Ishak & Koroma
[2023] FedCFamC1F 272
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ishak & Koroma [2023] FedCFamC1F 272
File number(s): PAC 3723 of 2021 Judgment of: ALTOBELLI J Date of judgment: 19 April 2023 Catchwords: FAMILY LAW – JURISDICTION – Where the parties and the children are Australian citizens – Where the parties and the older children live in Australia and the younger children (“the twins”) were born and live in Country B – Mother seeks interim international relocation of the twins to Australia and interim parenting orders – Father opposes the relocation of the twins – Applicability of Subdivision B of Division 4 of Part XIIIAA of the Family Law Act 1975 (Cth) (“the Act”) – Father argues s 111CC of the Act deprives this Court of jurisdiction – Where there is no evidence of whether there is a competent authority in Country B – Held Subdivision B does not apply and this Court has jurisdiction.
FAMILY LAW – JURISDICTION – Habitual residence – In the alternative, if Subdivision B were to apply, the twins’ habitual residence pursuant to s 111CD(1)(e) would be considered – The twins’ habitual residence would be Country B, not Australia – The Court would not have jurisdiction.
FAMILY LAW – PARENTING – Interim orders – Not enough evidence and/or urgency to order international relocation for the twins on an interim basis – Not enough evidence to make orders in relation to the older children.
Legislation: Family Law Act1975 (Cth) ss 60CC, 68B, 69E, 111CA, 111CC, 111CD
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Ahmad & Hadi [2020] FamCA 1041
Alfarsi & Elhage [2016] FamCA 428
Bunyon & Lewis (No 3) [2013] FamCA 888
Department of Communities and Justice & Leoni [2020] FamCA 411
Duckworth & Jamison (2014) 51 Fam LR 471; [2014] FamCA 308
State Central Authority & Metin [2020] FamCA 535
Sun & Long [2019] FamCA 3
Yaling & Tsen [2022] FedCFamC1F 347
Division: Division 1 First Instance Number of paragraphs: 68 Date of hearing: 17 January 2023 Place: Sydney Counsel for the Applicant: Mr Mathews Solicitor for the Applicant: Genesis Edge Law Group Solicitor for the Respondent: Pryor Tzannes & Wallis ORDERS
PAC 3723 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ISHAK
Applicant
AND: MR KOROMA
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
19 April 2023
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Order 1 of the orders made on 17 January 2023 granting the Applicant mother (“the Mother”) exclusive occupancy of the property at C Street, is to continue.
2.If the Mother unreasonably refuses to provide the Respondent father (“the Father”) with his personal belongings, then the Father has leave to apply to relist the proceedings on seven days’ notice and in the event that such liberty is exercised, the Father shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought.
Communication
3.The parties shall have liberal telephone communication with the children during periods that the children are in the other party’s care such that:
(a)The Father shall telephone, email, Facetime and/or Skype the children when they are with the Mother on a number/email provided by the Mother;
(b)The Mother shall telephone, email, Facetime and/or Skype the children when they are with the Father on a number/email provided by the Father;
(c)The parties shall encourage and facilitate the children communicating with the other party pursuant to Order 3; and
(d)ln addition to telephone, email, Facetime and/or Skype referenced to at Orders 3(a) and 3(b), the parties shall facilitate the children communicating with the other party by telephone, email, Facetime and/or Skype at all other times reasonably requested by the children.
4.The parties shall communicate with respect to matters concerning and affecting the children via text message or email, unless otherwise agreed.
Restraints
5.The parties are restrained from speaking or permitting any other person to speak to or about the other party or members of the other party’s family in a negative, offensive or unpleasant fashion in the children’s presence or hearing.
6.The parties are restrained from discussing these parenting proceedings, or any other family law matters of which they are a party, with the children or within the children’s presence or hearing.
7.Neither party will question the children about the other party’s household, their family or friends.
Provision of Information about the Children
8.The parties shall keep each other advised of their contact telephone numbers and advise the other party within twenty-four (24) hours of any change to their contact telephone numbers.
9.The parties shall keep the other advised of their residential address and provide each other with not less than twenty-one (21) days’ notice in writing of any intention to change address.
10.The parties immediately notify the other party of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the children when they are in the respective party’s care and notice to the other party of the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the children.
11.The parties shall do all acts and things necessary and give all irrevocable authorities to ensure that both parties’ details are provided to any school the children may attend from time to time and further in this regard that the parties shall provide all required authorities to enable copies of all reports, merit cards, school photograph order forms, any written material or newsletters and any other documents are sent to both parties.
12.The parties shall be entitled to obtain directly from any school attended by the children or any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose the parties shall immediately notify each other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
THE COURT ORDERS THAT:
13.The parties are to do all acts and sign all documents necessary to have Australian passports issued to the children, Y and Z born 2016 (“the twins”).
14.For the purposes of Order 13, the Father shall sign all documents presented to him by the Mother within seven days of the documents being provided to him.
15.Leave is granted to the parties to provide to my Associate executed consent orders and, if appropriate, orders may be made in chambers and the adjourned date may be administratively vacated.
Child Impact Report
16.Pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), the parties and W born 2006, X born 2009, Y and Z born 2016 (“the children”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
(a)Part 1 of the event will occur by video, using Microsoft Teams, on 7 August 2023, with:
(i)the Applicant to attend at 9.00am; and
(ii)the Respondent to attend at 10.30am.
(iii)Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
(b)Part 2 of the event will occur in person at the Sydney registry at 97-99 Goulburn Street Sydney NSW 2000, on the morning of 8 August 2023, with specific details regarding attendance to be advised during Part 1 of the event.
17.Each party will do all things necessary to ensure the child/ren attend upon the Court Child Expert pursuant to s 62G(3A) of the Act, unless otherwise determined by the Court Child Expert that s 62G(3B) of the Act applies.
18.The parties and the child/ren shall continue to attend at such times, dates and places as the Court Child Expert may advise.
19.Not later than 4pm on 26 April 2023 the parties must provide their contact telephone numbers and email addresses to ...@....
20.Pursuant to Order 16 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child/ren and any matters (such as the child/ren’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the child/ren; and
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child/ren.
21.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
22.The Court Child Expert is granted leave to inspect all material filed by the parties and documents produced in response to subpoena.
23.If the Court Child Expert is unable to inspect documents produced in response to Subpoena at the Sydney Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Court Child Expert, is to forward such documents to the Registry nominated by such Court Child Expert to permit such inspection.
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 Ishak & Koroma has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in proceedings between the applicant mother (“the mother”) and the respondent father (“the father”).
BACKGROUND
The mother seeks parenting orders, injunctions in relation to signing passport applications, and an order for exclusive occupation of the family home in a Sydney suburb. The father opposes the orders sought by the mother, but seeks a number of alternative orders.
Both parents are health professionals. The mother was born in Country E and the father was born in Country B. They married in 2002 in Country B and separated in Australia on 14 June 2020. The mother is currently 44 years old and resides in Australia. The father is 53 years old and appears to reside between Country B and Australia. They have five children as follows: Ms V born 2004 (aged 18); W born 2006 (aged 17); X born 2009 (aged 13); and the twins Z and Y born 2016 (aged 6) (“the twins”). The twins currently live with the maternal grandparents in Country B and it would seem that the paternal grandparents are involved in their care as well. W and X live in Australia with the mother, but also spend time with the father when he is here. Ms V is currently studying in Country B.
