Crighton & Salinas (No 2)
[2025] FedCFamC2F 242
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Crighton & Salinas (No 2) [2025] FedCFamC2F 242
File number(s): MLC 6890 of 2024 Judgment of: JUDGE BURT Date of judgment: 27 February 2025 Catchwords: FAMILY LAW – Jurisdiction – overseas parenting order registered in Australia – application by mother for this Court to exercise jurisdiction and make a parenting order – application of s.70J of the Family Law Act 1975 – consideration of first step, s.70J(1); whether the Court is satisfied that there are substantial grounds for believing that the child’s welfare requires that this Court exercise its jurisdiction – Court being satisfied – jurisdiction enlivened – insufficient evidence before the Court for consideration of second step, s.70J(2) – matter adjourned for case management. Legislation: Family Law Act 1975, ss 64B, 65DAAA, 68 (repealed), 69E, 69H, 70J
Family Law Reform Act 1995
Cases cited: Crighton & Salinas [2024] FedCFam2F 1652
Leggett & Domroese [1996] FamCA 22; (1996) FLC 92-666; (1996) 20 Fam LR 213
Mentor & Mentor [1982] FamCA 17; (1982) FLC 91-210
Radecki & Radecki [2024] FedCFamC1A 246
Shelbourne & Shelbourne [2017] FamCA 761
Trnka & Trnka [1984] FamCA 12; (1984) FLC 91-535; (1984)10 Fam LR 213
Division: Division 2 Family Law Number of paragraphs: 99 Date of hearing: 28 November 2024 Place: Melbourne Counsel for the Applicant: Ms Mallett KC Solicitor for the Applicant: Sage Family Lawyers Counsel for the Respondent: Ms Renwick 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:
27 FEBRUARY 2025
UPON THE COURT BEING SATISFIED PURSUANT TO S.70J(1)(B) OF THE FAMILY LAW ACT 1975 THAT THERE ARE SUBSTANTIAL GROUNDS FOR BELIEVING THAT THE CHILD’S WELFARE REQUIRES THAT THE COURT EXERCISE JURISDICTION IN THESE PROCEEDINGS
THE COURT ORDERS THAT:
1.The mother’s initiating application filed on 7 June 2024 be adjourned to a date to be fixed for directions before a Judicial Registrar.
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 concern 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.
On 20 November 2024, I ordered that the orders made in the Circuit Court of Region D, State B County Department in the United States of America (“the State B Court”) in mid-2020 and amended in early 2021 (collectively, “the final US orders”) be registered in Australia.
On the same date I published reasons for that decision. These reasons should be read together with my reasons of 20 November 2024.[1]
[1] Crighton & Salinas [2024] FedCFam2F 1652.
These reasons address a discrete threshold issue arising subsequent to the registration of the final US orders, namely the application of ss.70J(1) and (2) of the Family Law Act 1975 (“the Act”).
In her case outline, the mother seeks an order in the following terms:
Pursuant to section 70J(2)(b), the Court is satisfied that there has been such a change in circumstances of [X], born [in] 2019, since the making of the overseas child order that a Subdivision C parenting order ought to be made.
This proposed order was modified by Senior Counsel for the mother during her submissions so as to seek an order in the following terms:
The Court is satisfied that there are substantial grounds for believing that the child’s welfare requires that this court exercise its jurisdiction.
The court is satisfied pursuant to s 70J(2) firstly that the child’s welfare is adversely affected if no order is made and secondly that there has been such a change in circumstances since the making of the overseas child order that a Subdivision C parenting order ought to be made.
The father disputes that either of the criteria in ss.70J(1) or (2) are met. He seeks an order dismissing the mother’s application.
For the reasons which follow, I have concluded that there are substantial grounds for believing that X’s welfare requires this Court to exercise its jurisdiction. I consider, however, that the evidence before the Court is inadequate to permit the adjudication of the issues arising under either limb of s.70J(2).
BACKGROUND AND PROCEDURAL HISTORY
I set out the background and procedural history of this matter in my reasons delivered on 20 November 2024. In that regard, I adopt and incorporate paragraphs [7] to [21] of those reasons into these reasons.
At the start of the hearing on 28 November 2024, I explained to the parties that I would not be able to deliver my reasons until January 2025, and asked what arrangements if any had been made for X to spend time with the father over the long summer holidays. Upon being told that no agreed arrangements were in place, I indicated that I considered that to be an urgent issue and stood the matter down to enable discussions to take place.
The parties were able to reach agreement about arrangements for time over the summer and I recorded that agreement by way of notation to my orders, providing, in summary, as follows:
(a)the mother bring X to City C in December 2024, after which X will spend ‘transition time’ with her father for four days;
(b)X spend 19 days with her father in the United States, with the father returning X to City C airport at the conclusion of time; and
(c)notification requirements in respect of intended travel with the father within the United States, regular telephone time with the mother and the apportionment of X’s travel costs.
MATERIAL RELIED UPON
At the hearing, the mother relied upon:
(a)her amended initiating application filed on 7 November 2024;
(b)her affidavit filed on 7 November 2024, save for the annexures;[2];
(c)her written submissions filed on 14 November 2024; and
(d)her outline of case filed on 25 November 2024.
[2] During the hearing, Counsel for the mother tendered specific annexures as exhibits.
At the hearing, the father relied upon:
(a)his amended response filed on 31 October 2024;
(b)his affidavit filed on 31 October 2024, save for the annexures[3];
(c)his written submissions filed on 14 November 2024; and
(d)his outline of case tiled on 25 November 2024.
[3] During the hearing, Counsel for the father tendered specific annexures as exhibits.
