DAWE & SHORT

[2018] FamCA 785

FAMILY COURT OF AUSTRALIA

DAWE & SHORT [2018] FamCA 785

FAMILY LAW – CHILDREN – Parenting – Interim application – Where the child was born through in vitro fertilisation of the mother with the sperm of a male friend – Where orders have been made in the United Kingdom for the mother to relocate to Australia with the child and the father to spend time with the child – Where those orders have been registered in this Court –Where the mother and the child live in Australia – Where the father lives in the United Kingdom – Where the child has been diagnosed with autism spectrum disorder – Where the mother contends that the orders previously made should be varied – Where the Court is not satisfied that there are substantial grounds for believing that the child’s welfare requires that the Court exercise its jurisdiction in these proceedings – Application dismissed.

Family Law Act 1975 (Cth) s. 70J

Nigel Lowe and Michael Nicholls QC, International Movement of Children: Law and Practice and Procedure (Family Law, 2^nd ed, 2016).

Domroese & Leggett [1996] FLC 92-666
In the marriage of Trnka [1984] FLC 91-535

APPLICANT: Ms Dawe

RESPONDENT: Mr Short

FILE NUMBER: SYC 4480 of 2018

DATE DELIVERED: 17 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 17 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Ms Eldershaw

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

THE COURT ORDERS THAT:

1. The mother’s application filed on 17 August 2018 be dismissed.

2. The matter be listed on 15 October 2018 at 9:30am in relation to the enforcement issue.

THE COURT NOTES THAT:

A.The parties are to confer regarding the possibility of replicating the orders made by the British Family Court.  If agreement is reached, the matter will be dealt with in Chambers and the listing at order 3 above will be vacated.

B.If necessary, the Court will consider any application for costs on 15 October 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawe & Short has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4480 of 2018

Ms Dawe

Applicant

And

Mr Short

Respondent

EX TEMPORE JUDGMENT

1. This application concerns the child X, born in 2013 (“the child”).  The child is now five years old. 

2. By Application in a Case filed on 17 August 2018, the mother has sought a variation of orders that establish parenting arrangements for the child.  Those orders were made by the Family Court in the United Kingdom (“the UK Family Court”) in 2017, as amended in an addendum judgment of that court.  The orders were registered in Australia on 19 December 2017. 

3. The background to this matter is essentially set out in the decision of the UK Family Court, at paragraph 28, which, in essence, found the following. 

4. The mother is an Australian citizen who moved to the United Kingdom in 2005.  The father is a businessman, resident in the United Kingdom.  The parties met in 2011 and continued a friendship.  In 2012, the mother asked the father whether he would support her in having a child.  He agreed and they pursued a process of in vitro fertilisation.  This resulted in the conception of the child.

5. In 2014, the parties purchased a property together for the mother and the child to live in.   At some point subsequent to that time, the friendship between the parties deteriorated, resulting in litigation being commenced by the father in the UK Family Court.  Ultimately, orders were made in the UK Family Court permitting the mother to relocate to Australia with provision for the father to spend time with the child.  As noted, those orders have been registered in this Court.

6. Section 70J of the Family Law Act 1975 (Cth) (“the Act”) provides:

   Effect of registration on exercise of jurisdiction

   (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].

1. The operation of the legislation in respect to the application of orders made in another jurisdiction is summarised in the text “International Movement of Children: Law and Practice and Procedure” by Nigel Lowe and Michael Nicholls QC.  At page 639, the learned authors relevantly state:

   In Australia an overseas child order made in a prescribed overseas jurisdiction can be registered in the Family Court of Australia, … under regulation 23 of the Family Law Regulations 1984. Once registered, the order has the same force and effect as if it were an order made under Part VII of the Family Law Act 1975 and becomes enforceable throughout Australia until the registration has been cancelled.

2. That text continues:

   The registration of an overseas child order also places a restriction on the exercise of the powers of an Australian court to make a parenting order.  Before it can do so, it must have either the consent of those affected by the order (s 70J(1)(a)) or must be satisfied that “there are substantial grounds for believing that the child’s welfare requires the court exercise jurisdiction in the proceedings” (s 70J(1)(b)) and it must not make an order unless it is “satisfied” that either the child of the welfare is likely to be “adversely affected” if the order is not made or there has been such a change in circumstances with the child since the overseas child order was made that a parenting order ought to be made (70J(2))

3. The issue for adjudication in this matter relates to s 70J(1) of the Act. As noted, that subsection provides that, in circumstances where the father does not consent to a variation of the orders made by the UK Family Court, it is necessary for me to be satisfied that the child’s welfare requires the exercise of jurisdiction.

