arrangements for the maternal grandmother to accompany the younger child and assist in his care in Australia for a year and should the father return to Australia the children will receive the benefit of spending time with him through the interim orders consented to and made by this Court.
As touched upon earlier in these Reasons, the main thrust of submissions made on behalf of the father related to the question of jurisdiction. No written submissions were made with respect to the competing fora other than placing reliance upon a number of Indian decisions for the purpose of satisfying the Court that parenting disputes in that jurisdiction are resolved on the basis of the best interests and welfare of the children. As also earlier noted, the father sought and was granted an opportunity to file further submissions in relation to the exercise of jurisdiction if such jurisdiction were found to exist and it was indicated that five days would be sufficient time within which to make such submissions. Although this opportunity was given to the father, no such written submissions were received. Accordingly, no arguments were advanced as to why I should not exercise the jurisdiction and make an order for the return of the child.
Some concern was initially held by the ICL in relation to the length of time that the younger child has been living in India and away from his mother which, as I understand it supports a submission about difficulties that the child is likely to encounter should he be returned to Australia. However, the ICL’s concern in this regard fell away in light of the mother’s stated intention that the maternal grandmother will accompany the younger child on any ordered return to Australia.
There is evidence which appears to be undisputed that the mother has previously attempted to make arrangements for the maternal grandmother to accompany the child by applying for the relevant visa and travel exemption for the maternal grandmother in 2021 after orders were made for the children to live with the mother and for this reason I have no reason to conclude that the mother’s proposal in this regard is anything other than genuine.
I have taken into account each of the foregoing matters in considering whether it is in the child’s best interests for an order to be made that the child be returned to Australia. Such an order if made will ins summary bring about the reunion between the younger child and his mother who, it is not disputed, has been primary carer for much of his life. This will allow the child to rekindle his relationship with his only sibling and through interim order for time with the father will also foster this child’s meaningful relationship with both parents should the father choose to avail that time in Australia. Such time under the March 2021 orders appears to operate more flexibly than any arrangement under the interim orders of the Indian High Court according to the father’s evidence.
For all of the foregoing reasons, I am satisfied that it is proper and in the younger child’s best interests for an order to be made for his return to Australia as sought by the mother.
OTHER ORDERS SOUGHT BY THE MOTHER
Passport orders
As part of her application, the mother also seeks interim orders pursuant to s 11 of the Australian Passports Act 2005 (Cth) that the younger child be permitted to have an Australian travel document and that the father’s consent to such document be dispensed with. She also seeks a further order that once issued, this child’s passport be held in her possession.
Each parties’ legal representative agreed at the hearing that the passport orders sought by the mother can be made independently of the determination of the younger child’s habitual residence. No submissions were made by the father addressing this aspect of the mother’s application other than to indicate on his behalf that he opposes such orders.
It is the mother’s case that even if the Court were not satisfied of its existence or exercise of jurisdiction, passport orders would be appropriate as a matter of convenience and efficiency. It is submitted on her behalf that though the operation of the passport orders would be limited unless permission from the relevant Indian authority to remove the child from India were obtained, such orders would help facilitate the child’s return.
As I am satisfied for the reasons given that an order should be made for the child to be returned to Australia, I consider it appropriate that an order be made for the child to be issued an Australian travel document to allow for this to occur.
I also consider it proper that the father’s consent to the issuing of such a travel document be dispensed with given the history of communication between the parties (as evidenced in text message exchanges and email correspondence between them) is such that the parties have limited prospect of co-operation and negotiation between them. There is also in my view a real likelihood that if the mother were required to seek the relevant consent from the father, this may invite further conflict between them. It is the father’s own evidence in these proceedings that he repeatedly refused to provide his consent to the relevant Indian authority to obtain travel documents for the child. On this basis, and in light of evidence that he has withheld the children’s passports in the past, it is appropriate that any travel document issued to the child is to be held by the mother who is in any event the residential parent of the child pursuant to court orders.
Information-sharing order
The only other order sought by the mother effectively relates to sharing information and documents arising from these discrete proceedings.
The mother seeks an order that the parties be permitted to provide copies of certain documents such as orders made by this Court, the Court’s reasons, other orders made or any document filed or tendered in relation to this application, to a lawyer representing either party in proceedings in India relating to the children or to a court hearing such proceedings.
The mother’s legal representative submitted, which I accept, that such an order is appropriate given two legal systems are currently engaged in proceedings relating to at least one of the children and both parties or either of them may wish to apprise the Indian court of any outcome relating to the current application before the Court. Such an order, I accept, would help resolve issues relating to the parties’ use of documents and material arising from these proceedings in that it would not require either party to make a further application to the Court and institute further proceedings. I also consider that the order in its current form is appropriately limited to the parties providing the documents to their legal representatives or the relevant court, and not other third parties.
Finally, it was confirmed in the course of these proceeding that the father had already agreed to orders along the lines proposed by the mother and the ICL also agreed that such order is proper in the circumstances. Accordingly, I am satisfied that this order should be made as sought.
Having regard to all of the foregoing matters, I make the orders set out at the forefront of this judgment.
I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 16 May 2022
5
0