The parents agree that the Court has jurisdiction in relation to Ms V (but for the fact that she is 18 years old), W and X. The Court declines to make any orders in relation to W because of his age.
The father contends that the Court does not have jurisdiction in relation to the twins, but the mother contends to the contrary.
The Court will need to decide whether the Court has jurisdiction in relation to the twins and if so, what orders are in their best interests. The Court will need to decide what orders are in the best interests of X. There is also an issue about passports for the twins which, the Court is satisfied, can be resolved even if the Court does not have jurisdiction to make parenting orders in relation to them. Finally, there is an order about exclusive occupation of the former family home.
The matter came before me on 17 January 2023. Both parents were capably represented by counsel who made very useful submissions in relation to the legal and factual issues before the Court. It became necessary to make an urgent ruling in relation to exclusive occupation and the Court ruled that the mother be granted exclusive occupation of the property at C Street, Suburb D. I provided short reasons for making this order but will provide more fulsome reasons herein. Further, during the course of the hearing, the parties advised they would resolve the issues contained in the mother’s Application in a Proceeding filed on 8 November 2022 without the Court’s intervention. No consent orders have been received in this regard.
THE COMPETING PROPOSALS
In her Amended Application for Final Orders filed 18 October 2022, the mother seeks, on an interim basis:
(1)The father to do all acts to issue a passport for Y and Z and enable the mother to have them returned to Australia, and reimburse the mother for half of all expenses to enable this to occur;
(2)Y and Z live with the mother and spend time with the father as agreed but failing agreement each Saturday from 10am to 5pm;
(3)W and X live with each of the parents on a weekabout basis with changeover to occur on Friday at 4pm;
(4)Changeover to occur at the father’s residence at the commencement of the mother’s time and at the mother’s residence at the commencement of the father’s time, or otherwise at school;
(5)The children be enrolled in a school;
(6)The parties have liberal telephone communication with the children during periods that the children are in the other party’ care;
(7)Non-denigration and a restraint from discussing these proceedings with the children; and
(8)The parties keep each other advised of their telephone numbers, residential address and any medical illness and ensure these details are provided to the children’s school.
In his Amended Response to Final Orders filed 13 January 2023, the father seeks the following orders:
(1)Appointment of a single expert to produce a report;
(2)The mother’s application for parenting orders be adjourned until after the release of the expert report;
(3)The parties be restrained by injunction from applying for the younger children to be granted citizenship in any country other than Australia;
(4)If the mother’s application for parenting orders is not adjourned:
(a)Y and Z continue to live with their maternal and paternal grandparents in Country B;
(b)X live with the father and spend time with the mother each alternate week from 9am to 5pm on days that X does not attend school (eg weekends and holidays) and from the conclusion of school until 7pm on days that X does attend school; and
(c)X spend time with the mother any time the father is overseas.
(5)Changeover is to occur by the parent delivering X to the other parent’s residence at the commencement of X’s time with the other parent;
(6)The children be at liberty to communicate with each of the parents by telephone or videoconference; and
(7)All other outstanding applications be dismissed and the proceedings be adjourned to a date two weeks after the release of the single expert report.
THE MATERIAL BEFORE THE COURT
In support of her case, the mother relied on the following documents:
(a)Amended Initiating Application filed 18 October 2022;
(b)Application in a Proceeding filed on 8 November 2022;
(c)Her affidavit filed 18 October 2022;
(d)Affidavit of Mr F filed 8 November 2022;
(e)Case outline filed 15 January 2022;
(f)Notice of risk filed 19 October 2022;
(g)Financial Statement filed 9 July 2021; and
(h)Various documents tendered and marked as exhibits A1–A4.
In support of his case, the father relied on the following documents:
(a)Amended Response to Initiating Application filed 13 January 2023;
(b)His affidavit filed 16 January 2023;
(c)Notice of risk filed 16 January 2023;
(d)Parenting Questionnaire filed 16 January 2023;
(e)Case outline filed 16 January 2023; and
(f)Document tendered and marked as exhibit R1.
OUTLINE OF THESE REASONS FOR JUDGMENT
The Court will firstly adjudicate on whether it has jurisdiction to make parenting orders in relation to the twins. If it has jurisdiction, the Court will then determine whether, and if so what orders should be made in the best interests of the twins. The Court will then adjudicate on what orders should be made in relation to X, the issue of passports for the twins, what further orders should be made, and then provide reasons for making the order for exclusive occupation in favour of the mother.
DOES THE COURT HAVE JURISDICTION TO MAKE PARENTING ORDERS IN RELATION TO Z AND Y?
Before considering the law, it is necessary to make tentative finding about facts, insofar as it is possible to do so in the course of proceedings where the evidence has not been tested, and where the orders sought are interim in nature.
Background Facts
The twins were born in Country B and have lived most of their lives there, with the exception of three months when they travelled to Australia with their mother in late 2018. They are Australian citizens, as are the parents. The twins’ first and only language is H Language and the mother perceives that if she is successful in her application, one of the first things will be for the twins to undertake intensive English language instruction. They have only been to one school in their life, the one they presently attend. There is no suggestion in the evidence of either parent that they are unsettled in their life in Country B.
Whilst the mother is, and always will be the twins’ mother, it would be artificial in the extreme to describe her as their primary caretaker. Even on the mother’s own evidence, the most likely primary caretaker of the twins is the maternal grandmother. It is likely that the paternal grandparents assist in the care of the twins but the nature and extent of this cannot presently be ascertained on the evidence.
The parents agreed that the twins should remain in Country B, in the care of the maternal grandparents. Whether, as the father contends, it was the mother’s idea or alternatively, as the mother contends, she agreed to her parents’ suggestion, it ultimately makes no difference in this case. The fact is that both parents agreed that the twins live in Country B, at a time when the parents were living in Australia. At no subsequent time did they both agree that the twins should come to live in Australia though, as indicated above, there was a period of three months when they were with the mother in Australia. The strong impression formed is that the parents are highly intelligent and probably affluent. They have good mobility between Country B and Australia and even during the COVID-19 pandemic, at least according to the mother, the father seemed to be able to travel with comparative ease between Country B and Australia.
The Court accepts the mother’s evidence at paragraph 65 of her affidavit to the effect that it was one of the most difficult decisions of her life to come back to Sydney in early 2019 without the twins but with the older children. She articulates her reasons for doing so, including a fragile relationship with the father at the time. Although a difficult decision, no doubt, it was a decision freely entered into, and it was a joint decision of the parents. The Court notes that the mother contends that this was only ever intended as a temporary measure. The father does not deal with the issue of intention in his affidavit but does state at paragraph 9.6 that it was the mother who suggested the twins remain in Country B with the maternal grandparents as she found it challenging caring for the children without support in Australia. From a legal perspective, intention is one factor and the reality is that intentions change over time (Department of Communities and Justice & Leoni [2020] FamCA 411 at [25]–[32]).
