Prior & Prior (No 7)
[2024] FedCFamC1F 205
•25 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Prior & Prior (No 7) [2024] FedCFamC1F 205
File number(s): MLC 8811 of 2015 Judgment of: BENNETT J Date of judgment: 25 March 2024 Catchwords: FAMILY LAW – PARENTING – final orders made
FAMILY LAW – JURISDICTION – habitual residence - where child has been resident in the United States of America for sixteen months – where child was wrongfully retained in the United States of America – where child aged sixteen has no intention to return – where United States of America is not a contracting party to the 1996 Child Protection Convention – where section 111CD of the Family Law Act provides that a court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to a child who is present in a non-convention country if that child is habitually resident in Australia – where child is found to be habitually resident in the United States of America – where Court has no jurisdiction to make parenting orders – where all applications are dismissed and previous orders discharged – where reasons delivered for the purpose of clarifying any confusion relating to the operation of previous orders
Legislation: Family Law Act 1975 (Cth) s111CD
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Child Protection Convention)
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (1980 Hague Convention
Cases cited: LK & Director-General, Department of Community Services [2009] HCA 9
Zotkiewicz & Commissioner of Police [2011] FamCAFC 147
Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 25 March 2024 Place: Melbourne Counsel for the Applicant: Litigant in Person Counsel for the Respondent: Ms Brookes Solicitor for the Respondent: Mary Higgins of Higgins Legal Counsel for the Independent Children's Lawyer: Mr Thistleton Solicitor for the Independent Children's Lawyer: Caroline Smith of Victoria Legal Aid ORDERS
MLC 8811 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PRIOR
Applicant
AND: MS PRIOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
25 MARCH 2024
Order amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 26 March 2024.
BY CONSENT, THE COURT ORDERS THAT:
1.The Court having no jurisdiction by virtue of section 111CD(1)(e) of the Family Law Act 1975 (Cth), all applications are hereby dismissed.
2.The order for the appointment of the Independent Children’s Lawyer be and is hereby discharged.
THE COURT FURTHER ORDERS THAT:
3.All previous parenting orders be and are hereby discharged including the final parenting Order dated 31 October 2018
2022.4.The final hearing listed on 26 to 28 March 2024 be and is hereby vacated.
5.My reasons for decision this day be transcribed and, when settled, be placed on the Court file (and provided to the parties).
6.The matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
AND THE COURT NOTES THAT:
A.For the avoidance of doubt, the injunction at paragraph 13 of the Orders dated 17 October 2022 restraining either parent from instituting proceedings with regard to X born 2008 in the United States of America, is dissolved.
B.The mother wishes for X to be made aware that he is deeply loved and missed by her, Y and his family and that he is welcome to contact them anytime he wishes to. She also wishes him to know that she has listened and accepts his wishes.
C.The mother and father have confirmed with each other their contact details as set out below. They also have agreed to keep the other informed of any change to those details. The father agrees to facilitate communication between the mother and X according to X’s wishes.
The mother:
…@...
S Street, Suburb T, Victoria
Phone number: …
The father:
…@...
E Street, U State, City RR
Phone number: …
D.The document titled “Minute of Proceedings” be marked Exhibit “A” and remain on the Court file.
E.Pursuant to Sections 65DA(2) and 62B the particulars and 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex-temporeBENNETT J
This matter comes before me as the final hearing of the father’s application for parenting orders in relation to X, who is 16 years old, and in particular, that the father be entitled to have X live with him in the United States of America, and that the father have sole parental responsibility. The father’s application was opposed by the mother. X is currently in the United States, and he lives with his father in U State, City RR.
On 31 October 2018, final parenting orders were made in relation to X and his sister, who was then under the age of 18 years. The final parenting orders provided that the parents have equal shared parental responsibility of X, and that X live with the mother. There was provision for the father to spend time with X and to communicate with him. The father was living in the United States of America at the time.
After extensive proceedings, it was agreed between the parties, and subsequently ordered, that X would be able to go to the United States of America for six months. He did so, departing Australia in late 2022. X should have been back in Australia in mid-2023, but the father failed to return him.
Subsequently, X conversed with Ms Q, a Senior Court Child Expert employed by this Court. It was clear from Ms Q’s report, and from submissions made by the Independent Children's Lawyer, who represents X’s interest in these proceedings, that X did not want to return to Australia. He wanted to remain in the United States of America. In the 16 months since X has been in the United States of America, he has been enrolled in school, lived in the father’s home, and gone about life as normal.
Jurisdiction and habitual residence
The primary issue of which I gave the parties notice last week, was whether or not this Court still has jurisdiction to make orders in relation to X. It is clear that when the father failed to return X to Australia in late 2022, he was, at that time, wrongfully retained in the United States. At that stage, X was a child to which the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (1980 Hague Convention) applied. My assessment of the facts as they then stood was that there could have been a cogent and quite possibly successful submission in relation to X’s habitual residence, and the fact that it had changed to the United States. That is notwithstanding that in at least one order of the Court, there is a notation saying that it is the parents’ intention and understanding that during X’s time in the United States (for which he left in late 2022), that X would remain habitually resident in Australia. The law in relation to habitual residence is settled in Australia in terms of the High Court authority of LK & Director-General, Department of Community Services [2009] HCA 9. LK makes it clear that parental intention is regarded with more weight in Australia than it is in the United Kingdom or in Europe. However, it is not dispositive of habitual residence.
