JASVIR and ATWAL
[2023] FCWA 222
•19 OCTOBER 2023
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 40
Re B (A Child) (Reunite International Child Abduction Centre and Ors) [2016] AC 606
Re R (Children) (Reunite International Child Abduction Centre & Ors Intervening) [2016] AC 76
Salamon & Salamon [2021] FedCFamC1F 140
Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701
State Central Authority & Metin [2020] FamCA 535
State Central Authority & Spring-Ernest (No 2) [2013] FamCA 906
Sterling & Sterling (2022) 370 FLR 123
Wagstaff and Wagstaff (2022) FLC 94–098
Yaling & Tsen (2022) 65 Fam LR 437
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472
COHEN J:
1 These proceedings concern the child, [Child A] born [in] 2017 ("[Child A]"). The child's parents are [Ms Jasvir] ("the mother") and [Mr Atwal] ("the father").
2 There are three issues which require determination. First, is the question of the Court's jurisdiction to determine a parenting dispute about Child A in circumstances where he has been residing in India with his father and paternal grandparents for over two years, noting there are divorce proceedings currently on foot in India.
3 Second, whether the Court should maintain an injunction put in place by the learned Magistrate who dealt with the proceedings urgently on [in] June 2023, which restrained the father from leaving the Commonwealth of Australia. To give further effect to the injunction, the father was also placed on the Family Law Watchlist for a period of two years.
4 Third, subject to the Court's determination in respect to the other identified issues, what then should happen in respect to these proceedings.
5 Counsel for the mother appropriately conceded at the hearing that the second and third questions fall away if the Court determines that it does not or should not exercise jurisdiction.
Background
6 By way of brief background, the mother was born [in] 1994, and is 29 years old. She works [in education] and has recently relocated to Perth after temporarily living in [Town B, Australian State B] for work.
7 The father was born [in] 1998, and is 35 years old. He is a student and works part-time as [a] driver.
8 Both parties were born in India, are Indian citizens, and practice [Religion C]. They married in India [in] 2014 and separated on 14 March 2021.
9 The mother and her immediate family are also [Country D] citizens, and I understand it, lived in Country D for much of the mother's life.
10 Child A was born in Country D and is an Country D resident. He is also an Indian citizen. Child A is neither a resident nor citizen of Australia.
11 According to the mother's case information affidavit filed [in] June 2023, she is a resident of Australia but not yet a citizen. Pursuant to the father's case information affidavit filed 31 July 2023, he is neither a resident nor a citizen of Australia. He is currently in Australia on a student visa.
12 As per their statement of agreed facts,[1] the mother and Child A travelled to India from Country D in January 2018 until July 2018, and thereafter, returned to Country D. The mother and Child A again returned to India in December 2018, remaining there until the mother and Child A travelled to Australia [in] April 2019, initially on a tourist visa.
[1] Filed 23 August 2023.
13 Whilst in Australia, the mother applied for and obtained an Australian student visa, which enabled her to sponsor the father and Child A. According to the mother, which does not appear to be in dispute, for Child A to have been placed on her visa, he was required to be outside of Australia at the time of her application. Accordingly, the paternal grandfather returned with Child A to India for a period of approximately 2 months, returning to Australia with the paternal grandmother in August 2019. The father arrived in Australia [in] September 2019 and the family lived with the paternal family in the father's brother's home until separation in March 2021.
14 The parties are in dispute about the events leading up to their separation in March 2021, in particular, how it was that Child A came to be removed from Australia by the paternal grandmother. What is not in dispute is that on or around 19 March 2021, the paternal grandmother travelled with Child A to India, where he has remained since that time. The father travelled to India shortly thereafter.
15 It is the mother's intention to apply for Australian permanent residency for Child A.
16 On or around 19 April 2023, the mother became aware the father had returned to Australia without Child A.
Court history
17 The mother commenced these proceedings [in] June 2023, in which she sought the following interim orders:
1. The respondent, [MR ATWAL], born [in] 1988, be restrained and an injunction is hereby granted restraining him from leaving the Commonwealth of Australia.
2. It is requested that the Australian Federal Police give effect to this order by placing the name of the respondent on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent's name on the Watch List.
3. The injunction contained in the previous paragraph of this order remain in force for a period of 2 years.
4. The parties and their agents be restrained and an injunction is hereby granted restraining them from removing or attempting to remove or causing or permitting the removal of the child [CHILD A] born [in] 2017 from the Commonwealth of Australia.
5. It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List.
6. The injunction contained in the previous paragraph of this order remain in force for a period of 2 years.
Provision of Information
7. The respondent is to forthwith provide information to the applicant confirming:
a. where the child is residing and what care arrangements are in place for the child.
b. where the child is attending school and whether the child is boarding at the school or is a day scholar.
c. details of all educational establishments attended by the child since he has been resident in India.
d. details of all medical practitioners attended by the child since he has been resident in India.
8. Within 7 days the respondent is to provide to the applicant copies of:
a. all school reports and other notices, letters or forms, including enrolment forms, provided or received in relation to any educational establishment attended by the child since March 2021.
b. any medical reports, letters and details of any treatment administered to the child by a treating medical practitioner since March 2021.
9. Within 14 days the respondent is to provide the original copy of the child's proof of [Country D] Permanent Residency.
10. Whilst the child remains resident in India the respondent do provide a current photograph of the child to the mother no less than once per month.