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.
Both parties filed lengthy affidavits for the purpose of this hearing which addressed the parenting arrangements for X since her birth, the history of the United States proceedings, and the time that X has spent with the father since she moved to Australia, with their respective contentions about how well or badly those arrangements have worked for X. The mother deposes to X experiencing significant problems with the lengthy journey to the Unites States, and with separation from the mother. The father’s view is that X does not experience the level of difficulty to which the mother deposes, and that any behavioural problems she is experiencing are likely to be caused by issues in the mother’s home.
Neither Counsel sought to cross-examine the other party yet both Counsel contended that I could rely on the untested evidence of their respective clients in order to make the orders that their clients sought.
There was no family report nor evidence from a Child Court Expert or any other expert before me as to X’s wishes or her relationships with each of her parents. Both Counsel submitted that no such report was necessary to enable me to decide all of the issues arising under both ss.70J(1) and (2).
APPLICABLE LAW
Parenting orders are defined in s.64B of the Act and include orders dealing with the person with whom a child is to live and the time that a child is to spend with a person. In the context of s.70J of the Act, such orders are referred to as “Subdivision C parenting order[s]”.
Jurisdiction to make parenting orders is conferred upon this court by ss.69H(1) of the Act. The Court has jurisdiction prima facie because X is both present and ordinarily resident in Australia.[4]
[4] Section 69E of the Family Law Act1975 (“the Act”).
Because the final US orders have been registered, the Court’s jurisdiction in this case is also governed by s.70J of the Act which provides that:
(1)A court in Australia that is aware that an overseas child order is registered under section 70G must not exercise jurisdiction in proceedings for the making of a Subdivision C parenting order in relation to the child concerned unless:
(a) each person:
(i) with whom the child is supposed to live; or
(ii) who is to spend time with the child; or
(iii) who is to have contact with the child; or
(iv) who has rights of custody or access in relation to the child;
under the overseas order consents to the exercise of jurisdiction by the court in the proceedings; or
(b)the court is satisfied that there are substantial grounds for believing that the child’s welfare requires that the court exercise jurisdiction in the proceedings.
(2)If a court exercises jurisdiction in proceedings for a Subdivision C parenting order in relation to a child who is the subject of an overseas child order, the court must not make a Subdivision C parenting order in relation to the child unless it is satisfied:
(a)that the welfare of the child is likely to be adversely affected if the order is not made; or
(b)that there has been such a change in the circumstances of the child since the making of the overseas child order that the Subdivision C parenting order ought to be made.
(Emphasis added)
Here, the father does not consent to the exercise of jurisdiction. This Court can therefore exercise jurisdiction only if I am satisfied that there are substantial grounds for believing that X’s welfare requires me to do so.
There is a dearth of authorities which consider s.70J. Most of those to which these reasons refer relate instead to its predecessor, namely ss.68(3) and (4) of the Act[5], which provided as follows:
[5] Repealed upon enactment of the Family Law Reform Act 1995.
(3)Where an overseas custody order is so registered, a court in Australia shall not, where it becomes aware of the order, exercise jurisdiction in proceedings for the custody of, or access to, the child the subject of the overseas custody order, unless-
(a)every person having rights of custody or access in relation to the child under the overseas custody order consents to the exercise of jurisdiction by the court in the proceedings; or
(b)the court is satisfied that there are substantial grounds for believing that the welfare of the child will be adversely affected if the court does not exercise jurisdiction in the proceedings.
(4)Where the court exercises jurisdiction in proceedings for the custody of, or access to, a child who is the subject of an overseas custody order, the court shall not make an order with respect to the custody of, or access to, the child unless the court is satisfied-
(a)that the welfare of the child is likely to be adversely affected if the order is not made; or
(b)that there has been such a change in the circumstances of the child since the making of the overseas custody order that the order ought to be made.
Both Counsel agreed that I should apply the overall approach derived from earlier cases despite the difference in the wording of the jurisdictional threshold set out at s.70J(1) and s.68(3). In that regard, the following passage from the earlier case of Trnka[6] was approved by the Full Court in Leggett[7]:
The different wording of subsec. (3)(b) and (4)(a) and the specific requirements of subsec. (4)(b) which must be met before an order is made point to an intention that subsec. (3)(b) be read as laying down a threshold or prima facie test for the exercise of jurisdiction, namely the existence of substantial grounds for believing that the welfare of the child will be adversely affected if jurisdiction is not exercised. In applying this test there is no requirement for a detailed investigation into the merits. The test is, nevertheless, a significant one, requiring the existence of ‘substantial grounds for belief…’. The negative prescription of both subsec. (3) and (4) make it clear that an onus has to be discharged by a party seeking to persuade the Court first to exercise jurisdiction and then to make an order. The principle to be applied is that the registered overseas order is to be respected and the Court is to refrain from entertaining proceedings unless it is satisfied, prima facie, that there are substantial grounds for the belief that the welfare of the child will be adversely affected if jurisdiction is not exercised. If so satisfied, the Court is entitled to exercise jurisdiction and to embark upon a full investigation of the matter to determine whether circumstances exist for the making of an order in accordance with subsec. (4). In regard to the preliminary test under subsec. (3) `substantial grounds' can include prima facie grounds for the making of an order under subsec. (4) provided that they are substantial. In other words, an apparent significant change in the circumstances of the child since the making of the overseas order may, depending on the circumstances, amount to `substantial grounds' at this prima facie level. The test, in subsec. (3) is not, however, to be taken lightly; it is a weighty matter to entertain jurisdiction in the face of a registered overseas order.