Habitual residence is, essentially, the place which is the centre of the child’s life. In the case of Zotkiewicz & Commissioner of Police [2011] FamCAFC 147, the Full Court discussed habitual residence, quoting from LK, and dealing with the issue of parental intention as follows:
There are, of course, cases where the acknowledged ambiguity or uncertainty in the intentions of one or both of the parents will become irrelevant because they have been pushed into the background by “the brute force of geography and duration” (Clive, supra at 140). Thus, in Zenel & Haddow [1993] S.L.T.975, a child was found to be habitually resident in Australia after 15 months, notwithstanding assertions there was no settled intention on the part of the parents to remain in Australia. In that case Lord Marnoch said at 979:
It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.
On the other hand, as Dr Clive recognised (at 142), “the most difficult cases on habitual residence are usually those where the question is whether there has been a recent change in habitual residence”. We agree with him that in those cases, “the element of adequate duration is absent or doubtful and it is necessary to have regard to such factors as purpose and intention”. We recognise that in examining factors such as “purpose” and “intention” there may be cases in which it could be said that habitual residence has been acquired immediately (for examples, see Re M (Minors) [1993] 1 FLR 495 at 503 (“Re M (Minors)”); however, we also consider such cases would have to be seen as the exception, even allowing for the fact that there may be policy reasons against finding that a child does not have a place of habitual residence (as to which see LK at 594 [26], but see also at 595 [32]).
Whilst it was the parental intention and agreement that X would continue to be regarded as habitually resident in Australia, habitual residence is very much a matter of fact, and not a matter of agreement or concession. X has been in the United States since late 2022. He does not want to return to Australia. The reason that X’s attitude to Australia is relevant to habitual residence is that it is indicative that he does not regard Australia as his permanent home anymore and has decided to adopt the United States. He is habitually resident there.
These have been hard proceedings for the mother, who has wanted X to be returned to Australia, if not to her care, then at least to the – at least to Australian shores. However, at the moment, there is no one in Australia with whom X has indicated he wants to reside. For a number of reasons, all of which I could not know, the mother has finally come to the conclusion that X should be accorded the respect of having his desires and his views in relation to where he lives taken into account, and she is prepared to permit him to reside in the United States.
The issue for today was at one stage thought to be what orders would be made in relation to that. Last week I asked the parties to consider the operation of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Child Protection Convention) which has not entered into force between Australia and the United States as the United States is not a contracting country to the Convention. The 1996 Child Protection Convention finds expression in section 111CD of the Family Law Act 1975. That section provides, inter alia, that a Court may exercise jurisdiction to make a Commonwealth Personal Protection Measure, which includes for our purposes, a parenting order, only in relation to a child who is present in Australia in certain circumstances or is habitually resident in Australia. The United States of America is not a state in which the 1996 Convention has entered into force with Australia. However, it still follows that this Court does not have jurisdiction to make parenting orders in relation to X. I will not purport to make parenting orders, save to regularise his status in that regard. The 2018 orders provide for the parties to have equal shared parental responsibility of X. X is only 16 years old, and parenting orders last until children are 18 years old.
Discharge of previous orders
In my view, there are two further things that need to be attended to. First, there should be a discharge of all existing parenting orders in relation to X. It is common ground that the only parenting orders are those made in Australia. Whilst the orders made on 31 October 2018 are the last final parenting orders, there is at least one set of subsequent interim parenting orders. As these orders now cease to operate because X is habitually resident in the United States of America.
It would be most unfortunate, for instance, if X elected to come to Australia to visit, and was then detained in Australia by virtue of orders that provided that the parents have equal shared parental responsibility, and in particular, the mother have some authority or capacity to prevent X leaving Australia and going back to the United States. That would be highly counterproductive to her relationship with X. There may be other perfectly unintentional situations where having an order that, on its face, looks as though it is enforceable when it is not, could cause strife for X.
Therefore, in addition to the notations and orders to which all parties agree, I will make an order that discharges all previous parenting orders.
It should be beyond doubt that there are no enforceable orders in relation to X, emanating from Australia. I am informed from the bar table by counsel for the independent children’s lawyer, that the Senior Court Child Expert, Ms Q, has cautioned the independent children’s lawyer about being the conduit of communications between the mother and X. Whilst I respect that view, in my opinion it is necessary that the independent children’s lawyer communicate the outcome of today’s proceedings to X as soon as possible. That information should include the fact that the mother has accepted that X wishes, for the time being, to remain in the United States, and that she has not moved the Court today to order that he return. It is appropriate that either the independent children’s lawyer or the father show X the orders which are made today. Whilst it is normally not good form to discuss allegations or the content of proceedings in this Court with subject children, I would not consider it inappropriate for either the father or the independent children’s lawyer to permit X to have access to these reasons for decision if he wished to do so.
My views in relation to X seeing this set of reasons does not extend to other sets of reasons which have been delivered in this matter. And I say that because they are, at various points, fairly critical of either or both of the parties, and he does not need to be bothered with that.
For the sake of clarity, it should be noted that this Court is not exercising jurisdiction to make parenting orders in relation to X, save to make clear that previous orders are no longer operational in Australia, and as such, could and have been discharged. As X is habitually resident in the United States that is the appropriate jurisdiction.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 10 May 2024
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