Korrapati & Mishra - [2021] FamCA 281

FAMILY COURT OF AUSTRALIA
Korrapati & Mishra [2021] FamCA281

File number(s): BRC 1445 of 2020

Judgment of: CAREW J

Date of judgment: 7 May 2021

Catchwords: FAMILY LAW – JURISDICTION – Where the mother returned to India after the commencement of family law proceedings in Australia and the subject children are habitual residents of India – Where the father resides in Australia – Where India is non-Convention country – Where the mother argues that due to the operation of s 111CD the Court does not have jurisdiction to make any further parenting order – Where the father argues that s 111CD does not constrain the Court’s jurisdiction due to the operation of s 111CC – Where the mother gave an undertaking to participate fully in the Australian proceedings and consented to an injunction restraining her from taking steps in any other jurisdiction – Where a previous interim parenting order was validly made by the Court in the exercise of its jurisdiction – Whether a change in circumstances can give rise to a conflicting determination on the exercise of jurisdiction – Consideration of the operation of s 111CC – Where it is held that there is no issue arising under s 111CC – Where it is held that s 111CD of the Act does not restrict the jurisdiction of the Court from proceeding and determining the parenting dispute – Application dismissed.

Legislation:
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children

Family Law Act 1975 (Cth)

Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)

Cases cited:
Alfarsi & Elhage [2016] FamCA 428

Bunyon & Lewis (No. 3) [2013] FamCA 888

Duckworth & Jamison (2014) 51 Fam LR 471

Number of paragraphs: 49

Date of hearing: 30 April 2021

Place: Brisbane

Solicitor for the Applicant: Joshi Lawyers

Counsel for the Respondent: Ms McDiarmid

Solicitor for the Respondent: Naughton McCarthy Family Lawyers
ORDERS

BRC1445/2020

BETWEEN:
MS KORRAPATI

Applicant Mother

AND:
MR MISHRA

Respondent Father

ORDER MADE BY:

CAREW J

DATE OF ORDER:

7 MAY 2021

THE COURT ORDERS THAT:
1.Paragraphs 1 and 2 of the Application in a Case filed 10 December 2020 (sealed 11 December 2020) be dismissed.
2.The respondent father file written submissions in relation to his application for costs within 14 days of the date of this order.
3.The applicant mother file written submissions in response within a further 14 days.
4.The costs application be heard in chambers without the need for further appearance unless a party requests a relisting of the matter.

NOTATION
A.It is noted that paragraph 3 of the Application in a Case filed 10 December 2020 (sealed 11 December 2020) was the subject of an order by consent on 30 April 2021.

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Korrapati & Mishra [2021] FamCA 281
Case: [2021] FamCA 281
Decision Date: 7 May 2021

CaseChat Overview and Summary

The parties in this matter were the mother and the father, who were Australian citizens originally from India. The dispute concerned parenting orders for their two children, who were born in Australia but had been residing in India with the mother. The father resided in Australia. The mother sought to have Australian family law proceedings dismissed, arguing that the court lacked jurisdiction because the children were habitual residents of India, a non-Convention country. The father contended that the court retained jurisdiction due to the operation of section 111CC of the *Family Law Act 1975* (Cth), notwithstanding section 111CD. The case came before Carew J of the Family Court of Australia.

The central legal issue before the Court was whether section 111CD of the *Family Law Act 1975* (Cth) operated to divest the Court of jurisdiction to make further parenting orders, given that the children were now habitual residents of India, a non-Convention country. This required the Court to consider the interplay between sections 111CC and 111CD of the Act, and whether a change in the children's habitual residence could affect the Court's jurisdiction after an interim parenting order had already been validly made. The mother argued that section 111CD prevented the Court from proceeding, while the father relied on section 111CC to maintain jurisdiction.

Carew J determined that section 111CD did not restrict the Court's jurisdiction to proceed and determine the parenting dispute. The Court found that there was no issue arising under section 111CC. The reasoning appears to have been influenced by the fact that an interim parenting order had previously been validly made by the Court, and the mother had provided undertakings to participate fully in the Australian proceedings and had consented to an injunction restraining her from taking steps in other jurisdictions. The Court concluded that a change in circumstances did not give rise to a conflicting determination on the exercise of jurisdiction in this instance.

The application by the mother to dismiss the proceedings was dismissed. The Court also made orders regarding the father's application for costs, requiring written submissions from both parties within specified timeframes, with the costs application to be heard in chambers unless a party requested a relisting.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Paragraphs 1 and 2 of the Application in a Case filed 10 December 2020 (sealed 11 December 2020) be dismissed.

2. The respondent father file written submissions in relation to his application for costs within 14 days of the date of this order.

