Yaling & Tsen
[2022] FedCFamC1F 347
•17 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yaling & Tsen [2022] FedCFamC1F 347
File number(s): SYC 6940 of 2019 Judgment of: HARPER J Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – JURISDICTION – Where mother and child travelled to China in August 2019 – Where mother determined in September 2019 that it would be in the child’s best interests to reside in China permanently – Where the father remains in Australia – Mother has commenced property adjustment proceedings under the Family Law Act 1975 (Cth) – By his Response Father seeks child’s return to Australia and interim parenting orders – Father argues that mother has submitted to court’s jurisdiction – Jurisdiction prima facie conferred by s 69E of the Act – Application of Subdivision B of Division 4 of Part XIIIAA of the Act – Mother argues that applicability of s 111CC of Subdivision B of Division 4 deprives the court of jurisdiction – Section 111CC of the Act requires there be an issue “under this Act” of conflicting jurisdictions to take measures in respect of protection of the person of a child – Whether there is a necessity for two sets of ongoing proceedings in different jurisdictions – Only requirement is for the existence of two or more competent jurisdictions which could be used to resolve a dispute concerning measures for the protection of a child – No evidence of competent authority in China – Where mother submits court should assume Chinese law to be equivalent to Australian law – Held Subdivision B of Division 4 inapplicable.
FAMILY LAW – JURISDICTION – Habitual residence – Whether, in the alternative, child’s habitual residence is Australia under s 111CD(1)(e) – Unnecessary to decide but fully argued – Child’s habitual residence has ceased to be Australia – Exercise of court’s jurisdiction would be precluded.
FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where child is an Australian citizen – Where mother applied for a permanent stay of proceedings in Australia where child located in China – Test is the best interests of the child – Application refused – No evidence that any parenting orders would be made in China – Inappropriate to order a permanent stay based on interim evidence and before any interim hearing.
Legislation: Evidence Act 1995 (Cth) ss 174, 175
Family Law Act 1975 (Cth) Pts VII, XIIIAA, ss 4, 60CC(2), 60CC(3), 69E, 69ZK, 111B, 111CA, 111CB, 111CC, 111CD, 111CE, 111CJ, 111CK
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996
Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Act 2002 (Cth)
Revised Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth)
Cases cited: Ahmad & Hadi [2020] FamCA 1041
Alfarsi & Elhage [2016] FamCA 428
B v B(Re jurisdiction) (2003) FLC 93-136; [2003] FamCA 105
BP Exploration (Co) (Libya) Ltd v Hunt [1980] 1 NSWLR 496
Bunyon & Lewis (No 3) [2013] FamCA 888
Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87
Department of Communities and Justice & Leoni [2020] FamCA 411
Deputy Commissioner of Taxation v Shi (2021) 392 ALR 1; [2021] HCA 22
Director of Public Prosecutions v Hou (2020) 62 VR 1; [2020] VSCA 190
Duckworth & Jamison (2014) 51 Fam LR 471; [2014] FamCA 308
EJK v TSL (2006) 35 Fam LR 559; [2006] FamCA 730
Energy Resources of Australia Ltd v Commissioner of Taxation (2003) 52 ATR 120; [2003] FCA 26
Griffith University v Tang [2005] 221 CLR 99; [2005] HCA 7
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
Karim & Khalid (2007) FLC 93-348; [2007] FamCA 1287
Korrapati & Mishra [2021] FamCA 281
Lao & Yeng [2018] FamCA 560
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Neilson v Overseas Projects Corporation of Victoria (2005) 223 CLR 331; [2005] HCA 54
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
Pascarl & Oxley (Edited) (2013) FLC 93-536; [2013] FamCAFC 47
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Re Flemming [2012] FamCA 985
Re Wright [2021] FamCA 409
State Central Authority & Metin [2020] FamCA 535
Sun & Long [2019] FamCA 3
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Talwar & Sarai [2018] FamCAFC 152
Travel Compensation Fund v Tambree (2005) 224 CLR 627; [2005] HCA 69
ZP v PS (1994) 181 CLR 639; [1994] HCA 29
Division: Division 1 First Instance Number of paragraphs: 102 Date of last submission/s: 1 April 2022 Date of hearing: 9–10 March 2022 Place: Sydney Counsel for the Applicant: Ms Reid Solicitor for the Applicant: Aberdean Legal Counsel for the Respondent: Ms McMahon Solicitor for the Respondent: O’Sullivan Legal
Table of Corrections 19 August 2022 At paragraph 95, insertion of the word “necessarily” in the first sentence to read “…is not necessarily the well-known clearly inappropriate forum test.” ORDERS
SYC 6940 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YALING
Applicant
AND: MR TSEN
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
17 MAY 2022
THE COURT ORDERS THAT:
1.Paragraphs 1 to 4 inclusive of the interim and final orders sought in the Amended Reply filed by the Applicant Mother on 29 May 2020 be dismissed.
2.All outstanding applications be listed before the appropriate registrar of the Court as soon as practicable to make the necessary directions for the hearing and determination of the competing interim parenting applications, and such other necessary directions to progress the balance of the proceedings to final hearing.
3.All questions of costs of the hearing of the jurisdictional issues and the application for a permanent stay the subject of this judgment, be reserved.
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 the pseudonym Yaling & Tsen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 19 August 2022
HARPER J:
INTRODUCTION
These are parenting proceedings between the Applicant Mother, Ms Yaling (“the mother”) and the Respondent Father, Mr Tsen (“the father”) concerning their daughter, X, born in 2015 (“the child”).
This judgment determines a threshold issue of jurisdiction. As explained in more detail later, it is clear the Court has jurisdiction to determine parenting proceedings in respect of the child generally under Part VII of the Family Law Act 1975 (Cth) (“the Act”) by reason of s 69E. However, the more difficult question is whether by reason of the application of Subdivision B of Division 4 of Part XIIIAA of the Act, the exercise of this Court’s jurisdiction is permitted only if the Court finds the child is habitually resident in Australia, as required by s 111CD(1)(e)(i). If the Court concludes that s 111CD does not constrain the exercise of the Court’s jurisdiction, the mother then argues that these proceedings should be permanently stayed in any event, because she and the child reside in China.
