FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Salamon & Salamon [2021] FedCFamC1F 140
File number(s): DGC 2393 of 2018 Judgment of: HARTNETT J Date of judgment: 15 October 2021 Catchwords: FAMILY LAW – CHILDREN – JURISDICTION – habitual residence – whether the FCFCoA (Division 1) has jurisdiction to make parenting orders about the child – where there are completed parenting proceedings overseas – considerations of sections 69E and 111CD of the Family Law Act 1975 (Cth) – whether the child is habitually resident in Australia – where habitual residence is to be determined at the date of the relevant hearing – where the evidence is that the child is settled in the Russian Federation – where the child is habitually resident in the Russian Federation – where there is no basis upon which the Court may exercise jurisdiction for a Commonwealth Personal Protection measure in relation to the child – application dismissed. Legislation: Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect to Parental Responsibility and Measures for the Protection of Children (Concluded 19 October 1996)
Convention on the Civil Aspects of International Child Abduction (25 October 1980)
Family Law Act 1975 (Cth) ss 69E, 11CD
Vienna Convention on the Law of Treaties 1969
Cases cited: Ahmad & Hadi [2020] FamCA 1041
Bunyon & Lewis (No. 3) [2013] FamCA 888
Duckworth & Jamison [2014] 51 Fam LR 471
Jespersen & Frankel [2020] FamCA 239
LK & Director General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582
Lynch v Hagen [2020] FamCA 606
Lao & Yeng [2018] FamCA 560.
Secretary, Department of Family and Community Services & Padwa [2016] FamCAFC 57
State Central Authority & Handbury [2019] FamCA 668
Sun & Long [2019] FamCA 3
Yardlay & Commissioner of Police [2020] FamCAFC 186
Division: Division 1 First Instance Number of paragraphs: 98 Date of last submission: 14 May 2021 Date of hearing: 24-26 May 2021 Place: Melbourne Counsel for the Applicant Mr Devries Solicitor for the Applicant L G Yves Michel & Co Counsel for the Respondent Mr Kanarev Solicitor for the Respondent Vernon De Gama & Associates Counsel for the Independent Children’s Lawyer Ms Jenkinson Solicitor for the Independent Children’s Lawyer Altavilla Family Law ORDERS
DGC 2393 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SALAMON
ApplicantAND: MS SALAMON
RespondentAND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Amended Application in a Case of the father filed 5 March 2019 in relation to the child Y born … 2011 (“the child”) is dismissed.
2.The matter is adjourned to 30 November 2021 at 9.30am for a case management hearing.
3.These proceedings are listed for final hearing before the Honourable Justice Hartnett for three (3) days commencing at 10.00 am on 6 April 2022.
4.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and Z, born … 2015 attend upon…
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CaseChat Overview and Summary
The case of Salamon & Salamon involves a dispute between the father and the mother regarding the habitual residence of their child, Y. The father, who migrated to Australia in 1972 and became an Australian citizen in 1978, sought a declaration that Y was habitually resident in Australia, thereby granting the court jurisdiction to make parenting orders. The mother, who migrated to Australia in 2016 and became an Australian citizen in 2016, took Y to Russia in November 2017, where he has resided with his maternal grandparents since then. The father argued that Y should return to Australia, while the mother claimed that Y's residency in Russia was a mutual intention of both parents. The court had to decide whether Y was habitually resident in Australia or Russia, and whether it had jurisdiction to make parenting orders.
The court considered various factors, including the settled intention of the parents, the degree of settled purpose from the child's perspective, and the determination of the Russian courts. The court found that the parties had a mutual intention for Y to commence and conclude his primary school years in Russia, and that Y had been living in Russia since November 2017. The court also found that Y had a settled routine in Russia, and that he would not be able to speak English, would miss his primary caregivers, friends, and home in Russia if he were to return to Australia. The court noted that the Russian courts had already determined the matter and had not sought to involve the Australian courts. Therefore, the court held that Y was not habitually resident in Australia, and that it had no jurisdiction to exercise over parenting orders.
In conclusion, the court found that the father's submission that the court should exercise jurisdiction in respect of parenting orders as sought by him was unsuccessful. The court held that Y was habitually resident in Russia, and that there was no power for the court to exercise jurisdiction as sought by the father. The final orders of the court were that the father's application for a declaration that Y was habitually resident in Australia was dismissed, and that the court had no jurisdiction to make parenting orders.
The court considered various factors, including the settled intention of the parents, the degree of settled purpose from the child's perspective, and the determination of the Russian courts. The court found that the parties had a mutual intention for Y to commence and conclude his primary school years in Russia, and that Y had been living in Russia since November 2017. The court also found that Y had a settled routine in Russia, and that he would not be able to speak English, would miss his primary caregivers, friends, and home in Russia if he were to return to Australia. The court noted that the Russian courts had already determined the matter and had not sought to involve the Australian courts. Therefore, the court held that Y was not habitually resident in Australia, and that it had no jurisdiction to exercise over parenting orders.
