MENDELSON & KERNER
[2018] FCCA 3344
•28 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MENDELSON & KERNER | [2018] FCCA 3344 |
| Catchwords: FAMILY LAW – Whether the Court has jurisdiction to make parenting orders for a child who was in [country omitted] on the day the father filed his Initiating Application and who remains in [country omitted]. |
| Legislation: Family Law Act 1975 (Cth), ss.69E, 111CA, 111CC, 111CD, 111CS, Part XIIIAA |
| Cases cited: Alfarsi & Elhage [2016] FamCA 428 Bunyon & Lewis(No.3) [2013] FamCA 888 |
| Applicant: | MR MENDELSON |
| Respondent: | MS KERNER |
| File Number: | DGC 2285 of 2018 |
| Judgment of: | Judge Small |
| Hearing date: | 9 November 2018 |
| Date of Last Submission: | 9 November 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 28 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Johnston |
| Solicitors for the Applicant: | Peninsula Community Legal Centre |
| Counsel for the Respondent: | Mr Ngwenya |
| Solicitors for the Respondent: | Norman & Co |
THE COURT DECLARES THAT:
It has jurisdiction to make parenting orders in relation to the child [X] born [date] 2017 (“the child”).
THE COURT ORDERS THAT:
The Respondent mother shall make, file and serve an Amended Response and any further Affidavit material upon which she seeks to rely by no later than 4:00 p.m. on 31 January 2019.
The mother shall do all such acts and things and sign all such documents as may be necessary to ensure that the child is returned to Australia no later than 25 January 2019.
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
The child shall live with the mother in Australia from no later than 25 January 2019.
The father’s Initiating Application filed 5 July 2018 be adjourned to the Federal Circuit Court of Australia on 25 March 2019 at 9:30am for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Mendelson & Kerner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2285 of 2018
| MR MENDELSON |
Applicant
And
| MS KERNER |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings in relation to the court’s jurisdiction to hear an application filed by the Father, Mr Mendelson (“the father”), on 5 July 2018 for parenting orders in relation to the child [X] born [date] 2017 (“[X]” or “the child”).
The Mother, Ms Kerner (“the mother”), submits that the court does not have jurisdiction to hear the application and the father submits that it does.
The mother relies on the High Court decision in LK & Director Community Services (2009) HCA 9 (“LK & Director Community Services”), the decision of the Family Court in Bunyon & Lewis (No.3) [2013] FamCA 888 (“Bunyon”) and my Federal Circuit Court decision of Chandra & Chandra [2017] FCCA 451 (“Chandra”). She argues that the Court does not have jurisdiction to make parenting orders in relation to [X] because the child was “habitually resident” in [country omitted] at the time the Application was filed.
The Father distinguishes the decisions of Bunyon and Chandra and argues that the child was “habitually resident” in Australia on 5 July 2018, the day when the father filed his Initiating Application.
The sole issue before the court is whether the jurisdiction created by section 69E of the Family Law Act 1975 (“the Act”) is constrained by Division 4 of Part XXIIIAA of the Act such as to deny jurisdiction to this Court in this case. The answer to that question revolves around the issue of whether [X] is or was “habitually resident in Australia” on 5 July 2018.
The Father also sought a restraint on the Mother leaving the Commonwealth of Australia pending the delivery of my reserved decision, and I made that order at the conclusion of the hearing on 9 November 2018 after hearing submissions from both parties’ counsels.
Background
The father is 36 years old, having been born in [country omitted] on [date] 1982. He is currently in Australia on a student visa studying [course omitted].
The mother is 33 years old, having also been born in [country omitted] on [date] 1984. She is currently in Australia on a student visa. The mother is a [occupation omitted].
The parties commenced cohabitation when the mother arrived in Australia on [date] 2016. They were married on [date] 2015.
There is one child of the relationship, [X] who was born in Australia on [date] 2017.
The parties separated on a final basis on 20 October 2017 and entered into a Parenting Plan in or around December 2017.
There had been some negotiations between the parties’ solicitors during 2018, with the mother seeking the father’s consent to [X] having a [country omitted] passport, and the father seeking the mother’s consent to proposed parenting orders in relation to [X].
The father’s solicitors sent a letter to the wife’s solicitors on 8 June 2018 in relation to the proposed parenting orders.
The mother and the child then travelled to [country omitted] on [date] 2018, despite the child not having been issued with a passport.
The mother returned to Australia on [date] 2018. It is her evidence that [X] was left in the care of the extended maternal family in [country omitted].
The parties both remain in Australia, while [X], now 15 months old, remains in [country omitted].
Procedural History
The Father filed an application for parenting orders on 5 July 2018.
That application came before Her Honour Judge Harland in the Duty List on 5 July 2018 via telephone link. On this day, Her Honour gave leave to the Father to appear ex parte, placed a restraint on the parties from removing or attempting to remove or cause or permit the taking or sending of the child from the Commonwealth of Australia, and the child was placed on the Airport Watch List. At that time, the father did not know that [X] had already been taken to [country omitted].