11. The respondent shall provide the applicant with notice of any medical issues concerning the child including details of any treating practitioner and shall authorise any treating practitioner to discuss the child's medical issues with the applicant.
12. Each party be permitted to request from the school the child attends copies of any school reports, reports on behavioural issues, school circulars or notices concerning functions and other school activities and each party be authorised to speak with the school directly to obtain information about the child.
Communication arrangements
13. Whilst the child remains resident in India the respondent is to do all acts and things necessary to ensure that the applicant can communicate with the child as follows:
a. The applicant is to have videocalls with the child each day at 6pm Indian Standard Time (IST) with the applicant to initiate the call.
b. The respondent is to forthwith provide to the applicant a phone number/WhatsApp number for her to communicate with the child.
c. The respondent is to direct his agents in India who will be facilitating the calls, to ensure that the child is supported to take the videocalls but then otherwise is not to be interrupted for the duration of the call.
14. The parties are restrained by injunction and an injunction be granted restraining them from:
a. Denigrating the other party or their family to or in the presence or hearing of the child or allowing or permitting any third party to do the same.
b. Discussing these court proceedings to or in the presence or hearing of the child or allowing or permitting any third party to do the same.
Passport for the child
15. Within 14 days the parties do all acts and things necessary to apply for an Indian passport for the child, with the respondent to provide a copy of the child's passport to the applicant within 48 hours of the passport's receipt.
Visa application for the child
16. The mother be at liberty to make applications to the Australian Department of Home Affairs for the child to be included as a dependant on her visa, and the consent of the respondent father to any visa application for the child, if required, be dispensed with
Return of Child to the jurisdiction
17. Upon the Court receiving confirmation of the child's passport being obtained and the child's status as a dependant on the mother's visa being confirmed the father is to do all acts and things necessary to arrange for the child's return to Perth, Australia within 7 days.
18. Upon the child's return to Perth, Australia the child live between the parties as ordered by the Court.
19. Within 72 hours of the child's return to Australia the parties cause the child's passport to be deposited with the Family Court of Western Australia pending further order.
20. The respondent be at liberty to seek to discharge the injunction set out at paragraph 1 of these orders upon the Court receiving confirmation that the child has been returned to Perth, Australia.
Appointment of Independent Children's Lawyer
21. An Independent Children's Lawyer be appointed in the usual terms.
18The mother's application was listed and heard on an urgent ex-parte basis [in] June 2023 whereby the presiding Magistrate made the following orders:
IT IS ORDERED EX-PARTE THAT:-
1. Until further order of the Court, the respondent, [MR ATWAL] (male), born [in] 1988, be restrained and an injunction is hereby granted restraining him from leaving the Commonwealth of Australia.
2. It is requested that the Australian Federal Police give effect to this order by placing the name of the Respondent on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Respondent's name on the Watch List.
3. The injunction contained in the previous paragraph of this order remain in force for a period of 2 years.
4. Until further order of the Court, the parties and their agents be restrained and an injunction is hereby granted restraining them from removing or attempting to remove or causing or permitting the removal of the child [CHILD A] (male), born [in] 2017 from the Commonwealth of Australia.
5. It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List.
6. The injunction contained in the previous paragraph of this order remain in force for a period of 2 years.
7. Upon expiration of the period referred to in the preceding paragraph and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the Respondent and the said child names from the Watch List.
8. The Marshal and Officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these orders.
9. The Applicant, [MS JASVIR], is to provide immediately to the Australian Federal Police a 24 hour contact telephone number.
10. The Respondent shall have liberty to apply to set aside or vary the terms of this order on giving short notice to the Applicant.
11. The Applicant cause the Respondent to be served with a copy of:
(a) the Form 1 Initiating Application;
(b) the Case Information Affidavit; and together with a sealed copy of this order.
12. The proceedings otherwise be adjourned to [four days later] in the Child Related Hearing list and be transferred to the Family Court of Western Australia.
Particulars of the obligations created by this order and the consequences that may follow if it is contravened are set out in the attachment.
NOTICE TO THE RESPONDENT
This order was made as a matter of urgency on evidence presented by the Applicant.
You are entitled to ask to have the order varied or discharged on presenting evidence in answer, but unless and until the order is changed it must be obeyed strictly. Disobedience of the order will make you liable to punishment. You are urged to take legal advice as soon as possible. If you wish to oppose the continuation of the order, either you or your solicitor should attend Court at the next hearing of the matter.
19 To assist with the urgent ex-parte hearing, the Department of Communities provided a Memorandum setting out its involvement with the family. The Memorandum is as follows:
The Department does not have an open file in relation to this matter.
The Department wishes to advise that the child, [Child A] DOB [in] 2017, the father, [Mr Atwal] DOB [in] 1988, and the mother, [Ms Jasvir] DOB [in] 1994 are not known to the Department.
The Departments Family Violence Incident Report ("FVIR") triage system records one FVIR for [Ms Jasvir] and [Mr Atwal] dated 20 March 2021 whereby [Ms Jasvir] reported that [Child A] had returned to reside in India with the paternal grandmother. Police spoke with [Mr Atwal] who confirmed that [Child A] returned on 19 March 2021, and Police advised [Ms Jasvir] to seek legal advice and liaise with the Indian Embassy.
20 The proceedings next came before the Court [four days later]. Having had an opportunity to review that transcript, I have several concerns about how that hearing was conducted.
