Crighton & Salinas
[2024] FedCFamC2F 1652
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Crighton & Salinas [2024] FedCFamC2F 1652
File number(s): MLC 6890 of 2024 Judgment of: JUDGE BURT Date of judgment: 20 November 2024 Catchwords: FAMILY LAW – Parenting – registration of overseas child orders – child orders made in State B, USA – requirements of s.70G of the Family Law Act 1975 and reg.23 of the Family Law Regulations 1984 – discretion as to registration – application granted – orders registered. Legislation: Family Law Act 1975, ss 4(1), 70G, 70J(2)
Family Law Regulations 1984, reg 23, schedule 1A
Cases cited: Greenfield & Conley (No. 2) [2020] FCCA 827; (2020) 351 FLR 341
Sigley & Sigley [2018] FamCA 3; (2018) 57 Fam LR 347
Trnka & Trnka [1984] FamCA 12; (1984) FLC 91-535; (1984) 10 Fam LR 213
Division: Division 2 Family Law Number of paragraphs: 47 Date of last submissions: 14 November 2024 Date of hearing: Determined on the papers Place: Melbourne Counsel for the Applicant: Ms Mallett KC Solicitor for the Applicant: Sage Family Lawyers Counsel for the Respondent: Ms Johnston Solicitor for the Respondent: Lander & Rogers ORDERS
MLC 6890 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CRIGHTON
Applicant
AND: MR SALINAS
Respondent
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The orders of the Circuit Court, Region D, State B, in the United States of America made in mid-2020 and early 2021 be registered pursuant to s.70G of the Family Law Act 1975 (Cth) (“the Act”).
2.The matter remains listed on 28 November 2024 at 10am in respect of the threshold question governed by s.70J of the Act.
3.Liberty be granted to the father to appear by Microsoft Teams at the hearing on 28 November 2024 at 10am.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURT:
INTRODUCTION
These proceedings consist of a parenting dispute concerning X who is five years old. X’s father, Mr Salinas, lives in the United States. Since 2021, X has lived in Australia with her mother, Ms Crighton.
The parents are unable to agree as to a number of aspects of X’s care and in particular as to the arrangements for her to spend time with her father.
These reasons concern a discrete aspect of the dispute, namely whether orders made in the Circuit Court of Region D, State B County Department in the United States of America in mid‑2020 and amended in early 2021 (collectively, “the final US orders”) should be registered in Australia.
The father seeks the registration of the final US orders. The mother seeks interlocutory orders in her amended initiating application for the final US orders to be “discharged”. Neither her application nor her written submissions explain the basis on which this Court has the power, or should exercise the power, to discharge orders made by another Court.
For the purposes of the discrete issue before me, and noting the contents of her written submissions, I will assume that she asks me to conclude that the final US orders should not be registered.
For the reasons which follow, my orders provide for the registration of the final US orders.
BACKGROUND AND PROCEDURAL HISTORY
The parents’ relationship began in 2018 when they were both living in City E, State B.
X was born in 2019 in City E.
The parties separated in 2020 when X was about six months old.
Orders were made in relation to parenting arrangements for X in the Circuit Court of Region D, State B (“the State B Court”) in mid-2020. Those orders included provisions for the allocation of “significant decision-making responsibilities”, the allocation of X’s time with each parent including special days, and communication between parents. Pursuant to those orders X was to live with the mother and spend frequent and significant time with the father.
In late 2020, the mother lost her job in the United States and notified the father that she wished to return to Australia to live there with X.
The parties reached agreement about the arrangements for X which would follow her relocation. That agreement was embodied in further orders from the State B Court which were made in early 2021 (“the 2021 orders”). Those orders provided inter alia for the mother to relocate with X to Melbourne, and for X to spend time with the father in the United States twice per year: in even-numbered years, for a total of eight weeks, and in odd-numbered years, for a total of 10 weeks, to include Christmas. The orders also included provisions enabling the father to spend time with X in Australia at his election.
In February 2021, the mother and X moved to Melbourne and have lived in Australia since then.
The parents agree that the Covid-19 pandemic caused difficulties with spend time arrangements immediately after relocation. X has spent time with the father in the United States in August 2022, December 2022, June 2023 and December 2023. The father has also made some visits to Australia to spend time with her.
