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Kay’s Case Note: Korrapati & Mishra [2021] FamCA 281

By November 1, 2021 No Comments
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The case of Korrapati & Mishra [2021] FamCA 281, property proceedings had been commenced by the mother in February 2020. The father wasn’t legally represented in March 2020 when an interim order was made.

The mother gave an undertaking to return to Australia with the children for the purpose of family report interviews and any court hearings and as a result of the interim orders, the mother and the children returned to India.

The mother was also restrained by that order from taking any steps other than withdrawing the proceedings in any other jurisdiction.

The mother applied in December 2020 to have the parenting proceedings dismissed in Australia for want of jurisdiction.

The parents are both Australian citizens. The children were born in Australia.

The family relocated to India in 2014.

The parents separated and the father came back to Australia in 2016.

The mother commenced proceedings in the Federal Circuit Court of Australia.

The court set out as follows at paragraph 13:

“The following matters are not in contention:

  • At the time of the interim order the children were present in Australia;
  • The parties and the children are Australian citizens;
  • The father continues to reside in Australia;
  • The mother and children live in India;
  • The children are habitually resident in India;
  • The court had jurisdiction to make the interim order;
  • If the Court otherwise has jurisdiction, the fact that the children are not in Australia, does not preclude the making of a future parenting order;
  • A number of the paragraphs of s 69E(1)(a) to (e) Family Law Act 1975(Cth) (“the Act”) apply to the children;
  • A parenting order providing for children to live with or spend time with a parent is a ‘Commonwealth personal protection measure relating to a child’ as defined in s 111CA(1)of the Act;
  • India is not a signatory to the international treaty known as the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996[1](“the Child Protection Convention”);
  • Australia’s implementation of its 2003[2]ratification of the Child Protection Convention is to be found in Part XIIIAA of the Act; and
  • The consequences of the COVID-19 pandemic have impacted on the ability of the parents and / or children to travel.”

The mother made the concession that the court had jurisdiction to make the interim order.

The case turned on the operation of s.111CD(1)(e).

A constraint imposed by s.69E(1)(e) is that the children are not habitually resident in Australia.

The court was referred to Bunyon & Lewis (No. 3) [2013] FamCA 888:

“The mother argues that the question that arises by virtue of s 111CC of the Act, is whether it is necessary for proceedings to have been commenced in the non-Convention country before s 111CD applies.”

In summary, the mother submits that s.111CD(1)(e) applies “notwithstanding that proceedings do not appear to have been commenced in India and notwithstanding that the [mother] has previously “submitted” to the Court’s jurisdiction. On that basis, this Court will only have jurisdiction if the matters in section 111CD(1)(e) are established, that is, that the children are habitually resident in Australia”.

Carew J said:

“In circumstances where it is understandably not in dispute that the interim order was validly made by a court in the exercise of its jurisdiction,[9] it is difficult to understand the legal basis for the mother’s present application.”

Division 4 of Part XIIIAA was described by Tree J in Duckworth & Jamison [2014] 51 Fam LR 471 as it “does not confer jurisdiction but regulates the exercise of jurisdiction”.

At paragraph 36 of this Judgment, Her Honour said:

“Importantly, s 111CC sets out a limitation on the circumstances in which Subdivision B (Jurisdiction for the person of a child) in Division 4 of Part XIIIAA will apply.”

Explanatory memorandum in relation to s.111CCC was quoted as “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.”

At paragraph 43:

“Turning then to consider whether the relevant provisions of Part XIIIAA of the Act apply, I have been unable to locate any authority in which s 111CC is discussed in detail. However, I note that in Alfarsi [2016] FamCA 428, Foster J found that the relevant provisions did not apply in circumstances where, at the time of the hearing in May 2016, the children were living in Iraq (a non-convention country) and had been living in Iraq since September 2014.”

Carew J determined that the court does have jurisdiction and the mother’s application was dismissed and the parenting proceedings will be determined in Australia.