BACKGROUND
The parties commenced cohabitation in 2012, married in 2013 and the child was conceived via IVF in 2014. They separated in or about April 2019, however remained living separated under one roof on an on and off basis.
From around 2013 until 2018, the mother was diagnosed and treated for a number of medical conditions associated with her cervix, uterus, throat, and kidneys.
The child was born in Australia in 2015. From birth, she received treatment for a medical condition.
In 2016, both parties returned to full time work. The father undertook online consulting services.
In June 2019, the father travelled to B City to participate in a memorial.
On 22 August 2019, the mother travelled to China with the child.
In September 2019, the mother determined that it would be in the child’s best interests to live in China permanently. She states that she informed the father of this during a telephone conversation on 4 September 2019.
The father visited China between September and November 2019. Although he spent time with the child for one day per week, he was unable to make arrangements for the child to return to Australia.
Since November 2019, the father has maintained contact with the child through Skype and FaceTime approximately three times per week for one hour on each occasion. Due to the Covid-19 pandemic, the father has been unable to return to China and accordingly, has not seen the child for over two years.
The father presently works as a professional. He remains in Australia and claims he doesn’t have a fixed address. At the time of the interim hearing, he was in Tasmania. Due to the short notice of the listing, he was unable to travel to Sydney. The mother states that she is employed, however gives no further details.
PROCEDURAL HISTORY
These proceedings were commenced by the mother in the Federal Circuit Court of Australia (as it then was) on 15 October 2019, seeking property orders only. When the father filed his Response on 24 March 2020, he sought parenting orders for the child to be returned to Australia, for her to be placed on the airport watch list, to reside with the father, and for him to have sole parental responsibility. He also filed a Notice of Risk, alleging serious psychological harm associated with the risk of the child “losing her relationship with the Father forever.” He also made allegations of family violence perpetrated by the mother, including an incident in May 2019 alleging she threatened him with a knife.
On 4 May 2020, Judge Neville ordered the parties to attend a Conciliation Conference in respect of their property issues. On that date, a notation was made that the mother had raised the issue of the Court’s jurisdiction, leading the Court to decline to order a Child Dispute Conference until this issue had been ventilated.
On 8 May 2020, the mother filed a Notice of Risk alleging that the child has been exposed to family violence perpetrated by the father against the mother and their pet dog, that there has been a history of family violence throughout the relationship, and that the father has failed, on at least one occasion, to properly feed the child whilst in his care.
On 29 May 2020, the mother filed an Amended Reply to the father’s Response, seeking the following on a final and interim basis:
1. That the Court finds it has no jurisdiction under Section 111CD.
2. That the Court decline to exercise its jurisdiction on the grounds that there is a more appropriate forum.
3. That the Court decline to exercise its jurisdiction on the grounds that the Commonwealth of Australia is not a convenient forum.
4. That the Respondent Father’s application for parenting orders and ancillary injunctive relief be permanently stayed.
5. Such further or other order as the Court deems fit.
…
The mother also sought parenting orders in the event that the Court finds that it has jurisdiction.
On 16 June 2020, the parties attended a Conciliation Conference which was unsuccessful.
The matter was transferred to the Family Court of Australia (as it then was) on 15 July 2020, pursuant to orders of Judge Neville on 29 June 2020.
On 25 November 2020, a judicial registrar made orders for the matter to be placed in a list of cases awaiting allocation before a Judge in respect of the jurisdiction question.
On 23 March 2021, the matter was listed before Wilson J for a two-day interim hearing commencing on 21 June 2021. These dates were then vacated by Baumann J on 18 June 2021.
On 26 November 2021, the matter was referred back to the list of cases awaiting allocation, with priority.
On 2 March 2022, the mother filed an Application in a Proceeding seeking authorisation to maintain an Australian passport for the child, without requiring the father’s consent. She also sought that the application be listed on an urgent basis.
The mother’s Application in a Proceeding and jurisdictional questions raised by the Amended Reply were then listed before me for interim hearing for two days, commencing on 9 March 2022. The hearing was substantially completed within that timeframe, however I ordered that both parties file and serve further written submissions, and, in the case of the mother, written submissions in reply. I also ordered for the parties to confer and submit an agreed set of proposed orders to progress the property and parenting proceedings.
It can be seen that since the father first filed his Response seeking orders for the return of the child to Australia, some two years have passed. The proceedings have been subject to an unfortunate degree of delay, during which time the child has lived with the mother in China, as explained in more detail below.
EVIDENCE
The mother relied on the following documents:
(a)Case Outline;
(b)Amended Reply filed 29 May 2020;
(c)Her affidavit filed 17 June 2021;
(d)Affidavit of Ms C filed 17 June 2021;
(e)Financial statement filed 22 January 2020;
(f)Written submissions filed 18 March 2022; and
(g)Written submissions in reply filed 1 April 2022.
The father relied on the following documents:
(a)Case Outline;
(b)The mother’s Initiating Application filed 15 October 2019;
(c)The mother’s Amended Initiating Application filed 22 January 2020;
(d)Response filed 24 March 2020;
(e)Notice of Risk filed 24 March 2020;
(f)His affidavit affirmed 24 March 2020;
(g)His affidavit affirmed 14 June 2021;
(h)Financial statement affirmed 24 March 2020; and
(i)Written submissions filed 28 March 2022.
Both parties were cross-examined, appearing via Microsoft Teams.
JURISDICTION
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).
This Court has jurisdiction in respect of parents and children only if one of the criteria set out in s 69E of the Act is satisfied:
(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.
Both the father and the child were Australian citizens on the relevant day, being the day the father filed the proceedings, and the father was ordinarily resident in Australia and also present in Australia on the relevant day, so ss 69E(1)(b) and (c) are attracted. Jurisdiction is therefore conferred on this Court under Part VII of the Act to hear and determine the parenting proceedings in relation to the child, even if she is presently residing in China with the mother. This was common ground.