On 30 August 2023, solicitors instructed by the mother contacted the father’s American lawyers and indicated that the mother did not consider the provisions of the 2021 orders in relation to X’s time with the father in the United States to be in her best interests.
The father filed an “emergency motion” in the State B Court in late 2023 in relation to X’s time with him over Christmas pursuant to the 2021 orders.
Interim orders were made by consent in the State B Court in late 2023 which provided for X to spend three rather than four weeks with the father over Christmas in 2023 but did not otherwise alter the provisions of the 2021 orders.
In early 2024, both parents filed further applications in the State B Court, with the mother seeking orders for that court to relinquish jurisdiction and the father seeking orders for enforcement and additional time.
In mid-2024, the State B Court made orders granting the mother’s application and relinquishing its jurisdiction in favour of this Court. The father’s application to modify the 2021 orders was dismissed.
On 7 June 2024, the mother initiated proceedings in this Court.
A procedural hearing took place on 29 July 2024. On 20 September 2024, orders were made by consent which provide for the question of the registration of the final US orders to be reserved and determined by me “on the papers”, in other words without the need for a hearing.
MATERIAL RELIED UPON
Pursuant to the orders of 20 September 2024, the father relies upon:
(a)his amended response filed on 31 October 2024;
(b)his affidavit filed on 31 October 2024; and
(c)his written submissions filed on 14 November 2024.
Pursuant to the orders of 20 September 2024, the mother relies upon:
(a)her amended initiating application filed on 7 November 2024;
(b)her affidavit filed on 7 November 2024; and
(c)her written submissions filed on 14 November 2024.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
REGISTRATION OF OVERSEAS CHILD ORDERS – LEGAL PRINCIPLES
Orders containing parenting arrangements made by courts in certain overseas jurisdictions may be registered pursuant to the Family Law Act 1975 (“the Act”).[1]
[1] Family Law Act 1975 (“the Act”) s.70G.
The Act defines a “prescribed overseas jurisdiction” as:
…any country, or part of a country, outside Australia that is declared by the regulations to be a prescribed overseas jurisdiction for the purposes of the provision in which the expression is used.[2]
[2] The Act s.4(1).
The list of prescribed jurisdictions is set out at schedule 1A of the Family Law Regulations 1984 (“the Regulations”) and includes State B.
To be capable of registration, the order must fall within the definition of “overseas child order” contained in the Act, namely:
(a) an order made by a court of a prescribed overseas jurisdiction that:
(i)however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or
(ii)however it is expressed, has the effect of providing for a person or persons to spend time with a child who is under 18; or
(iii)however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or
(iv)varies or discharges an order of the kind referred to in subparagraph (i), (ii) or (iii), including an order of that kind made under this Act; or
(b)an order made for the purposes of the Convention referred to in section111B by a judicial or administrative authority of a convention country (within the meaning of the regulations made for the purposes of that section).[3]
[3] The Act s.4(1).
The process governing registration is set out in reg.23 of the Regulations. It normally involves transmission of documents from the court of the prescribed overseas jurisdiction to the Secretary of the Attorney-General’s Department (“the Secretary”). They are then sent to a registrar of this Court. The documents must include a certified copy of the overseas child order and a certificate signed by an officer of a court or some other authority in the relevant jurisdiction containing a statement that the order is enforceable in that jurisdiction as at the date of the certificate.
Registration also requires there to be reasonable grounds to believe that the subject child, one of the child’s parents, or a person with various rights in relation to the child is ordinarily resident, present or proceeding to Australia.[4]
[4] Family Law Regulations 1984 (“the Regulations”) reg.23(1)(b).
Registration may also take place if the certified copies and certificate are received directly by the Court, as long as the other conditions for registration are met.[5]
[5] The Regulations reg.23(6).
ARE THE REQUIREMENTS OF REGULATION 23(1) MET?
It is common ground that the father has complied with the requirements of reg.23. He has provided certified copies of the final US orders as well as a certificate signed by an officer of the State B Court which states that the orders are enforceable in State B at the date of the certificate.
The mother refers in her written submissions to the fact that the Secretary has not received the documents. That submission ignores the provision in reg.23(6) which allows registration if the documents are received directly by the Court other than from the Secretary.
I am satisfied therefore that the requirements of reg.23 are met.
SHOULD THE COURT EXERCISE ITS DISCRETION TO REGISTER THE ORDERS?