21 First, the father appeared and represented himself, which in and of itself, is not unusual or concerning. However, during the hearing, he asked for more time, and on another occasion, he requested a lawyer. Again, in and of itself, this is not unusual or a concern. However, at a further point in the hearing, the learned Magistrate clearly turned her mind to whether the father would be assisted by an interpreter, albeit at the next hearing, to which he said, "yes". Having raised the need for an interpreter and been provided with the father's reply in the affirmative, it is difficult to understand how the hearing proceeded, but it did. The learned Magistrate then went on to ask various questions of the father about the mother's contact with Child A and entertained submissions being made on behalf of the mother's counsel for further orders to be made in terms of the various other interim orders sought by her.
22 Second, after the further exchange referred to in the preceding paragraph, the learned Magistrate again raised concern about whether the father was understanding the conversation taking place around him. Notwithstanding this concern, the hearing proceeded with the father's brother being asked to interpret, which is, in my view, far from best practice.
23 Leaving aside the procedural fairness issues arising in respect to the father's ability to effectively participate in the hearing due to clear language barriers set out in the preceding paragraphs, I am also troubled by the fact the learned Magistrate proceeded to make any further substantive orders in circumstances where she herself recognised the inherent jurisdictional issues arising where the Court was advised there were proceedings currently on foot in India in respect to Child A.[2]
[2] Transcript (16 June 2023) 3–5. The mother subsequently clarified that the father commenced only divorce proceedings in India on 29 September 2022, not parenting proceedings as she had previously indicated: Written Submissions, Mother (filed 19 July 2023) [15].
24 Whilst I deal with the issue of jurisdiction later in these Reasons, it remains the first responsibility of the Court to satisfy itself of the jurisdiction upon which it purports to rely upon when dealing with applications and making orders.[3]
[3] See e.g., Hazeldell Pty v The Commonwealth (1924) 4 CLR 442, 446 (Isaacs ACJ).
25 Whilst I accept the Court has the power to injunct the father from leaving Australia and place him on the Family Law Watch List, her Honour's reasons failed to identify the specific head of power upon which she was relying, which she was required to do, particularly given the seriousness of making the orders she did.
26 First, it would appear that one of the mother's reasons for pressing such an order was to prevent the father from leaving the jurisdiction to defeat any criminal charges which may be brought against him in respect to her recent criminal complaint.[4] If this is correct, this would be an improper use of Family Court proceedings and is arguably tantamount to an abuse of process. If WA Police wished to further the complaint made against the father, it would be up to them to take those steps they considered necessary, including to safeguard against him leaving the country.
[4] See paragraph 12, page 9, Mother’s CIA.
27 Second, whilst there is a significant body of jurisprudence about how this Court should balance and reconcile a parent's right to freedom of movement with the paramount consideration of the child's best interests when determining a relocation case,[5] this court should proceed with caution in making orders or taking steps in any other circumstance which would impact a parent's rights to freedom of movement otherwise guaranteed pursuant to international instruments.[6]
[5] See AMS v AIF (1999) 199 CLR 160.
[6] See e.g., International Covenant on Civil and Human Rights (1976) art 12; Universal Declaration of Human Rights (1948). See also Momcilovic v The Queen (2011) 245 CLR 1 [43] (French J); Wagstaff and Wagstaff (2022) FLC 94–098.
28 The proceedings first came before me [two weeks later in] July 2023, whereby I made various orders including in respect to the exchange of disclosure about the issues currently before the Indian Court and for the parties to confer about the issue of jurisdiction and the restraint placed on the father. I listed the proceedings to a hearing [in] August 2023 to deal with the issue of jurisdiction.
29 When these proceedings were commenced by the mother, she deposed to the Indian proceedings also involving the care, welfare and parenting of Child A. Through written submissions filed on her behalf on 23 August 2023, and an affidavit of herself filed without leave on 24 August 2023 ("the mother's further affidavit"), this is not the case: there are currently no parenting proceedings on foot in India.
30 [At the August hearing], the hearing was called on and the father's solicitor made an oral application for an adjournment, as she sought time to respond to the mother's further affidavit and because counsel was unwell. The application was not opposed by the mother's counsel, who advised the court the father had disclosed documents, which I understand related to the Indian proceedings, whilst waiting for the hearing to be called on. I made orders adjourning the hearing [to] October 2023, and gave the parties a further opportunity to file responding and reply affidavits of themselves respectively.
31 The father filed his responding affidavit on 21 September 2023 ("the father's responding affidavit"). The mother filed her reply affidavit on 28 September 2023 ("the mother's reply affidavit").
32 The hearing proceeded [on the] October 2023 [date] and thereafter I reserved my decision.
The mother's case and documents relied upon
33 The mother relies on her case information affidavit, written submissions filed on 19 July 2023 and 23 August 2023, her further affidavit,[7] her reply affidavit, and the affidavit of [Paralegal E] filed [in] October 2023 ("[Paralegal E's Affidavit]").
[7] Initially filed without leave of the Court, however, given the importance of that evidence to the mother's case, it was accepted for filing and she was given leave to rely on the same at the hearing.