Jurisdiction
With that background in mind, the Court considers the question of its jurisdiction to make orders in relation to the twins. There is no doubt that this Court has jurisdiction to determine parenting proceedings in respect of the twins generally under Part 7 of the Family Law Act1975 (Cth) (“the Act”) by reason of s 69E which states as follows:
Child or parent to be present in Australia etc.
(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.
The complexity in this case is whether by reason of the application of Subdivision B of Division 4 of Part XIIIAA of the Act, the exercise of the Court’s jurisdiction is permitted only if the Court finds that the children are habitually resident in Australia, as required by s 111CD(1)(e)(i). Section 111CD(1) states as follows:
Jurisdiction relating to the persons of a child
(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
(b)a child who is present in Australia and habitually resident in a Convention country, if:
(i)the child’s protection requires taking the measure as a matter of urgency; or
(ii)the measure is provisional and limited in its territorial effect to Australia; or
(iii) the child is a refugee child; or
(iv)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or
(v)a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or
(vi)the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(c) a child who is present in a Convention country, if:
(i) the child is habitually resident in Australia; or
(ii)the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or
(iii)a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or
(iv)a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or
(v)the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
(d) a child who is present in Australia and is a refugee child; 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; or
(f) a child who is present in Australia, if:
(i)the child is habitually resident in a non‑Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
On behalf of the mother it is contended that because the father had filed an amended response seeking interim orders in relation to the children, he had submitted to the jurisdiction of this Court. That argument may be dealt with quickly. Jurisdiction cannot be conferred on this Court by acquiescence or agreement of the parties. As Harper J stated in Yaling & Tsen [2022] FedCFamC1F 347 (“Yaling & Tsen”) at [29]:
[29]The father made a submission that, by virtue of the mother filing an Application in a Proceeding seeking passport orders, she has submitted to this Court’s jurisdiction. However, jurisdiction cannot be conferred on the Court by acquiescence or agreement of the parties: Bunyon & Lewis (No 3) [2013] FamCA 888 (“Bunyon”) at [148]. It is the “first” duty of the Court to consider itself whether it has jurisdiction: Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398 at [54]; New South Wales v Kable (2013) 252 CLR 118 at [34]. This Court, although a court of limited statutory jurisdiction, “has the authority and duty to decide whether a controversy brought before it lies within the limits of its jurisdiction” (R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193–194, 213, 215–216, and 223, and Norton & Locke (2013) FLC 93-567).
It is nonetheless clear that s 69E of the Act does grant jurisdiction as the parents and the twins are Australian citizens and the mother was ordinarily resident in Australia and present on the day the proceedings were commenced. The mere fact that the twins were residing in Country B at the time does not detract from the jurisdiction conferred by s 69E.
However, as Harper J observed in Yaling & Tsen at [32]–[35]:
[32]However, it was also common ground that Subdivision B of Division 4 of Part XIIIAA can materially affect the exercise of jurisdiction conferred by s 69E. It is settled that Division 4 does not confer jurisdiction, but regulates the exercise of jurisdiction: Duckworth & Jamison (2014) 51 Fam LR 471 at [73]; Bunyon at [80]; Korrapati & Mishra [2021] FamCA 281 (“Korrapati”) at [32]; Sterling & Sterling [2022] FedCFamC1A 3 at [18].
[33]Division 4 was inserted by the Family Law Amendment (Child Protection Convention) Act 2002 (Cth) (“the Amendment Act”), which ratified the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the Child Protection Convention”). In the Explanatory Memorandum to the Amendment Act, the following was stated:
41. Subsection 111CB(1) provides that Division 4 has effect despite any other provision in the Act. In order to ratify the Convention, Australian law must be adjusted so that the conflicts of law rules currently applied by courts under the Act conform to the provisions set out in the Child Protection Convention. Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4 prevail over provisions elsewhere in the Act such as subsection 31(2) (jurisdiction of the Family Court in relation to persons and things outside Australia), section 63E (registration of parenting plans), section 65D (making of parenting orders), section 67ZC (making of child welfare orders) and section 69E (child or parent to be present in Australia).
[34]Section 111CB provides that Division 4 has effect despite the rest of the Act (except ss 69ZK and 111B, and the regulations made for the purposes of s 111B, none of which are presently relevant).
[35]If Subdivision B applies, exercise of the Court’s jurisdiction under Part VII can be excluded unless one the subsections of s 111CD(1) are satisfied. In these proceedings, it was common ground that the relevant provision is s 111CD(1)(e), which requires proof that the habitual residence of the child is Australia.
In this case it was agreed that the relevant provision is s 111CD(1)(e) which requires the Court to be satisfied that the habitual residence of the children is Australia. The father contends that it is not, the mother contends that it is.
An important preliminary issue is whether Subdivision B of Division 4 of Part XIIIAA of the Act in fact applies to the present proceedings. This is governed by s 111CC in the following terms:
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.
Again, the observations of Harper J in this regard bear reproduction at [38]–[40]:
[38]It is clear that before Subdivision B can apply to these proceedings, the Court must make a finding that there exists “an issue under the Act” of whether “a court” has jurisdiction to take measures directed to the protection of the child “as opposed to” a competent authority in China. As the parties observed in their submissions, the wording of s 111CC is obscure, and while considered in a number of first instance decisions, it has not been authoritatively construed by either the Full Court or the High Court.
[39]There are some statutory definitions relevant to the meaning of s 111CC. In s 4 of the Act, “court” is defined as:
… in relation to any proceedings…[as] the court exercising jurisdiction in those proceedings by virtue of this Act, the Federal Circuit and Family Court of Australia Act 2021, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
[40]This Court clearly meets the definition of “a court” because it is exercising jurisdiction by virtue of s 69E of the Act, and the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
It was common ground that Country B is not a party to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (“the Convention”).
Harper J goes on at [42]–[71]:
[42]A “competent authority of a non‑Convention country” is defined in s 111CA(c) as:
… an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about:
(i) protecting the person of a child; or
(ii)appointing or deciding the powers of a guardian of a child's property.
[43] The term “entity” is defined in s 111CA of the Act to include:
(a) an individual;
(b) a corporation;
(c) an unincorporated body;
(d) a government authority or body;
(e) a court or tribunal.
[44] It is important to emphasise that the question raised by s 111CC(b) is whether there is an issue under the Act that this Court has jurisdiction “as opposed to” a foreign competent authority.
[45]The terms of the Revised Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2002 (Cth) explained the intention of s 111CC as follows:
45. Section 111CC provides in effect that the rules of jurisdiction in subdivision B apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country. This provision implements the preamble to the Child Protection Convention (which makes clear that the Convention is directed to the protection of children in international situations) and article 46 of the Convention which provides that a convention country is not obliged to apply the provisions of the Convention to conflicts solely between different systems of law in that country. Thus neither the Convention nor Subdivision B applies to conflicts in jurisdiction solely between a Commonwealth authority and a State authority, or conflicts in jurisdiction solely between authorities of different States in Australia.
(Emphasis added).
