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.
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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Yaling & Tsen [2022] FedCFamC1F 347
Case
[2022] FedCFamC1F 347
Decision Date
CaseChat Overview and Summary
The case of Yaling & Tsen involved a dispute between the mother, Ms Yaling, and the father, Mr Tsen, concerning the permanent residence of their child in China. The mother had filed an application for property adjustment proceedings under the Family Law Act 1975 (Cth), while the father sought the child's return to Australia and interim parenting orders. The primary legal issue before the court was whether it had jurisdiction to hear the case, considering the child's residence in China and the mother's filing of an application for passport orders. The court was required to determine whether Subdivision B of Division 4 of Part XIIIAA of the Act applied, which concerns international protection of children, and if not, whether the child's habitual residence was in Australia.
The court found that Subdivision B of Division 4 was inapplicable as there was no evidence of a competent authority in China. Additionally, the court held that the child's habitual residence had ceased to be in Australia. The court also rejected the mother's argument that the court should assume Chinese law to be equivalent to Australian law. The court further considered whether the child's habitual residence was Australia under s 111CD(1)(e) of the Act, but found it unnecessary to decide this issue as the court's jurisdiction would be precluded regardless.
In relation to the mother's application for a permanent stay of proceedings in Australia, the court refused to grant the stay based on the best interests of the child. The court found that there was no evidence that any parenting orders would be made in China, and it would be inappropriate to order a permanent stay based on interim evidence and before any interim hearing. The court also noted that the proceedings had been subject to an unfortunate degree of delay, during which time the child had lived with the mother in China.
The court ordered that the interim and final orders sought in the mother's Amended Reply be dismissed, and that 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. All questions of costs of the hearing of the jurisdictional issues and the application for a permanent stay were reserved.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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.