However, it was also common ground that Subdivision B of Division 4 of Part XIIIAA can materially affect the exercise of jurisdiction conferred by s 69E. It is settled that Division 4 does not confer jurisdiction, but regulates the exercise of jurisdiction: Duckworth & Jamison (2014) 51 Fam LR 471 at [73]; Bunyon at [80]; Korrapati & Mishra [2021] FamCA 281 (“Korrapati”) at [32]; Sterling & Sterling [2022] FedCFamC1A 3 at [18].
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. Subsection 111CB(1) provides that Division 4 has effect despite any other provision in the Act. In order to ratify the Convention, Australian law must be adjusted so that the conflicts of law rules currently applied by courts under the Act conform to the provisions set out in the Child Protection Convention. Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4 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).
Section 111CB provides that Division 4 has effect despite the rest of the Act (except ss 69ZK and 111B, and the regulations made for the purposes of s 111B, none of which are presently relevant).
If Subdivision B applies, exercise of the Court’s jurisdiction under Part VII can be excluded unless one the subsections of s 111CD(1) are satisfied. In these proceedings, it was common ground that the relevant provision is s 111CD(1)(e), which requires proof that the habitual residence of the child is Australia.
In summary, the mother’s argument is that Subdivision B applies to these proceedings, and the child’s habitual residence is not Australia, and therefore this Court is deprived of jurisdiction, despite s 69E. I will come to habitual residence later. It is first necessary to determine whether Subdivision B applies.
SECTION 111CC
The application of Subdivision B to proceedings is governed by s 111CC:
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.
It is clear that before Subdivision B can apply to these proceedings, the Court must make a finding that there exists “an issue under the Act” of whether “a court” has jurisdiction to take measures directed to the protection of the child “as opposed to” a competent authority in China. As the parties observed in their submissions, the wording of s 111CC is obscure, and while considered in a number of first instance decisions, it has not been authoritatively construed by either the Full Court or the High Court.
There are some statutory definitions relevant to the meaning of s 111CC. In s 4 of the Act, “court” is defined as:
… in relation to any proceedings…[as] the court exercising jurisdiction in those proceedings by virtue of this Act, the Federal Circuit and Family Court of Australia Act 2021, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
This Court clearly meets the definition of “a court” because it is exercising jurisdiction by virtue of s 69E of the Act, and the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
It was suggested that China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. It may be that China is a signatory, but the Convention has not yet entered into force in Chinese law: Lao & Yeng [2018] FamCA 560 at [23]. There was no evidence about this question, but it was common ground that China is a non-Convention country for the purposes of s 111CC(b). So, the factual question is whether there is a “competent authority” in China which has jurisdiction to take measures directed to the protection of the person of the child.
A “competent authority of a non‑Convention country” is defined in s 111CA(c) as:
… an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child's property.
The term “entity” is defined in s 111CA of the Act to include:
(a) an individual;
(b) a corporation;
(c) an unincorporated body;
(d) a government authority or body;
(e) a court or tribunal.
It is important to emphasise that the question raised by s 111CC(b) is whether there is an issue under the Act that this Court has jurisdiction “as opposed to” a foreign competent authority.
The terms of the Revised Explanatory Memorandum to the Family Law Amendment (Child Protection Convention) Bill 2002 (Cth) explained the intention of s 111CC as follows:
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. Thus neither the Convention nor Subdivision B applies to conflicts in jurisdiction solely between a Commonwealth authority and a State authority, or conflicts in jurisdiction solely between authorities of different States in Australia.
(Emphasis added).
The phrase “an issue under the Act” is somewhat opaque. In Director of Public Prosecutions v Hou (2020) 62 VR 1, the Victorian Court of Appeal observed at footnote 13 in [36] that “The expression ‘by or under’, and various analogous terms, have been the subject of considerable debate, when used, for example, as statutory limitations upon jurisdiction”. The High Court in Griffith University v Tang [2005] 221 CLR 99 construed the statutory phrase “decision under an enactment” to mean in its context that the decision in question took its legal force from the statute under which it was made. Lindgren J in Energy Resources of Australia Ltd v Commissioner of Taxation (2003) 52 ATR 120 observed, in the context of construing tax legislation, that
37. Dictionaries give the relevant definition [of “under”] as "in accordance with" (The New Shorter Oxford English Dictionary (1993), 16b; The Macquarie Dictionary (1988), 16). Meanings recognised as possibilities in the cases include "in accordance with" (Gilbert v Western Australia [1962] HCA 7; (1962) 107 CLR 494 at 516), "pursuant to" and "by virtue of" (R v Clyne; ex parte Harrap [1941] VicLawRp 47; [1941] VLR 200 at 201 per O'Bryan J) and "by" (R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77 at [23]- [26] per Malcolm CJ). The word “under” admits of “degrees of precision and exactness on the one hand, and of looseness and inexactness on the other” making it “necessary to have regard to the context in order to identify the meaning of the word intended in a particular case.”.
In light of these authorities, 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.
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.
On the question of conflict of jurisdiction, the parties’ arguments proceeded from the proposition that the authorities do not disclose a consistent approach to the proper construction of s 111CC. In Bunyon, Bennett J dealt with a situation where a child was habitually resident in the Netherlands, which is a signatory to the Convention. The father argued there was no “issue under the Act” because he had not sought to exert any rights in any Court or competent authority in the Netherlands. Bennett J rejected this argument. Her Honour said at [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)
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.
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.