The matter came before me for a Directions Hearing on 16 July 2018. I set the matter down for an Interim Defended Hearing on 9 November 2018 on the question of the Court’s jurisdiction only.
The Father filed written submissions on 8 October 2018. The Mother filed written submissions on 6 November 2018.
After hearing further oral submissions from counsel for each party on 9 November 2018, I reserved my decision.
The Submissions and the Law
The father’s submission is that the court’s jurisdiction is found in section 69E(1) of the Act which reads as follows:
(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 and the relevant day;
(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.
In this case, [X] was not present in Australia “on the relevant day”, which is defined as “the day on which the application is filed”[1].
[1] Family Law Act 1975 (Cth), s 69E(2)(a).
However, as the father was present in Australia on the day the application was filed, subsections (c) and (d) of s69E(1) are satisfied so that the court would appear to have jurisdiction to hear his application.
It is the Note at the end of s69E(2), and its consequences, that are at the centre of this issue.
That Note reads:
Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
Subdivision B of Division 4 of Part XIIIAA of the Act deals with the issue of “Jurisdiction for the person of a child”, and I note that in Alfarsi & Elhage [2016] FamCA 428 (“Alfarsi”), Foster J stated that “s69E must be read subject to the provisions of ss111CC and 111CD of the Act that provide a ‘series of qualifying connections’ that must apply before this court can exercise jurisdiction”.[2]
[2] Alfarsi& Elhage [2016] FamCA 428, paragraph 49. I note that s111CC & s111CD are part of Subdivision B of Division 4 of Part XIIIAA.
S.111CC does not apply in this case it relates to the question of appropriate forum rather than jurisdiction.
S.111CD, under the heading “JURISDICTION RELATING TO THE PERSON OF A CHILD” states as follows (relevant subsections only):
(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
(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.
A “Commonwealth personal protection measure” is defined in s.111CA as:
…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.
“Child Protection Convention” means “the 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…”
Articles 1 to 3 of the 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…state 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.
Article 2
The Convention applies to children from the moment of their birth until they reach the age of 18 years.
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.
There is no doubt that [country omitted] is a non-Convention country as it is not 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 signed at The Hague on 19 October 1996 (“the Child Protection Convention”).
When all of that legislation is read together, I find that this court only has jurisdiction to make a parenting order in relation to [X] if he was “habitually resident in Australia” on the day the father filed his Initiating Application, and any of paragraphs s69E(1)(b) to (e) applies to his situation.
I have already stated that s69E(1)(c) and (d) do apply to [X]’s situation as his father was present in Australia on the date his application was filed.
Therefore, in order to found jurisdiction in this matter, I must find that [X] is “habitually resident in Australia” within the meaning of s111CD, which, as set out above, must be read in conjunction with the terms of the Child Protection Convention.
In this case, [X] was taken to [country omitted] by his mother, without either the knowledge or consent of his father, just one week after the father’s solicitors wrote to the mother’s solicitors in an attempt to obtain her consent to parenting orders in relation to [X].
It is her evidence[3] that:
The child is currently in [country omitted] where he is spending time with his grandmother. I expect that the current arrangement is one that is in the best interest of the child, and it is an arrangement that will continue.
[3] Affidavit of Ms Kerner sworn 10 July and filed 11 July 2018 (“the mother’s Affidavit”), paragraph 15.
That is, essentially, the entirety of her evidence in relation to [X] being taken to [country omitted].
In Bunyon, Bennett J referred to a Handbook in relation to habitual residence where it is noted that “where a move is open ended, or potentially open-ended, the habitual residence at the time of the move may also be lost and a new one acquired relatively quickly”[4].
[4] Bunyon & Lewis (No. 3) [2013] FamCA 888, paragraph 180.
Therefore, a significant question in this case is: “Does the mother’s statement that “the current arrangement….will continue” constitute an “open ended, or potentially open-ended” move to [country omitted] for [X]?”
The mother is in Australia on a temporary student visa and she works part-time.
She deposes, in paragraph 20 of her Affidavit, when discussing the father’s application to restrain her from leaving Australia:
I have no intention of permanently leaving Australia until 2021 when my current visa expires…… I hold a [country omitted] passport.
She states that the father, too, will have to leave Australia when he completes his studies under his current temporary student visa.
At the hearing on 9 November 2018, the mother’s counsel submitted first that [X] was habitually resident in [country omitted] because his parents and he are citizens of [country omitted], but he did not press that point and, as counsel for the father pointed out at the hearing, if citizenship were the test, there would be no need for the concept of “habitual residence”.
Counsel for the mother then submitted that [X]’s habitual residence in Australia, which, he conceded, began when he was born, was changed either when his mother took him to [country omitted] on [date] 2018, or when she left him there on or about [date] 2018. In those circumstances, says counsel, he was not habitually resident in Australia on 5 July 2018 and the court has no jurisdiction to make parenting orders in relation to him.