[46]The phrase “an issue under the Act” is somewhat opaque. In Director of Public Prosecutions v Hou (2020) 62 VR 1, the Victorian Court of Appeal observed at footnote 13 in [36] that “The expression ‘by or under’, and various analogous terms, have been the subject of considerable debate, when used, for example, as statutory limitations upon jurisdiction”. The High Court in Griffith University v Tang [2005] 221 CLR 99 construed the statutory phrase “decision under an enactment” to mean in its context that the decision in question took its legal force from the statute under which it was made. Lindgren J in Energy Resources of Australia Ltd v Commissioner of Taxation (2003) 52 ATR 120 observed, in the context of construing tax legislation, that
37. Dictionaries give the relevant definition [of “under”] as "in accordance with" (The New Shorter Oxford English Dictionary (1993), 16b; The Macquarie Dictionary (1988), 16). Meanings recognised as possibilities in the cases include "in accordance with" (Gilbert v Western Australia [1962] HCA 7; (1962) 107 CLR 494 at 516), "pursuant to" and "by virtue of" (R v Clyne; ex parte Harrap [1941] VicLawRp 47; [1941] VLR 200 at 201 per O'Bryan J) and "by" (R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77 at [23]- [26] per Malcolm CJ). The word “under” admits of “degrees of precision and exactness on the one hand, and of looseness and inexactness on the other” making it “necessary to have regard to the context in order to identify the meaning of the word intended in a particular case.”.
[47]In light of these authorities, I take “an issue under this Act”, construed in its context, to mean an issue which arises in accordance with and by virtue of the provisions of the Act, meaning an issue taking its legal implications or consequences from the meaning or applicability of provisions of the Act. Construed in this way, the expression means something different to “an issue in the proceedings”, although there may be overlap. An issue “in the proceedings” can include any disputed legal or factual contention advanced by a party, and based in evidence or legal principle. Such an issue may have nothing to do with the meaning or applicability of the provisions of the Act. For example, it may involve a factual finding relevant only to the exercise of the discretion to make a parenting order pursuant to the provisions of Part VII, where there is no issue about their meaning or applicability.
[48]It is also important to remember the phrase “an issue under this Act” is part of a wider composite statutory expression. Force must also be given to the other elements of the expression, in particular the phrase “as opposed to”. The Revised Explanatory Memorandum’s reference to a “conflict in jurisdiction” makes clear, in my view, that the issue in question is whether this Court stands in some degree of opposition to a relevant competent authority in respect of jurisdiction.
[49]On the question of conflict of jurisdiction, the parties’ arguments proceeded from the proposition that the authorities do not disclose a consistent approach to the proper construction of s 111CC. In Bunyon, Bennett J dealt with a situation where a child was habitually resident in the Netherlands, which is a signatory to the Convention. The father argued there was no “issue under the Act” because he had not sought to exert any rights in any Court or competent authority in the Netherlands. Bennett J rejected this argument. Her Honour said at [154]:
Conflict of laws rules are not predicated on proceedings having been instituted in two jurisdictions which have a connection with the dispute but, rather, on there being two jurisdictions which have a connection with the dispute and which could hear and determine the dispute. In my view, the reference in the General Outline and in paragraph 45 of the Explanatory Memorandum to conflict of laws is not, as Mr Strum’s submission suggests, a reference to duelling courts. Nor does it presupposes that parties must engage in litigation before more than one competent court before conflict of laws rules operate. Conflicts of law rules is merely a reference to the jurisprudence or set of rules to be applied to determine which one of two or more competent jurisdictions should be used to resolve an issue in dispute between parties.
(Emphasis added)
[50]In Alfarsi & Elhage [2016] FamCA 428 (“Alfarsi”), it was argued Foster J came to a different conclusion. In Alfarsi, two sets of orders had previously been made for the children to return to Australia from a non-Convention country. At the time of the hearing in May 2016, the children had been residing in the non-Convention country, since September 2014. His Honour said the following:
60. It is important to note the provisions of s 111CC of the Act as set out above that relevantly provides that the provisions of Subdivision C (Jurisdiction for the Person of a Child) of Division 4 (International Protection of Children) of the Act applies only if an issue under this Act is whether a court, as opposed to a “competent authority of a non-Convention country” has jurisdiction to take measures directed to the protection of the person of a child.
61. In the context of these proceedings no such issue arises. There is no evidence of any such jurisdictional conflict or issue that needs to be resolved by the application of the Subdivision C. Indeed there is no evidence as to existence or otherwise of any such “competent authority” in Iraq that may or may not or has sought to exercise jurisdiction over the children.
[51]I am not persuaded Bunyon and Alfarsi are truly inconsistent. In Bunyon, Bennett J took the view that it was not necessary for there to be “duelling courts” or litigation in two or more jurisdictions before s 111CC applied. It was only necessary for there to exist two or more competent jurisdictions which could be used to resolve a dispute between parties in relation to the protection of the person of a child. In this sense, there existed a conflict of jurisdictions. The distinction is between two jurisdictions which have been invoked and two jurisdictions which could be invoked. The latter is sufficient to raise an “issue under the Act” as to jurisdiction. In Alfarsi, Foster J addressed a different question. He found there was no issue under the Act because there was no evidence of any jurisdictional conflict, because there was no evidence of the existence of any “competent authority” in the non-Convention country.
[52]In Korrapati, Carew J dealt with a situation where the father was in Australia and the mother was in India. There was an order restraining the mother from taking any step in any other jurisdiction than Australia. Arguments were made that Bunyon and Alfarsi were inconsistent. Carew J did not expressly prefer Bunyon or Alfarsi, but held there was no “issue under this Act” for the following reasons:
45. In the present case, there is a valid order, binding on the mother, that restrains her from taking any step (other than withdrawing the proceedings), in any other jurisdiction for proceedings relating to the care, welfare or parenting orders for the children. There is also an absence of evidence as to the existence or otherwise of a “competent authority of a non-Convention country”, namely, India, that has sought or may seek to exercise jurisdiction over the children. In those circumstances, there is no conflict arising between two jurisdictions “which could hear and determine the dispute”. In other words, there is no issue arising under the Act to which Division 4 of Part XIIIAA is directed. I conclude that s 111CD of the Act does not restrict the jurisdiction of the Court from proceeding to hear and determine the parenting dispute between the parties.
[53]This reasoning is consistent with Alfarsi, because again there was no evidence of the existence or otherwise of a competent authority and its jurisdiction. It is also consistent with Bunyon, in the sense that Carew J focussed on whether there was evidence of a foreign “competent authority” which “could” hear and determine a dispute relating to children, not one the jurisdiction of which has actually been invoked. These observations hold true irrespective of the particular order in Korrapati restraining the mother from taking proceedings in another jurisdiction.
[54]With respect, I agree that it is not necessary for there to exist competing applications or proceedings in courts or tribunals in Australia and a foreign competent authority for there to be an issue under the Act about conflict of jurisdiction enlivening the application of Subdivision B. The definition of “competent authority of a non-Convention country” also supports this conclusion. The question is opposition between a court in Australia and a competent authority, which may include, but is not limited to a court, and by reason of the wide definition of “entity” includes corporations, unincorporated and government bodies. The existence of “duelling courts” may be one way in which the requisite issue under the Act may arise and be demonstrated, but it is neither the only way or a necessary way. A corporate or government body in a foreign jurisdiction may have jurisdiction to take measures for the protection of a child, for example, exercisable by administrative action, not proceedings in a court.