(Emphasis added)
[6] Trnka & Trnka (1984) FLC 91-535 at 79,342 (“Trnka”).
[7] Leggett & Domroese (1996) FLC 92-666 at 82,887 (“Leggett”).
I must therefore consider separately the two different tests which are to be applied to this matter:
(a)Section 70J(1)(b) is the first stage and consists of a threshold or prima facie test. I must consider whether I am satisfied that there are substantial grounds for believing that child’s welfare requires the Court to exercise jurisdiction. Pursuant to the decision in Trnka, this stage of the test does not require a detailed investigation into the merits of the case but may involve consideration of prima facie grounds for the making of an order, including an apparent change in circumstances.
(b)Section 70J(2) is the second stage: if I am satisfied that jurisdiction should be exercised, then no order should be made unless I am satisfied either that X’s welfare would be adversely affected unless the order is made, or that there has been a change in circumstances since the date of the registered order such that the order ought to be made. The decision in Trnka suggests that this second stage requires “a full investigation of the matter”.[8]
[8] Trnka at 79,342.
The connection between these two stages was considered by the Full Court in Leggett, which like Trnka, addressed the criteria in s.68 rather than s.70J:
… Section 68(3)(b) focuses on “substantial grounds for believing that the welfare of the child will be adversely affected”, while s. 68(4)(a) asks whether the “welfare of the child is likely to be adversely affected”. The independence of these two questions was referred to earlier. The Full Court in Trnka, supra, pointed out that s.68(3)(b) lays down a “threshold or prima facie test for the exercise of jurisdiction”, at which stage a detailed investigation into the merits of the claim is not required. The independence of these two requirements lies at the heart of the task which s. 68 requires to be performed. Jurisdiction is exercised if a prima facie case is made out. The order is only made if the higher test is satisfied.[9]
[9] Leggett at 82,888.
A further issue enlivened in this case is s.65DAAA of the Act which provides:
Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
…
ISSUES TO BE ADJUDICATED
I asked Counsel at the start of the hearing to consider precisely what aspects of the case could and should be adjudicated at this stage. I expressed concern about whether, in the absence of testing of the parties’ evidence and any family report, I could resolve the question arising under s.70J(2). I asked Counsel also to consider at what stage in the process I should address the question arising under s.65DAAA.
Both Counsel indicated that in their view I could, on the basis of the evidence before me and without the need for a full investigation into the merits of the case, deal with the s.70J(2) issue as well as the s.70J(1) issue. I indicated to them that I would hear submissions in that regard but expressed doubt that I would be able to resolve the s.70J(2) test without further evidence.
Counsels’ views about the stage at which s.65DAAA should be considered differed. Senior Counsel for the mother considered that it was subsumed within the s.70J(2) question while Counsel for the father argued that it should be considered separately and subsequently to that question.
Counsel were, however, able to agree I should consider first the issues arising pursuant to s.70J(1) followed by the s.70J(2) test. I will now turn to those issues.
ARE THERE SUBSTANTIAL GROUNDS FOR BELIEVING THAT X’S WELFARE REQUIRES THE COURT TO EXERCISE JURISDICTION?
The onus rests on the mother to persuade the Court that jurisdiction should be exercised.[10] The test in s.70J(1) must not be taken lightly; “it is a weighty matter to entertain jurisdiction in the face of an overseas order”.[11]
[10] Trnka at 79,342.
[11] Trnka at 79,342.
In her oral submissions, Senior Counsel for the mother relied upon:
(a)the order of the State B Court relinquishing jurisdiction in favour of this Court; and
(b)the positions adopted by the parties in the litigation in the State B Court; and
(c)the policy considerations referred to in authorities such as Trnka and Leggett.
Relinquishment of jurisdiction by the US Court
Senior Counsel for the mother placed significant weight on the decision of the State B Court of mid-2024 which granted the mother’s application to relinquish its jurisdiction to this Court. The orders made on that date contain the following findings:
…
A.The parties have one (1) child, namely, [X], born […] 2019 and presently four (4) years of age.
B.Pursuant to Section 207 of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), [State B] is an inconvenient forum for this matter to proceed and the Federal Circuit and Family Court of Australia is a more appropriate forum.
C.The below factors set forth in Section 207(b) of the UCCJEA, in addition to the reasons set forth in the Petitioner’s Memorandum of Additional Information Pursuant to Section 207(b) of the UCCJEA, support this matter proceeding in Australia, as set forth more fully in the transcript:
a.Section 207(b)(2) the length of time the child has resided outside [State B]. The minor child presently resides in Australia and has resided there for a majority of her life.
b.Section 207(b)(3) the distance between the court in [State B] and the court in Australia. Petitioner produced correspondence from her Australian attorney which assures the Respondent’s full participation, remotely, in Australian court proceedings. It is contrary to the child’s best interests to travel to the United States for these proceedings and to meet with a court-appointed representative in the event one is appointed.
c.Section 207(b)(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child. A majority of the evidence relating to the parties’ minor child is located in Australia where she resides and where her school, doctors, extracurricular activities, friends and family are located. In the event the Court were to appoint a representative for the child, her age requires she meet with such representative in-person, in Australia.
d.Section 207(b)(7) the ability of the court of each State to decide the issue expeditiously and the procedures necessary to present the evidence. Upon this Court relinquishing jurisdiction to Australia, this case may proceed in Australia within 7 days.
