Korrapati & Mishra
[2021] FamCA 281
•7 May 2021
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 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).
REASONS FOR JUDGMENT
CAREW J
Ms Korrapati (“the mother”) and Mr Mishra (“the father”) are parents of two children, X aged 9 years and Y aged 7 years.
Parenting and property proceedings were commenced by the mother in February 2020 and an interim order was made on 12 March 2020 (“the interim order”). The father was not legally represented at that time. Pursuant to the interim order the mother and children returned to India on the mother’s undertaking to return to Australia with the children for the purposes of the family report interviews and any Court hearings other than those dealing only with procedural matters. The interim order also restrained the mother 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.
By her application filed on 10 December 2020 (sealed 11 December 2020) the mother seeks to have the parenting proceedings in Australia dismissed “for want of jurisdiction”.
Additionally, the mother’s application sought to restrain the father from dealing with certain property in Australia pending the final hearing. The latter part of her application was resolved by consent and certain injunctions were granted on 30 April 2021. The determination of the balance of the mother’s application was reserved and my reasons for dismissing the mother’s application are set out below.
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.
The following matters are not in contention:
(a)At the time of the interim order the children were present in Australia;
(b)The parties and the children are Australian citizens;
(c)The father continues to reside in Australia;
(d)The mother and children live in India;
(e)The children are habitually resident in India;
(f)The court had jurisdiction to make the interim order;
(g)If the Court otherwise has jurisdiction, the fact that the children are not in Australia, does not preclude the making of a future parenting order;
(h)A number of the paragraphs of s 69E(1)(a) to (e) Family Law Act 1975 (Cth) (“the Act”) apply to the children;
(i)A parenting order providing for children to live with or spend time with a parent is a ‘Commonwealth personal protection measure relating to a child’ as defined in s 111CA(1) of the Act;
(j)India is not a signatory to the international treaty known as the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996[1] (“the Child Protection Convention”);
(k)Australia’s implementation of its 2003[2] ratification of the Child Protection Convention is to be found in Part XIIIAA of the Act; and
(l)The consequences of the COVID-19 pandemic have impacted on the ability of the parents and / or children to travel.
[1] Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed 19 October 1996, O J L 151 (entered into force 1 August 2003) (“Child Protection Convention”).
[2] The Child Protection Convention was ratified by Australia on 29 April 2003 and came into force on 1 August 2003.
In light of the mother’s appropriate concession that the court had jurisdiction to make the interim order, her application that “all previous orders which purport to be parenting orders in relation to the child be rendered void ab initio” was abandoned.
SUBMISSIONS
Mother’s submissions
The mother argues that the operation of s 111CD(1)(e) precludes the Court from making a further parenting order in this case. The subsection relied upon provides as follows:
Jurisdiction relating to the person of a child
111CD(1) A court may exercise jurisdiction for a Commonwealth protection measure only in relation to:
…
(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
…
It is submitted by the mother that the Court’s otherwise extensive jurisdiction to make parenting orders are constrained in this case by s 69E(1)(e) in that the children are not habitually resident in Australia.
Reliance is placed upon certain comments made by Bennett J in Bunyon & Lewis (No. 3)[3] (“Bunyon”) as follows at [80]:
Where s 111CD applies to a child, it may operate to restrict the power of a court to make orders in relation to children notwithstanding that the proceedings in which the order is sought could be instituted pursuant to section 69E of the Act.
[3] [2013] FamCA 888.
The mother argues that the question that arises by virtue of s 111CC of the Act, is whether it is necessary for proceedings to have been commenced in the non-Convention country before s 111CD applies.
Section 111CC provides as follows:
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.
It is submitted by the mother that the preferred view is that of Bennett J in Bunyon[4] who stated at [154]:
Conflict of laws rules are not predicated on proceedings having been instituted in two jurisdictions...but, rather, on there being two jurisdictions which have a connection with the dispute and which could hear and determine the dispute...
[4] (n 3).
In any event, the mother argues that she was prohibited by the interim order 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.
In anticipation of an argument that the mother has “submitted” to the jurisdiction of this Court, the mother relies upon Bennett J in Bunyon[5], where her Honour said at [148]:
This submission appears to be predicated on a misconception that jurisdiction can be conferred on the court by acquiescence or agreement of the parties. That is not the case. This Court either has jurisdiction or it does not have jurisdiction. Counsel’s characterisation of the father in this case “submitting to the jurisdiction” would be appropriate in a case in which the court must decide...whether it is a clearly inappropriate forum for the determination of a dispute where this court and another court has concurrent jurisdiction but not, as here, when jurisdiction per se is being considered.
[5] Ibid.
In summary, the mother submits that s 111CD(1)(e) applies “notwithstanding that proceedings do not appear to have been commenced in India and notwithstanding that the [mother] has previously “submitted” to the Court’s jurisdiction. On that basis, this Court will only have jurisdiction if the matters in section 111CD(1)(e) are established, that is, that the children are habitually resident in Australia”.