[55]Rather the fundamental question is a conflict of jurisdiction. Two jurisdictions may be relevantly in conflict in the sense they both may be invoked to take measures for the protection of a child, without being actually invoked by the initiation of court or tribunal proceedings or other available processes. This is the import of the reasoning in Bunyon and Korrapati.
[56]It is also pertinent to observe that this conclusion is consistent with basic principle in other areas of legal discourse concerned with conflicts of jurisdiction. For example, in determining whether an Australian court is a clearly inappropriate forum, the Court examines whether a defendant is amenable to the jurisdiction of a foreign tribunal which would entertain proceedings at the suit of the plaintiff: see eg Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 248 (“Oceanic Sun Line”). In other words, the question was whether the foreign tribunal would entertain, not necessarily has entertained, the suit.
[57]For those reasons, in my view, any perceived inconsistency between the decisions in Bunyon, Alfarsi, and Korrapati is illusory. Rather, they are consistent to the extent that they were determined by reference to the resolution of the factual question of whether there was a conflict of jurisdiction. In Bunyon the evidence showed there were two competent court systems the jurisdictions of which could both be invoked to resolve the dispute, Australia and the Netherlands. In Alfarsi and Korrapati, there was no such evidence and therefore no finding of a conflict of jurisdictions.
[58]Consequently, for the purposes of s 111CC(1)(b), there is a fundamental factual question which must be resolved by evidence, that is, the existence of a foreign competent authority and the nature and extent of its jurisdiction in relation to the person of a child, over whom this Court could also exercise jurisdiction. Such a competent authority could be a court, corporation, or unincorporated or government body, but it must be able to exercise, even if at the relevant time it has not exercised, a competing jurisdiction.
[59]Determination of the fundamental factual question relies upon evidence, usually expert evidence. In Neilson v Overseas Projects Corporation of Victoria (2005) 223 CLR 331 at [115] (“Neilson”), Gummow and Hayne JJ made clear Australian courts are not presumed to have any knowledge of the content of foreign law and decisions about the content of foreign law create no precedent, and “That is why foreign law is a question of fact to be proved by expert evidence”. Sections 174 and 175 of the Evidence Act 1995 (Cth) permit proof of foreign law by various other means such as books and pamphlets, copies of statutes, and some law reports: see Talwar & Sarai [2018] FamCAFC 152 at [36]–[45] (“Talwar”). Thus the party contending Subdivision B applies bears the onus of establishing the necessary fact that there exists a foreign competent authority, and the ambit and legal content of that relevant foreign authority’s jurisdiction: Talwar at [46]; cf Oceanic Sun Line at 248. Without such evidence, the Court cannot be satisfied as a fact that there exists a competent authority which may be opposed to an Australian court or a conflict or opposition in jurisdiction, and therefore an issue under the Act. As pointed out, this was the conclusion reached in Alfarsi and Korrapati.
[60]In my view, this must be so even if one party challenges this Court’s jurisdiction. If a party does so, it can be said there is raised an issue in the proceedings. But that does not mean there is an issue “under” the Act for the purposes of s 111CC unless the necessary factual finding of a foreign competent authority and a conflict of jurisdiction can be made. Otherwise, the application of Subdivision B would be attracted simply by any party asserting a challenge to the jurisdiction of this Court, even without any evidence of a conflict.
[61]In these proceedings, there is no evidence of any kind of a competent authority in China, whether a court, tribunal, corporation or government body, nor evidence of the extent of its jurisdiction, responsibility or authority in respect of children, and no evidence otherwise of a jurisdiction in China to resolve a dispute between these parties in relation to the protection of the person of their child. There is no expert evidence, nor material to which ss 174 and 175 of the Evidence Act could apply. Accordingly, there is no issue under the Act enlivening the application of Subdivision B.
[62]The mother, who bears the onus, acknowledged the absence of evidence about a competent authority in China. But she argued that this was not determinative either because the absence of the relevant evidence itself created the necessary issue under the Act, or the Court should presume that Chinese jurisdiction is the same as Australian jurisdiction. I do not accept either argument.
[63]In support of her first argument, the mother relied upon authorities interpreting s 111CJ of the Act, which is in relevantly identical terms to s 111CC. It falls in Subdivision C of Part 4 dealing with the guardians for the property of children. In Re Flemming [2012] FamCA 985, Benjamin J considered an application under s 111CK appointing the mother as guardian for the children so she could deal with money that the children had become entitled to that was being held by an insurance company in a non-Convention country. His Honour considered s 111CJ:
33. The next step is to consider s 111CJ of the Act as to whether this court, as opposed to a competent authority in Country F, has jurisdiction to appoint or determine a guardian of the children’s property. A ‘Competent Authority of a non-convention country’ in s 111CA(1) of the Act is defined as ‘an entity that has responsibility or authority under the law in force in the [non-convention] country to take measures or make decisions about … appointing or deciding the powers of a guardian’.
34. In Meroline [2012] FamCA 306, Cronin J said that s 111CJ provides jurisdiction for the court to appoint or determine the powers of a guardian of a child’s property in some limited circumstances. This was in relation to the operation of the Convention between Australia and France, who were at that time, both Convention countries.
35. Having determined jurisdiction, in this case there is an issue about whether this court should exercise that jurisdiction in the circumstances that there is no evidence (from either the mother or C Insurance) that a competent authority in Country F seeks to exercise jurisdiction in respect of the property of these children. As such I am satisfied that I should consider exercising jurisdiction.
[64]The mother argued that in Flemming, it was an absence of evidence that a competent authority in another country sought to exercise jurisdiction which raised the necessary issue “under” the Act and lead to the application of Subdivision C. In my view, in Flemming at [35], Benjamin J identified the issue in question as whether the Court should exercise jurisdiction, which he had already determined was possessed by the Court. In particular, Benjamin J held that s 111CJ permitted the Court to exercise jurisdiction in respect of property of a child, even though the property was situated in a non-convention country, a conclusion followed in Re Wright [2021] FamCA 409. The issue addressed was not whether Subdivision C applied by reason of s 111CJ because of a conflict of jurisdictions. Rather, the absence of evidence lead Benjamin J to conclude he should exercise the jurisdiction of this Court in Australia, although in respect of property of children in a foreign country. However, to the extent the decision in Flemming suggests s 111CJ (or s 111CC) can apply because there is no evidence that a competent authority in a non-Convention country is seeking to exercise jurisdiction, I would respectfully decline to follow it.
[65]In support of the second argument, the mother called in aid the principle that in a case where the content of foreign law is significant for the resolution of the issues, and there is no evidence of that law, an Australian court may presume that such law is the same as the applicable Australian law, referring to Neilson at [125], [249], and [267]. In Neilson, there was a question as to the applicable principles of statutory construction in China. In the absence of evidence of the laws of China concerning statutory construction, the High Court affirmed that it should be presumed those laws were the same as those of Australia.
