Lao & Yeng
[2018] FamCA 560
•27 July 2018
FAMILY COURT OF AUSTRALIA
| LAO & YENG | [2018] FamCA 560 |
| FAMILY LAW – CHILDREN – JURISDICTION – Operation of the Child Protection Convention in circumstances where the child is resident in China – Where s 111CD is found to limit the jurisdiction of the court otherwise contained in s 69E of the Family Law Act – Where the court does not have jurisdiction to hear the parenting proceedings. |
| Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children Family Law Act 1975 (Cth) ss 69E, 111CA, 111CB, 111CC, 111CD, 111CD(1)(c), 111CD(1)(e) Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth) |
| APPLICANT: | Ms Lao |
| RESPONDENT: | Mr Yeng |
| FILE NUMBER: | SYC | 715 | of | 2017 |
| DATE DELIVERED: | 27 July 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 25 July 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Morahan |
| SOLICITOR FOR THE APPLICANT: | Chen Shan Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini Dunn |
Orders
That the application for parenting orders filed on 6 February 2017 is dismissed.
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 Lao & Yeng 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 715 of 2017
| Ms Lao |
Applicant
And
| Mr Yeng |
Respondent
REASONS FOR JUDGMENT
Ms Lao (“the mother”) and Mr Yeng (“the father”) are the parents of a child, X (the child) who was born in 2015 and is now aged almost three.
The mother has applied for orders restraining both parents from removing the child from Australia and, inter alia, orders that the chid live with her and spend time with the father.
The father, in his response, seeks an order “That the Applicant’s Initiating Application be dismissed for want of jurisdiction or, in the alternative, be permanently stayed.”
The matter was listed before me to determine whether this Court has jurisdiction to deal with the parenting dispute. On reviewing the file, I asked that the legal representatives also be prepared to make submissions on whether Australia is the appropriate forum for this dispute.
The parents were both born in China. They met in China in 2008 when the mother was residing in China and the father was residing in Australia. The father holds dual Chinese and Australian citizenship. In July 2009 the mother came to Australia and stayed with the father. They returned to China in 2010 and married in 2010. After their marriage, they both returned to Australia.
In 2012 the father obtained a position in China and spent about half of each year in China.
The child was born in 2015 in China. In January 2016, the parents and the child travelled to Australia where they lived for about four months.
The father asserts that the mother became an Australian citizen in February 2016. However, in her Initiating Application, the mother does not claim jurisdiction by virtue of her citizenship but rather asserts that she is “Present in Australia” and “Ordinarily resident in Australia”.
The parents and the child returned to China in May 2016. The parents separated, in China, on 16 October 2016. The mother left the home where they were living and, taking the child, went to the home of the maternal grandmother.
The father asserts that on 4 December 2016, the mother travelled from China to Australia, leaving the child with the maternal grandmother in China.
He deposed that on 11 December 2016, he collected the child from her maternal grandmother and that, since that time, she has lived with him in China.
The mother’s Initiating Application was filed on 6 February 2017.
THE LAW
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) 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, it is agreed that the father is an Australian citizen. The mother is an Australian citizen and her evidence was that the child is also a citizen.
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 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).
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.
(Emphasis added)
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.
(Emphasis added)
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 which provides as follows:
Subdivision B—Jurisdiction for the person of a child
111CC 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.
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
It is an agreed fact that China is also a signatory to the Child Protection Convention. However, a “Convention country” is defined for the purposes of Division 4 as “a country, other than Australia, for which the Child Protection Convention has entered into force” (s 111CA). Although China is a signatory, it is not clear whether they have ratified the Convention. If China has signed but not ratified the Convention, subsection 111CD(1)(e) applies. I will deal with each separately.
Section 111CD(1)(c)
Dealing with the subsections of s 111CD(1)(c) seriatim:
(i)It is agreed that the child is not habitually resident in Australia.
(ii)The child has not been wrongfully removed from Australia or retained outside Australia.
(iii)No request has been made to this Court to assume jurisdiction.
(iv)No Chinese authority has agreed to this Court assuming jurisdiction.
(v)There proceedings on foot in China concerning “divorce or separation of the child’s parents or the annulment of their marriage” which have not been finalised.
On the basis of s 111CD(1)(c), the Court cannot exercise jurisdiction.
Section 111CD(1)(e)
Where the child is present in a non-Convention country, the Court may only exercise jurisdiction in circumstances where the child is habitually resident in Australia and where any one of the provisions in 69E(1)(b) to (e) apply. As the child is not habitually resident in Australia, this subsection does not apply.
CONCLUSION
As neither s 111CD(1)(c) nor (e) apply to confer jurisdiction on the Court in relation to the child, the application in relation to parenting will be dismissed.
It is, however, agreed between the parties that the proceedings in relation to property will continue in Australia.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 27 July 2018.
Associate:
Date: 27 July 2018
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