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JASVIR and ATWAL

JASVIR and ATWAL

Case [2023] FCWA 222 19 October 2023

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: JASVIR and ATWAL [2023] FCWA 222
CORAM: COHEN J
HEARD: 10 OCTOBER 2023
DELIVERED : 19 OCTOBER 2023
FILE NO/S: 4626 of 2023
BETWEEN: MS JASVIR
Applicant
AND
MR ATWAL
Respondent

Catchwords:

JURISDICTION – Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility ("Child Protection Convention") – where child has been in a non-Convention country for the purposes of the Child Protection Convention since separation 2 years ago – where mother seeks orders for child’s return to Australia – where father disputes the Court’s jurisdiction as child habitually resident in non-Convention country – consideration of ss 111CC and 111CD(1)(e) – discussion of principles of proof of foreign law for purpose of proving existence of competent authority in non-Convention countries – consideration of whether relevant date of habitual residence under Child Protection Convention is date of hearing or date of retention/removal as per Child Abduction Convention – where Child Protection Convention requires consideration of habitual residence as of the date of hearing – where brute force of time has overrun parental intention – where Court finds habitual residence is not Australia as of date of hearing – where Court should not exercise jurisdiction pursuant to s 111CD(1)(e) – proceedings dismissed

PARENTING – Jurisdiction – urgent applications where child is overseas and jurisdiction may be in dispute – urgent applications for extraordinary injunctive orders where respondent has requested interpreter and lawyer – case turns on its own facts

Legislation:

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (1996)
Convention on the Civil Aspects of International Child Abduction (1980)
Evidence Act 1906 (WA)
Family Law Act 1975 (Cth)
Family Law Amendment (Child Protection Convention) Act 2002 (Cth)
Guardian and Wards Act 1980 (India)
Hindu Minority and Guardianship Act 1956 (India)

Category: Reportable

Representation:

Counsel:

Applicant	:	Counsel A
Respondent	:	Counsel B

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B

Case(s) referred to in decision(s):

A v A & Anor (Children

Habitual Residence) (Reunite International Child Abduction Centre & Ors Intervening) [2014] AC 1

Ahmad & Hadi [2020] FamCA 1041
Alfarsi & Elhage [2016] FamCA 428
AMS v AIF (1999) 199 CLR 160
Anandi & Saini [2023] FedCFamC1F 334
Bunyon & Lewis (No 3) [2013] FamCA 888
Commissioner of Police and Martin [2021] FCWA 211
Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235
Duckworth & Jamison (2014) 51 Fam LR 471
Hazeldell Pty v The Commonwealth (1924) 4 CLR 442
Hazra & Sekhar [2022] FedCFamC1F 332
Henry v Henry (1996) 185 CLR 571
Karides v Wilson (1998) FLC 92-823
Korrapati & Mishra [2021] FamCA 281
Kwon and Lee (2006) FLC 93-287
LK v Director General, Department of Human Services (2009) CLR 582
Malhotra & Divakar [2022] FedCFamC1F 606
Momcilovic v The Queen (2011) 245 CLR 1
Punter v Secretary for Justice [2007] 1 NZLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JASVIR and ATWAL [2023] FCWA 222
Case: [2023] FCWA 222
Decision Date: 19 OCTOBER 2023

CaseChat Overview and Summary

The case of Jasvir and Atwal involved a dispute over the jurisdictional application of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility. The mother, Atwal, sought orders for the return of her child to Australia, while the father, Jasvir, disputed the court's jurisdiction on the basis that the child had been in a non-Convention country for two years since the separation. The Family Court was required to determine whether it had jurisdiction under section 111CD(1)(e) of the Family Law Act 1975 (Cth), which pertains to the Child Protection Convention.

The primary legal issues involved the interpretation of sections 111CC and 111CD(1)(e) of the Family Law Act, the principles of proof of foreign law for the purpose of establishing the existence of a competent authority in non-Convention countries, and the determination of the relevant date of habitual residence under the Child Protection Convention. The court had to decide whether the habitual residence of the child, as required by the Child Protection Convention, should be considered as of the date of hearing or the date of retention/removal as per the Child Abduction Convention. The court found that the Child Protection Convention required consideration of habitual residence as of the date of hearing, and that the passage of time had overridden the parental intention.

The court concluded that the child's habitual residence was not Australia as of the date of hearing. Therefore, the court did not exercise jurisdiction pursuant to section 111CD(1)(e). The court dismissed the proceedings, highlighting that the case turned on its own unique facts, particularly the significant passage of time since the child's departure from Australia and the establishment of a new habitual residence in a non-Convention country.

Orders