Senior Counsel for the mother submitted that these findings indicated that that the State B Court considered that X’s circumstances necessitated the revisiting of the final US orders. She then revised that submission to one seeking that I draw an inference, based on its decision to relinquish jurisdiction, that the final US orders needed to be reconsidered, in other words that the State B Court “did think that there was a matter that needed to proceed”. In my view, that is not an inference which the orders of mid-2024 allow me to draw. Nowhere do the orders or findings refer to the current orders being inappropriate or indicate that variation is required. At their highest the orders contemplate “pending litigation” and the collection of evidence.
Counsel for the father disputed that the relinquishment of jurisdiction by the State B Court was of any real relevance to the jurisdictional test. She submitted that the evidence was insufficient to allow me to find that the parties are “locked out” of further litigation in the State B Court. I disagree. The orders of the State B Court made in mid-2024 provide for an unconditional relinquishment of jurisdiction. There is no expert evidence or indeed any evidence before me as to the extent to which that decision is capable of being reviewed or revisited.
Counsel for the father submitted further that the State B Court had relinquished jurisdiction because of the mother’s allegedly misleading representation that the final US orders would not need to be reopened in proceedings in this court. She tendered the mother’s motion to relinquish jurisdiction and referred to the following portion:
Additionally, the USA and Australia are reciprocating jurisdictions, therefore the court in Australia has the option to register the existing orders and only deal with the contested elements being parenting allocation and child support.
This submission turns to a large extent on the meaning of the phrase “parenting allocation”. Neither Counsel was able to provide me with an authoritative definition of that phrase. It appears to be a term used in the final US orders to refer both to the allocation of time and the allocation of parental responsibilities. If that is correct, the mother’s motion placed the State B Court squarely on notice that either or both of time with the father and parental responsibility were “contested elements” in respect of which she would seek orders from this Court. Given the uncertainty about the meaning of this term, I am unable to attach weight to the father’s submission.
Positions adopted by the parties in the US proceedings
Both parties sought to rely on the positions which the other party had adopted in proceedings before the State B Court.
Senior Counsel for the mother submitted that the position adopted by the father in his motion to the State B Court filed in early 2024[12] was fatal to his case with respect to both ss.70J(1) and (2). In that motion the father sought that the final US orders be varied so as to provide for different periods of spend time in the United States. Senior Counsel for the mother referred to the following portions of that motion:
[12] Tendered as exhibit “M2”.
6.There has been a substantial change in circumstances pursuant to [State B legislation] necessitating modification of the current parenting time schedule for the best interests of the minor child for the reasons outlined below.
7.As [X] is now school age, her ability to travel to the United States has changed.
8.[X] now has two (2) breaks during the United States spring and United States fall.
9.[X’s] spring and fall breaks are each two (2) weeks, respectively.
10.[Mr Salinas] should be allocated two (2) weeks of parenting time during United States spring and two (2) weeks of parenting time United States fall time in the alternate year.
11.[X’s] school break during the United States summer is three (3) weeks.
12.[Mr Salinas] is presently allocated four (4) weeks of parenting time during United States summer and should be allocated three (3) weeks of parenting time during United States summer.
13.Additionally, [X’s] school break during United States winter is seven (7) weeks.
14.[Mr Salinas] is allocated four (4) weeks of parenting time during United States winter in even years and six (6) weeks of parenting time during United States winter in odd years.
15.[Mr Salinas] should be allocated parenting time for seven (7) weeks during United States winter in odd years and four (4) weeks during United States winter in even years. [Mr Salinas] would also not be opposed (which he has informed [Ms Crighton] of) to staying in Australia for a portion of this allocated parenting time).
16.Additionally, [Mr Salinas’] parenting time dates should be based on [X’s] school schedule and not subject to [Ms Crighton’s] “agreement” due to her refusal to agree to allow him to exercise the entirety of his allocated parenting time.
17.Further, the Order should be modified due to [Ms Crighton’s] refusal to allow [Mr Salinas] to exercise the entirety of his allocated parenting time, as well as [X’s] age and schooling schedule.
18.[Ms Crighton] has refused to allow [Mr Salinas] to exercise all his parenting time as allocated in the Order.
19.Since [X] and [Ms Crighton’s] move to Australia, [Ms Crighton] engaged in a course of parental alienation to damage the relationship between [Mr Salinas] and [X] and unilaterally restrict his parenting time.
20.In August 2022, [Ms Crighton] reduced [Mr Salinas’] United States summer parenting time to two (2) weeks despite being allocated four (4) weeks pursuant to the Order.
21.The parties have attended numerous mediation sessions to resolve their issues with the Order and failed to come to an agreement regarding a modification of their Order.
22.[In late] 2023 [Mr Salinas] was forced to filed an emergency motion to enforce their Order to ensure that he would be able to exercise his parenting time.
23.Upon information and belief, [Ms Crighton] refused to allow [Mr Salinas] to exercise his allocated six (6) weeks of parenting time during United States winter because she wrongfully planned vacations to [other locations], respectively, during [Mr Salinas’] United States winter parenting time.
24.Additionally, when [Mr Salinas] has his limited parenting time, [Ms Crighton] continually interferes, including putting a tracking device in [X’s] jacket and telling [X] that [Mr Salinas] refuses to let [Ms Crighton] visit her during his parenting time.
25.[Ms Crighton] has demonstrated her unwillingness to facilitate the relationship between [X] and [Mr Salinas] by unilaterally reducing [Mr Salinas’] parenting time with [X] and is unjustifiably refusing to comply with the Order.
26.[Ms Crighton’s] actions have harmed [Mr Salinas’] relationship with [X] and without this Court’s intervention, will continue to damage their relationship.
27.[Mr Salinas] desires a close and continuing relationship with [X].