In conclusion, the court found that the father's submission that the court should exercise jurisdiction in respect of parenting orders as sought by him was unsuccessful. The court held that Y was habitually resident in Russia, and that there was no power for the court to exercise jurisdiction as sought by the father. The final orders of the court were that the father's application for a declaration that Y was habitually resident in Australia was dismissed, and that the court had no jurisdiction to make parenting orders.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow I have determined that Y is not habitually resident in Australia and that accordingly the Court has no jurisdiction.RELEVANT FACTS The father was born in City E, Country D in 1959. He is presently 62 years of age. He is employed in customer service at G Company. He migrated to Australia in 1972, and has lived here since that time. He became an Australian citizen in 1978. He is a citizen of Country D. The mother was born in 1980, in Russia, and is aged 40 years. She is currently employed on a part-time basis at H University. She is otherwise in receipt of Centrelink benefits. She became an Australian citizen in 2016. She is a citizen of Russia. The parties married in 2009, in City R, Russia. They did not commence cohabitation until on or about 9 September 2010, when the mother and X, then aged six years, arrived in Australia. During the course of the marriage, the parties’ children, Y and Z, were born. X resided with the parties, and subsequently with each of his brothers, following their births. In November 2017, the mother took Y to Russia for, as asserted by her, Y to commence to live with her parents in Russia (“the maternal grandparents”). The mother’s evidence is that she placed the child in the care of her parents with the agreement of the father, and that it was the mutual intention of the parties that the child would commence and conclude his primary school years in Russia, and at the school that had been attended by the mother when she was a child. The mother’s further evidence is that the residency of Y, in his secondary school years (being either in Russia or Australia) was a matter to be considered by the parties at a future time. The father’s evidence is to the contrary. His evidence is that Y was taken by the mother from Australia to Russia to live with her parents without his authority, and that when the mother and Y left for Russia, in November 2017, he was unaware that the mother intended to, or would, leave the child in Russia. The father described the trip as a holiday from which he expected the child to return, as had occurred on an earlier trip to Russia in 2013, when the mother had taken X and Y to visit her parents for a two week holiday. That evidence of the father is, however, not only contrary to that of the mother, but indeed contrary to his own earlier Affidavit of evidence sworn 16 July 2018, as discussed hereafter. The mother denies the allegation now made by the father as to his lack of knowledge and consent as to Y living in Russia. Y has now continuously resided in the home of the maternal grandparents in Russia since November 2017. He was six years of age at the time of his commencement to so reside. It is the mother’s evidence, that from about 2014, the parties commenced to discuss whether it was preferable for Y to grow up in Russia, at least for the years that he would spend at primary school. Her evidence is that the parties had a number of discussions over an extended period concerning that issue, and that such discussions had between them were amicable. Those discussions included the parties’ joint observation that Y exhibited some challenging behaviours as a consequence of which the mother arranged for Y to attend upon a woman named Ms J at a childcare centre, who was not a registered psychologist, but a person who was approached to assist in addressing those behaviours.[1] This childcare worker did not think that Y had any psychological issues, rather, some behavioural issues as described by the mother.[2] [1] The mother’s Affidavit filed 5 March 2019 at paragraph 21.c.[2] Ibid.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The weight to be given to the settled intention of the parents was considered by Bennett J in State Central Authority & Handbury [2019] FamCA 668 to be no more determinative than any other factor.[16] [16] State Central Authority & Handbury [2019] FamCA 668 at [218]. CONCLUSION The father relied upon the provisions of s 111CD(1)(c)(i) of the Act and asserts that the Court should find the child Y to be habitually resident in Australia at the relevant time. Therefore, he submits the Court should exercise jurisdiction in respect of parenting orders as sought by him. The father may have had grave reservations about Y remaining in Russia for his primary school years and/or for a 12 month period but that does not alter the fact that he acquiesced in the arrangements for Y to remain in the Russian Federation from November 2017 such that it became the mutual intention of the parties at that time. Y is now well settled in Russia with all aspects of his physical, educational, financial and emotional life well provided for by his maternal grandparents. Indeed, the father commenced proceedings under the Child Protection Convention in Russia and not Australia seemingly acknowledging that fact. As set out above, Y has lived in Russia since November 2017 which represents approximately 40 per cent of his life. Russia is a Contracting State to the Child Protection Convention (and accordingly a Convention country for the purposes of the Act) and the Convention was in force at all material times. When considering whether there is a “degree of settled purpose from the child’s perspective”,[17] a significant factor in a determination of habitual residence, it is clear, that this factor supports on the evidence the finding of Y having a habitual residence in the Russian Federation. Y has now lived in Russia between November 2017 and May 2021. That is an incontrovertible fact. He has lived, throughout that entire period in the home of his maternal grandparents in the village of M Town. [17] LK v Director-General, Department of Community Services (2009) 237 CLR 582 at [44]. Y has a settled routine in Russia. If he were to now return to Australia, he would not be able to speak English, would miss his primary care-givers of many years, his friends and home in a small village, and, his now further developed Russian culture. He speaks with his mother most weekends for at least one or two hours on a Saturday and a Sunday. Occasionally they speak during the week. Y has never indicated to his mother that he wishes to return to Australia to live. Importantly, and perhaps determinatively, the Russian Federation courts have already determined the matter and in the process determined that they were the relevant and appropriate authority to deal with all parenting matters concerning Y. They did not seek to have the Australian courts involved. Given that Y is not habitually resident in Australia but rather in the Russian Federation, there is no power for this Court to exercise jurisdiction as sought by the father.
Ratio Decidendi
Legal Principle Established
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