[66]It is not clear how this principle assists the mother’s argument. The mother argued from this principle that this Court must presume the existence of a Chinese competent authority, which has jurisdiction to take personal protection measures in relation to the child. I do not accept this is correct. Neilson confirmed a long standing principle for the choice of law as the lex fori in the absence of evidence of the relevant foreign law. But the presumption is intended to operate against, not in favour of, the party bearing the onus of proving foreign law: BP Exploration (Co) (Libya) Ltd v Hunt [1980] 1 NSWLR 496 at 503. It is well known that the principle is subject to a range of exceptions, as explained at length in Damberg v Damberg (2001) 52 NSWLR 492 at [119]–[160] (“Damberg”). In Damberg, Heydon JA (as he then was) at [120] pointed out it was difficult to classify the exceptions by reference to principle, and at [144]–[146] that the presumption has generally been applied where an assumption has been made that the law of the foreign jurisdiction is materially the same as the lex fori or relevant law of the Australian court. At [146], he specifically noted “Cases in which the ‘foreign’ law is that of a State within the same federation as the forum are in a different category from those in which the foreign law is that of an entirely unrelated polity”.
[67]China may be fairly characterised as falling into the category of an “entirely unrelated polity”. In Neilson itself, Kirby J at [203], citing Damberg, specifically referred to the presumption between Australia and China as an unrealistic fiction: “…the notion that the law of a country so different, with a legal system so distinct, as China is the same as that of Australia, is completely unconvincing”. Kirby J was in the minority in Neilson, but more recently his comments have been cited in several High Court decisions with apparent approval. In Travel Compensation Fund v Tambree (2005) 224 CLR 627, Callinan J at [62] declined to embrace “unrealistic presumptions” in the common law, citing Kirby J in Neilson. In Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [28], Kiefel J cited the comments of Kirby J in saying “There are dangers for legal reasoning in the over-ready resort to presumptions”. In Deputy Commissioner of Taxation v Shi (2021) 392 ALR 1 at [32], Edelman J also cited Kirby J, in pointing out that in some cases it is “inappropriate to make such an assumption about the content of foreign law (which may be wrong) where the issues were complex (and technical) and there was no evidence of the content of the foreign law”.
[68]Since the existence of a competent authority in a non-Convention country, as defined in s 111CA, and the extent of its jurisdiction in respect of children, are questions of fact for this Court, in my view, it is inappropriate to seek to establish those facts by resort to presumptions about the content of the laws of China. Evidence is required, usually of an expert kind. The question alone of the existence of a competent authority in China exposes the nature of the problem. Since the relevant competent authority is an entity which can be a court, corporation, or government body, it may be assumed for the purpose of argument that it would be established by some laws of China. But in the absence of evidence of the content of those laws, which laws of Australia can be presumed to be the same and therefore apply? Australian legislation establishing a court or creating a government body, or Australian laws regulating the creation of a corporation are all possible, but so very different that it would be impossible to choose between them sensibly in attempting to apply the presumption.
[69]Accordingly, I am unable to make the necessary finding that there is an issue under the Act of whether this Court, as opposed to a competent authority in China, has jurisdiction to take measures directed to the protection of the person of the child. Subdivision B, and its limitations on the exercise of jurisdiction, do not apply.
[70]Consequently, I find that this Court has jurisdiction to make parenting orders pursuant to Part VII of the Act, if, following the usual statutory pathway, it is persuaded to exercise its discretion to do so in the best interests of the child, as determined by s 60CC of the Act.
[71]It thus becomes unnecessary to consider the consequences if Subdivision B applies, in particular, the provisions of s 111CD.
The Court accepts the analysis of the relevant law by Harper J. There is insufficient evidence before this Court to enable it to conclude that Subdivision B of Division 4 of Part XIIIAA of the Act applies in this case. Therefore, this Court has jurisdiction to make parenting orders in the best interests of the twins, as determined by s 60CC of the Act.
However, if there was sufficient evidence that Subdivision B of the Act should apply, the question would then become whether the children were habitually resident in Australia pursuant to s 111CD of the Act. Therefore, the following reasons set out the findings I would make if I am wrong about the applicability of Subdivision B.
The Court is satisfied that the present proceedings constitute a Commonwealth personal protection measure which is defined in s 111CA of the Act as follows:
Commonwealth personal protection measure relating to a child means 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.
The Court follows a number of decisions referred to in this regard: see eg Duckworth & Jamison (2014) 51 Fam LR 471 at [22]–[26]; Bunyon & Lewis (No 3) [2013] FamCA 888 (“Bunyon”) at [76]; Alfarsi & Elhage [2016] FamCA 428 at [53]. Section 111CD(1)(e) is applicable in this matter as Country B is a non-convention country.
HABITUAL RESIDENCE
The Court accepts that habitual residence must be determined as at the date of the hearing: see eg Bunyon at [185] and [187], Sun & Long [2019] FamCA 3 at [49]–[50] and Ahmad & Hadi [2020] FamCA 1041 at [37].
Harper J discussed the applicable law in Yaling & Tsen in the following paragraphs:
[78]In LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) the High Court made clear that habitual residence is a purely factual question.
[79]I repeat and rely upon what I have written in Department of Communities and Justice & Leoni [2020] FamCA 411 at [25]–[32] as to the relevant principles, derived largely from LK:
25. …
a) Habitual residence is a question of pure fact which permits consideration of a wide variety of circumstances bearing upon where a person resides and whether their residence is habitual; the search must be for where a person resides and whether residence at that place can be described as habitual (at [21], [23]);
b) 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 (at [23]). However, unlike the concept of domicile, which gives intention decisive importance, 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 (at [24], [28]).
c) The term "habitual residence" is used to identify the required connection between a person and a particular municipal system of law; it thus amounts to a rejection of other possible connecting factors such as domicile or nationality (at [24]);
d) Even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. A person may have no place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence (at [25]);
e) When considering the habitual residence of a child it is important to consider the habitual residence of the person caring for the child, and the younger the child is, the less sensible it is to consider the child’s habitual residence as distinct from the habitual residence of their carer (at [27]).
26. The High Court in LK also set out three important considerations about the role of intention in determining habitual residence, as follows:
a) 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 (at [29]);
b) Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to a country in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually (at [33]).
c) Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day to day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a Court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged (at [34]).
27. There is no closed set of criteria or any predetermined weighting between them to establish habitual residence (LK at [35]). The factual inquiry is broad and the search is for a connection between the child and a particular state, as well as the “settled purpose” of the parents, ascertained by reference to their intentions, although such a “settled purpose” or settled intention does not necessarily involve an intention to live at a place permanently or indefinitely (LK at [37], [38]).
28. At [40] in LK the High Court quoted with approval the following statement of Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995:
…
All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
(emphasis added by the High Court.)
29. At [44], the High Court continued:
...it is sufficient to observe that in Punter v Secretary for Justice [2006] NZCA 533; [2007] 1 NZLR 40 at [88] [the plurality held] that the inquiry into habitual residence is "a broad factual inquiry". The plurality went on to say in Punter:
... Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state...
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...