28.[Mr Salinas] has facilitated a close relationship between [X] and [Ms Crighton], including agreeing to [Ms Crighton’s] relocation to Australia.
29.[Ms Crighton] continues to wrongfully make plans with the minor child during [Mr Salinas’] parenting time, and he should be allocated additional parenting time for five (5) weeks to makeup for [Ms Crighton’s] willful refusal to comply with their Order.
30.As such, [Mr Salinas’] modifications to the Order are necessary and in the best interest of the child to account for [X’s] age and school schedule, facilitate the relationship between him and [X], and to maintain said relationship.
(Emphasis added)
Senior Counsel for the mother argued that I should attach significant weight to the father’s submission that there had been a significant change in circumstances which required variation of the final US orders. On that basis, she submitted that it was not open to him at this hearing to resist the submission that the final US orders need to be varied.
Counsel for the father relied upon portions of the mother’s motion in response to the father’s motion filed in early 2024:
6.There has been a substantial change in circumstances pursuant to [State B legislation] necessitating modification of the current parenting time schedule for the best interests of the minor child for the reasons outlined below.
RESPONSE: [Ms Crighton] denies the allegations set forth in Paragraph 6 of the Motion.
7.As [X] is now school age, her ability to travel to the United States has changed.
RESPONSE: [Ms Crighton] denies the allegations set forth in Paragraph 7 of the Motion. [Ms Crighton] affirmatively states that at only four (4) years old, [X’s] ability to travel to the United States from Australia remains the same. [Ms Crighton] is still required to travel with [X] and will be required to do so for several more years.
It certainly appears on the face of the mother’s document that she disagreed with the father’s submission that there had been a “substantial change in circumstances … necessitating modification of the current parenting time schedule”.
Senior Counsel for the mother disputed that she had done so, arguing that the mother took issue with the factual allegations set out paragraphs [6] to [30] of the father’s motion but not with the overarching contention of the father that there had been a change in circumstances. She submitted further that the mother’s application for the State B Court to relinquish jurisdiction made it abundantly clear that she relied on changed circumstances in support of her application for relinquishment[13], and that her motion in response should be interpreted in that context.
[13] Noting the list of factors relied upon by the mother at pages 3 to 5 of her motion to relinquish.
Whilst Senior Counsel for the mother insisted that the mother’s position in the United States proceedings was consistent with that before me, Counsel for the father sensibly conceded instead that both parties had adopted positions in the United States litigation which were at odds with their position in the proceedings before me. I prefer that submission, which is supported by the documents filed by each party in the United States proceedings.
However, I attach limited weight to the positions adopted by the parties in the United States litigation. It is for me to decide the extent and relevance of any change in circumstances and the positions adopted by the parties in that regard in the United States proceedings are of limited relevance.
Policy considerations
Senior Counsel for the mother, in her oral submissions, indicated that policy considerations are relevant for the reasons set out in Trnka and approved in Leggett. She submitted that, in this case, those considerations do not prevent the exercise of jurisdiction by this Court, firstly, because the final US orders (both in 2020 and 2021) were the product of agreement rather than contested litigation. The relevance of that factor was not explained and is unclear.
Secondly, she submitted that because the final US orders had contemplated the possible need for reconsideration of parenting arrangements for X,[14] including the need for the matter to return to “a Court of competent jurisdiction” if agreement could not be reached, policy considerations did not militate against the Court exercising jurisdiction.
[14] Article XIII of the US order made in mid-2020 and registered by this Court in late 2024, provides for the mother to be “granted leave” to relocate internationally after X turns three, and for the parties to attend mediation to “review and amend” X’s time with the father upon relocation, noting their shared aims of “not interrupting the minor child’s education”. The orders provide further that if the parties are unable to agree a “modified parenting schedule” after six mediation sessions, they shall “submit the issue of a removal parenting schedule to a Court of competent jurisdiction”.
Counsel for the father relied on policy considerations as a factor against the exercise of jurisdiction. In his written submissions filed on 14 November 2024, the father submitted that the mother obtained his consent to the relocation on the basis of the terms of the final US orders but is now “forum shopping” in precisely the fashion which the legislative regime is intended to prevent.[15] That submission ignores the fact that, following the relinquishment of jurisdiction by the State B Court, no other forum is available for the determination of the parents’ dispute. The mother cannot in my assessment be accused of “forum shopping” when only one forum appears to be available.
[15] See Leggett at 82,885.
Counsel for the father submitted further that the mother had behaved in a fashion analagous to repudiatory retention by obtaining the father’s consent to relocation without having any real intention to adhere to the final US orders. Whilst that is the father’s allegation, it is not a finding that I am able to make given the ambit of the factual dispute between the parents and the untested nature of their evidence.
I prefer the submissions of Senior Counsel for the mother to those of Counsel for the father on this topic. Policy decisions relating to comity and prevention of forum shopping have little role to play in circumstances in which the overseas court has, after considering evidence and hearing submissions, decided to relinquish jurisdiction.
EVALUATION
In submitting that the mother’s case had not met the threshold of s.70J(1), Counsel for the father relied on the case of Mentor.[16] The mother in that case argued that compliance with the overseas orders would require the removal from her care of children who had always lived with her and wished to continue to do so. Counsel for the father submitted that the primary judge’s decision that the s.68(3) test was not met, in spite of the likelihood that the children would be removed from their mother pursuant to the overseas orders, indicated the gravity of a decision to exercise jurisdiction. Although the primary judge’s decision was upheld by the Full Court, that aspect of it was not the subject of sufficient scrutiny in the appellate judgment to assist me in any real sense in dealing with the instant matter.
[16] Mentor & Mentor [1982] FamCA 17.