In Korrapati, Carew J dealt with a situation where the father was in Australia and the mother was in India. There was an order restraining the mother from taking any step in any other jurisdiction than Australia. Arguments were made that Bunyon and Alfarsi were inconsistent. Carew J did not expressly prefer Bunyon or Alfarsi, but held there was no “issue under this Act” for the following reasons:
45. In the present case, there is a valid order, binding on the mother, that restrains her from taking any step (other than withdrawing the proceedings), in any other jurisdiction for proceedings relating to the care, welfare or parenting orders for the children. There is also an absence of evidence as to the existence or otherwise of a “competent authority of a non-Convention country”, namely, India, that has sought or may seek to exercise jurisdiction over the children. In those circumstances, there is no conflict arising between two jurisdictions “which could hear and determine the dispute”. In other words, there is no issue arising under the Act to which Division 4 of Part XIIIAA is directed. I conclude that s 111CD of the Act does not restrict the jurisdiction of the Court from proceeding to hear and determine the parenting dispute between the parties.
This reasoning is consistent with Alfarsi, because again there was no evidence of the existence or otherwise of a competent authority and its jurisdiction. It is also consistent with Bunyon, in the sense that Carew J focussed on whether there was evidence of a foreign “competent authority” which “could” hear and determine a dispute relating to children, not one the jurisdiction of which has actually been invoked. These observations hold true irrespective of the particular order in Korrapati restraining the mother from taking proceedings in another jurisdiction.
With respect, I agree that it is not necessary for there to exist competing applications or proceedings in courts or tribunals in Australia and a foreign competent authority for there to be an issue under the Act about conflict of jurisdiction enlivening the application of Subdivision B. The definition of “competent authority of a non-Convention country” also supports this conclusion. The question is opposition between a court in Australia and a competent authority, which may include, but is not limited to a court, and by reason of the wide definition of “entity” includes corporations, unincorporated and government bodies. The existence of “duelling courts” may be one way in which the requisite issue under the Act may arise and be demonstrated, but it is neither the only way or a necessary way. A corporate or government body in a foreign jurisdiction may have jurisdiction to take measures for the protection of a child, for example, exercisable by administrative action, not proceedings in a court.
Rather the fundamental question is a conflict of jurisdiction. Two jurisdictions may be relevantly in conflict in the sense they both may be invoked to take measures for the protection of a child, without being actually invoked by the initiation of court or tribunal proceedings or other available processes. This is the import of the reasoning in Bunyon and Korrapati.
It is also pertinent to observe that this conclusion is consistent with basic principle in other areas of legal discourse concerned with conflicts of jurisdiction. For example, in determining whether an Australian court is a clearly inappropriate forum, the Court examines whether a defendant is amenable to the jurisdiction of a foreign tribunal which would entertain proceedings at the suit of the plaintiff: see eg Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 248 (“Oceanic Sun Line”). In other words, the question was whether the foreign tribunal would entertain, not necessarily has entertained, the suit.
For those reasons, in my view, any perceived inconsistency between the decisions in Bunyon, Alfarsi, and Korrapati is illusory. Rather, they are consistent to the extent that they were determined by reference to the resolution of the factual question of whether there was a conflict of jurisdiction. In Bunyon the evidence showed there were two competent court systems the jurisdictions of which could both be invoked to resolve the dispute, Australia and the Netherlands. In Alfarsi and Korrapati, there was no such evidence and therefore no finding of a conflict of jurisdictions.
Consequently, for the purposes of s 111CC(1)(b), there is a fundamental factual question which must be resolved by evidence, that is, the existence of a foreign competent authority and the nature and extent of its jurisdiction in relation to the person of a child, over whom this Court could also exercise jurisdiction. Such a competent authority could be a court, corporation, or unincorporated or government body, but it must be able to exercise, even if at the relevant time it has not exercised, a competing jurisdiction.
Determination of the fundamental factual question relies upon evidence, usually expert evidence. In Neilson v Overseas Projects Corporation of Victoria (2005) 223 CLR 331 at [115] (“Neilson”), Gummow and Hayne JJ made clear Australian courts are not presumed to have any knowledge of the content of foreign law and decisions about the content of foreign law create no precedent, and “That is why foreign law is a question of fact to be proved by expert evidence”. Sections 174 and 175 of the Evidence Act 1995 (Cth) permit proof of foreign law by various other means such as books and pamphlets, copies of statutes, and some law reports: see Talwar & Sarai [2018] FamCAFC 152 at [36]–[45] (“Talwar”). Thus the party contending Subdivision B applies bears the onus of establishing the necessary fact that there exists a foreign competent authority, and the ambit and legal content of that relevant foreign authority’s jurisdiction: Talwar at [46]; cf Oceanic Sun Line at 248. Without such evidence, the Court cannot be satisfied as a fact that there exists a competent authority which may be opposed to an Australian court or a conflict or opposition in jurisdiction, and therefore an issue under the Act. As pointed out, this was the conclusion reached in Alfarsi and Korrapati.
In my view, this must be so even if one party challenges this Court’s jurisdiction. If a party does so, it can be said there is raised an issue in the proceedings. But that does not mean there is an issue “under” the Act for the purposes of s 111CC unless the necessary factual finding of a foreign competent authority and a conflict of jurisdiction can be made. Otherwise, the application of Subdivision B would be attracted simply by any party asserting a challenge to the jurisdiction of this Court, even without any evidence of a conflict.
In these proceedings, there is no evidence of any kind of a competent authority in China, whether a court, tribunal, corporation or government body, nor evidence of the extent of its jurisdiction, responsibility or authority in respect of children, and no evidence otherwise of a jurisdiction in China to resolve a dispute between these parties in relation to the protection of the person of their child. There is no expert evidence, nor material to which ss 174 and 175 of the Evidence Act could apply. Accordingly, there is no issue under the Act enlivening the application of Subdivision B.
The mother, who bears the onus, acknowledged the absence of evidence about a competent authority in China. But she argued that this was not determinative either because the absence of the relevant evidence itself created the necessary issue under the Act, or the Court should presume that Chinese jurisdiction is the same as Australian jurisdiction. I do not accept either argument.
