Trinh & Trinh
[2023] FedCFamC2F 943
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trinh & Trinh [2023] FedCFamC2F 943
File number(s): MLC 3119 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 July 2023 Catchwords: FAMILY LAW – final parenting orders – no appearance by the father – whether to proceed in the absence of a party – whether to proceed in the absence of the child’s current carer – whether there is jurisdiction in this court to make parenting orders – child is present and habitually resident in a country that is not a party to the 1996 Hague Convention – whether section 111CC applies – no contradictor to the application – mother seeking to apply for a visa for the child – evidence of the father’s intention to agree with the visa application – order for sole parental responsibility and child to live with the mother. Legislation: Acts Interpretation Act 1901 (Cth) s 15AB
Evidence Act 1995 (Cth) s 144
Family Law Act1975 (Cth) ss 69E, 111CC, 111CD
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Alfarsi & Elhage [2016] FamCA 428
Bunyon & Lewis (No 3) [2013] FamCA 888
Fox v Percy (2003) 214 CLR 118
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Yaling & Tsen [2022] FedCFamC1F 347
Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 24 July 2023 Place: Melbourne Solicitor for the Applicant: Vassis & Co Counsel for the Applicant: Mr Mort The Respondent: No appearance ORDERS
MLC 3119 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TRINH
Applicant
AND: MR TRINH
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 JULY 2023
THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the child X born 2011 (“the child”).
2.The child live with the Mother.
3.The child spend time with the Father as agreed between the parents.
4.The Mother be permitted to provide the Department of Home Affairs with a true sealed copy of these orders and reasons (when available).
5.The Mother do all acts and things, to the extent that she is able, to bring a copy of these orders and the reasons (when available) to the attention of:
(a)The Maternal Grandmother; and
(b)The Father.
6.All extant applications are dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally immediately at the end of the hearing. They have been corrected from the transcript. Grammatical errors have been corrected, citations and passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
The question I must answer in the matter of Trinh is whether the applicant mother, Ms Trinh, should have orders for sole parental responsibility and an order that her daughter, X, aged 12, live with her.
Mr Mort of counsel appears for Ms Trinh and there is no appearance by X’s father, Mr Trinh, or X’s carer, her maternal grandmother.
The matter came before a Senior Judicial Registrar on 18 July 2023, and as part of the Court's process of listing the matter, on that day the matter was listed before me and the parties required to attend in person. The Senior Judicial Registrar noted:
THE COURT NOTES THAT:
A.The matter is referred to a judge in circumstances where the Court has concern that there may not be jurisdiction to make a parenting order in relation to the child …
B.From the material filed that the child is currently living in [Country B] with the Maternal Grandmother and is not habitually resident in Australia. Furthermore, neither parent has permanent residency or citizenship in Australia.
C.The jurisdiction conferred by s 69E of the Family Law Act1975 (Cth) is read subject to the provisions of ss111CC and ss111CD that provide a series of qualifying connections.
BACKGROUND
X currently lives in Country B. Country B is not a party to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, commonly known as the Child Protection Convention, the Hague Convention or the 1996 Convention (‘the 1996 Convention’).
APPLICABLE LEGAL PRINCIPLES
I am very grateful to the Senior Judicial Registrar for making those notations when making the order listing it before me. The consequence of having been so alerted is that, with the assistance of my Associates and sister Judge, Judge Humphreys, I was able to spend the weekend reading the authorities on sections 111CC and 111CD of the Act. However, this decision has the disadvantage that there is not a contradictor, so I have looked carefully at the authorities.
For the reasons set out hereafter I am satisfied that I have jurisdiction pursuant to section 69E to make orders in regard to X, notwithstanding that X is living in Country B without her mother or father, and has been living there since her mother travelled to Australia in 2019.
The provisions of section 69E are:
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.