The Court’s power to register an overseas child order is discretionary. Although neither the Act nor the regulations provide a list of criteria governing the exercise of that discretion, the authorities provide guidance as to how that discretion is to be exercised:
In our opinion this sub-regulation confers limited discretion upon the Court in deciding whether or not to register an order, a discretion which should of course be exercised in such a manner as to promote rather than to defeat the purposes of the legislation. … It should be stressed, however, that the element of discretion is limited. The procedural and natural justice aspect of the order may be a relevant consideration. But the inquiry should not go to the merits of the order to be registered nor to the consequences of registration for the parties. …The discretion is to be exercised to ensure that the objectives of the Act and regulations and the reciprocal arrangements on which they depend are achieved.[6]
[6] Trnka & Trnka (1984) FLC 91-535 (“Trnka”) at 79,338.
In Trnka & Trnka (1984) FLC 91-535 (“Trnka”), the Full Court referred to the policy underpinning the provisions for registration including the prevention of abduction and securing recognition and enforcement of order. In Sigley & Sigley [2018] FamCA 3 (“Sigley”), which involved an application for the registration of orders following a commercial surrogacy arrangement, Forrest J had regard to factors including the public policy issues involving surrogacy, the oversight of the United States court including the provision of procedural fairness to the surrogate involved, and the importance for the child of legal recognition of her relationship with her parents.
It is clear from the decision in Trnka that discretion should be exercised so as to promote rather than defeat the purposes of the Act. There are in this case no complaints from the mother about the procedural or natural justice aspects of the final US orders which militate against registration.
The mother submits that in this case there is no “significant public policy factor”. She contrasts this case with those involving overseas orders made in Hague Convention proceedings, or where orders are expressed as conditional upon registration, and suggests that in those cases “the obligations of Australia as a signatory state weigh in favour of an exercise of the discretion”. To the extent that that submission suggests that the Court is required to identify further policy considerations in addition to the general objectives of the Act, it is inconsistent with the authorities, and I reject it. Neither the Act nor the authorities suggest that additional policy considerations are required.
The mother asserts in her written submissions that the discretion as to registration should be exercised consistently with X’s best interests. She relies in that regard upon references in Trnka to the discretion being exercised in accordance with the objectives of the Act and the regulations[7], and the reference in Sigley indicating that “the discretion must … be exercised judicially.”[8] She relies further on a decision of this Court which referred to the extent to which the overseas court which made the order sought to be registered applied the principle of the paramountcy of the child’s interests.[9]
[7] Trnka at 79, 338 and 79,341.
[8] Sigley & Sigley [2018] FamCA 3 at [27].
[9] Greenfield & Conley (No. 2) [2020] FCCA 827 at [25].
I am not persuaded that I can or should interpret the requirement that I exercise my discretion judicially as requiring me to embark on a “best interests” consideration. The mother’s submission that I should have regard to whether the final US orders “can be said to be in [X’s] best interests” appears to me to be inconsistent with the Full Court’s clearly expressed decision in Trnka that my inquiry should not extend to the merits of the order to be registered.
The mother submits further that if the final US orders are registered, s.70J(2) of the Act will apply which, she says, would “place hurdles” in the way of this Court making alternative parenting orders. She says that if the Court is persuaded that either s.70J(2)(a) or (b) applies in this case, thus enabling the Court to make parenting orders in relation to X, registration will be pointless. In that regard, I refer once again to the guidance from the Full Court in Trnka which indicates that in exercising my discretion I should not have regard to “the consequences of registration for the parties.”[10] That aspect of the mother’s submissions must therefore fail.
[10] Trnka at 79,338.
The mother relies also on the father’s failure to seek registration immediately after relocation, and also on the decision of the State B Court to relinquish jurisdiction. The basis on which either of those issues should affect the exercise of the Court’s discretion is not explained.
The father asserts in his written submissions that there is no valid reason which can be advanced as to why the final US orders should not be registered. Given the limited ambit of the discretion available to me on the question of registration, I am not persuaded that any of the factors to which the mother’s submissions refer are sufficient to prevent me from exercising my discretion in favour of registration. I prefer the submissions of the father to those of the mother.
THE ORDERS TO BE MADE
I will make orders providing for the registration of the final US orders.
The case remains listed before me on 28 November 2024 at 10am for consideration of the discrete issue of the application of s.70J(2) of the Act.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burt. Associate:
Dated: 20 November 2024
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