Kashif & Pires

[2021] FamCA 81

FAMILY COURT OF AUSTRALIA

Kashif & Pires [2021] FamCA 81

File number(s):

SYC 1134 of 2021

Judgment of:

REES J

Date of judgment:

26 February 2021

Catchwords:

FAMILY LAW – Parenting –Whether the Family Court of Australia is an appropriate forum to determine the parenting dispute – Orders made for the child to return to Singapore – Mother’s application stayed.

Legislation:

Family Law Act 1975 (Cth) s 69E

Convention on  Jurisdiction, Applicable Law, Recognition, Enforcement  and  Co-operation in respect of Parental Responsibility and Measures for the Protection of Children done at The Hague on 19 October 1996, HCCH 34 [2003] ATS 19 (entered into force for Australia 1 August 2003)

Cases cited:

Kwon & Lee (2006) FLC 93-287

Pascarl & Oxley (2013) FLC 93-536

ZP v PS (1994) 181 CLR 639

Number of paragraphs:

53

Date of hearing:

25 February 2021

Place:

Sydney

Counsel for the Applicant:

Ms Lioumis

Solicitor for the Applicant:

Horton Rhodes Legal

Counsel for the Respondent:

Ms Swart

Solicitor for the Respondent:

Paterson & Dowding

ORDERS

SYC 1134 of 2021
BETWEEN:	MR KASHIF Applicant
AND:	MS PIRES Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	26 FEBRUARY 2021

THE COURT ORDERS:

1.That the application of the mother for orders relating to parenting of X (“the child”) born … 2017 be stayed.

2.That each of Mr Kashif (“the father”) and Ms Pires (“the mother”) do all acts required to ensure that the child departs Australia on B Airlines on … March 2021.

3.That in order to facilitate Order 2, the mother deliver the child to the father not later than 3 pm on Friday 26 February 2021.

4.That the father is restrained from interfering with or preventing the mother from departing Australia on B Airlines … in March 2021.

5.That X born … 2017 be removed from the Family Law Watchlist on 28 February 2021.

6.That, subject to any order of the Family Justice Courts of Country C, the father is restrained from doing any act which interferes with the mother’s residence of premises at D Street, Country C … .

7.That, subject to any order of the Family Justice Courts of Country C, the father is restrained from doing any act which interferes with the mother’s right of residence in Country C.

8.That the father be entitled to hold any passports in the name of the child X and that to facilitate this order, the father or his legal representatives be entitled to collect such passports from the Registry.

9.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

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

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

REASONS FOR JUDGMENT

Rees J:

1. X who was born in 2017, is the child of Mr Kashif (“the father”) and Ms Pires (“the mother”).

2. X was born in Country C where his parents lived and have, after they separated, both continued to live.

3. X is a citizen of Australia, Country F and the Country G.

4. The father is an Australian citizen.

5. The mother is a citizen of Country F and the Country G.

6. On 28 December 2018, a judge of the Family Justice Courts of Country C made orders (“the Country C orders”) in defended proceedings to the effect that the parents have joint custody of X and, inter alia, orders which provided for X to spend time with each parent. The application of the mother to relocate with X was refused and each parent was restrained from removing X from Country C without the consent of the other.

7. In December 2020, the parents agreed to travel to Australia with X so that he could spend time with his paternal relatives. They arrived in Australia on 14 December 2020. Return tickets were booked for X and both parents to depart from Australia in March 2021.

8. The father is required to be at his place of work in Country C in March 2021.

9. The mother is present in Australia on a tourist visa which expires in March 2021.

10. The mother has indicated that she does not intend to return to Country C or permit X to return to Country C. The mother has not made X available to his father pursuant to the orders made in Country C since 10 February 2021.

11. The father has applied for interim orders enforcing the Country C orders; orders restraining removal of X from Australia; orders placing X on the Australian Federal Police Family Law Watchlist; orders requiring the mother to hand over X’s Country F and Country G passports and orders permitting him to return with X to Country C in March 2021.