Note:Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
[Emphasis added]
X's mother, Ms Trinh, is ordinarily resident in Australia and was present in Australia on the relevant day, that is the day that the initiating application was filed on 27 March 2023. Ms Trinh lives with her de facto partner, Mr C, and Ms Trinh and Mr C have a daughter, D, who lives with them in the Melbourne area. Hence, I am satisfied that Ms Trinh was present in Australia on 27 March 2023, and is ordinarily resident in Australia. Ms Trinh seeks a visa to live in Australia as a permanent resident with her daughter, D, and her de facto partner, Mr C. On its face, section 69E(c) and (d) apply in this case.
Whether or not the helpful notation of the Senior Judicial Registrar alerted me to potential issues in regard to sections 111CC and 111CD of the Act, the first duty of a court is to consider whether it has jurisdiction. Harper J highlights this point in Yaling & Tsen [2022] FedCFamC1F 347 (‘Yaling & Tsen’) at [29], which reads:
29.The father made a submission that, by virtue of the mother filing an Application in a Proceeding seeking passport orders, she has submitted to this Court’s jurisdiction. However, jurisdiction cannot be conferred on the Court by acquiescence or agreement of the parties: Bunyon & Lewis (No 3) [2013] FamCA 888 (“Bunyon”) at [148]. It is the “first” duty of the Court to consider itself whether it has jurisdiction: Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398 at [54]; New South Wales v Kable (2013) 252 CLR 118 at [34]. This Court, although a court of limited statutory jurisdiction, “has the authority and duty to decide whether a controversy brought before it lies within the limits of its jurisdiction” (R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193–194, 213, 215–216, and 223, and Norton & Locke (2013) FLC 93-567).
[Emphasis added]
Section 69E must be read together and subject to Division 4, Subdivision B of Part XIIIAA (‘Subdivision B’). Subdivision B includes sections 111CC and 111CD, which read:
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.
[Emphasis added]
Section 111CC means that before Subdivision B applies to proceedings, I must be satisfied that there exists as issue under the Act of whether a court has jurisdiction to take measures to the protection of a child, as opposed to a competent authority in another country.
This Court is considered “a court” in section 111CC pursuant to the section 4 definition of “court” in the Act.
At first brush the meaning of section 111CC is less than glaringly obvious and is at least a little obscure. Section 15AB of the Acts Interpretation Act 1901 (Cth) authorises me to have regard to Parliament’s Explanatory Memorandum in those circumstances. I refer to paragraph 45 of the Revised Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)[1] for an explanation of section 111CC:
45.Section 111CC provides in effect that the rules of jurisdiction in subdivision B apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country. This provision implements the preamble to the Child Protection Convention (which makes clear that the Convention is directed to the protection of children in international situations) and article 46 of the Convention which provides that a convention country is not obliged to apply the provisions of the Convention to conflicts solely between different systems of law in that country. …
[Emphasis added]
[1] The Bill that inserted Subdivision B in the Act.
In Yaling & Tsen, Harper J described how Division 4 is to be implemented:
33.Division 4 was inserted by the Family Law Amendment (Child Protection Convention) Act 2002 (Cth) (“the Amendment Act”), which ratified the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 (“the Child Protection Convention”). In the Explanatory Memorandum to the Amendment Act, the following was stated:
41.… Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4[2] 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).
[Emphasis added]
[2] Subdivision B is within Division 4.
I refer to a helpful explanation by Harper J in Yaling & Tsen with respect to “an issue under this Act”:
47.… I take “an issue under this Act”, construed in its context, to mean an issue which arises in accordance with and by virtue of the provisions of the Act, meaning an issue taking its legal implications or consequences from the meaning or applicability of provisions of the Act. Construed in this way, the expression means something different to “an issue in the proceedings”, although there may be overlap. An issue “in the proceedings” can include any disputed legal or factual contention advanced by a party, and based in evidence or legal principle. Such an issue may have nothing to do with the meaning or applicability of the provisions of the Act. For example, it may involve a factual finding relevant only to the exercise of the discretion to make a parenting order pursuant to the provisions of Part VII, where there is no issue about their meaning or applicability.