34 [Paralegal E's] affidavit was filed on the morning of the hearing and without leave. Given the gravity of the issues before the Court, I accepted the document for filing notwithstanding a major deficiency with it. Annexure 1 is a letter from the mother's Australian solicitor dated 27 September 2023 addressed to the mother's solicitor in India posing clarifying questions about the Panchayati Compromise ("the Compromise"), which is addressed later in these Reasons. Annexure B is purported to be the Indian solicitor's reply, save it has not been provided on letterhead, is not dated or signed, and has been annexed as a word document to a blank email from an email address: [omitted].[8]
[8] The email does not contain any professional information about the sender; there are no graphics or images, email signature, email disclaimer or information about the sender, including that person's qualifications or field of expertise. Further, the email address does not on its face indicate that it is a professional email address with the use of a business domain.
35 I accepted [Paralegal E's] affidavit for filing on the basis counsel could make submissions as to what weight could be attached to it. I accept the general propositions set out in the document in respect to the Compromise and the mother's concerns about the same, which I address later in these Reasons. I otherwise note, relevantly for my purposes, Question 4 and the answer provided in reply, which is:
Are their currently and proceeding in India relating to [Child A]?
Answer: None of party has not initiated and legal proceedings in the competent court of law in India regarding the custody of the minor child [Child A]. No proceeding is pending regarding the custody of [Child A] in the competent court of law.
(emphasis added, otherwise as per original)
36 In her case information affidavit, the mother outlines a history of significant coercive control in the parties' relationship, which included physical violence leaving injuries, emotional and psychological abuse, isolation, financial control, and threats to hurt or kill herself and her parents. The mother asserts it was the threats against her parents which kept her in the relationship.
37 According to the mother, an argument occurred just prior to separation, which resulted in the father assaulting her. She asserts that Child A and the paternal grandmother were present and witnessed the incident. The mother says she called her cousin, who was a support to her. The mother further asserts that after the incident, she wanted to leave the family home with Child A but the father would not permit it.
38 It is the mother's evidence that a family meeting had been organised to take place on 20 March 2021. She says the father facilitated the paternal grandmother absconding with Child A to India the day prior. The mother denies signing any letter consenting to the paternal grandmother removing Child A from Australia and asserts the father either forged or used her e-signature from a joint iCloud account, to which both she and the father had access.[9] The mother has provided evidence that airline tickets were booked and issued for Child A's return to India on 14 March 2021, which is both the date of separation and the date the mother says she left the family home.
[9] Mother, Affidavit (filed 24 August 2023) [21]–[26] ("M-IA").
39 The mother says she was not made aware that Child A had been removed from Australia until 20 March 2021. The mother deposes she reported the assault to WA Police that same day. However, for reasons which are not clear in her documents, she did not provide a full statement at that time. In her case information affidavit, she says she had been in contact with WA Police for this purpose upon learning of the father's return to Australia; this does not seem to have resulted in charges.
40 According to the mother's case, the father also returned to India shortly thereafter.
41 She says she was referred to and sought assistance from the [Health Service F] on 30 March 2021, she sought legal advice from [Lawyer C] on 19 April 2021, [Law Firm C] on 4 May 2021 and [Law Firm D] on 9 November 2021.[10]
[10] Ibid [31].
42 In addition to contacting the above services, the mother say she also contacted Indian Police on 6 April 2021, the [Welfare Service] [Town G, Indian State G] on 7 April 2021 and the Australian Minister for Home Affairs [in] April 2021.[11]
[11] Ibid [32].
43 It is the mother's case that the above evidence demonstrates that she did not consent to Child A being removed from Australia nor was it ever her intention that he live in India on a permanent basis. From the mother's perspective, until separation, it was the parties' joint intention to live permanently in Australia with Child A, and the father's intention changed after separation, whereby he made unilateral decisions in respect to their son.
44 The mother says she is frightened that if she were to travel to India, she may be seriously injured or killed. It is not clear on her documents whether she maintains her fear about the safety and wellbeing of her parents noting she and the father have now been separated for over two years, albeit until recently, the father appears to have maintained a desire to reconcile.[12] I further observe, as noted in the following paragraph, the two families attended mediation together, which did not result in agreement but appears to have been conducted without threats or harm to members of the mother’s family.
[12] See Case Information Affidavit, Father (31 July 2023).
45 It was the mother’s initial position that on 22 February 2022, the mother's father attended a mediation in India, on the mother's behalf.[13] The mother deposed to members of the father's family also being in attendance. The mediation was apparently only in respect to divorce and property issues. The mother says an agreement could not be reached as the father's position was conditional upon her agreeing to "sign over" her rights to Child A, which she was not willing to do.
[13] M-IA [8].
46 In her reply affidavit, the mother amended her evidence in respect of the mediation. She accepts her uncle, [Mr J], attended as her representative, appointed under a general power of attorney executed by her on 22 September 2021 ("GPA"). According to the mother, she had provided consent for her father and uncle to mediate about the divorce and financial matters but not Child A. An agreement was reached at the mediation in the form of the Compromise, which included matters pertaining to Child A. It is the mother's evidence that her uncle did not consult with her about the terms of the Compromise before executing the document.
47 Upon receipt of the Compromise, she refused to accept the terms as it was inconsistent with her instructions to her uncle. She says her father and uncle refused to file the documents in the Indian Courts. I discuss the Compromise later in these Reasons.
48 I otherwise observe the hearing on 30 August 2023 was adjourned in part because the father disclosed documents relating to the Indian proceedings just prior to the hearing commencing. In the event the documents were those which ended up annexed to the father's September affidavit, the mother on her own evidence, already had a copy of the same. Until that point, the mother did not disclose in any of the material already filed by her any information about the Compromise.