4. The issue has been considered in some detail the Full Court in Domroese & Leggett [1996] FLC 92-666. Their Honours’ reference to s 68 should now be taken as a reference to s 70J of the Act. The Full Court referred to the earlier decision of In the marriage of Trnka [1984] FLC 91-535 at pages 82,885 to 82,886, as correctly stating the law, as follows:

   The general policy behind s.68 was discussed by the Full Court in Trnka (1984) FLC 91-535. At 79,341 the Court said:

   "Section 68 is one example of a series of international and national provisions aimed at preventing parties from abducting children across State boundaries, and entering into a multiplicity of forum shopping and litigation in the battle for custody. Where the Court of relevant jurisdiction has determined the custody issue in accordance with generally recognised principles, these provisions aim to secure the recognition and enforcement of the custody order so obtained in the Courts of other countries or States which apply similar principles to custody issues...The international recognition of orders made in the child's home State is a significant step in preventing abduction and avoiding further litigation in respect of the child."

   In Mentor (1982) FLC 91-210 Wood S.J. said at 77,112-3:

   "The policy considerations behind these provisions are fairly apparent and sound. It is intended that the Family Court of Australia give recognition to overseas custody orders made in reciprocating countries where those orders have been made after an appropriate judicial hearing. It is fair and just that, as between the parties to the proceedings, the person having the benefit of such an order should not have to submit to the jurisdiction of this Court unless he or she so consents. However, because the overriding consideration in child-placement cases is what the best interests of the child requires, then the Court has the power to exercise jurisdiction in relation to the children and thus in effect to vary or alter the terms of such an order if it is satisfied on substantial grounds that the child will be adversely affected unless it does exercise jurisdiction."

   Major policy purposes behind the legislation include the discouragement of international child abduction and the discouragement of international forum shopping by placing a barrier before an unsuccessful litigant who wishes to disregard a judicial decision or relitigate the same issue in a different jurisdiction, together with the promotion of judicial comity by recognising decisions of the relevant courts.

   However, the policy and the effect of the legislation is wider than that as it also proceeds on the basis that the original court should continue to exercise jurisdiction unless the other court is satisfied that there are "substantial grounds" for believing that the welfare of the child will be adversely affected if jurisdiction is not exercised by it. 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.

   This point is made clear in the judgment of the Full Court in Trnka, supra, where it said at 79,342 that:

   "...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."

   However, as it went on to say:

   "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."

5. The mother, who carries the onus of satisfying the Court that it is appropriate for its jurisdiction to be exercised, has failed to present evidence that “there are substantial grounds for believing that the child's welfare requires that the court exercise jurisdiction” to vary the orders of the UK Family Court.

6. In that respect, I am satisfied by medical evidence that, since the decision of the UK Family Court, the child has been formally diagnosed with autism spectrum disorder (“ASD”).  However, I respectfully agree with Counsel for the father that, in giving its judgment, the UK Family Court proceeded on an understanding that the child has developmental difficulties, irrespective of how those difficulties were labelled.  Relevant extracts from the decision were referred to by Counsel for the father during the course of the proceedings and will not be further extracted in these ex tempore reasons for judgment.

7. Since that time, the B Healthcare has prepared a report dated 22 November 2017 which states, under the subheadings Social Communication Pathway, Outcome and Summary, the following:

   Social Communication Pathway: [the child] was discussed in the Social Communication Panel Meeting on 5 September 2017. The Panel comprised of a Consultant Paediatrician, a Speech and Language Therapist and an Occupational Therapist. During the Panel Discussion, we had incorporated a parental structured history, direct observation in the clinic, Professional Report and Feedback from his nursery. The evidence was collected in the following areas:

   • Abnormal or impaired development, evident before the age of 3 years - In this area, we have obtained multi-setting reports from the Speech and Language Therapist, Paediatrician and parent

   • Qualitative abnormalities in reciprocal social interaction - In this area, we have looked at eye contact; peer interaction; difficulties in sharing enjoyment

   • Qualitative abnormalities in communication - In this area, there was specific concern regarding his playing, especially spontaneous 'make believe' or social imitative play

   • Restricted, repetitive and stereotyped patterns of behaviour, interests and activities - In this area, we have obtained evidence of his repetitive play; going up and down repeatedly; difficulties in transition and also sensory-seeking behaviour

   Outcome: He fits the ICD-10 Criteria of Childhood Autism Spectrum Disorder.