48.It is also important to remember the phrase “an issue under this Act” is part of a wider composite statutory expression. Force must also be given to the other elements of the expression, in particular the phrase “as opposed to”. The Revised Explanatory Memorandum’s reference to a “conflict in jurisdiction” makes clear, in my view, that the issue in question is whether this Court stands in some degree of opposition to a relevant competent authority in respect of jurisdiction.
[Emphasis added]
In Yaling & Tsen, the parties in dispute before Harper J both submitted to his Honour that the wording of section 111CC is obscure.[3] The manner of application of Subdivision B has recently been of some significant discussion of Courts with authority under this Act. Harper J dealt with the issue of whether there was any dispute or conflict between the view of Bennett J in Bunyon & Lewis (No 3) [2013] FamCA 888 (‘Bunyon’)and of Foster J in Alfarsi & Elhage [2016] FamCA 428 (‘Alfarsi’). Bennett J observed in Bunyon at [154]:
154.Conflict of laws rules are not predicated on proceedings having been instituted in two jurisdictions which have a connection with the dispute but, rather, on there being two jurisdictions which have a connection with the dispute and which could hear and determine the dispute. In my view, the reference in the General Outline and in paragraph 45 of the Explanatory Memorandum to conflict of laws is not, as Mr Strum’s submission suggests, a reference to duelling courts. Nor does it presupposes that parties must engage in litigation before more than one competent court before conflict of laws rules operate. Conflicts of law rules is merely a reference to the jurisprudence or set of rules to be applied to determine which one of two or more competent jurisdictions should be used to resolve an issue in dispute between parties.
[Emphasis added]
[3] Yaling & Tsen at [38].
Harper J in Yaling & Tsen at [50] conveniently sets out [60] and [61] of Alfarsi as below:
50.In Alfarsi & Elhage [2016] FamCA 428 (“Alfarsi”), it was argued Foster J came to a different conclusion. In Alfarsi, two sets of orders had previously been made for the children to return to Australia from a non-Convention country. At the time of the hearing in May 2016, the children had been residing in the non-Convention country, since September 2014. His Honour said the following:
60. It is important to note the provisions of s 111CC of the Act as set out above that relevantly provides that the provisions of Subdivision C (Jurisdiction for the Person of a Child) of Division 4 (International Protection of Children) of the Act applies only if an issue under this Act is whether a court, as opposed to a “competent authority of a non‑Convention country” has jurisdiction to take measures directed to the protection of the person of a child.
61. In the context of these proceedings no such issue arises. There is no evidence of any such jurisdictional conflict or issue that needs to be resolved by the application of the Subdivision C. Indeed there is no evidence as to existence or otherwise of any such “competent authority” in Iraq that may or may not or has sought to exercise jurisdiction over the children.
Harper J reconciles those two authorities at [51] as follows:
51.I am not persuaded Bunyon and Alfarsi are truly inconsistent. In Bunyon, Bennett J took the view that it was not necessary for there to be “duelling courts” or litigation in two or more jurisdictions before s 111CC applied. It was only necessary for there to exist two or more competent jurisdictions which could be used to resolve a dispute between parties in relation to the protection of the person of a child. In this sense, there existed a conflict of jurisdictions. The distinction is between two jurisdictions which have been invoked and two jurisdictions which could be invoked. The latter is sufficient to raise an “issue under the Act” as to jurisdiction. In Alfarsi, Foster J addressed a different question. He found there was no issue under the Act because there was no evidence of any jurisdictional conflict, because there was no evidence of the existence of any “competent authority” in the non‑Convention country.
[Emphasis added]
For my part, I am assisted by those authorities.
Further, I am assisted by the usual suspects in regard to statutory interpretation. In particular I pay regard to the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (‘Blue Sky’), and the below ratio decidendi:
71Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
[Citations omitted]
The way that I read section 111CC to more readily make sense of it is as follows:
This subdivision applies only if an issue under this Act is whether an Australian court has jurisdiction to take measures directed to the protection of a person of a child, as opposed to a central authority or competent authority of a Convention country, or a competent authority of a non-Convention country.