49 In her initiating documents, the mother deposes to there being proceedings on foot in India regarding divorce, property, and guardianship of Child A, which were commenced by the father. As noted above, this has now been clarified by the mother, and there are no proceedings on foot in India involving Child A.
50 The mother also deposed to having a lawyer assisting her with the Indian proceedings, which she said were adjourned several times due to the father's non-attendance. The mother has again clarified that evidence.[14] In her further affidavit, the mother deposes to the father's failure to serve documents on her. She says she only became aware of the father's most recent application for a divorce, which was filed in the Indian Court on 22 September 2022, when she called him on Facebook to discuss the issue of a divorce. It is the mother's evidence that she only received service of those documents on 6 February 2023, by WhatsApp®.
[14] Ibid [5].
51 According to the mother, she hired a lawyer in India to assist her but had difficulties communicating with that person due to delays on the lawyer's behalf. The mother has instructed another solicitor to represent her in the Indian proceedings, which I understand were before the Indian courts in September 2023, and those proceedings were again adjourned through no fault of either party.
52 She says, and it is clearly not in dispute, the father returned to Australia in late March 2023 without Child A.
53 In her case information affidavit, the mother deposes she sought urgent ex-parte orders as she was concerned that if the father were given notice of the orders sought by her, he would attempt to return to India to avoid these proceedings and potential criminal charges.
54 The mother cites various reasons for her delay in commencing any proceedings in respect to Child A, including India being a non-"Hague Convention" county,[15] the COVID-19 pandemic, the safety concerns addressed above, concern about being able to properly participate in Indian proceedings from Australia, failed negotiations with the father, and her mental health, the latter of which has been understandably impacted by Child A's removal to India.[16]
[15] Referring to the Convention on the Civil Aspects of International Child Abduction (1980).
[16] M-IA [35]–[43].
55 The mother further deposes to acting promptly upon being advised of the father's return to Australia, which is not quite correct. The mother waited approximately two months to commence these proceedings, but prior to doing so, appears to have made a formal complaint to WA Police about the alleged March 2021 assault.
56 The mother has not had any face-to-face contact with Child A since he returned to India in March 2021. In her case information affidavit, she deposes to the significant issues she says she has experienced in trying to facilitate telephone or electronic communications with him. She asserts the father and paternal family are obstructive of those communications.
57 It is the mother's case that this Court does have and should exercise the discretion conferred upon it to make parenting orders in respect to Child A. She is concerned that if this Court does not maintain the injunction against the father, and he is allowed to return to India, her case will be thwarted. Succinctly put, she says the only mechanism by which she has any real means of having a relationship with Child A, or more importantly him with her, is for the injunction to be maintained and for this Court to exercise its discretion to hear and determine her application.
The father's case and documents relied upon
58 The father relies on his responding documents filed on 31 July 2023 and a further affidavit of himself filed 21 September 2023. He also seeks to rely on written submissions filed on his behalf on 23 August 2023.
59 The final orders sought by the father are problematic. He seeks parenting orders for Child A,[17] whilst also seeking an order that Child A's habitual residence is India, the latter of which clearly relates to the jurisdictional issue. If this Court does not have jurisdiction, it cannot make parenting orders as sought by the father.
[17] Including an order in his parents' favour notwithstanding they are not a party to the proceedings.
60 The father's case information affidavit is sparse.
61 It is his evidence that during the parties' relationship, both parties and his parents cared for Child A, with the primary care being provided by the father’s mother. Whilst Child A has been residing in India, he has been cared for by the father and the paternal grandparents.
62 Unsurprisingly, the father provides a very different version of events to that of the mother about the incident that gave rise to the parties' separation and how Child A returned to India.
63 According to the father, the mother left the family home in his car on 14 March 2021 and did not take Child A with her. It is the father's evidence that the mother shouted and threw a plate of food at him, accused the paternal grandmother of causing "disruption" between the parties, packed her bags and left the home.[18]
[18] Father, Affidavit (filed 21 September 2023) [14] ("F-IA").
64 The father deposes the mother told him, before she left the house, to "make arrangements for [the paternal grandmother] and [Child A] to return to India as she could not cope with studying, working and looking after [Child A] and that she would only come back home after they had left." The father says that he took the mother seriously and believed that the parties had a chance at reconciling if the paternal grandmother and Child A were in India.[19]
[19] Ibid [15].
65 The fathers says he then contacted his travel agent that same day and booked flights for his mother and Child A to return to India on 18 March 2023.[20]
[20] Ibid [16].
66 He says that on 16 March 2021, his brother delivered Child A to the mother, after he asked if she would like to spend time with Child A before Child A and the paternal grandmother left for India.[21]
[21] Ibid [17].
67 The father further says that on 17 March 2021, at around 6.30am, the mother returned Child A to the family home allegedly saying that she could not care for him. The father's evidence is the mother called his brother to advise she had dropped Child A off at their front door. The paternal grandmother collected Child A, who was holding a letter, purportedly signed by the mother, which permitted the paternal grandmother to take Child A to India.[22]
[22] Ibid [19]. This is the letter the mother disputes signing and asserts contains a forged or e-signature.
68 It is the father's assertion that the mother's primary position has always been that the paternal grandparents care for Child A so that she could work and study. He says the mother would not contemplate reunification with the father until Child A was in India with the paternal grandmother.