3. The applicant mother file written submissions in response within a further 14 days.

4. The costs application be heard in chambers without the need for further appearance unless a party requests a relisting of the matter.

NOTATION

A. It is noted that paragraph 3 of the Application in a Case filed 10 December 2020 (sealed 11 December 2020) was the subject of an order by consent on 30 April 2021.

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 Korrapati & Mishra has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Before doing so, it will be helpful to provide some brief background. BRIEF BACKGROUND The mother is 39 years of age and a finance professional. The father is 40 years of age and also a finance professional. The parties married in 2008 and separated in September 2017. The mother and father are both Australian citizens but originally from India. The children were born in Australia. The family relocated from Australia to India in 2014, where the mother and children have remained, apart from the period from December 2019 to in or about March 2020. The father brought the children to Australia in December 2019 and the mother followed shortly thereafter. Prior to the parties’ separation, the father had returned to live in Australia in or about 2016. The father contends it was intended that the mother and children would return to live in Australia. It seems there is some dispute about the father’s contention in this regard and also whether or not the mother consented to the children returning to Australia with the father in December 2019. The mother commenced proceedings in Australia on 9 February 2020 by filing an Initiating Application in the Federal Circuit Court of Australia. The proceedings were transferred to this Court on 12 March 2020 upon the making of the interim order. The interim order provided for the children to live with the mother and, by consent, for her to be “permitted” to return to India with the children. As already noted, the order was made upon the mother’s undertaking in the following terms:A. [The mother] will participate in the parenting and property proceedings BRC1445/2020 … in every respect and until final determination, or order by agreement of the Federal Circuit Court of Australia, or the Family Court of Australia, by, including but not limited to:(i) Attending in person for all Court hearings (save for directions / procedural hearings where she is permitted to attend by telephone or video or any other hearing with leave of the Court).(ii) Personally attending, with the children, for any Family Report interviews in Australia.(iii) That should her current solicitors file a Notice of Ceasing to Act, that contemporaneously with them doing so, she will cause for a Notice of Address for Service to be filed in the Court, with the address and service details being an entity, person or organization within the Commonwealth of Australia.(iv) That she irrevocably authorizes and accepts service (without prejudice to 1(sic) (iii) to also be by email to the address [the mother]@gmail.com. The interim order also included the following provisions, made by consent:5.That the Mother be restrained by injunction from taking any step (other than withdrawing the proceedings), in any other jurisdiction for proceedings relating to the care, welfare or parenting orders for the Children, including but not limited to the proceedings filed by her in the City B High Court ….6.That when the Mother travels with the Children to Australia, the mother shall permit them to spend time with the Father from minimum 5 nights before they are to return (if they are) to India.7.While the Children are living with the Mother in India, the Mother shall cause for the Children to have telephone time / skype / FaceTime on not less than 4 occasions per week from 5pm to 5.30pm (Indian Standard Time) on Saturday, Sunday, Wednesday & Thursday unless agreed otherwise by the parties.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	BRC 1445 of 2020
Judgment of:	CAREW J
Date of judgment:	7 May 2021
Catchwords:	FAMILY LAW – JURISDICTION – Where the mother returned to India after the commencement of family law proceedings in Australia and the subject children are habitual residents of India – Where the father resides in Australia – Where India is non-Convention country – Where the mother argues that due to the operation of s 111CD the Court does not have jurisdiction to make any further parenting order – Where the father argues that s 111CD does not constrain the Court’s jurisdiction due to the operation of s 111CC – Where the mother gave an undertaking to participate fully in the Australian proceedings and consented to an injunction restraining her from taking steps in any other jurisdiction – Where a previous interim parenting order was validly made by the Court in the exercise of its jurisdiction – Whether a change in circumstances can give rise to a conflicting determination on the exercise of jurisdiction – Consideration of the operation of s 111CC – Where it is held that there is no issue arising under s 111CC – Where it is held that s 111CD of the Act does not restrict the jurisdiction of the Court from proceeding and determining the parenting dispute – Application dismissed.
Legislation:	Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children Family Law Act 1975 (Cth) Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)
Cases cited:	Alfarsi & Elhage [2016] FamCA 428 Bunyon & Lewis (No. 3) [2013] FamCA 888 Duckworth & Jamison (2014) 51 Fam LR 471
Number of paragraphs:	49
Date of hearing:	30 April 2021
Place:	Brisbane
Solicitor for the Applicant:	Joshi Lawyers
Counsel for the Respondent:	Ms McDiarmid
Solicitor for the Respondent:	Naughton McCarthy Family Lawyers

ORDER MADE BY:	CAREW J
DATE OF ORDER:	7 MAY 2021