In this case, my Associates’ research and the research of counsel appearing for the mother tell me that Country B is not a party to the 1996 Convention. I refer to paper published in the Australian Family Lawyer at Volume 30 of 2021[4] of then Ms Humphreys, now Judge Humphreys of this Court, and I recite a part of that article that refers to the 1996 Convention:
[4] Humphries A, “Jurisdiction To Make Parenting Orders In Australia – The Impact Of The 1996 Hague Convention” (2021) 30 AFL 40-48.
Qualification of jurisdiction by s 111CD
The provisions relating to jurisdiction for the person of a child are set out in Subdivision B of Division 4 of Part XIIIAA of the FLA and specifically s 111CD (subject to limitations in ss 111CE, 111CF and 111CH).
The implementation of the 1996 Convention via s 111CD imposes qualifying conditions to the very wide jurisdiction conferred by s 69E FLA and shifts the focus to the question of a child’s habitual residence.
As explained by Bennett J in Shanli:
“These rules [of the 1996 Convention] give the primary responsibility to the courts of the country of the child’s habitual residence to take measures (make parenting orders) about children. These provisions are implemented into Australian law by s111CD of the Family Law Act 1975.”
Practitioners will see that s 111CD(1) provides “a court may exercise jurisdiction for a Commonwealth personal protection measure [ie a parenting order] only in relation to:…” (in summary):
a. a child who is present and habitually resident in Australia;
b. a child who is present in Australia and habitually resident in a Convention country, only in specific, limited circumstances according with the 1996 Convention;
c. a child who is present in a Convention country if the child is habitually resident in Australia or otherwise only in specific, limited circumstances according with the 1996 Convention;
d. a child who is present in Australia and is a refugee child;
e. a child who is present in a non-Convention country, if the child is habitually resident in Australia and any of the provisions of s 69E(1)(b) to (e) apply to the child; or
f. a child who is present in Australia if the child is habitually resident in a non-Convention country and any of the provisions of s 69E(1)(b) to (e) apply to the child.
So, the effect of s 111CD has been to limit the broad jurisdiction conferred on Australian courts by s 69E, not only in respect of 1996 Convention countries but also in relation to non-Convention countries. …0
[Citations omitted]
In Bunyon there was a dispute between parties and there was a dispute between the parties about jurisdiction.
I acknowledge the decision of Alfasi. The facts in Alfasi are very different to here. In Alfasi the father had taken the children to war-torn Iraq in 2014 and left the children there while he returned to Australia. The mother sought orders for the return of the children and the father appeared and challenged the jurisdiction of the Australian court. Evidence of the law of a foreign country is a fact to be proven by expert evidence and the burden of proof falls on the party making the assertion. In Alfasi the father's challenge to jurisdiction failed.
Section 144: there would be a competent authority
I raised with counsel for Ms Trinh whether, by reason of section 144 of the Evidence Act 1995 (Cth) (‘the Evidence Act’), that I did not require evidence or proof that Country B is a high functioning civilised society and from that I can infer that there would be in Country B a competent authority to deal with disputes about the living arrangements of children. There was no dissent.
I am satisfied pursuant to section 144 of the Evidence Act that Country B is a high functioning, civilised country and that there would be, in Country B, a competent authority that could deal with disputes about the living arrangements of children. How the competent authority operates and what the applicable law is would likely require expert evidence.
This finding would only be relevant only if Subdivision B applies.
X’S CIRCUMSTANCES
X's mother and father commenced cohabitation some time in about, or prior to, their marriage in 2011. X was born in 2011 and her parents married later in 2011. However, about 18 months after X was born her parents separated. Thereafter, on her mother's evidence filed in affidavits in these proceedings, X's father had no contact with the family or any involvement in X's life and provided no financial, emotional or other support. From about 2013, it is clear that X was raised solely by her mother in Country B.
