Application for parenting orders dismissed for want of jurisdiction – Held that while the jurisdictional thresholds in s 69E(1)(b) to (d) were satisfied s 111CD (to be read in conjunction with the Hague Child Protection Convention) prevailed – Child found to be “habitually resident” not in Australia within the meaning of s 111CD but in a non-convention country
In Chandra [2017] FCCA 451 (10 March 2017) Judge Small heard the wife’s parenting application regarding an only child (“X”) who lived with her in India. While the parties were both born in India, they were Australian citizens and married in Australia. Born in Australia, X was also an Australian citizen. The parties “travelled to India” on 13 January 2016 but separated on 25 January 2016, the child living in India ever since ([10]). The husband returned to live in Australia. The mother filed an application for parenting and property orders in the Federal Circuit Court on 4 May 2016.
On 24 May 2016 Judge Small made interim parenting orders and appointed an ICL, who submitted that the Court lacked jurisdiction to hear the case. The father opposed that submission. On 8 December 2016 the Court dismissed all parenting applications for want of jurisdiction, suspending the order pending judgment on the issue of jurisdiction.
Judge Small said (from [20]):
“The husband’s submission is that the court’s jurisdiction is found in section 69E of the Act and he sets out subsections (1)(b), 1(c) and (1)(d) which read as follows:
(1) Proceedings may be instituted under this Act in relation to a child only if:
(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 and the relevant day;
[21] The husband submits that as X is an Australian citizen, and both parties were present in Australia on the relevant day (which is defined in section 69E(2) as ‘the day on which the application is filed’), and both parties are Australian citizens, the court has jurisdiction to make parenting orders about X despite the fact that X herself was not in Australia on the relevant day.
[22] That particular submission is accepted by the independent children’s lawyer and there is little doubt as to its force.
[23] However, the independent children’s lawyer submits that the jurisdiction conferred by section 69E is ‘constrained’ by Division 4 of Part XIIIAA of the Act which deals with ‘International protection of children’.
[24] That submission is supported by the note which follows section 69E(2) which states:
‘Division 4 of Part XIIIAA (International protection of children) has effect despite this section.’
[25] Further support for that contention is found in Alfarsi & Elhage [2016] FamCA 428 … where Foster J stated that ‘s 69E must be read subject to the provisions of ss 111CC and 111CD of the Act that provide a “series of qualifying connections” that must apply before this court can exercise jurisdiction’ …
[26] [Section] 111CC states … under the heading ‘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 the child:
(a) a central authority or competent authority of a Convention country;
(b) a competent authority of a non-Convention country.’
[27] [Section] 111CD, under the heading ‘JURISDICTION RELATING TO THE PERSON OF A CHILD’ states as …relevant:
‘(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 an 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.’
[28] A ‘Commonwealth personal protection measure’ is defined in s 111CA as:
‘ … 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’.
( … )
[31] There is no doubt that India is a non-Convention country as it is not a signatory to the Hague Convention on [Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (‘the Child Protection Convention’)].
[32] Therefore, when all of that legislation is read together, this court can only find that it has jurisdiction to make a parenting order in relation to X if she is ‘habitually resident in Australia’ and any of paragraphs s 69E(1)(b) to (e) applies to her situation.
[33] I accept the submission of the husband, supported by that of the independent children’s lawyer, that s 69E(1)(b), (c) and (d) do apply to X’s situation.
[34] Therefore, in order to found jurisdiction in this matter, I must find that X is ‘habitually resident in Australia’ within the meaning of s111CD, which, as set out above, must be read in conjunction with the terms of the Child Protection Convention.
[35] In Bunyon & Lewis (No.3) [2013] FamCA 888 (“Bunyon”) Bennett J noted that ‘the concept of habitual residence is pivotal to the operation of the 1996 Convention’.
[36] Nevertheless, neither the term ‘habitual residence’ nor ‘habitually resident’ is defined either in the Child Protection Convention or the Act.
[37] In Bunyon, Bennett J pointed out that the language of s 111CD ‘requires [a] finding as to habitual residence contemporaneously with the court exercising its jurisdiction’.
[38] That is, Her Honour found, the question is whether a child is ‘habitually resident’ in Australia at the time the matter comes before the court, rather than whether a child has previously been ‘habitually resident’ in Australia over an historical period.
[39] Her Honour distinguished the requirements for satisfaction of the term ‘habitually resident’ in the Child Protection Convention from those in the Hague Convention, where the term is usually approached from an historical perspective.
[40] It is usual in cases where jurisdiction is an issue that the proceedings arise from one party having unilaterally removed a child to another country.
[41] In this case, X was taken to India by her parents when their marriage was intact, albeit less than a fortnight before they separated. There is scant evidence in any of the affidavits filed in these proceedings as to whether the parties intended X to remain in India, and while their separate returns to Australia without her could be interpreted as meaning that they did, it is difficult to know in retrospect.
[42] In Bunyon Bennett J referred to a Handbook in relation to habitual residence where it is noted that ‘where a move is open ended, or potentially open-ended, the habitual residence at the time of the move may also be lost and a new one acquired relatively quickly’ …
[43] The lack of clarity about whether the parties intended to return X to Australia leads me to find, on balance, that their travel to India was ‘potentially open-ended’.”
The Court concluded (from [44]):
“Overall, taking the facts of this case and applying the law as set out above to those facts, I find that at all relevant times to this Court’s proceedings (those being the date on which the wife filed her application, the relevant dates when this particular matter was considered by this court, and today), X has been habitually resident in India.
( … )
[48] I therefore find that this court has no jurisdiction to hear any application for parenting orders in relation to X …”