Jemir and Waters

[2016] FamCA 476

FAMILY COURT OF AUSTRALIA

JEMIR & WATERS [2016] FamCA 476

FAMILY LAW – CHILD ABDUCTION – Hague Convention – where jurisdiction is an issue – where one child has been found to be habitually resident in the United States of America and the other child is habitually resident in Australia – where there are proceedings on foot in the United States of America – where both parties seek an adjournment – where the matter is adjourned.

Family Law Act 1975 (Cth) s 111CD

Convention on the Civil Aspects of International Child Abduction (25 October 1980)

Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (19 October 1996)
APPLICANT:	Ms Jemir

RESPONDENT: Mr Waters

FILE NUMBER: ADC 4271 of 2015

DATE DELIVERED: 10 June 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 10 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Olsson

SOLICITOR FOR THE APPLICANT: Resolve Divorce Lawyers

COUNSEL FOR THE RESPONDENT: Mr Culshaw

SOLICITOR FOR THE RESPONDENT: Culshaw Miller Divorce & Family Lawyers as Agents for Nathan M Siedman

Orders

1. Further consideration of the proceedings in respect of the parenting orders for B and the jurisdiction in respect to C is adjourned to 9am on 20 June 2016 (1 hour allowed).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jemir & Waters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4271 of 2015

Ms Jemir

Applicant

And

Mr Waters

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. The matter comes before me today in respect of parenting issues relating to two children B Waters born in 2003 and C born in 2008 (“the children”).  Regrettably, the circumstances in respect of these two children have become incomprehensibly complex.  B resides in Australia with her mother. C resides in the state of California in the care of her father.  Recent proceedings pursuant to the 1980 Hague Convention sought an order from the superior court of the state of California in the County of Marron for a return of the child to the petitioner mother. 

2. On 4 March 2016 the Honourable Judge Adams determined that the child’s habitual place of residence was indeed the state of California and accordingly the petition for the return of the child to the mother was denied.  It has been, I think, accepted that that determination establishes that the child C’s habitual place of residence is in the state of California.  That then raises clear issues of jurisdiction as to whether this Court can exercise jurisdiction in circumstances where a child’s habitual place of residence has been determined in another contracting state, that is, a contracting state to the 1996 Convention. 

3. If that is the case then consideration must be given to s 111CD of our Act in terms of the circumstances or, if you like, the exceptions when this Court can have jurisdiction.  They are limited and doing the best that I can and not having yet had the advantage of submissions from counsel it seems to me at least the question is raised perhaps in the negative, namely, that this Court is unlikely to have jurisdiction in a case where a child is habitually resident in a contracting foreign country. 

4. There is a second child, B, and in respect of this Court’s jurisdiction relating to B there is no difficulty.  B is habitually resident in Australia and it is proper for this Court to entertain parenting orders.  Indeed, interim orders have been made on 26 April 2016 which provide for B to live with the mother and to spend time with the father as may be agreed.  There is, however, a standoff, regrettably for the children, between the parties in terms of C and B. 

5. Neither party would wish to place the child that is currently in their care at risk by bringing the children together either in the state of California lest there be an application by the father in respect of B and in Australia lest there be an application by the mother in respect of C.  In any event there is a further complexity which is that there are still proceedings on foot in the state of California.  There is some uncertainty as to the extent of those proceedings and, importantly, it is a matter for the mother to determine what her attitude is in respect of those proceedings. 

6. There appears to me to be no doubt that she would have the ability to bring a parenting application in respect of C in the state of California but equally it may be that she would argue jurisdiction in that court or argue that that court should determine to transfer its jurisdiction or its ability to hear the matter or consent to the matter being heard in Australia. It is a matter for the mother to firm up her position as to what it is she intends to do.  If matters had progressed today I had given an indication to the parties that in all probability and on the evidence as currently before me without more it would have been difficult for me to find that this Court had jurisdiction in respect of C.  That part of the application and response would have been dismissed leaving only matters to be determined in respect of the child B. 

7. There is, however, the further aspect of the parents apparently entering into some level of negotiation in recognition that whilst each of them wants to protect their own rights in respect of the child that is in their care nonetheless they recognise that the children have an entitlement to have a relationship with each other and the current circumstances would not seem to allow that.  It may well be that the 1996 Convention provides assistance to the parties where providing the jurisdiction is established, that is, C in California, B in Australia, then the 1996 Convention may well provide an appropriate avenue for orders to be made in each of the contracting jurisdictions which will provide a level of security that each party would need before they would be prepared for children to travel between the two contracting states. 

8. In any event, they are all matters that may or may not come to anything.  From my position I am keen for this matter to be resolved but obviously if there are discussions that would require this Court to consider mirror orders in respect of the child C and a Californian court to consider orders in respect of B then that may be a justification for the matter not being disposed of but rather awaiting some further decision.  I propose in any event to accede to what I consider to be the joint applications of the parties for an adjournment. 

9. Whilst counsel acting for the father initially sought the adjournment which appeared to be opposed by the submissions of the mother’s counsel, nonetheless at the end of it all I consider that neither party was in a position today to provide clear submissions in respect of their clients.  That is not a criticism;  it’s just a recognition of the complexity of the proceedings and perhaps the realisation that the 1996 Convention plays a pivotal role in the determination of the matters before me.  In any event, when the matter comes back before me on 20 June I except that there will be clear instructions in respect of the child B. 

10. I expect there will be clear instructions in respect of C in terms of what the mother intends or doesn’t intend to do in the court of California or the other alternative is that the parties have reached some other agreement which might require courts in different contracting jurisdictions to consider appropriate but mirror parenting orders.  All of that, however, can be done sooner rather than later.  For those reasons then I make orders as appear at the commencement of these reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 June 2016.

Associate: 

Date:  14 June 2016