In 2019, X's mother travelled to Australia for the purpose of a visit. She left X in the care of her mother who lived in Country B. At some point, and it is not clear to me and nothing turns on it in these reasons, Ms Trinh commenced a relationship with her now de facto husband, Mr C, before or after she travelled to Australia. Nevertheless, around that time she determined that she wanted to live in Australia with Mr C. At that time, Ms Trinh communicated with her mother, then looking after X in Country B, that she intended to bring X to Australia to live with her. I have not heard directly from the maternal grandmother. However, I have affidavit evidence from which I infer that Ms Trinh is of the opinion that her mother fully supports X living in Australia.
I now come to the first questions that I must answer in regard to this application;
·Should the application proceed in the absence of Mr Trinh, who is X's father?
·Should the application proceed in the absence of the maternal grandmother of X, with whom she lives?
Proceed without the father and maternal grandmother?
In circumstances where the affidavit material was expressed in opinion terms rather than what was actually said, Ms Trinh gave oral evidence before me and a number of questions were asked of her. From that evidence, it is clear that from when Ms Trinh's mother knew of her daughter's plan to live in Australia, she supported that plan and supported that X would move to Australia to live with her. I also heard evidence from Mr C, who is Ms Trinh's de facto partner and X's stepfather, and the father of the child, D.
As part of the process to get mother and child living in Australia, Ms Trinh was able to contact X's father, Mr Trinh, by way of WhatsApp back in 2019. The evidence I have is that there was a three-way conversation between Mr C, Ms Trinh and the immigration lawyer on the one hand, and Mr Trinh on the other. This conversation was in or about October 2019, not quite four years ago. Mr Trinh was requested to consent to X living in Australia, and it was explained to him that his consent was necessary and he was requested to execute, what is known as, a form 1229, to permit the obtaining of a visa for X, if the Australian immigration authorities saw fit. I have in evidence document tendered as exhibit M3, which is a photocopy of the form 1229. Ms Trinh has identified the signature on that document as the signature of Mr Trinh, X's father. She said, and I am satisfied, that she became familiar with that signature during their relationship, having seen it on many occasions, and she recognises it on the form of exhibit M3, dated October 2019, when it was shown to her in the witness box.
I might add, I accept Ms Trinh's evidence generally, and I was able to observe her caution in the witness box. Rather than just agree with what counsel put to her, she was able to bring a misunderstanding or error about the document that was in front of her to the Court's attention.
It is clear that from October 2019, Mr Trinh, the father of X, consented to and agreed not only that X would live in Australia, but that he would do what he was asked by executing the 1229 form to have those events occur. It transpired, for reasons that I am not precisely certain of and of which nothing turns, that the appropriate visa for X did not come to pass. Ms Trinh's understanding of that was this related to COVID-19 restrictions. That is unclear to me. However, Ms Trinh understands from what she has been told by her immigration lawyer that the Australian immigration authorities require either an updated, new and/or more current form 1229 from X's father or an order of this Court.
Sensibly, rather than go to the trouble and expense of an application to this Court, Ms Trinh attempted to locate and obtain a further form 1229 from X's father. Mr C and Ms Trinh have both given evidence of the attempts they have made. Mr Trinh, X's father, has a United States passport and that referred to him living in State E. The exhibit M3 from back in 2019 provided an address in Country F, which Ms Trinh understood to be his work address and she understand he is no longer there. Mr C's evidence was that every attempt known, or way that the family of himself, Ms Trinh and Ms Trinh's mother could think of to contact Mr Trinh were pursued. It is unclear whether anyone wrote to Mr Trinh at G Street, Country F, being the address on the exhibit M3 form back in 2019, and it appears they probably did not. Nonetheless, I was satisfied of the genuineness of Mr C's and Ms Trinh's evidence that they have undertaken every effort reasonably available to them to contact Mr Trinh to have him sign another 1229 form.