69 On the father's case, Child A and the paternal grandmother returned to India on 19 March 2021 with the mother's consent. The travel itinerary annexed to the mother's further affidavit is in respect to Child A and the paternal grandmother, who I assume is [Mrs Atwal].[23] There is no itinerary for the father, which is consistent with both parties’ evidence that he travelled to India separately.
[23] See M-IA annexure E.
70 Leaving aside the issue of the letter, and the mother's evidence about the same, the fact the letter post-dates flights being booked does not, in and of itself, support the mother's assertions. It is equally possible, on the father's case, flights were booked at the time of separation given what he asserts was the mother's position in respect to Child A's care, with the mother's formal consent to travel being provided thereafter but prior to the date of departure, in the manner deposed to by him.
71 However, compelling submissions were made by counsel for the mother at the hearing about other concerning aspects of the letter including, but not limited to, the letter being provided to the paternal grandmother via Child A, the specific language used in the letter and the terms of the same, and the father's email address being on the bottom of the letter.
72 The letter is written to whom it may concern, and states, "This letter to confirmation about giving authority to my Mother [paternal grandmother] to take our Son [Child A] with her from Australia to India." Counsel for the mother submitted the use of the words "my mother" in the letter, and the inclusion of the father's email address at the bottom are suggestive of the letter having been drafted by the father not the mother, which she asserted supports the mother’s case that her signature was forged as she never consented to Child A's removal from Australia.
73 Counsel's submission rightly raises concerns, however, there may be a cultural or linguistic explanation for the terms of the letter, noting none of the relevant persons speak English as a first language. This is not an issue that I can resolve on an interim basis, and ultimately, it has little impact on my decision for the reasons which are set out below.
74 According to the father, upon Child A's return to India, he attended the home where the mother was staying in Perth to collect her. He says she told him she wanted to end the relationship and was not prepared to reconcile with him. The father says there was no argument or assault, he collected his car and left.
75 The father says on 20 March 2021, he was contacted by police about Child A's whereabouts, whereby he confirmed Child A was in India with his parents. According to the father, no further action was taken by police.
76 The father deposes the mother returned to the family home, being his brother's house, on 25 March 2021, to collect her belongings. As the mother did not wish to reconcile with him, he returned to India thereafter to care for Child A. It is the father's evidence that neither the mother nor the police made any inquiries about Child A on this day.[24]
[24] F-IA [24].
77 On 11 November 2021, he filed a "Section 9 Application" in India seeking reconciliation with the mother. The father deposes the mother did not respond. The mother's evidence is that those proceedings were adjourned several times for service to take place. It is unclear whether service of those documents was ever effected, however, the father asserts the Indian Court served the documents on the mother's address in Australia and her parents' address in India. However, it is agreed the father withdrew that application on 13 August 2022.
78 The father disputes the mother's evidence about the 22 February 2022 mediation. It is the father's evidence that the mother's father was present, and her uncle appeared as the mother's power of attorney. The father deposes the parties reached a compromise: Child A would remain in India with the father, the mother had no objection to the same, and the mother would not commence proceedings regarding Child A in the future.[25]
[25] F-IA [5]–[6].
79 In support of the father's evidence, he annexes translated copies of the GPA, an affidavit of Mr J dated 22 February 2022 and notarised on 25 August 2023 for the purposes of these proceedings, and the Compromise, which sets out the terms of the parties' agreement and the details of all witnesses.
80 It is agreed between the parties that on 29 September 2022, the father commenced divorce proceedings in India, which were listed for 12 September 2023. He said the mother had not filed any response documents in those proceedings. Her position about this issue and the status of the Indian proceedings is set out above. According to the father, he did not seek orders for Child A in his divorce application following legal advice that such orders were unnecessary as Child A was already in his "care and custody". This position appears reasonable given the contents of the Compromise.
81 The father says he returned to Australia as the mother was not responding to his divorce application in the Indian Court.
82 Now that the father is in Australia, Child A is being cared for by the paternal grandparents. The father says that since 2021, Child A has been attending a local school around 25 kilometres from the paternal grandparents' home. According to the father, Child A is not a boarder, and his father ordinarily drops and collects him to and from school each day. The father says his niece also lives with the paternal grandparents and attends the same school with Child A.
83 The father described Child A as a healthy child who is well-settled. He called him a "high achiever". According to the father, Child A plays football and cricket. It is his case that Child A's best interests would be best served by remaining in India with his parents.
84 The father says he was interviewed by police on 20 July 2023 about an assault allegation made by the mother and was released without charge.
85 The father's position is that this court does not have jurisdiction to deal with the mother's application, and for that reason, the injunction restraining him from leaving the Commonwealth of Australia should be discharged.
86 The father disputes the mother's evidence that he has prevented the mother from having a meaningful relationship with Child A, deposing that he has facilitated the mother speaking with Child A on a weekly basis and welcomes the mother to visit Child A in India.
87 The father's affidavits are consistent with each other.
The Compromise
88 The parties agree that in 2021, the mother appointed her uncle as her power of attorney pursuant to the GPA, who then entered into the Compromise on her behalf in February 2022.
89 It is clear from [1] and [2] of the GPA that the mother was contemplating family law proceedings as early as September 2021 being brought in the relevant Indian Courts, whether by her or by her uncle, including in respect to Child A.[26] The mother now makes a bare assertion that prior to the mediation, she directed her attorney not to agree to sign over any rights in relation to Child A.[27]
[26] Ibid KSB-1.
