Obeying the Conventions
We are often called upon for advice in international family law cases: where the courts or the laws of more than one country are involved and may come into conflict. Usually that advice involves our first considering whether the Australian Courts have the power to hear a case ("jurisdiction"), and second if they have the power but there is another country that could be involved or is involved, in which court should the case be run ("forum"). In considering the forum issue, we consider where our client's best interests are pursued; it is pointless to try to insist on Australia hearing a case if our client can pursue his or her case in another country and get a better outcome.
The question of jurisdiction is usually straightforward. However, Australia is a party to international treaties and conventions that interact with the operation of our law.
In a recent case called Chandra & Chandra the interaction between Australian Family Law and international treaties was made starkly apparent. The case involved the care of a child.
Australia can hear a dispute about a child if:
the child is an Australian citizen or is ordinarily resident in Australia; or
a parent is an Australian citizen or is ordinarily resident in Australia, or is present in Australia; or
any other party to the proceedings is an Australian citizen, ordinarily resident in Australia or present in Australia.
when a court application is made.
In this case, the answer seemed fairly simple. Mr & Mrs Chandra were each born in India, each came separately to Australia and became citizens, married here, had a child here (who was therefore an Australian citizen) and then returned to India.
Each parent returned to Australia but the child was left with the mother's family in India. Then the wife returned to India and stayed with the child, the husband being in Australia.
The wife then filed a court application for parenting orders in Australia. On the face of it there was no doubt on multiple grounds that our court had the power to hear the case about the child: the child was a citizen, each parent was a citizen, at least one parent was ordinarily resident in Australia and present in Australia at the date of the court filing.
However both Australia and India are parties to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children ("The Child Protection Convention") and the Family Law Act clearly records that the provisions of the Convention limit the Australian Court's power to hear a case. The Convention is intended to limit "forum shopping".
What the Convention says is that the court has power to deal with the child only if one of the provisions set out above apply, and the child is habitually resident in Australia.
As the judge in this case found, "when all of that legislation is read together, this court can only find that it has jurisdiction to make a parenting order…if (the child) is 'habitually resident in Australia' and any of the (other criteria) applies to her situation."
Australia is party to another Hague Convention, the better known Child Abduction Convention. In both Conventions the words "habitual residence" are used but confusingly, they mean different things. The court found that in the Child Abduction Convention, we are meant to read it historically: over the span of the child's life where was the child habitually resident? In the Child Protection Convention, the court decided that it had to look at habitual residence at the time the court was exercising its powers. It went on to find that where a child is taken out of the country or even into the country, and the move is open ended or potentially open ended, habitual residence can be changed relatively quickly.
In this case, the judge decided that when Mr & Mrs Chandra and their child travelled to India, they did so without any clear indication of when and if they ever intended to return with the child and indeed they separated shortly after they arrived in India. Therefore, because their travel to India was potentially open ended, their child was habitually resident in India within the meaning of the Child Protection Convention, and Australia could not hear a case about with whom and on what terms the child should live with each parent.