That accords with the apparent logic of events, as I am urged to take into account by the High Court in Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’). In Fox & Percy, at first instance the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders. The issue was upon which side of the road the collision occurred. The High Court had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the horses’ side of the road. The High Court found the first instance decision was erroneous because the proven skid marks of the Kombi van demonstrated incontrovertibly that at all material times the Kombi van had been on its correct side of the road. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of Ms Trinh and Mr C.
The application of that in this case is that were Mr C or Ms Trinh able to contact Mr Trinh and obtain another signed form they would have done so, because the alternative is the trouble and expense and delay of these proceedings. For those reasons, I am satisfied that every attempt has been made to contact Mr Trinh.
Conclusion: proceed in the absence of the father and the maternal grandmother
I am satisfied that it is appropriate to proceed in the interests of justice, and in X's interests, in the absence of both of those parties for the following reasons.
X's grandmother, with whom she has lived by default since 2019, fully supports the application, and because of her growing ill-health, presses her daughter to have this application proceed. I accept the evidence that she has told her daughter that she “prays” for the visa to be granted so that X can live in Australia.
I refer to the paragraphs above and my discussion on Ms Trinh’s attempts to contact Mr Trinh and find that they have exercised all options on both attempting to get him to sign the documents as well as attempting to make him aware of these proceedings.
In all those circumstances, it is appropriate to proceed in the absence of both of those interested parties and I dispense with further service on them.
Application of legal principles
Returning, then, to the issue of the interpretation of section 111CC, and in particular the words "this Subdivision applies only if an issue under this Act is whether a court has jurisdiction…".
It is clear that if Subdivision B applies and consequently section 111CD does apply, I may not exercise jurisdiction in regard to this application regarding X. That is because, pursuant to section 111CD(1)(e), X is present in a non-Convention country and she is not habitually resident in Australia. I might add, her parents have a settled intention that she does so reside here. However, X was last in Australia in 2016. X is familiar with Australia, having travelled here and spent three lots of three months here, but she has not set foot in Australia since her mother left Country B, hence she is clearly not habitually resident in Australia, and hence if Subdivision B applies, I would not be able to exercise jurisdiction because of section 111CD(1)(e), recited earlier.
However, the circumstances of this case are quite different to the cases where it has been found that Subdivision B applies.
Conclusion as to jurisdiction
I am satisfied that Subdivision B does not apply because all persons concerned with X agree, and in fact seek that X live in Australia with her mother. In terms of Mr Trinh's intention, I infer from his execution of the document marked exhibit M3, the form 1229 back in October 2019, and the absence of any contact or support for X since, that he agrees that X should live in Australia with her mother. Hence there is no dispute about X or dispute about jurisdiction in this case.
I am therefore satisfied there is not a dispute or an “issue under this Act” about whether this court as opposed to another has jurisdiction. Subdivision B applies “only if” there actually is such an issue. Hence Subdivision B and section 111CD does not apply in this case. I am satisfied that the jurisdiction of section 69E is, in this case, unrestricted by Subdivision B.
On the evidence available to me and the information available to Mr C and Ms Trinh, it is not clear that Mr Trinh is in Country B, or when he will ever be in Country B. In the circumstances where he holds a passport for the United States of America, I infer that it is more likely that he is residing in the United States than in Country B, but he may not be. Mr Trinh brings to mind the Australian drover's poem of Clancy: he has gone somewhere “droving, and we don’t know where he are.”
Conclusion as to parenting orders
In all of the circumstances, I am satisfied that X wants to live in Australia with her mother and her sister and her step-father. I am satisfied that it is in X's best interests that she do so. I will make the orders sought by Ms Trinh.
It is the intention of Ms Trinh to provide this order and these reasons when I settle them to the Australian authorities. I am operating under the Family Law Act and these provisions, or these reasons and orders, do not control what the Department of Immigration will do, but I am aware of the purpose for which Ms Trinh seeks to apply these orders and I find that that is a proper purpose and in X's best interests.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 28 July 2023
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