(footnotes omitted)
30. The decision in LK has been explained and applied by the Full Court in Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147; (2011) FLC 93-472; 46 Fam LR 335 (“Zotkiewicz”). In that case the mother relocated to Poland in good faith. The father did so with equivocal intentions about continuing the marriage. He terminated the relationship in Poland, and prevented the mother from leaving Poland with the child. The Full Court commented as follows at [72] to [79]:
[72]. The reference by the High Court… to a “shared intention” gives rise to the question of how the law deals with cases where the intentions of one parent may be described as “settled”, but the other parent has different intentions that cannot be so described. This we perceive is more difficult where the parents are living together. In an article often cited, Clive E.M., ‘The Concept of Habitual Residence’, [1997] The Juridical Review 137, Dr Clive concluded, (at 145), that in cases where both parents have an equal right to fix the child’s place of residence, and there appears to be a “genuine difference” in their respective intentions, “then the conclusion must be that there is no settled purpose or intention”.
[73]. At the very least, as the High Court said in LK at 596 [34], the “possibility of ambiguity or uncertainty on the part of one or both [parents] must be acknowledged” (our emphasis added).
[74]. We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”.
[75]. What amounts to an “appreciable period” will differ from case to case, and in our view must be dependent to some extent on the intentions of the parents. Thus, in [one] case … the appellate court declined to interfere with a finding that a family had acquired a fresh habitual residence only one month after arrival in a new country. However, Butler-Sloss LJ, in delivering the principal judgment of the English Court of Appeal, was at pains to say (our emphasis added), “The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time:” Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555 (“Re F”).
[76]. There are, of course, cases where the acknowledged ambiguity or uncertainty in the intentions of one or both of the parents will become irrelevant because they have been pushed into the background by “the brute force of geography and duration” (Clive, supra at 140). Thus, in Zenel v Haddow [1993] S.L.T. 975, a child was found to be habitually resident in Australia after 15 months, notwithstanding assertions there was no settled intention on the part of the parents to remain in Australia. In that case Lord Marnoch said at 979:
It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.
[77]. On the other hand, as Dr Clive recognised (at 142), “the most difficult cases on habitual residence are usually those where the question is whether there has been a recent change in habitual residence”. We agree with him that in those cases, “the element of adequate duration is absent or doubtful and it is necessary to have regard to such factors as purpose and intention”. We recognise that in examining factors such as “purpose” and “intention” there may be cases in which it could be said that habitual residence has been acquired immediately (for examples, see Re M (Minors) [1993] 1 FLR 495 at 503 (“Re M (Minors)”); however, we also consider such cases would have to be seen as the exception, even allowing for the fact that there may be policy reasons against finding that a child does not have a place of habitual residence (as to which see LK at 594 [26], but see also at 595 [32]).
…
31. The decision of the Full Court in Zotkiewicz makes clear that in determining what is an “appreciable period” in a given case, the Court is guided by the factual question of the parties intentions as well as the relevant time period, a focus which can lead to the period being, exceptionally, almost instantaneous or, more usually, something longer. As the Full Court later held in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 at 81,314 (“Padwa”), the period of time that a child has spent in a country is not determinative of whether the child had become habitually resident in that country. In the earlier decision of Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321; (2007) 37 Fam LR 271; [2007] FamCA 398 (“Wenceslas”) the Full Court had confirmed that in some circumstances habitual residence could be lost or abandoned in a single day.
32. It is important to bear in mind that in Padwa the Full Court also laid emphasis on the child’s perspective, so that, in this case, the broad factual inquiry in determining habitual residence is directed to the question whether, immediately prior to the date of retention, the child’s presence in Australia had a degree of settled purpose from the child’s perspective and in all the circumstances of the case, to result in the conclusion that the child was habitually resident in Australia: at [38], [42].
[80]Bennett J pointed out in State Central Authority & Metin [2020] FamCA 535 at [172] that habitual residence will not be altered by virtue of parental intention alone. However, habitual residence may change in accordance with the child’s experience integrating in a new residence.
The evidence in this case about parental intention is, in the view of this Court, clear as at early 2019 when the mother left the twins in Country B, and returned to Australia. Both parents intended that the twins remain there, in the care of the maternal grandparents. On any view of the evidence, the Court is unable to conclude that the parents subsequently shared an intention about the habitual residence of the twins. Indeed, their actions suggest to the contrary. However, the Court observes at paragraph 80 of the mother’s affidavit, she deposes that in 2022 “I flew to [Country B] to check on the twins and my mother after my father’s death in […] 2021”. This suggests a lack of intention to bring the twins back, at least at that time.
Bennett J in State Central Authority & Metin [2020] FamCA 535 at [172] observed that habitual residence may change in accordance with the twins’ experience integrating in a new residence. On the facts of this case, however, there was no new residence – the children remained living in the country where they were born and had lived the entirety of their lives with the exception of three months in Australia.
A considerable period of time has elapsed since the mother returned to Australia, leaving the twins in Country B. The Court accepts that she made requests of the father to bring the twins to Australia which he declined to do. The delay in the commencement of the present proceedings is hard to understand on the evidence before the Court. The proceedings were commenced on 9 July 2021 and it is only 15 months into the proceedings that the mother brings the present application. This is notwithstanding the multiple interlocutory applications she has previously filed in these proceedings. The Court accepts that delay is but one factor which the Court takes into account in determining the habitual residence of the twins. Another factor is the difficulty that the twins are likely to experience integrating into Australian society, a matter acknowledged by the mother herself in proposing intensive English language classes for them. The impact on the twins of separation from their grandparents is unknown. Indeed, the absence of any evidence at all from the maternal grandparents is surprising.
When the totality of the evidence before the Court is assessed, the Court finds that as at this date, the habitual residence of the children is not Australia, and it is probably Country B, even though that is not strictly necessary to decide. This means that if Subdivision B applied to this case, s 111CD(1)(e) of the Act would not be satisfied and the Court would be unable to exercise its jurisdiction to make orders in relation to the twins.
SUMMARY
At [29] of these reasons, I have held that there is insufficient evidence before this Court to enable Subdivision B of Division 4 of Part XIIIAA of the Act to apply. Therefore, this Court has jurisdiction to make parenting orders in respect of the twins.
However, in the event this conclusion is wrong, I would find that the habitual residence of the twins is Country B, not Australia. Therefore, this Court would not have jurisdiction as s 111CD(1)(e) is not satisfied.
ORDERS IN THE BEST INTERESTS OF THE TWINS
As the Court has jurisdiction in relation to the twins, the question becomes what orders should be made in their best interests. The mother seeks orders that the twins immediately live with her in Australia. The mother’s application is, in effect, an interim international relocation order.
This Court concludes that there is insufficient evidence before it about important issues relating to the welfare of the twins such that no orders should be made for the time being.
For present purposes it is not possible for the Court to assess whether the twins have a meaningful relationship with both parents. It is unlikely that they do, as it is likely that the twins have a meaningful relationship with their actual carers, the maternal grandmother, and on the father’s case, the paternal grandmother as well. The Court recognises the mother’s submission that she is, in effect, being denied a meaningful relationship with the twins but that ignores the reality and complexity of the situation which she herself has created and which is not easily reversed on an interim basis. The mother gives no evidence as to why she cannot return to Country B to be reunited with the twins.
It was not a part of the mother’s case that the twins are at risk of harm in the father’s care.