[27] Affidavit, Mother (filed 28 September 2023) [4] ("M-2IA").
90 As set out below at [124] and [129], the court must be cautious about making assumptions about the operation of foreign law. However, the GPA is in incredibly broad terms and expressly contemplates a wide range of actions in relation to proceedings, including her uncle being able to "compromise". On the face of the document, I cannot see any language used which would not grant her uncle the authority to negotiate in relation to Child A's care arrangements in India, nor to settle on her behalf.
91 The mother provides no detail of her instructions to her uncle: she provides no dates of communication, no method of instruction, no copies of communications. Noted above, the mother provided no other information about the Compromise until raised by the father. The only evidence which challenges the actions of her uncle, and the validity of the Compromise, are contained in the affidavit of [Paralegal E], the concerns about which I have already addressed.
92 The GPA is signed with a signature consistent with the one used by the mother in these proceedings, bears a passport-style photograph of the mother, a fingerprint, and the mother's Indian passport number. The document has also been sealed and stamped by a public notary [in] Western Australia. Nothing on the face of the document gives me pause to question its authenticity.
93 The notarised, translated copy of her uncle's affidavit dated 22 February 2022, has been annexed to the father's affidavit, but not the original. The four key features of that affidavit are:
(a)the parties agreed, with the consent of their families;
(b)Child A would remain with the father and the father would have responsibility for his education and future;
(c)the mother would have the right to meet with Child A, but have no responsibility in respect of Child A's education and future; and
(d)the parties agreed to withdraw any applications against each other and agreed to not take any future legal action against each other.
94 The Compromise is also attached to the father's affidavit, which is largely in the same terms as the mother's uncle's affidavit, and confirms:
(a)the parties to the mediation were aware of the GPA and the mother's uncle had confirmed his right to effect the compromise;
(b)the terms set out in the mother's uncle's affidavit;
(c) the father, the mother's uncle, and seven witnesses were present to the agreement, with the uncle signing as "[Ms Jasvir]…. Through general power of attorney holder [Mr J]"; and
(d)there is no space on the (translated) Compromise which would suggest the mother was required to sign the same.
95 While these documents have not been put before the court in a manner consistent with the ordinary rules in respect of translated documents,[28] they have each been stamped with a red notary stamp which bears the text "Govt of India – Valid for Foreign Countries' Embassies and High Commissions", a purple notary stamp with the advocate's details and signature, also bearing "Govt of India". On the last page, there is a further purple stamp which attests to the translation being a correct translation from [Language K] to English which is signed and dated 25 August 2023. Nothing on the face of either of the documents gives me pause to question that the documents are anything but a translation of an original document.
[28] Translated documents should be annexed to an affidavit of a suitably qualified translator who swears or affirms to the accuracy of the translation: the certification and signature on the document alone is generally insufficient.
96 The mother's evidence is that she refused to sign the document personally, her power of attorney did not speak with her about the terms of the document prior to executing it on her behalf, she never gave her power of attorney authority to deal with issues pertaining to Child A,[29] it was not filed in the Indian Courts, and it is not enforceable in India. She relies on all of the matters set out above and both parties' failure to file for divorce, as provided for in the document, as evidence that it is not binding. Regardless, the issues of agency, execution, validity, breach and enforcement of the Compromise are not matters for this court; they fall within the purview of the Indian Courts to determine pursuant to the laws of India.
Legal principles relating to jurisdiction
[29] This is inconsistent with the terms of the GPA as per [88] of these Reasons.
97 The parties were married so the proceedings fall to be determined pursuant to the Family Law Act 1975 (Cth) ("the Act").
98 Either or both of a child's parents may apply for a parenting order in relation to a child.[30] As set out in s 64B of the Act, a parenting order may deal with any one or more of the following:
[30] Family Law Act 1975 (Cth) s 65C ("FLA").
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i)a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
99 There is no requirement for the parent applying for a parenting order to be within the territorial bounds of Australia, however, for proceedings to be instituted, there must be some connection between either the parents or the child, and Australia. This requirement is set out in s 69E, which is, relevantly, in the following terms:
69EChild or parent to be present in Australia.
(1)Proceedings may be instituted under this Act in relation to a child only if:
…
(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.
(emphasis added)
100 The father's primary position, as set out in his written submissions, is that this court does not have jurisdiction, as the mother did not have standing to institute proceedings pursuant to s 69E(1)(c) or (d) of the Act, as neither she nor Child A were Australian citizens on the relevant date. His counsel submitted at the hearing that s 69E(1) should be read such that paras (b), (c) and (d) require Australian citizenship by the child, parent or party.
101 On counsel for the father’s proposed reading, which he considers finds support in statutory interpretation, a person must be an Australian citizen and either ordinarily resident or present in Australia on the relevant day. The submission that "Australian citizen" should be read conjunctively with "is ordinarily resident in Australia", or "is present in Australia" must be rejected; the placement of the commas in the authorised text of the provision make that clear.[31] Further, recent cases concerning the application of the section arrive at conclusions only possible if the father's interpretation is incorrect.[32] Counsel for the father disagrees with the body of jurisprudence about this issue and my interpretation of s 69E(1).
[31] Which I note were omitted from the father's written submissions.