Counsel for the father relied also on Trnka. In that case the parties and their children had litigated in Papua New Guinea, resulting in orders providing for the children to live with the father and spend time with the mother. About ten years, later the mother brought the (now teenaged) children to Australia, in contravention of the Papua New Guinean orders, and sought orders that they live with her. The primary judge purported to register the Papua New Guinean orders and declined to adjourn the proceedings for a few days. Although the primary judge accepted that the evidence before him suggested that the children wished to live with the mother in Australia, his Honour held that the s.68(3) threshold for the exercise of jurisdiction was not met. On appeal, the Full Court held that the history of the case, and the children’s age and attitudes required the preparation of a family report and that the primary judge should have adjourned the proceedings briefly for that purpose.
Counsel for the father relied in particular on the Full Court’s assessment of the substantial grounds put forwards in that case by the mother and the children’s representative (including the loss of communication with the mother if returned to Papua New Guinea, alleged risk of exposure to inappropriate materials in the care of the father, the children’s wish to live with the mother, and the changed circumstances arising from the children’s decision to go to Australia with the mother). She submitted that the Full Court considered that neither the children’s wishes nor the potential loss of their relationship with their mother amounted to “substantial grounds” for the purposes of s.68(3).
That is not a wholly accurate interpretation of their Honours’ judgment, which deals with that issue as follows:
In our view most of the matters advanced by the appellant wife and the children’s separate representative do not individually or collectively amount to “substantial grounds” for the belief that the children’s welfare would be adversely affected if jurisdiction were not exercised. There are, however, some aspects which our in our view to give rise to concern. They are the clearly expressed wishes of the children, their behaviour which shows an apparent expectation that the Australian Court will exercise jurisdiction and the circumstances that a return to Papua New Guinea may effectively cur them off from their mother.[17]
[17] Trnka at 79,344.
Clearly, their Honours considered that the children’s wishes, behaviour and future relationship with the mother were capable of constituting “substantial grounds” although a family report was required to assist the Court in adjudicating on that question. To the extent that the father submits that Trnka is authority for the proposition that those factors were not “substantial grounds”, that submission is misconceived.
Counsel for the father submitted also that the mother’s evidence was insufficient to allow me to find that there are substantial grounds for believing that X’s welfare requires this court to exercise jurisdiction. She asserted that the difficulties with travel to which the mother deposes are essentially trivial and disputed that the relinquishment of jurisdiction by the US Court was of significance.
In my assessment, the absence of any other court with the ability to determine the parenting dispute is of real significance in this matter. As the Full Court opined in Leggett:
In family law the most appropriate forum in which to determine matters relating to a family, especially issues which centre upon the welfare of a particular child, may change over time. Unlike other areas of law, in which litigation usually involves the resolution of legal issues arising out of a particular past transaction, family law deals with the continuing lives of families and individuals, central aspects of which are not necessarily confined over time to a particular geographic location. Thus, further hearings in such cases in family law do not involve the questioning of the initial decision but seek a fresh determination based upon a new state of affairs. Whilst the length of residence of the child in the other jurisdiction may not itself be sufficient to enable one to conclude that the threshold issue in s. 68(3) would be satisfied, nevertheless that circumstance, combined with other factors, may indicate that the welfare of the child is substantially better served by the new jurisdiction making the then appropriate orders. This may be especially so if the issue is one of custody. This represents no disrespect or lack of comity towards the original court. It is the recognition of the factor which is central to the jurisdiction of both courts, namely the welfare of the child at that point in time and having regard to the issues then in question. Relevant factors to take into account in those circumstances may also include the circumstance, such as here, that the overseas orders contemplated the child's permanent residence in the other jurisdiction and that that residence has continued over a significant period of time.[18]
(Emphasis added)
[18] Leggett at 82,885.
In Leggett, the Full Court upheld the decision of the primary judge that the test in s.68(3) was not satisfied despite the evidence that the overseas orders required variation. Relevantly however, in that matter the primary judge attached significant weight to the ability of the overseas court to deal with any application for variation.
Here, the overseas court has specifically relinquished its jurisdiction in favour of this court. Counsel for the father conceded that there were no authorities which addressed the situation where the overseas court had relinquished jurisdiction. I attach significant weight to that factor in assessing whether this court should exercise jurisdiction.
The mother’s allegations about the past and likely future impact on X of the terms of the final US orders are untested. However, the combined effect of that evidence, together with the relinquishment of jurisdiction by the US Court, is that X may be in a position where those orders require variation, and where only this Court can exercise jurisdiction in order to consider whether and what variation is required.
Whilst it is a “weighty matter”[19] for this Court to entertain jurisdiction where a registered overseas order is in force, I am satisfied that there are substantial grounds for believing that X’s welfare requires the Court to do so.
IF SO, WILL X’S WELFARE BE ADVERSELY AFFECTED IF THE PARENTING ORDER IS MADE, OR, ALTERNATIVELY, HAS THERE BEEN A CHANGE IN CIRCUMSTANCES SINCE THE FINAL US ORDERS WERE MADE SUCH THAT THE PARENTING ORDER OUGHT TO BE MADE?
[19] Trnka at 79,342 approved in Leggett.
Having decided that jurisdiction should be exercised, I turn now to the application of ss.70J(2)(a) and (b) to this case. I raised with Counsel for both parties during the hearing whether I could adjudicate on this issue without a family report.