In support of her first argument, the mother relied upon authorities interpreting s 111CJ of the Act, which is in relevantly identical terms to s 111CC. It falls in Subdivision C of Part 4 dealing with the guardians for the property of children. In Re Flemming [2012] FamCA 985, Benjamin J considered an application under s 111CK appointing the mother as guardian for the children so she could deal with money that the children had become entitled to that was being held by an insurance company in a non-Convention country. His Honour considered s 111CJ:
33. The next step is to consider s 111CJ of the Act as to whether this court, as opposed to a competent authority in Country F, has jurisdiction to appoint or determine a guardian of the children’s property. A ‘Competent Authority of a non-convention country’ in s 111CA(1) of the Act is defined as ‘an entity that has responsibility or authority under the law in force in the [non-convention] country to take measures or make decisions about … appointing or deciding the powers of a guardian’.
34. In Meroline [2012] FamCA 306, Cronin J said that s 111CJ provides jurisdiction for the court to appoint or determine the powers of a guardian of a child’s property in some limited circumstances. This was in relation to the operation of the Convention between Australia and France, who were at that time, both Convention countries.
35. Having determined jurisdiction, in this case there is an issue about whether this court should exercise that jurisdiction in the circumstances that there is no evidence (from either the mother or C Insurance) that a competent authority in Country F seeks to exercise jurisdiction in respect of the property of these children. As such I am satisfied that I should consider exercising jurisdiction.
The mother argued that in Flemming, it was an absence of evidence that a competent authority in another country sought to exercise jurisdiction which raised the necessary issue “under” the Act and lead to the application of Subdivision C. In my view, in Flemming at [35], Benjamin J identified the issue in question as whether the Court should exercise jurisdiction, which he had already determined was possessed by the Court. In particular, Benjamin J held that s 111CJ permitted the Court to exercise jurisdiction in respect of property of a child, even though the property was situated in a non-convention country, a conclusion followed in Re Wright [2021] FamCA 409. The issue addressed was not whether Subdivision C applied by reason of s 111CJ because of a conflict of jurisdictions. Rather, the absence of evidence lead Benjamin J to conclude he should exercise the jurisdiction of this Court in Australia, although in respect of property of children in a foreign country. However, to the extent the decision in Flemming suggests s 111CJ (or s 111CC) can apply because there is no evidence that a competent authority in a non-Convention country is seeking to exercise jurisdiction, I would respectfully decline to follow it.
In support of the second argument, the mother called in aid the principle that in a case where the content of foreign law is significant for the resolution of the issues, and there is no evidence of that law, an Australian court may presume that such law is the same as the applicable Australian law, referring to Neilson at [125], [249], and [267]. In Neilson, there was a question as to the applicable principles of statutory construction in China. In the absence of evidence of the laws of China concerning statutory construction, the High Court affirmed that it should be presumed those laws were the same as those of Australia.
It is not clear how this principle assists the mother’s argument. The mother argued from this principle that this Court must presume the existence of a Chinese competent authority, which has jurisdiction to take personal protection measures in relation to the child. I do not accept this is correct. Neilson confirmed a long standing principle for the choice of law as the lex fori in the absence of evidence of the relevant foreign law. But the presumption is intended to operate against, not in favour of, the party bearing the onus of proving foreign law: BP Exploration (Co) (Libya) Ltd v Hunt [1980] 1 NSWLR 496 at 503. It is well known that the principle is subject to a range of exceptions, as explained at length in Damberg v Damberg (2001) 52 NSWLR 492 at [119]–[160] (“Damberg”). In Damberg, Heydon JA (as he then was) at [120] pointed out it was difficult to classify the exceptions by reference to principle, and at [144]–[146] that the presumption has generally been applied where an assumption has been made that the law of the foreign jurisdiction is materially the same as the lex fori or relevant law of the Australian court. At [146], he specifically noted “Cases in which the ‘foreign’ law is that of a State within the same federation as the forum are in a different category from those in which the foreign law is that of an entirely unrelated polity”.
China may be fairly characterised as falling into the category of an “entirely unrelated polity”. In Neilson itself, Kirby J at [203], citing Damberg, specifically referred to the presumption between Australia and China as an unrealistic fiction: “…the notion that the law of a country so different, with a legal system so distinct, as China is the same as that of Australia, is completely unconvincing”. Kirby J was in the minority in Neilson, but more recently his comments have been cited in several High Court decisions with apparent approval. In Travel Compensation Fund v Tambree (2005) 224 CLR 627, Callinan J at [62] declined to embrace “unrealistic presumptions” in the common law, citing Kirby J in Neilson. In Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [28], Kiefel J cited the comments of Kirby J in saying “There are dangers for legal reasoning in the over-ready resort to presumptions”. In Deputy Commissioner of Taxation v Shi (2021) 392 ALR 1 at [32], Edelman J also cited Kirby J, in pointing out that in some cases it is “inappropriate to make such an assumption about the content of foreign law (which may be wrong) where the issues were complex (and technical) and there was no evidence of the content of the foreign law”.
Since the existence of a competent authority in a non-Convention country, as defined in s 111CA, and the extent of its jurisdiction in respect of children, are questions of fact for this Court, in my view, it is inappropriate to seek to establish those facts by resort to presumptions about the content of the laws of China. Evidence is required, usually of an expert kind. The question alone of the existence of a competent authority in China exposes the nature of the problem. Since the relevant competent authority is an entity which can be a court, corporation, or government body, it may be assumed for the purpose of argument that it would be established by some laws of China. But in the absence of evidence of the content of those laws, which laws of Australia can be presumed to be the same and therefore apply? Australian legislation establishing a court or creating a government body, or Australian laws regulating the creation of a corporation are all possible, but so very different that it would be impossible to choose between them sensibly in attempting to apply the presumption.
Accordingly, I am unable to make the necessary finding that there is an issue under the Act of whether this Court, as opposed to a competent authority in China, has jurisdiction to take measures directed to the protection of the person of the child. Subdivision B, and its limitations on the exercise of jurisdiction, do not apply.
Consequently, I find that this Court has jurisdiction to make parenting orders pursuant to Part VII of the Act, if, following the usual statutory pathway, it is persuaded to exercise its discretion to do so in the best interests of the child, as determined by s 60CC of the Act.
