Jespersen and Frankel - [2020] FamCA 239

FAMILY COURT OF AUSTRALIA

JESPERSEN & FRANKEL

[2020] FamCA 239

FAMILY LAW – JURISDICTION – Where the children are habitually resident in the United States of America – Where there is no jurisdiction for the Court to hear the dispute – Where there are Family Court proceedings in the United States of America – Application dismissed – All outstanding Applications dismissed.

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and measures for the Protection of Children signed at The Hague on 19 October 1996.
Family Law Act 1975 (Cth) ss 13AA 69E, 111B, 111CD.

LK v Director-General, Department of Community Services (2009) 237 CLR 582.

APPLICANT:

Mr Jespersen

RESPONDENT:

Ms Frankel

FILE NUMBER:

SYC

7942

2017

DATE DELIVERED:

15 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

IN CHAMBERS:

15 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tabbernor

SOLICITOR FOR THE APPLICANT:

Holmes Donnelly & Co Solicitors

THE RESPONDENT:

In person

Orders

IT IS ORDERED

That the Initiating Application of the father filed 29 November 2017, seeking parenting orders in relation to the children X born … 2012 and Y born … 2014, is dismissed.
That the Application in a Case filed by the father on 3 February 2020, is dismissed.
That all other outstanding applications are dismissed and future hearing dates are vacated.

THE COURT NOTES

That the Family Court of Australia may not, by virtue of the operation s111CD(1)(e) of the Family Law Act 1975 (Cth), determine issues relating to the parenting of the subject children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7942 of 2017

Mr Jespersen

Applicant

And

Ms Frankel

Respondent

REASONS FOR JUDGMENT

Mr Jespersen (“the father”) and Ms Frankel (“the mother”) are the separated parents of X aged almost eight and Y aged five.
The father lives in Australia. The mother and the children live in State B in the United States of America (“USA”).
The father, by an Application in a Case filed 3 February 2020, seeks orders relating to his spending time with the children in State B, electronic communication, orders restraining the mother from blocking his mobile phone number and non-denigration orders. In support of that application, the father relies on an affidavit sworn by him on 31 January 2020.
The mother by a Response to an Application in a Case filed on 10 March 2019 seeks the dismissal of all Australian applications, noting the Hague Application which sought the return of the children to Australia by the father, was discontinued in the United States. On 5 April 2020, the mother has filed submissions in accordance with the direction made on 24 March 2020.
The father sought and was granted an extension of time and filed submissions.

BACKGROUND

The parents commenced their relationship in Country D and lived there between 2008 and 2012.
X was born in the USA in 2012.
In December 2012, the parents moved from Country D to live in Australia.
Y was born in Australia in 2014.
Both children are Australian citizens.
The father is an Australian citizen. The mother is (I infer) a citizen of the USA. She is not an Australian citizen.
In June 2015, the family travelled to the USA. The father deposed that they intended to holiday for two months. The mother deposed the father was looking for jobs while in the USA.
In September 2015, the mother told the father that she wanted to stay in the USA with the children until her sister’s expected child was born. The father agreed.
In November 2015 the mother told the father that she wanted to remain permanently in the USA. He did not agree.
The father deposed that the mother then agreed to return with the children to Australia.
The father left the USA on 13 November 2015 and returned to Australia, believing that the mother would follow with the children.
She did not.
In July 2016, the father contacted lawyers in the USA with the intention of commencing proceedings pursuant to the Hague Convention on the Civil Aspects of Child Abduction (“the Abduction Convention”). Those proceedings were discontinued by the father on 9 January 2019 and no order was made for the return of the children to Australia.
On 29 November 2017, the father filed an application in Australia in the Federal Circuit Court seeking orders for sole parental responsibility for the children and that they live with him. He sought interim orders requiring the mother to return the children to Australia.
The mother, apparently unrepresented, filed a response to the application seeking orders that the children remain living with her in State B. In her response at Paragraph 19a. the mother stated “Habitual residence is USA”.
In March 2018, the proceedings were transferred to the Family Court of Australia (“the Family Court”).
In July 2018 the father filed an Application in a Case seeking, inter alia, orders that the children continue to reside with the mother in the USA and that he visit them “when his personal/work life allows”.
The mother, acting for herself, filed a response stating “No orders are agreed to due to ongoing Hague Convention Application in USA”. The mother sought the stay or dismissal of the Australian proceedings.
In 2019 the mother commenced proceedings in State B seeking, inter alia, an order that the children reside with her; a declaration that “State B is the home state of the minor children” and a declaration that “State B be adjudicated their home state and that the State B Family Court maintain jurisdiction over the minor children” and a divorce order.
Those proceedings remain on foot and the father has participated.
The father has legal representation in the State B proceedings.
On 27 February 2019, the father filed an Application in a Case seeking, relevantly, the following orders:
(1)That the mother is hereby restrained from continuing proceedings in relation to her complaint for divorce in the Family Court of State B.
(2)That the mother is hereby restrained from commencing proceedings in any jurisdiction other than the Family Court of Australia in relation to parenting arrangements for the children.
(3) …
(4) …
This is the application now before the Court.
The mother has filed a response seeking that all parenting applications be dismissed for want of jurisdiction and has filed written submissions.