12. The mother seeks final orders in the following terms:

    1.   Equal shared parental responsibility.

    2.   X live with the mother in Sydney.

    3.   If the mother is unable to remain in Australia, X live with her in Country F or the Country G.

    4.   X to spend time with the father either electronically if the father is in Country C or in person in Australia.

13. On an interim basis, the mother seeks an order that the proceedings be expedited and that X live with her in Sydney (or Country F or the Country G). She also seeks orders for the father to spend time with X electronically if he is in Country C or in person in Australia.

14. The father relied on an affidavit sworn on 20 February 2021. The mother relied on an affidavit sworn on 25 February 2021. Each party relied on written submissions.

15. It does not appear to be in issue that both parties’ habitual residence, and therefore X’s, is in Country C.

16. In those circumstances, it is necessary firstly to determine whether this Court should exercise jurisdiction.

    THE LAW

17. 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 1975 (Cth) (“the 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.

18. In the present case, it is agreed that the child is an Australian citizen and present in Australia and that the father is an Australian citizen. 

19. Prima facie, the court has jurisdiction to hear the parenting proceedings.

20. 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, commonly referred to as the Child Protection Convention (see Part 13AA, Division 4 of the Family Law Act) have no effect in this case because Country C is not a signatory to the Convention.

21. However, in circumstances where the child is habitually resident in Country C, and both parents are habitually resident in Country C, it is necessary to consider whether the Family  Court  of  Australia is the appropriate forum to determine this dispute.

22. The High Court of Australia considered the issue in ZP v PS (1994) 181 CLR 639 and held that:

    Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. Moreover, proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access. Its duty is to make such order as will "best promote and protect the interests of the child". It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child.   

    (Footnotes omitted)

23. Brennan and Dawson JJ said:

    The test of ‘clearly inappropriate forum’ is not an alternative test to the welfare of the child in determining the order to be made when the custody jurisdiction conferred by s 63 is to be exercised.

24. In Kwon & Lee (2006) FLC 93-287, the Full Court, of the Family Court of Australia (“the Full Court”), considered the law applicable to applications relating to the appropriate forum for parenting matters. Their Honours said:

    We consider the following principles can be distilled from authority:

    i)where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;

    ii)in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the Court’s inherent power to grant a stay or an anti suit injunction based on common law principles;

    iii)the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the Court;

    iv)in proceedings involving competing fora when the child is in Australia and the Court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the Court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 60CA);

    v)if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;

    vi)in some circumstances, such as an abduction from a non Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction.  In making such summary order the Court will have regard to the child’s best interests as its paramount consideration;

    vii)in cases, such as in (ii) above, where the Act does not proscribe a ‘best interests’ requirement, the child’s best interests will often be a significant and weighty matter to be taken into account; and

    viii)that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter.

25. In Pascarl & Oxley (2013) FLC 93-536 a differently constituted Full Court held:

    86.…the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.

26. Against that framework, I now turn to determine, not the competing merit of the respective applications, but where that determination will be made.

27. I note, firstly, that the mother, in her affidavit, gives evidence in relation to allegations of family violence during the relationship, which ended on 22 February 2018.  To the extent that those allegations relate to events which occurred before the defended proceedings in Country C and the Country C orders, they have already been the subject of determination.

28. In so far as the mother makes allegations relating to the father’s conduct after the Country C orders were made, those allegations are the subject of contest and, no doubt, will be thoroughly examined in the substantive hearing. However, the issue of forum is being determined summarily and those allegations cannot be tested here.

29. It is not disputed that the parents and X came to Australia to visit relatives with the express intention of returning to Country C, where they all live, on pre-booked flights in March 2021. That travel occurred in accordance with the Country C orders.

30. Whilst the circumstances of this case do not amount to abduction, as contemplated by the Full Court, it is the case that the mother’s and X’s remaining in Australia was not part of the arrangement which was contemplated when the travel arrangements were made and the mother’s decision to remain was formed only two weeks before they were due to leave.