In terms of the twins’ relationship with their parents, the mother’s contention that she has always been the primary caregiver of the twins is somewhat hollow on the evidence before the Court, which has been adequately discussed above. By contrast, the evidence that both parents lead indicates that the twins have a strong relationship with the maternal grandmother, and possibly the paternal grandmother as well.
Perhaps the most important consideration in the present case is the likely effect of change in the twin’s circumstances. Once again, the mother’s contention that she has been the primary carer of these children since birth is hollow on the evidence before the Court. Her contention, therefore, that there would be no detrimental effect to the twins if they were returned to her care on an interim basis is, with respect, very hard to accept. She herself acknowledges that for the twins, her proposal involves a significant change in their current living arrangements, the impact of which is completely unknown. Once again, the Court observes that the mother led no evidence from the maternal grandmother, despite its relevance.
It is important to observe that, in terms of the twins’ lifestyle, culture and traditions, Country B has always been their home, they only speak H Language, they have only visited Australia for a relatively short period of time, and for most of their lives they have, in reality and in practice, been cared for by family members other than the mother.
There is no independent expert evidence before the Court that would enable it to properly assess the considerations that have been adverted to above. The mother does not even propose this, but the father does.
There are, however, a number of interim orders proposed by the mother that the Court considers itself able to make on the available evidence. Orders 12 and 13 relating to communication, Orders 14, 15 and 16 relating to restraints, and Orders 17–21 relating to the provision of information about the children are appropriate and will be made on an interim basis.
ORDERS IN RELATION TO X
The mother proposes that X live with each of the parents on a weekabout basis with changeover to occur on Friday at 4pm. The father’s primary proposal seems to be that there be no order in relation to him, until there has been a report from a single joint expert. In the alternative, however, he proposes that X live with him and spend time with the mother each alternate week on each day from 9am until 5pm on days X does not attend school (eg on weekends and holidays) and from the conclusion of school until 7pm on days X does attend school. The Court infers that the mother’s proposal for equal time reflects what she describes as the arrangement that existed before the father travelled to Country B. The mother, through her lawyer, refers to X as independent, and capable of living in an equal time arrangement (letter dated 9 September 2022 from her solicitor to the father’s solicitor marked as annexure E to her affidavit). The mother says very little else about X, who is 13 years old. At this age the Court should at least take into account his views. The father also refers to his son as “a mature, intelligent and articulate boy” at paragraph 10.6 of his affidavit.
The father asserts that X ordinarily lives with him, and spends infrequent time with the mother, and usually when he is overseas. He contends that X has complained to him that the mother is always with her de facto partner with whom X does not get along with.
There is very little information before the Court that would enable it to make an informed assessment of X’s best interests. A Child Impact Report will be ordered so that appropriate evidence may be placed before the Court, so that a decision may be made either by the parents or the Court. There seems little pressing need to make interim orders in relation to X for the time being.
APPOINTMENT OF A SINGLE EXPERT
In Order 3 the father proposes a regime for the appointment of a single joint expert to report in relation to the children, including as regards their views. The Court is satisfied that any such order should be made in relation to all of the children who are under the age of 18. The terms of reference that he proposes in Order 3 of his amended response are minimalist and should be expanded, preferably in consultation with those representing the mother. At this stage the Court indicates that it sees the benefit to the children, and to the progress of this case, if a single joint expert report is obtained in relation to parenting matters. Leave will be granted to file a consent order in this regard. The Court does not accept any contention in the mother’s case, whether express or implied, that such a report is unnecessary.
THE EXCLUSIVE OCCUPATION ISSUE
When this matter came before me on 17 January 2023 it became apparent, after hearing submissions and reading the documents filed on behalf of the parties, that unless an order was immediately made to govern the occupancy of the former matrimonial home at Suburb D (“the Suburb D property”), the parties would continue in their tug-of-war about occupancy which seems to have kept various locksmiths gainfully employed. The mother was currently in occupation. The father was threatening to resume occupation once he returned from Country B. The Court had no confidence in their ability to resolve this on an amicable basis and thus imposed a temporary order for the mother to have exclusive occupancy, pending the Court’s decision.
The Court is satisfied from the evidence of both parties that each is of substantial means and owns property other than the Suburb D property. There is no financial hardship to either party if they were excluded from the home. The Court acknowledges, however, that the father has a much greater income than the mother.
The home is registered in the name of the father.
There are many other contested allegations about the conduct of each party that cannot be resolved in the present context.
The mother has a boyfriend or partner with whom she has lived in accommodation in Sydney at times when the father was in occupation in the Suburb D property. Whilst she is no longer in occupation of this property, it is possible but by no means clear that she could resume occupation.
It is completely impractical for the parties to share occupation of the premises. This is a high conflict dispute. The mother makes serious allegations against the father about violence, including coercive and controlling violence, which the father denies. Both parties give evidence about an unfortunate incident when one was in occupation, and the other sought occupation, with locks being changed.
There have been periods since separation when both parents have lived in, and out, of the Suburb D property and no evidence is led about financial disadvantage arising out of this.
The father seems particularly mobile in the sense of being able to frequently travel to and from Country B. The mother’s past mobility in this regard is not as great.
The most likely scenario, in this Court’s assessment on the limited evidence, is that the children, X and W, will largely decide for themselves where they live but it is most likely to be in what they consider to be their family home, irrespective of which parent is in occupation.
On balance, this Court concludes that the balance of convenience favours the mother, particularly given the greater means of the father. His greater historical mobility is an indicator that he is less likely than the mother to occupy the property on a continuous basis. The Court acknowledges the legal rights of ownership of the father, and this is a matter that can be dealt with in the fullness of time.
The order for the mother to have exclusive occupation of the property will be continued, pending further order.
However, the father raises issues about access to his personal belongings in the home. If the mother unreasonably refuses to provide the father with his personal belongings, then the father has liberty to relist before the Court on seven days’ notice.
THE PASSPORTS ISSUE
The mother seeks orders that the father do all things necessary for Australian passports to be issued to the twins. The father opposes this. Even if the Court does not make the orders proposed by the mother relating to the children, she presses the passport application.
The mother’s passport application is framed as an injunction requiring the father to do certain things under s 68B of the Act, and not as a parenting order. The mother contended that, therefore, there were no jurisdictional issues that prevented the Court from making the order. It was, on the evidence, a just and convenient order to make. The father opposes this, and disputes the Court’s jurisdiction to make such an order as it is, properly understood, an order which governs the international movement of children.
On balance, the Court concludes that there is no jurisdictional obstacle to the making of an order in relation to the children’s passports, if it is just and convenient. The passport merely confers a right on a person to travel overseas, which is completely different to an order that either facilitates, or requires, a child to travel overseas. The Court accepts the mother’s counsel’s submission that a passport is an immigration document which is not covered by articles 3 and 4 of the Convention. This decision is analogous to that of Bennett J in Bunyon.
The Court is satisfied that it is just and convenient for the order to be made in the overall factual matrix of this case. Having Australian passports does not pre-empt any issue before the Court and it is simply convenient for the twins in the event that they are permitted to travel to Australia with, or without their parents, in circumstances where both parents consider Australia home.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 19 April 2023
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