THE LAW

On 24 March 2020, I invited the parties to make written submissions by 4pm on 7 April 2020, directed to the effect of sections 69E and 111CD of the Family Law Act 1975 (Cth) (“the Family Law Act”).
Of particular concern in this matter is the effect of the jurisdiction of the Family Court of Australia of the provisions of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and measures for the Protection of Children (“the Child Protection Convention”) signed at The Hague on 19 October 1996.
Australia has signed and ratified the Child Protection Convention. The USA has signed but not ratified.
Because the USA has not ratified the Child Protection Convention, it is not a country “for which the Child Protection has entered into force” and is not a “Convention country” for the purpose of the legislation.
The bounds of the jurisdiction of the Family Court of Australia in parenting proceedings are set out in s 69E of the Family Law Act in the following terms:
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.
In the present case, the father is an Australian citizen. The mother is not an Australian citizen. The children are Australian citizens.
Prima facie, the court has jurisdiction to hear the parenting proceedings.
However, the circumstances in which the Court’s jurisdiction will be exercised are limited by virtue of Australia having become a signatory to the Child Protection Convention (see Part 13AA, Division 4 of the Family Law Act).
The objectives of the Child Protection Convention are set out in Article 1 as follows:
Article 1
1          The objects of the present Convention are—
a to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
b to determine which law is to be applied by such authorities in exercising their jurisdiction;
c        to determine the law applicable to parental responsibility;
d to provide for the recognition and enforcement of such measures of protection in all Contracting States;
e  to establish such co‑operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.
2 For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.
The scope of the “measures” referred to in Article 1 is set out in Article 3 which provides:
Article 3
The measures referred to in Article 1 may deal in particular with—
a   the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
b    rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence;
c         guardianship, curatorship and analogous institutions;
d     the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;
e     the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;
f the supervision by a public authority of the care of a child by any person having charge of the child;
g         the administration, conservation or disposal of the child’s property.
Thus it is clear that the provisions of the Child Protection Convention are intended to apply to applications, such as the present, where the Court is being asked to deal with issues of parental responsibility and where and with whom the child will live.
The provisions of the Child Protection Convention are imported into the Family Law Act at Division 4 of Part 13AA. This Division, and particularly s 111CD, qualifies the jurisdiction otherwise conferred on the Court pursuant to s 69E.
Section 111B stipulates that Division 4 has effect “despite the rest of the Act”. In the Explanatory Memorandum of the Bill inserting Division 4, it states:
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).
Thus, it is made clear that the applicable provisions in determining the Court’s exercise of jurisdiction are contained in Division 4 of Part 13AA, specifically, Subdivision B.
The provisions relating to children in a non-Convention country, such as the USA, are found in section 111CD.
111CD Jurisdiction relating to the person 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.
(2)A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.
(3) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:
(a) one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b) one or both of the parents have parental responsibility for the child; and
(c) the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and
(d) the exercise of jurisdiction to take the measure is in the best interests of the child; and
(e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.
(4) Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH
(emphasis added)
The issue of the place of the children’s habitual residence is therefore paramount. The Court may not exercise jurisdiction if the children are not habitually resident in Australia.

WHERE ARE THE CHILDREN HABITUALLY RESIDENT?

In LK v Director-General, Department of Community Services (2009) 237 CLR 582, the High Court stated, in relation to habitual residence:
The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
Their Honours went on to state:
When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing
The mother submits that the children are habitually resident in the USA, specifically in State B, having lived there for the past four years and ten months. They attend school in State B, and receive benefits for health care and food assistance from the state of State B.
The children have not been in Australia since June 2015.
In the written submissions filed on behalf of the father counsel for the father stated:
The father acknowledges however, that due to the children’s continued residence in the United States (since mid-2015), and given their young ages, the Court is unlikely to find that they remain habitually resident in Australia.
A finding that the children are habitually resident is bolstered by the fact that the father, in his Application in a Case filed 24 July 2018, sought orders that the children remain living in the USA.
The children are habitually resident in the USA.
On behalf of the father, counsel submitted that the mother has conceded the jurisdiction of the Family Court of Australia and should not be permitted to resile from that election.
I do not accept that submission.
The mother in her response to the substantive application maintained that the habitual residence of the children was in State B. She has not resiled from that position.
In her response to the father’s Application in a Case filed in July 2018, the mother stated, “No orders are agreed to due to ongoing Hague Convention Application in USA”. The mother sought the stay or dismissal of the Australian proceedings.

That response could not be interpreted as an acceptance of the jurisdiction of the Australian Court.
In her submissions in relation to the present application the mother stated, “The proper jurisdiction is in the family court system in State B…”
In any event, there is no statutory imprimatur in the Family Law Act for the concept of acceptance of or acquiescence to jurisdiction.
The terms of section 111CD(1)(e) are specific and proscriptive. They do not admit of exception or qualification.

CONCLUSION

The provisions of s111CD(1)(e) have the effect that the Family Court of Australia may not exercise jurisdiction over matters relating to the parenting of these children.
Therefore, the father’s application in relation to parenting will be dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 April 2020.

Associate:

Date: 15/04/2020