He referred to s.111CS(5) of the Act which states that “If a child’s country of habitual residence changes to another country” then questions in relation to parental responsibility for that child are to be dealt with in that other country, but Mr Ngwenya seemed to be using s.111CS(5) to establish the habitual residence of the child, when, in my view, that section only comes into operation once the child’s habitual residence has already been established as being in another country. The establishment of [X]’s country of habitual residence is the whole purpose of this proceeding, and therefore s.111CS(5) does not yet apply. That section will only be applicable if I make a decision that [X]’s country of habitual residence was [country omitted] on 5 July 2018.
In Bunyon, Bennett J noted that “the concept of habitual residence is pivotal to the operation of the 1996 Convention”.
Nevertheless, neither the term “habitual residence” nor “habitually resident” is defined either in the Child Protection Convention or the Act.
In Bunyon, Bennett J pointed out that the language of s.111CD “requires finding as to habitual residence contemporaneously with the court exercising its jurisdiction”.
That is, Her Honour found, the question is whether a child is “habitually resident” in Australia at the time the matter comes before the court, rather than whether a child has previously been “habitually resident” in Australia over an historical period.
Her Honour distinguished the requirements for satisfaction of the term “habitually resident” in the Child Protection Convention from those in the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), where the term is usually approached from an historical perspective. I note, in that regard, that Mr Ngwenya referred me to the High Court’s views on what “habitual residence” means in LK & Director Community Services. However, that was a case relating to the Hague Convention, and as Bennett J makes clear, the term has a different meaning under that Convention.
It is impossible to make a finding as to whether the mother intended that [X] would live permanently in [country omitted] when she took him there on [date] 2018. She speaks of [X] “spending time” with his grandmother rather than “living” with her. That invites an inference that the situation may not be “open-ended”. But her statement, expressed in the negative, that she has “no intention of permanently leaving Australia until 2021” implies that she does intend to leave at that time, although she does not say whether she intends to return to [country omitted].
In light of the ambiguities as to whether [X]’s current situation of “spending time” with his maternal grandmother is “open-ended”, I cannot make a finding that his “habitual residence at the time of the move (was) lost and a new one acquired relatively quickly”.
The issue then returns to the major question of whether [X] was “habitually resident” in Australia on the day his father filed his application for parenting orders.
[X] was born in Australia, albeit that he is not an Australian citizen. As far as the father (and the court) is aware, he does not hold a [country omitted] passport, and we do not know the circumstances under which his mother obtained travel documents for the then ten-month-old [country omitted] in [date] 2018.
On 5 July 2018, [X] had been living in Australia for ten months, and then in [country omitted] for a little over three weeks.
It is difficult to see how he could have relinquished his “habitual residence”, which until [date] 2018 had undoubtedly been in Australia, in that three weeks.
Counsel for the father urged me to distinguish my decision in the matter of Chandra on its facts.
In that case, the child had been taken to a non-convention country by both parents while their marriage was still intact. They separated some weeks after they arrived in that country, which was the country of birth of both parents. The father then returned to Australia, while the mother remained in the non-convention country with the child. The mother returned to Australia some three months later, having left the child with her mother. By the time the mother’s application for parenting orders for the child came to court on the first return date, the mother had returned to her home country and was caring for the child.
I found in that case, that, there being some evidence that the parents intended the child to remain in their home country, the child was not habitually resident in Australia on the day the mother filed her application.
I also note that at the time of the mother filing her application in that case, the child had been living in the parties’ home country, with either his grandmother or the mother, for some four months with the explicit knowledge of the father, who had made no application to an Australian court in relation to the child.
This case is somewhat different.
[X], who had at that stage spent his whole life in Australia, was taken to [country omitted] without his father’s knowledge or consent on [date] 2018.
His mother left him there with her mother and returned to Australia, she says, until at least 2021. She was in [country omitted] for less than two weeks, returning on [date] 2018. In those circumstances, there might be some force in an argument that she was habitually resident in Australia on 5 July 2018.
[X] had been “spending time” with his grandmother in [country omitted] for only three weeks or so before the father filed his Initiating Application.
It was only after the father had filed his application that he discovered that [X] was not in Australia. As far as he knew, [X] was in Australia on the day he filed that application.
I therefore distinguish my decision in Chandra and find that, on 5 July 2018: as he had been living in Australia for ten months and in [X] for three weeks; as there is equivocal evidence as to whether the mother intended him to remain indefinitely in [country omitted] either at the time she took him there or at the time she left him there; and as the child’s father never consented to the child being taken to [country omitted], [X] was not “habitually resident” in [country omitted] on 5 July 2018 in accordance with the applicability of that term under the Child Protection Convention. On that date, he was “habitually resident” in Australia, despite not being present in Australia on that day.
In those circumstances, I find that this court has jurisdiction under s69E of the Act to make parenting orders in relation to his care, welfare and development, and will list the father’s Initiating Application accordingly.
In addition, as a result of that decision, and to ensure that the mother remains in Australia for the duration of the proceedings, I will not lift the Airport Watch List Order I made in relation to her on 9 November 2018.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 28 November 2018
3
4