Federal Circuit Court of Australia (Melbourne)

Federal Circuit Court of Australia (Melbourne)

Australia

10 March 2017

Chandra & Chandra

[2017] FCCA 451

First instance

Article 5(1)

• Article 1
• Article 2
• Article 3

Family Law Act 1975 (Cth)

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The case concerned a child who was born in Australia and held Australian citizenship but had been living in India since January 2016. The parents had travelled to India with the child while their marriage was intact and separated shortly afterwards. Both parents later returned separately to Australia, leaving the child in the care of the maternal family in India; the mother subsequently returned to India and remained there with the child. The wife commenced parenting proceedings in Australia. The court accepted that the general jurisdictional requirements in s 69E of the Family Law Act 1975 (Cth) were satisfied, but held that this jurisdiction was constrained by Part XIIIAA, Division 4 of the Act, which implements the 1996 Hague Child Protection Convention. The decisive question was whether the child was habitually resident in Australia. The court found that the move to India was at least potentially open-ended and that the child was habitually resident in India at the relevant times. The Australian court therefore had no jurisdiction to determine parenting matters.

The court held that it had no jurisdiction to make parenting orders concerning the child. Although the child was born in Australia and was an Australian citizen, she had been living in India, a non-Convention country, and was found to be habitually resident there. Applying Australia’s implementing legislation for the 1996 Hague Child Protection Convention, particularly ss 69E, 111CA, 111CC and 111CD of the Family Law Act 1975 (Cth), the court dismissed all parenting applications for want of jurisdiction.

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