It thus becomes unnecessary to consider the consequences if Subdivision B applies, in particular, the provisions of s 111CD.
However, if my conclusion about the application of Subdivision B is wrong, it was common ground that this Court could only exercise jurisdiction over the child if it made the factual finding that the child’s habitual residence remained Australia. This question was the subject of evidence and argument. Therefore, I should set out the findings and conclusions I would make if I am wrong about the applicability of Subdivision B. It is necessary to turn to s 111CD.
SECTION 111CD
Sections 111CD and 111CE provide:
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.
111CE Limitation when a child is wrongfully removed from or retained outside a Convention country
A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CD(1)(a), (b), (c) or (d) to take a Commonwealth personal protection measure relating to a child if:
(a) the child has been wrongfully removed from or retained outside a Convention country; and
(b) an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.
The expression “Commonwealth personal protection measure” is defined under s 111CA as follows:
Commonwealth personal protection measure relating to a child means 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.
There was no dispute that the parenting orders sought by the father are Commonwealth personal protection measures: see eg Duckworth & Jamison (2014) 51 Fam LR 471 at [22]–[26]; Bunyon at [76]; Alfarsi at [53]; Korrapati at [41]. Since China is a non-convention country, s 111CD(1)(e) is applicable in this matter.
It was common ground that the only question to be decided in respect of s 111CD(1)(e) was whether the child’s habitual residence was Australia. The mother’s contention was that the child’s habitual residence was now either China, or indeterminate, and therefore not Australia. The father argued the child’s habitual residence remained Australia.
The mother argued that habitual residence is determined as at the date of hearing, referring to Bunyon at [185] and [187], Sun & Long [2019] FamCA 3 at [49]–[50] and Ahmad & Hadi [2020] FamCA 1041 at [37]. I accept this is correct.
In LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) the High Court made clear that habitual residence is a purely factual question.
I repeat and rely upon what I have written in Department of Communities and Justice & Leoni [2020] FamCA 411 at [25]–[32] as to the relevant principles, derived largely from LK:
25. …
a) Habitual residence is a question of pure fact which permits consideration of a wide variety of circumstances bearing upon where a person resides and whether their residence is habitual; the search must be for where a person resides and whether residence at that place can be described as habitual (at [21], [23]);
b) The past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence (at [23]). However, unlike the concept of domicile, which gives intention decisive importance, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight (at [24], [28]).
c) The term "habitual residence" is used to identify the required connection between a person and a particular municipal system of law; it thus amounts to a rejection of other possible connecting factors such as domicile or nationality (at [24]);
d) Even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. A person may have no place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence (at [25]);
e) When considering the habitual residence of a child it is important to consider the habitual residence of the person caring for the child, and the younger the child is, the less sensible it is to consider the child’s habitual residence as distinct from the habitual residence of their carer (at [27]).
26. The High Court in LK also set out three important considerations about the role of intention in determining habitual residence, as follows:
a) First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous (at [29]);
b) Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to a country in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually (at [33]).
c) Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day to day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a Court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged (at [34]).
27. There is no closed set of criteria or any predetermined weighting between them to establish habitual residence (LK at [35]). The factual inquiry is broad and the search is for a connection between the child and a particular state, as well as the “settled purpose” of the parents, ascertained by reference to their intentions, although such a “settled purpose” or settled intention does not necessarily involve an intention to live at a place permanently or indefinitely (LK at [37], [38]).
28. At [40] in LK the High Court quoted with approval the following statement of Waite J in Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 at 995:
…
All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.
(emphasis added by the High Court.)
29. At [44], the High Court continued:
...it is sufficient to observe that in Punter v Secretary for Justice [2006] NZCA 533; [2007] 1 NZLR 40 at [88] [the plurality held] that the inquiry into habitual residence is "a broad factual inquiry". The plurality went on to say in Punter:
... 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 held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state...
As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled...
(footnotes omitted)
30. The decision in LK has been explained and applied by the Full Court in Zotkiewicz & Commissioner of Police (No. 2) [2011] FamCAFC 147; (2011) FLC 93-472; 46 Fam LR 335 (“Zotkiewicz”). In that case the mother relocated to Poland in good faith. The father did so with equivocal intentions about continuing the marriage. He terminated the relationship in Poland, and prevented the mother from leaving Poland with the child. The Full Court commented as follows at [72] to [79]:
[72]. The reference by the High Court… to a “shared intention” gives rise to the question of how the law deals with cases where the intentions of one parent may be described as “settled”, but the other parent has different intentions that cannot be so described. This we perceive is more difficult where the parents are living together. In an article often cited, Clive E.M., ‘The Concept of Habitual Residence’, [1997] The Juridical Review 137, Dr Clive concluded, (at 145), that in cases where both parents have an equal right to fix the child’s place of residence, and there appears to be a “genuine difference” in their respective intentions, “then the conclusion must be that there is no settled purpose or intention”.
[73]. At the very least, as the High Court said in LK at 596 [34], the “possibility of ambiguity or uncertainty on the part of one or both [parents] must be acknowledged” (our emphasis added).
[74]. We also do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an “appreciable period”.
[75]. What amounts to an “appreciable period” will differ from case to case, and in our view must be dependent to some extent on the intentions of the parents. Thus, in [one] case … the appellate court declined to interfere with a finding that a family had acquired a fresh habitual residence only one month after arrival in a new country. However, Butler-Sloss LJ, in delivering the principal judgment of the English Court of Appeal, was at pains to say (our emphasis added), “The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time:” Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 555 (“Re F”).
[76]. 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 v 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.
[77]. 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]).