Senior Counsel for the mother submitted that “no additional requirement for investigation” arises from s.70J(2) contrasted with s.70J(1):
In essence, it’s a prima facie. Is there evidence before your Honour that allows Your Honour to be satisfied? The same terminology is used by both, that – so is there evidence on which your Honour could be satisfied is the same test in relation to limb 1 and limb 2. So limb 2 doesn’t require a detailed examination of the welfare and best interests, provided there is evidence that satisfies your Honour of limb 2 of the test, on a prima facie basis.
Counsel for the father agreed that there was sufficient evidence to allow me to decide the factual issue arising pursuant to s.70J (2). When I raised the reference in Trnka to the need for a family report, she submitted that Trnka could be distinguished from this case because it involved teenaged children whose views needed to be ascertained.
Senior Counsel for the mother conceded that the Court was not yet able to decide with precision what parenting order should be made, and that further evidence would be required in order to do so. She submitted that it was not necessary for the Court to identify the terms of the proposed order. Instead, she submitted that the Court must be satisfied that “the welfare of this child requires this Court to make a particular type of parenting order”. She indicated that there was sufficient evidence to persuade me that the Court should exercise jurisdiction and make procedural orders, including for a family report, on the basis that “the current situation is intolerable”.
I disagree. The wording of s.70J(2) indicates, in my assessment, the Court must have in mind a specific parenting order. Section 70J(2)(a) requires me to be satisfied that X’s welfare is likely to be adversely affected if “the order” is not made. Section 70J(2)(b) requires me to be satisfied that her circumstances have changed since the making of the final US orders such that “the Subdivision C parenting order” ought to be made. It is in my view significant that the statute uses a definite rather than an indefinite article in referring to the order under contemplation.
None of the authorities to which Counsel drew my attention during the hearing, nor any that I have been able to identify subsequently, are of significant assistance on this point.[20]
[20] In Shelbourne & Shelbourne [2017] FamCA 761, Rees J was satisfied that the test in s.70J(2)(a) was met where the children’s best interests required a change of residence, and where the Court then made interim orders to that effect.
It is common ground that the evidence before me does not yet permit the making of any parenting orders, and that a family report would be required before the Court could do so. Neither parent asked me to consider the details of the orders which they would seek if this court exercised jurisdiction.
I disagree with the submission of Senior Counsel for the mother that, like s.70J(1), s.70J(2) is a prima facie test which does not require an investigation into the merits. That submission is inconsistent with the views expressed by the Full Court in Trnka, namely that once the Court has decided to exercise jurisdiction it is entitled to “embark upon a full investigation of the matter”.[21]
[21] Trnka at 79,342.
In those circumstances, it is my assessment that it would be premature to attempt to decide the issues arising under s.70J(2). The evidence before me does not allow me even to identify a range of possible orders which might appropriately govern X’s relationship with her father.
In case I am mistaken, I will consider the factors on which the mother relies in support of her assertion that this case falls within both aspects of s.70J(2), namely the welfare of the child and the alleged change in circumstances.
Inappropriate and unworkable terms of the final US orders
The mother says that the final US orders are inappropriate and unworkable. It is common ground that X has never spent the periods of time with the father in the US for which the final US orders provide. She has never travelled from Australia to the United States with the father, as envisaged by the orders, but only with the mother, and for much shorter periods of time. Senior Counsel for the mother submitted that if the final US orders were to be enforced they would cause X “considerable difficulty and distress”.
The mother relies on portions of her affidavit where she sets out problems which she says have arisen as a result of X’s travel to the United States. She deposes for example to X having “a meltdown” during a flight in June 2023, and X struggling with sleep issues and different time zones. She says that after spending time with the father X displays “increased clinginess”, is unwilling to sleep in her own bed and is anxious about being separated from the mother.
The father deposes that X is settled and comfortable in his care and he does not accept that she displays the behaviour alleged by the mother. His Counsel submitted that the evidence does not support a finding that the identified behaviours are linked to X’s relationship with the father rather than other factors, including the mother’s frequent absences from home for work reasons. She submitted further that, in the absence of evidence proving that any concerning behaviour is connected to the father, that behaviour cannot be relied upon by the mother in relation to the s.70J(2) issue.
Senior Counsel for the mother submitted further that X would miss “enormous chunks of school” if she spends time with the father as per the final US orders. She referred to the provision in those orders which, in odd-numbered years, would mean that X would spend four weeks in the USA with the father during the US summer. That would involve her spending the entirety of her three weeks of holiday in June/July 2025 in the United States and would require her to miss a week of school in addition.
Counsel for the father considered this matter in her submissions relating to s.70J(1). She submitted that this issue could not constitute a “substantial ground” because, since the final US orders were made, the parties have always reached agreement in relation to spending time with the father which permits X to have time to settle before starting school. The agreed proposals for time during the summer of 2024/2025 certainly do so. It is, however, difficult to reconcile that submission with the father’s primary position, namely that the US final orders are wholly appropriate in their present form, and with the fact that the parties had not been able to reach agreement about the arrangements for summer 2024/2025 until after the beginning of the hearing on 28 November 2024.
Counsel for the father relied also on the reference in the US orders made in early 2021 to the parties’ shared goal of not interrupting X’s “education or social commitments”. I asked Counsel for the father if it was her case that that reference in effect overrode the specific provisions setting out the amount of time to be spent with the father in the United States each year. She said that the reference to shared goal should be “read into” the provisions dealing with the amount of time. It is not clear to me how a reference to shared goals should be read into specific provisions in orders which are inconsistent with that goal.
These apparent difficulties with implementing the final US orders support the view I have reached with regard to s.70J(1)(b), discussed earlier in these reasons.