Father’s submissions
The father resists the order sought by the mother and submits, in summary:
(a)s 111CD does not apply to constrain the Court’s jurisdiction in this case, due to the operation of s 111CC;
(b)Alternatively, the Court is not prevented from exercising its jurisdiction due to the operation of s 111CD(1)(f);
(c)In any event, the interim order remains valid; and
(d)The mother remains bound by her undertaking until released by the Court.
The father submits that there is “no issue as to whether this court, as opposed to a court in India, has jurisdiction to hear the parenting proceedings”, within the meaning of s 111CC of the Act, because the mother gave an undertaking to participate fully in the Australian proceedings and consented to an injunction restraining her from taking any step, other than withdrawing proceedings in any other jurisdiction, in relation to parenting orders. Any “issue” of jurisdiction was resolved by the undertaking and injunctions.
The father relies upon the statements made by Foster J in Alfarsi & Elhage[6] (“Alfarsi”) where his Honour said from [61]:
In the context of these proceedings no such issue arises. There is no evidence of any just jurisdictional conflict or issue that needs to be resolved by the application of the Subdivision C. …
The conclusion must be that the Convention has no application to the present matter.
[6] [2016] FamCA 428.
In response to the mother’s reliance on Bennett J’s reasoning in Bunyon[7], in rejecting an argument that there was no issue of jurisdiction because there was no competing application before the courts in another country in that case, the father argues that the passage relied upon by the mother refers to the explanatory memorandum, “and refers to there being two jurisdictions which have a connection with the dispute and which could hear and determine the dispute”. I interpret this submission as meaning that there are not two jurisdictions that could hear the dispute because the mother is bound by the validly made Australian order which requires the dispute to be heard in Australia.
[7] (n 3).
In any event, the father submits that Bunyon[8] is distinguishable for the following reasons:
(a)The other country was a Convention country and therefore the Family Court of
Australia was more restricted in its jurisdiction in any event - see s 111CD(1)(b) of the Act;
(b)The dispute was between a parent and a third party (not between two parents);
(c)At the time the father in that case left Australia with the child, there were no proceedings on foot and nothing to legally prevent him from doing so;
(d)It was not envisaged that the father would be present in Australia for any hearing; and
(e)At the time of two previous interim hearings, the constraint on the Court's power to make parenting orders was not raised by anyone (unlike in this case where the issue of jurisdiction was raised in the proceedings in March 2020 and before any order was made).
[8] (n 3).
In the event it is found that Subdivision B of Part XIIIIAA of the Act still applies, the father argues that s 111CD(1)(f) applies because the children were present in Australia when the interim order was made. Section 111CD(1)(f) provides as follows:
Jurisdiction relating to the person of a child
111CD(1) A court may exercise jurisdiction for a Commonwealth protection measure only in relation to:
…
(f)a child who is present in Australia, if:
(i)The child is habitually resident in a non-Convention country; and
(ii)Any of the paragraphs of 69E(1)(b) to (e) applies to the child.
Finally, the father submits that as the interim order remains valid, the mother remains bound by it, including her undertakings.
DISCUSSION
In circumstances where it is understandably not in dispute that the interim order was validly made by a court in the exercise of its jurisdiction,[9] it is difficult to understand the legal basis for the mother’s present application. For her argument to be successful, it would require a literal reading of one section of Part XIIIAA of the Act, namely, s 111CD(1)(e) at one particular point in time, while ignoring all other relevant sections and relevant times and also ignoring the fact that there is a valid parenting order binding upon the mother. Nevertheless, this case raises some interesting points about the exercise of jurisdiction and whether or not a change in circumstances can give rise to a second and possibly conflicting determination on the exercise of jurisdiction.
[9] At the time the interim order was made the children were present in Australia and at least one of the s 69E factors applied, so that assuming Division 4 of Part XIIIAA of the Act regulated the exercise of jurisdiction, s 111CD(1)(f) permitted the exercise of the court’s jurisdiction.
Division 4 of Part XIIIAA was inserted into the Act in 2002 (with effect from 1 August 2003) for the purpose of Australia giving effect to its obligations under the international treaty i.e. the Child Protection Convention. It has effect despite the rest of the Act (with certain exceptions that are not relevant for present purposes) and regulates the exercise of the Court’s jurisdiction in parenting matters otherwise available by virtue of s 69E and s 31(2) of the Act, between other countries who are signatories to the Child Protection Convention. I respectfully agree with Tree J in Duckworth & Jamison[10] (“Duckworth”) in relation to the effect of the division, namely that it “does not confer jurisdiction, but regulates the exercise of jurisdiction”.[11]
[10] (2014) 51 Fam LR 471 at 487, [73] (“Duckworth”); see also: Bunyon (n 3) at [80] (Bennett J).
[11] Ibid.
It is instructive to consider the objects of the Child Protection Convention which are set out in Article 1 and include the following:
…
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;
5.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.[12]
[12] Child Protection Convention (n 1) at art 1.
The Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2002 inserting Division 4 states the following:
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).[13]
[13] Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth) at [41].