…
31. The decision of the Full Court in Zotkiewicz makes clear that in determining what is an “appreciable period” in a given case, the Court is guided by the factual question of the parties intentions as well as the relevant time period, a focus which can lead to the period being, exceptionally, almost instantaneous or, more usually, something longer. As the Full Court later held in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701 at 81,314 (“Padwa”), the period of time that a child has spent in a country is not determinative of whether the child had become habitually resident in that country. In the earlier decision of Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321; (2007) 37 Fam LR 271; [2007] FamCA 398 (“Wenceslas”) the Full Court had confirmed that in some circumstances habitual residence could be lost or abandoned in a single day.
32. It is important to bear in mind that in Padwa the Full Court also laid emphasis on the child’s perspective, so that, in this case, the broad factual inquiry in determining habitual residence is directed to the question whether, immediately prior to the date of retention, the child’s presence in Australia had a degree of settled purpose from the child’s perspective and in all the circumstances of the case, to result in the conclusion that the child was habitually resident in Australia: at [38], [42].
Bennett J pointed out in State Central Authority & Metin [2020] FamCA 535 at [172] that habitual residence will not be altered by virtue of parental intention alone. However, habitual residence may change in accordance with the child’s experience integrating in a new residence.
Both parties made submissions concerning their intentions. In my view, the evidence leads to the conclusion that they did not share any settled intention about the habitual residence of the child.
The oral evidence of both parties was confusing and unclear in places. However, I am satisfied, on the assumption Subdivision B applies, as follows:
(a)In January 2019, the parties had a conversation about the child and mother returning to China for the maternal grandmother’s death anniversary. The mother states the father told her “I’m also planning to go back… I might stay in China for a bit”. In his oral evidence agreed he had such a conversation in relation to “returning to China together”.
(b)In May 2019, the mother claims that the father said to her “you can keep custody... I’m going to China. My mum isn’t very well and my brother wants me back for his business. I’ll probably be staying in China long-term. I’ll be applying for a visa soon.” In his oral evidence, the father agreed that there was a job opportunity offered by his older brother, that his help may be needed, and that he applied for a three-year visa. This is consistent with the mother’s version, which I accept.
(c)In July 2019, the mother deposes that the father attended her Suburb D property to print his visa documents. While there he said “I’m applying for a Q1 visa…it’s for a long-term stay”. The mother asked him “since you are already applying and X and I are going back soon too, can you apply for X’s visa too?” In his oral evidence, the father agreed he went to the mother’s home to print some visa documents and the mother asked him to apply for a visa for the child. He claimed he did not have the time to apply for X’s visa that day.
(d)In August 2019, the mother explained to the father she had returned to China early due to her father’s ill health. When the father asked “When are you returning?”, the mother replied “Unsure yet. Probably not for awhile”. In his oral evidence, the father said the mother did not give him a direct answer but agreed that he said “okay I’ll be going to China soon”. In the same conversation, the mother said words to the effect of “maybe with the assistance of our family relatives here in China, it will be better off for everyone.” In cross-examination, the father agreed the mother’s parents had come to Australia to help with the child.
(e)The father agreed that in September 2019, the mother had told him that she thought it was better to stay in China for long term, and asked him to ship some items to China by sea. However, he contends that her assertion that the long-term prospects were better were merely an excuse used by the mother to retain the child in China, and that he never agreed with such an excuse.
(f)Both parties and the child were in China in late 2019. The father said in oral evidence that he went back to China to visit his family and due to a problem with his older brother’s company. In his affidavit filed on 24 March 2022 at [10], the father said he travelled to China to visit the child. I accept this was part of the reason for travelling to China.
(g)The mother and father were both in Australia in December 2019. The mother deposed that the father said, “you can keep custody. I’ll visit whenever I have time.” In his oral evidence, the father conceded saying so, but asserted that a prerequisite condition was for the child to be in Australia. However, he also seemed to agree that he did not make this clear in the same conversation, but contended he had consistently said to the mother that he did not agree to the child staying overseas. Nonetheless I find that the father was, broadly speaking, content for the mother to remain as the primary carer for the child, and for the child to live primarily with the mother.
(h)In the period from September to December 2019, the mother said to the father repeatedly that she wanted to keep the child in China (Father’s affidavit sworn 24 March 2020 at [10]). I am unable to make the finding sought by the father in his written submissions that the mother “only formed an intention to retain the child indefinitely in China, in February 2020, when mediation in respect of the property matters failed”.
(i)At [49] of the father’s affidavit sworn 14 June 2021, he deposes that in December 2019, “Ms Yaling and I worked out an agreement to settle financial matters between us as well as well as agreed that she would then bring [X] back to Australia…” The father sent an email to the mother dated 30 January 2020 (marked as Exhibit 1) stating, “Due to mutual agreement and the current pandemic, I agree for [the child] to return to Australia after signing of agreement.” The mother states that the Court should infer from this that the father agreed for X to remain in China pending resolution of their disputes.
I do not conclude that the father agreed the child should relocate to China to live permanently. On the other hand, I also cannot conclude he consistently and unequivocally objected to the mother’s move to China, at least until he filed his Response on 24 March 2020. I am satisfied that the mother went to China with the child temporarily, but formed the intention, once there, to remain. The father was equivocal about this situation and eventually expressed the view that the child should return to Australia in the context of the parties’ continued broader matrimonial dispute. To this extent, it can be accepted that the mother acted unilaterally in abandoning Australia as her habitual residence and that of the child.
There was no dispute the mother is and has been the primary carer for the child, and that the mother’s habitual residence is China.
The child is six yeaes old, and has lived in China for two and half years with the mother. This is an appreciable period. I accept the evidence of the mother that the child attends school in E City, in the G province in China, has extended family there, a settled community and friendship group. The mother gives evidence that the child attends a local kindergarten five days a week from 8.00am to 5.00pm. The child had been cared for by various members of the maternal family and close friends of the maternal family in Australia, and the mother says she continues to be cared for by those same people in China. In August 2020, Ms C, referred to as “Aunt C”, commenced to reside with the mother and child, caring for the child during the mother’s work hours. The child’s primary language is F Language. In around February 2021, the mother purchased an apartment in E City that is within the catchment for, and within ten minutes’ walking distance, from a well-known primary school and high school where she intends to enrol the child in the future.