[32] The presence of both parties in Australia has been held sufficient to grant jurisdiction under s 69E: Malhotra & Divakar[2022] FedCFamC1F 606 [25] (Altobelli J); Hazra & Sekhar [2022] FedCFamC1F 332 [59] (Hannam J).
102 I agree with counsel for the mother's submissions in respect to this issue. At the time the proceedings were instituted, the mother was ordinarily resident in Australia and was present on the relevant day, being the date with which proceedings were instituted. Accordingly, the mother has satisfied the territorial requirement in s 69E.
103 However, that is not the end of exercise, as the note to s 69E draws the reader's attention to Part XIIIAA Division 4 of the Act ("the Division"), which has effect despite the rest of the Act.[33] Division 4 does not confer but rather regulates the exercise of jurisdiction.[34]
Child Protection Convention
[33] The Division was inserted by the Family Law Amendment (Child Protection Convention) Act 2002 (Cth), 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) ("Child Protection Convention"). The Division has pre-eminence save for a select number of provisions which are not relevant for the purposes of these proceedings; FLA s 111CB.
[34] See for example Duckworth & Jamison (2014) 51 Fam LR 471 [73] (Tree J); Sterling & Sterling (2022) 370 FLR 123 [18] (Austin, Berman and Harper JJ).
104 The Division implements the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (1996) ("Child Protection Convention"), which came into effect in Australia on 1 August 2003.
105 The Child Protection Convention has its objects in determining which contracting States' authorities have jurisdiction to take measures for the protection of the person or property of the child, to determine which law is to be applied, to determine the law applicable to parental responsibility, to provide for the recognition and enforcement of such measures of protection, and to establish co-operation between the authorities of the contracting States.[35]
[35] Child Protection Convention art 1.
106 Prior to the commencement of the Child Protection Convention in Australia, the court's jurisdiction to make orders was not circumscribed by the child's habitual residence. However, this is no longer the case.
107 As observed by Bennett J in State Central Authority & Spring-Ernest (No.2) [2013] FamCA 906 at [44]-[46]:
The effect of the 1996 Hague Child Protection Convention
44.This court must be satisfied of certain jurisdictional facts before it can make parenting orders in relation to a child who is not habitually resident in Australia. The jurisdictional facts differ depending on whether the country in which the child is habitually resident is a Convention country or a non-Convention county. A Convention country is a country for whom the 1996 Convention has entered into force with Australia. A non-Convention country is a country for whom the 1996 Convention has not entered into force with Australia.
…
46.Australia ratified the 1996 Convention on 29 April 2003. The Act was amended with effect from 1 August 2003 to enable the performance by Australia of its obligations under the 1996 Convention and to obtain for Australia any advantage or benefit under the Convention…
108 The parties accept India is a non-Convention country; I concur.
109 Section 111CA of the Act states that measures (within the meaning of the Child Protection Convention) taken under the Act directed to the protection of the person of the child are Commonwealth personal protection measures. It is accepted that parenting orders as defined by s 64B(1) and (2) of the Act are included in the meaning of Commonwealth personal protection measures.[36]
[36] Spring-Ernest (No 2); Bunyon & Lewis (No 3) [2013] FamCA 888 [76] (Bennett J); Korrapati & Mishra [2021] FamCA 281 [41] (Carew J).
110 Sub-Division B (relating to the personal protection of children), if it applies, can operate to limit, or possibly exclude, the exercise of a court's jurisdiction under Part VII as instituted under s 69E of the Act.[37] Section 111CC[38] states:
111CC 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.
[37] Sterling (Austin, Berman and Harper JJ); Bunyon (No 3) [2013] FamCA 888 [18] and [80] (Bennett J); Yaling & Tsen (2022) 65 Fam LR 437 [32]–[35] (Harper J).
[38] See the Revised Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2022 (Cth), which explains the intention of s 111CC.
111 If the court makes a finding that there is not an issue under the Act as set out above, the court's power pursuant to Part VII is unfettered and the usual statutory pathway to making parenting orders is open for exercise.[39]
[39] Yaling [70] (Harper J).
112 Conversely, if the court makes a finding that there is an issue under the Act, the exercise of the court's jurisdiction under Part VII "can be excluded unless one of the subsections of s 111CD(1) are satisfied".[40]
[40] Ibid [35].
113 In the matter of Yaling & Tsen (2022) 65 Fam LR 437, Harper J was required to determine the applicability of Sub-Division B in proceedings involving a child who had been retained by the mother in China in 2019. At [42] to [68], his Honour provides a comprehensive analysis of the preliminary question to be determined in s 111CC, which includes a discussion about the meaning of the words "an issue under the Act".
Conclusion
179 Accordingly, pursuant to s 111CD(1)(e), the Court should not exercise jurisdiction to determine the mother's application. The other two matters for determination fall away as a result: the mother's application must be dismissed, and any orders made as a consequence of the same must also be dismissed, including the injunction restraining the father from leaving the Commonwealth of Australia.
Orders
1.All previous orders be and are hereby discharged.
2.The Australian Federal Police be requested to give effect to these Orders by removing the names of the Respondent, [MR ATWAL] (male), and the child, [CHILD A] (male) born [in] 2017, from the Airport Watch List operating at all international ports in Australia.
3.The Court cause a copy of these Orders to be provided to the Australian Federal Police.
4.All outstanding applications be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
MG
Associate
9 NOVEMBER 2023
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