   Summary: [the child] is now 4 years and 8 months old. He has been referred to the Social Communication Pathway and we can now confirm that he fits the ICD-10 Criteria of Childhood Autism Spectrum Disorder.

8. The Court has also had regard to the evidence of the mother that the child has, in recent months, including on or about the time that the father visited the child in April 2018, developed an involuntary vocal “tic” and has, on occasion, exhibited an involuntary head movement.  The Court was shown a short video of the child looking at a screen, presumably watching some form of entertainment, during which he can be seen to suddenly move his head to the left with his eyes remaining facing forward, looking at the screen.   

9. However, there is no medical evidence before the Court as to the nature or cause of that speech “tic” or involuntary head movement.  The mother has taken the child to be examined by Dr C (“Dr C”) at D Medical Centre.  Dr C wrote a referral to Dr E (“Dr E”), Paediatrician at F Centre, dated 11 April 2018, which relevantly reads:

   [The child] has a background of [ASD].  He was diagnosed in the UK (corro attached) where he lived until earlier this year. 

   Over the last 6 weeks his Mum has noted the development of an involuntary vocal tic (almost like a throat clearing).  This did not overly concern his mum as his father does a similar thing.  In the last few days however [the child] has developed an involuntary movement of his head to the left. 

   [The child’s] Dad is about to visit him (Dad is an IVF donor who gained parental rights over [the child] but does not live with him or his Mum) and there may be an element of stress response involved.

   However, given [the child’s] background, and assuming this persists, I think [the child] would benefit from your review. 

   Examination today was normal and [the child] has been well recently.  [Emphasis added].

10. The mother has not taken the child to see Dr E since that referral was provided in April 2018.  The mother says that she has not done so as a result of previous difficulties she has had in gaining the consent of the father in respect to the child’s attendance upon medical experts, specifically in relation to his developmental delays.  However, order K of the orders made by the UK Family Court clearly contemplates the mother obtaining medical treatment for the child and reporting the outcome of that treatment to the father. 

11. However, regardless of why the mother failed to take the child to be assessed by Dr E, it remains the case that the Court is without evidence that the child’s welfare requires an exercise of the Court’s jurisdiction under s 70J of the Act.

12. The most current evidence that is before the Court is in the form of the letter of referral from Dr C.  That letter notes that the child’s involuntary vocal tic was observed by the mother in the six weeks prior to the father’s visit to Australia.  Dr C also noted that in the days before the father visited the child, the mother noticed that the child had developed an involuntary movement of his head to the left.  Dr C further recorded that while there is probably an element of stress involved, in the child’s presentation on that day was “normal”.   

13. In essence, the only evidence before the court, as to why the welfare of the child requires there to be a variation of the orders made by the UK Family Court, is the opinion of the mother. She is observed to be a devoted and caring parent. However, she is not a medical expert and has failed to take up the opportunity available to her, since April 2018, to obtain an assessment of the child’s condition by such an expert. In the absence of evidence in respect to the child’s condition, I am not satisfied, even to a prima facie level, that that precondition set out in s 70J(1)(b) of the Act is satisfied.

14. In that respect, I note that the mother submitted that, in making this application, she is motivated by the interests of both the child and the father, insofar as she wishes for them to have the best opportunity to develop a relationship.  It is commendable that she desires that the child have a meaningful relationship with the father.

15. However, the obligation imposed by s 70J(1)(b) of the Act is a determination that “the child's welfare requires that the court exercise jurisdiction in the proceedings”, not simply that it would be desirable to do so.

16. Similarly, the mother referred to the inconvenience of the child being required to travel to the United Kingdom to spend time with the father throughout the months of June, July and August, including in July 2019.  It was contended that travel at that time may require the child to take time off school before and after the July school holidays.

17. The mother submitted that January would be a better time for the child to travel to the United Kingdom.  However, again, the requirement is that the Court must be satisfied that “the child's welfare requires that the court exercise jurisdiction in the proceedings”, not simply that it would be desirable for the Court to do so.  

18. In all the circumstances to which I have referred, the jurisdictional precondition to my considering the mother’s application has not been established.  Specifically, I am not satisfied that the nature of the child’s current condition is different from that considered by the UK Family Court or that any such difference is of a degree that would see the child’s welfare requiring that the orders made by that court be varied.

1. Accordingly, I must, on the basis of evidence before the Court today, dismiss the mother’s Application in a Case.  

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 17 September 2018.

Associate: 

Date:              2 October 2018