31. It is a matter of some notoriety that securing airline bookings into and out of Australia is somewhat difficult due to the travel restrictions imposed as a result of the COVID-19 pandemic. There is no evidence that, if the booking in March 2021 is abandoned, alternate bookings will be available either in the near future or at any foreseeable time. In any event, the father has deposed that he is required to be in Country C to work in March 2021.

32. The mother has no permanent right of residence in Australia.  Her visitor’s tourist visa expires in March 2021 and there is no evidence that it will be extended. The mother deposed that she has applied for a student visa. The application was received by the Department of Home Affairs on 25 February 2021. That application has not been dealt with. In the meantime, she has been issued a Bridging Visa A which will have the effect that she can remain in Australia until her application for a student visa has been processed.

33. Counsel for the mother submitted that the mother has had access to counselling facilities in Australia, however, she deposed to having also had counselling in Country C.

34. If parenting proceedings in Australia are fully defended, as seems likely, it will be many months before a final hearing is allocated. Whether the mother will be permitted to remain in Australia until the final determination is not known. If she is not granted a student visa, she may be required to leave.

35. It cannot be in the child’s interest for his mother to be unable, by virtue of her status, to remain in Australia to participate in any proceedings.

36. Similarly, it is not in the child’s best interests that he live in a different country from his father until this matter is resolved.

37. The father is required by his employers to be in Country C to resume work in March 2021. If the mother and X remain in Australia, the consequence will be that X will be deprived of spending time with his father each week, both during the week and overnight each weekend, as he does pursuant to the Country C orders.

38. Although the mother proposes contact between the father and X by electronic means, it is her evidence that X has speech difficulties, a short attention span and difficulty concentrating and, in those circumstances, the father’s ability to engage with X by electronic means must be in some doubt.

39. In those circumstances, concerns are raised about whether X can maintain a meaningful relationship with his father, if they do not have regular, face to face time together.

40. Neither parent has a residence in Australia. The father is staying with family and the mother is living in holiday accommodation for which the father pays. Her right to remain in that accommodation expires in March 2021. They both have apartments in Country C.

41. Although the mother deposed that she fears that the father will “tell me to vacate” the apartment in which she lives, or refuse to pay the rent, that matter can be addressed by orders. The father consents to an order restraining him from interfering with the mother’s right of residence in her apartment and with her resident status in Country C.

42. The mother deposed that she has been provided by her father with funds to secure accommodation in Australia and is “looking into renting a house or apartment”. However, she has not secured any accommodation.

43. The parents both have the right to reside in Country C. In so far as the mother’s right of residence is dependent on the father’s sponsorship, he consents to an order that he be restrained from taking any step to interfere with that right.

44. The father is engaged in employment in Country C. The mother can work in Country C if a prospective employer applies for a work permit for her. The mother does not have the right to work in Australia.

45. X has lived the whole of his life in Country C and is familiar with his parents’ residences.

46. X has, according to the mother, some developmental difficulties including frequent temper tantrums; speech and language delay; poor self-regulation, short attention focus and poor concentration. He has been attending an educational psychologist in Country C since July 2020 and has, I assume, built up a therapeutic relationship with that psychologist. X has also engaged with an early intervention and therapy service in Country C since August 2020.

47. Further, the mother deposed to X’s having other treating doctors in Country C. He has regularly consulted a gastroenterologist, who has been treating him since October 2019, and with a paediatrician in Country C.

48. It is in his interests to continue engagement with professionals who are familiar with his needs and with whom he is familiar.

49. In so far as X’s health and development might be an issue in any contested proceedings, the relevant records and the relevant experts, are in Country C.

50. I infer from the reference in the mother’s affidavit to “our babysitter in Country C” that X also has settled child care in Country C.

51. I give greatest weight to the benefit to X of residing in the same place as both his parents, and maintaining his present relationship with both of them, until such time as the parenting proceedings can be heard and determined.

52. Having regard to all of those matters, it is in the best interests of the child that the proceedings relating to his parenting be dealt with in Country C and I propose to stay the mother’s application.

53. In order to ensure that X returns to Country C, the orders will provide for him to be in the care of his father for the weekend preceding the flight which leaves Australia at … am in March 2021.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       26 February 2021