They do not, however, assist me in reaching a decision with respect to ss.70J(2)(a) or (b) because the factual dispute between the parties, the absence of testing of their evidence and, most importantly, the lack of a family report all make it impossible for me to make the findings required to support a decision in this regard.
Inability of parties to agree on provision of therapy for X
The parents have been unable to agree whether X should receive therapeutic support from the counsellor at her preschool (as the mother proposes) or from an independent psychologist (as the father suggests). The mother relied in that regard on an email exchange with X’s preschool teacher which was tendered as an exhibit and in particular the teacher’s email indicating that X would benefit from counselling. Senior Counsel for the mother conceded appropriately that there could well be multiple reasons for X’s difficulties, including some unrelated to X’s relationship with the father.
Counsel for the father addressed this issue in relation to s.70J(1) rather than s.70J(2). She noted that the father had proposed that X receive support from an experienced external psychologist. She submitted that the father’s alternative proposal for therapeutic support meant that the mother could not rely upon the dispute as to the identify of the counsellor in relation to the test in s.70J(1)(b).
In response to the father’s submissions, Senior Counsel for the mother tendered a series of text messages between the parents in February and May 2024 in which the mother set out her reasons for proposing that X see the school counsellor and the father made it clear that he did not consent. She pointed out that it was not until October 2024 that the father proposed through his solicitors that X attend upon an independent psychologist rather than the school counsellor, some eight months after the mother first raised the question of counselling. She relied upon this delay as an indication of how X’s needs might go unmet if no orders are made by this Court.
The difficulty with that submission is that this Court is not yet in a position to assess the nature and extent of X’s needs for therapeutic support, let alone what orders if any are required in that regard. Until that evidence is available, the Court cannot assess whether her welfare is likely to be adversely affected if the relevant order is not made.
Change in circumstances
In this regard, the mother relies on the factual scenario already discussed in these reasons, the relinquishment of jurisdiction by the State B Court, the fact that X is starting school in 2025, the length of time for which she has now lived in Australia, changes to the employment circumstances of both parents, and alleged failures by the father to comply with provisions of final US orders relating to the payment school fees and travel notification requirements.
Counsel for the father submitted that the changes on which the mother relies are, for the most part, not changes in the “circumstances of the child”. She asserted in essence that the relinquishment of jurisdiction cannot in and of itself constitute a change of circumstances unless both of the tests contained in s.70J are met so that variation of the existing orders is required.
Evaluation
Counsel for the father submits that the mother has failed to demonstrate on the evidence before me that there is a connection between X’s assertedly unsettled behaviour and her relationship with the father, and that I cannot therefore be satisfied that her welfare will be adversely affected if no order is made by this Court. In that regard, she pointed out that the email from X’s teacher, sent on 16 September 2024 indicated that her behaviour had been more unsettled during the current term compared with “last semester”. Given that X had last travelled to the United States in December 2023, there is force in the submission that any unsettled behaviour in the second half of the year is less likely to be connected to travel to the United States at the end of 2023 than behaviour closer to the time of that travel. It is also possible that her behaviour may be linked to the visit likely to take place at the end of 2024. This is another example of an issue where a family report is required to enable me to interpret the evidence about X’s behaviour.
I do not consider that any of the submissions advanced by Counsel in relation to ss.70J(2)(a) or (b) allow me to be satisfied to the required standard that the test is met or not met. Much depends on the testing of the parties’ evidence about X’s wellbeing and the impact of time with the father, and on the contents of the family report that will inevitably be required.
Having considered the parties’ submissions in relation to s.70J(2), it remains my view that further evidence is required before that issue can be adjudicated.
AT WHAT STAGE IS S.65DAAA APPLICABLE?
Both Counsel agreed that s.65DAAA was not enlivened by s.70J(1) which deals solely with the issue of jurisdiction. I agree.
Senior Counsel for the mother considered that the issue of s.65DAAA was largely subsumed within the s.70J(2) consideration, indicating that there was an argument that if the facts of the case passed the s.70J(2) test, then there was no real need to consider s 65DAAA.
A slightly different position was adopted by Counsel for the father, who noted the different wording in s.65DAAA which requires consideration of whether any change in circumstances has been “significant”, a word which does not appear in s.70J(2).
In Radecki[22], the Full Court has made it clear that, before reopening final parenting orders, the Court must make findings of fact as to the change in circumstances that has occurred since the making of the final orders and, if satisfied that there has been such a change, must then consider the child’s best interests with regard to both the matters specified in s.65DAAA(2) and the relevant s.60CC considerations.[23]
[22] Radecki & Radecki [2024] FedCFamC1A 246 (“Radecki”).
[23] Radecki at [79].
My view is that I cannot embark on either of the two stages set out in Radecki, for the same reasons which prevent me from adjudicating on s.70J(2): the parents’ evidence is untested and there is no family report.
It follows that this issue, too, will need to be considered when the Court is able to embark upon a full investigation of the merits of the case.
THE ORDERS TO BE MADE
At the conclusion of her submissions, Senior Counsel for the mother proposed that if I made the orders sought by the mother I should then make procedural orders including for the preparation of a family report. Counsel for the father indicated that there had been no agreement or indeed any discussion about what procedural orders should be made.
For that reason, I added a notation to the orders which I made on 28 November 2024 which recorded the parties’ agreement that, in the event that either party seeks procedural orders other than the matter returning to the Judicial Registrar for directions, that party will provide a minute of orders sought to my chambers by 4pm on the day before judgment is delivered. I propose to hear further from the parties as to the procedural orders that they seek to enable a full enquiry into the merits of their respective cases and appropriate consideration of X’s best interests.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burt. Associate:
Dated: 27 February 2025
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