The child also participates in a number of extra-curricular activities, including roller-skating, music, dancing and traditional Chinese arts. According to the mother, music, dancing and traditional Chinese arts classes take place during weekdays after school in the kindergarten, whilst roller-skating is scheduled on Saturdays.
There is some significance in the length of time that has elapsed since the mother left Australia, and the delay in hearing this matter. The evidence does not disclose why earlier hearing dates were vacated. I accept that, to some extent, delay has been occasioned by the Court. The disruptions to the Court diary and travel restriction caused by the Covid-19 pandemic are further reasons, as the father accepted.
As already pointed out, the father’s own evidence showed the mother put him on notice she did not intend to return with the child to Australia from about September 2019 onwards. However, he took no step to seek a recovery order until the mother had commenced these proceedings and he filed a response on 23 March 2020. I accept that he appropriately waited for the outcome of mediation. In light of subsequent events, if the father had acted more promptly, he may have achieved a more expeditious hearing. Certainly, the baleful impact of the pandemic was not evident in late 2019, by which time he knew the mother did not intend to return to Australia with the child.
Delay is but one factor which weighs in the balance in determining the child’s habitual residence. From the perspective of the child, a move from China back to Australia would now be very disruptive at this stage of her young life. She has lived in China since August 2019. These factors and the “brute force of geography and duration” lead me to conclude that the child’s habitual residence could no longer be Australia. The evidence of her integration with an Australian community is sparse before her relocation to China. She was very young at the time of relocation. Her level of integration into a community in China and her connection with China suggest her habitual residence has become China. But, for the purposes of this judgment it is not necessary to make such a finding. It is sufficient if a finding is made that the child’s habitual residence has ceased to be Australia.
I find that at the date of hearing, the habitual residence of the child is not Australia. Although not strictly necessary, I would further find that her habitual residence is now China.
Accordingly, s 111CD(1)(e) would not be satisfied and, if Subdivision B applies, the Court would be unable to exercise its jurisdiction to make parenting orders in respect of the child.
Summary
I have held that Subdivision B of Division 4 does not apply to these proceedings. Therefore, this Court has jurisdiction under Part VII of the Act to make parenting orders in respect of the child.
If this conclusion be wrong, if necessary I would find that the habitual residence of the child is not Australia, and is now China. Consequently, this Court could not exercise its jurisdiction because s 111CD(1)(e) is not satisfied.
THE MOTHER’S STAY APPLICATION
My conclusion that Subdivision B of Division 4 does not apply to the proceedings requires me to determine the mother’s application for a stay of the father’s parenting proceedings in Australia.
The applicable test for a permanent stay of parenting proceedings is not necessarily the well-known clearly inappropriate forum test. Where an application is made under provisions of the Act which prescribe the best interests of the child as the paramount consideration, the test of whether or not a child is within the jurisdiction will be the question of the child’s best interests, as determined in accordance with ss 60CC(2) and (3), not the test of forum conveniens: Pascarl & Oxley (Edited) (2013) FLC 93-536 at [86]; ZP v PS (1994) 181 CLR 639; Henry v Henry (1996) 185 CLR 571; B v B(Re jurisdiction) (2003) FLC 93-136; and EJK v TSL (2006) 35 Fam LR 559; and Karim & Khalid (2007) FLC 93-348. The father accepted this is the correct test.
The mother argued that it was not in the best interests of the child for the parenting dispute to be determined in Australia. I accept that the factual matters which lead to the conclusion that the child’s habitual residence is China also support the conclusion that it may be in her best interests for the parenting dispute to be determined in China.
The mother also contended that the Court ought to presume that China has a domestic court system which is available to deal with these issues and there is no evidence that the father is unable to institute and participate in proceedings in China.
In relation to s 60CC(3)(m), she argued:
a. There is no bilateral treaty between Australian and China easily allowing the recognition of orders. There is no evidence that the China would recognise parenting orders made by an Australian court.
b. Each of the parties were born in China, and [F Language] is their native language. Consequently, the mother would not enjoy any unfair advantage if proceedings were conducted in China.
c. Notably, when having regard to the resources necessary for this Court to determine the parenting dispute, the parties (and likely their witnesses) each require an interpreter to give evidence in Australia.
d. The father’s attempt to prosecute parenting proceedings is at their infant stage in Australia, noting the jurisdictional issue remains live and nothing can be determined until that has been determined.
I am not prepared to grant a permanent stay of the proceedings in this Court at this stage. One fundamental difficulty is that, as already concluded, there is no evidence of a conflict in jurisdiction, no evidence that China has a domestic court system which is available to deal with these parenting issues, or evidence of how parenting orders of this Court would be treated in China. On the present state of the evidence, the Court cannot be satisfied any parenting orders could or would be made in China in respect of a child who is an Australian citizen.
Another fundamental difficulty is that the Court at best is presently only able to entertain an interim assessment of the best interests of the child, upon a mandatory consideration of the factors set forth in ss 60CC(2) and (3) of the Act. The parties agreed there should be a further interim hearing for parenting orders in the event the Court finds it has jurisdiction. Amongst other things, the Court will be required to consider the question of a meaningful relationship with each parent, the nature of the relationship with each parent, any allegations of risk factors as well as practical difficulties impeding the child spending time with each parent. Orders may be appropriate requiring the child to participate in interviews for a child impact report and to come to Australia for that purpose. In those circumstances, it would be unsafe and inappropriate to order a permanent stay of parenting proceedings at an interim stage before any hearing to determine the best interests of the child.
The paragraphs of the mother’s Amended Reply challenging jurisdiction and seeking a permanent stay will be dismissed. I will reserve all questions of costs.
I note that the mother’s application in a proceeding filed 2 March 2022 concerning passport authorisation remains to be determined. It was not appropriate for this Court to decide this or any other interim applications before the jurisdictional questions were determined. Since these proceedings are not in my docket, I will order that all outstanding applications be listed before an appropriate registrar.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 17 May 2022
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