Part XIIIAA of the Act provides that unless the contrary intention appears, expressions used in Division 4 or in regulations made for the purpose of the division, have the same meaning as that have in the Child Protection Convention (s 111CA(2)).
Importantly, s 111CC sets out a limitation on the circumstances in which Subdivision B (Jurisdiction for the person of a child) in Division 4 of Part XIIIAA will apply. It provides as follows:
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.
The Explanatory Memorandum in relation to s 111CC provides as follows:
45. Section 111CC provides in effect that the rules of jurisdiction in subdivision B apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country. This provision implements the preamble to the Child Protection Convention …
The preamble to the Child Protection Convention relevantly provides as follows:
…
Wishing to avoid conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children,
…
In circumstances where Subdivision B applies, the jurisdiction of the Court is regulated by s 111CD which commences with the words: “A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to a child” – and thereafter sets out various circumstances of limitation.
A “Commonwealth personal protection measure” is defined in s 111CA(1) as follows:
…
“Commonwealth personal protection measure" relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child.
It is not in contention that a “Commonwealth personal protection measure” includes a parenting order[14] as defined in s 64B of the Act, namely, an order that deals with the person with whom a child is to live or spend time or communicate. Having regard to the “measures” dealt with by the Child Protection Convention, I agree that a Commonwealth personal protection measure includes a parenting order. Relevantly, Article 3 of the Child Protection Convention provides as follows:
[14] Bunyon (n 3) at [76]; Alfarsi (n 6) at [53].
The measures referred to in Article 1 may deal in particular with -
athe attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
brights 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.
Although India is not a signatory to the Child Protection Convention, certain provisions within Part XIIIAA of the Act have application in cases involving international parenting matters despite a country not being a convention country e.g. s 111CD(1)(e) and (f).
Turning then to consider whether the relevant provisions of Part XIIIAA of the Act apply, I have been unable to locate any authority in which s 111CC is discussed in detail. However, I note that in Alfarsi,[15] Foster J found that the relevant provisions did not apply in circumstances where, at the time of the hearing in May 2016, the children were living in Iraq (a non-convention country) and had been living in Iraq since September 2014. His Honour said from [60]:
It is important to note the provisions of s 111CC of the Act as set out above that relevantly provides that the provisions of Subdivision C (Jurisdiction for the Person of a Child) of Division 4 (International Protection of Children) of the Act applies only if an issue under this Act is whether a court, as opposed to a “competent authority of a non-Convention country” has jurisdiction to take measures directed to the protection of the person of a child.
In the context of these proceedings no such issue arises. There is no evidence of any such jurisdictional conflict or issue that needs to be resolved by the application of the Subdivision C. Indeed there is no evidence as to existence or otherwise of any such “competent authority” in Iraq that may or may not or has sought to exercise jurisdiction over the children.
[15] (n 6).
What is described in the mother’s submissions as “the opposite conclusion” involves the decision of Bennett J in Bunyon[16] where her Honour said at [154]:
Conflict of laws rules are not predicated on proceedings having been instituted in two jurisdictions...but, rather, on there being two jurisdictions which have a connection with the dispute and which could hear and determine the dispute...
[emphasis added]
[16] (n 3).
In the present case, there is a valid order, binding on the mother, that restrains her 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. There is also an absence of evidence as to the existence or otherwise of a “competent authority of a non-Convention country”, namely, India, that has sought or may seek to exercise jurisdiction over the children. In those circumstances, there is no conflict arising between two jurisdictions “which could hear and determine the dispute”. In other words, there is no issue arising under the Act to which Division 4 of Part XIIIAA is directed. I conclude that s 111CD of the Act does not restrict the jurisdiction of the Court from proceeding to hear and determine the parenting dispute between the parties.
It is not necessary for me to determine whether a change in circumstances can result in the Court losing jurisdiction once validly held, which is, in effect, what the mother in this case argues. However, in the event I am wrong in my conclusion on the application of Part XIIIAA, I turn now to consider that argument.
It seems relevant to observe that in determining jurisdiction under s 69E the determination of the relevant jurisdictional facts focus on “the relevant day” which is defined in s 69E(2) as follows:
…
"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.
While Division 4 of Part XIIIAA applies despite s 69E(1) and (2), there is no similar temporal restriction in Division 4. If the various authorities discussed above are correct,[17] and with which I respectfully agree, namely, that Division 4 does not confer jurisdiction but rather regulates jurisdiction, it seems to me that the focus for the determination of the jurisdictional facts including those which regulate rather than confer jurisdiction, should be on the relevant day as defined in the Act. It is not in dispute that on the ‘relevant day’ the court had jurisdiction to make the order because the children were present in Australia and a number of the paragraphs in s 69E(1)(b)-(e) applied (see s 111CD(1)(f)).
[17] Duckworth (n 10), Bunyon (n 3).
Having determined that the Court does have jurisdiction, the mother’s application will be dismissed and the parenting proceedings will be determined in Australia.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 7 May 2021
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