FAMILY COURT OF AUSTRALIA
| SUN & LONG | [2019] FamCA 3 |
| FAMILY LAW – CHILDREN – Recovery order – Anti-suit injunction – Interim parenting orders – Where the mother seeks that a recovery order be made – Where the mother seeks that the father be restrained from proceeding with his parenting application in China – Where the mother seeks interim orders that she have sole parental responsibility for the child – Where the mother seeks interim orders that the child live with her – Where the father asserts that there is no jurisdictional basis for consideration of the mother’s application by this Court – Where the Court finds that the child was not habitually resident in Australia – Where the Court declines to make orders sought by the mother on a jurisdictional basis. |
| Family Law Act 1975 (Cth) ss. 69E(1), 111CD(1)(e) |
| Alfarsi & Elhage [2016] FamCA 428 Bunyon & Lewis (No 3) [2013] FamCA 888 InRe B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 Korutowska-Wooff v. Wooff, 2004 CanLII 5548 (ON CA) LK v Director-General, Department of Community Services (2009) 237 CLR 582 Punter v Secretary for Justice [2007] 1 NZLR 40 Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 CA Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 State Central Authority & Camden (2012) FLC 93-501 Commonwealth v Muratore (1978) 141 CLR 296 Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 |
| APPLICANT: | Ms Sun |
| RESPONDENT: | Mr Long |
| FILE NUMBER: | SYC | 6578 | of | 2018 |
| DATE DELIVERED: | 11 January 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 19 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bridger |
| SOLICITOR FOR THE APPLICANT: | Brighton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Jurisbridge Legal |
Orders
Paragraphs 1, 6, 7, 8 and 9 of the final orders sought in the mother’s Amended Initiating Application filed on 29 November 2018 be dismissed
Paragraphs 1 and 2 of the interim orders sought in the mother’s Amended Initiating Application filed on 29 November 2018 be 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 Sun & Long 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 6578 of 2018
| Ms Sun |
Applicant
And
| Mr Long |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Initiating Application filed on 29 November 2018, the mother has sought various orders in relation to the parties’ child, Z, born in…
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- Sun & Long [2019] FamCA 3
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CaseChat Overview and Summary
The central legal issue was to ascertain the child's habitual residence, a determination that necessitates a broad factual inquiry. The court considered various factors, including the settled purpose of the parents, the actual and intended length of stay, the purpose of the stay, the strength of ties to relevant states, and the degree of assimilation. The court noted that while settled purpose is important, it is not necessarily decisive and should not override the underlying reality of the child's connection to a particular state.
The court's reasoning was informed by the High Court's decision in *LK*, which involved a similar factual scenario concerning a child's habitual residence. In *LK*, the mother's actions, such as enrolling children in school, seeking benefits, and establishing a home, were considered indicative of an intention to establish habitual residence. In the present case, the father's affidavit acknowledged an intention for the parties to return to Australia with the child to reside there, and this intention was confirmed to have persisted even after separation.
The court ordered that paragraphs 1, 6, 7, 8, and 9 of the mother's Amended Initiating Application seeking final orders be dismissed. Additionally, paragraphs 1 and 2 of the interim orders sought in the same application were also dismissed.
Orders
Orders of the court
1.
Paragraphs 1, 6, 7, 8 and 9 of the final orders sought in the mother’s Amended Initiating Application filed on 29 November 2018 be dismissed
2.
Paragraphs 1 and 2 of the interim orders sought in the mother’s Amended Initiating Application filed on 29 November 2018 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
To that effect, in LK at 599, the High Court cited, with approval, the statement of principle adumbrated by the New Zealand Court of Appeal in Punter v Secretary for Justice [2007] 1 NZLR 40 (“Punter”) that “a broad factual inquiry” was required to determine whether there had been a change in a child’s place of habitual residence, as follows:Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP [[2005] 3 NZLR 590] held that settled purpose (and with young child the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state. [Emphasis added]. In that regard, it is helpful to consider the facts of this case as against those set out by the High Court in LK. LK concerned children who had travelled with their mother from Israel to Australia. The mother and the children travelled on return air tickets and the father remained in Israel. The father agreed to the mother and the children travelling in the hope that, during the period that the mother and children would spend in Australia, the parties would be able to achieve a reconciliation of their relationship. In the event of such a reconciliation, it was understood that the mother and the children would return to Israel. The High Court found that, in acting on that intention, the mother had engaged in a course of conduct consistent with establishing Australia as the children’s place of habitual residence: at 595. In terms of the conduct of the mother in LK in that regard, at 595, the High Court noted the following to be of relevance:… In Australia she soon sought and obtained Centrelink benefits, the two older children started school and the next oldest was enrolled at preschool, the older children joined a soccer club and took music lessons. Later, with the assistance of her parents and the local Jewish community, she rented and furnished a home for her to live with the children.All of these steps (except the last) were taken before the father asked, in July 2006, for the children to be returned to Israel. All of the steps identified are consistent with, indeed support, the view that by registering the children as Australian citizens and enrolling the older ones in school before she left Israel, the mother was then set upon a course from which she did not thereafter deviate: to move to Australia unless the father decided (contrary to the then state of affairs between them) to live with her and the children. At paragraph 16 of his Affidavit, the father acknowledged that, when the parties travelled to China in May 2017 with the child, it was their intention that they would eventually return to Australia with the child, in order to reside here. At paragraph 23 of his Affidavit, the father confirms that this remained his intention upon the parties’ separation. I accept that this remained the father’s intention as at the date of filing his Affidavit, being 19 November 2018.