DAWE & SHORT - [2018] FamCAFC 205

AMENDED PURSUANT TO RULE 17.02A ON 12 NOVEMBER 2018

FAMILY COURT OF AUSTRALIA

DAWE & SHORT

[2018] FamCAFC 205

FAMILY LAW – APPEAL – PARENTING – Registration of parenting orders made in the United Kingdom – Application to vary the registered orders – Orders registered pursuant to reg 12 of the Child Protection Convention Regulations – Where the primary judge dismissed the mother’s application pursuant to ss 70G and 70J of the Family Law Act 1975 (Cth) – United Kingdom is not a prescribed overseas jurisdiction as required to invoke ss 70G and 70J – Appeal allowed by consent – Matter remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – Where the appeal is allowed by consent and succeeds on a question of law – Costs certificates ordered for both parties for the appeal and rehearing.

Family Law Act 1975 1975 (Cth) ss 70G, 70J, 111CA
Federal Proceedings Costs Act 1981 (Cth) ss 6, 8, 9
Hague Convention of Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children arts 23(1), 26(1)
Family Law (Child Protection Convention) Regulations 2003 (Cth) reg 12
Family Law Regulations 1984 (Cth) Sch 1A, reg 14

APPELLANT:

Ms Dawe

RESPONDENT:

Mr Short

FILE NUMBER:

SYC

4480

2018

APPEAL NUMBER:

131

2018

DATE DELIVERED:

30 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Austin JJ

HEARING DATE:

30 October 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 September 2018

LOWER COURT MNC:

[2018] FamCA 785

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Roberts

SOLICITOR FOR THE APPELLANT:

Barry Nilsson Lawyers

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders by consent:

That the appeal (EA 131 of 2018) be allowed.
That Order 1 dated 17 September 2018 be set aside.
That the Application in a Case filed 17 August 2018 be remitted for re-hearing by a judge other than McClelland J.

It is further ordered:

There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to the appellant and the respondent costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant and the respondent in respect of the costs incurred by them in relation to the rehearing.

Order made 12 November 2018

Pursuant to r 17.02A of the Family Law Rules 2004 (Cth), the Reasons for Judgment are amended to delete the reference to “June 2007” in paragraph 1 and replace it with “June 2017”.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 131 of 2018
File Number: SYC 4480 of 2018

Ms Dawe

Appellant

And

Mr Short

Respondent

Ex-TEMPORE REASONS FOR JUDGMENT

Ryan J

By an Application in an Appeal filed on 11 October 2018, Ms Dawe (“the appellant”) applied for an order to expedite her appeal against the dismissal of her interim application to vary parenting orders. The orders were made by the Family Court in the United Kingdom in June 2017 as amended in an addendum judgment of that court and registered in Australia on 15 December 2017. The orders concern the parties’ child, X born in 2013 (“the child”). As the appellant deposed, the child has been diagnosed with an autism spectrum disorder.
Mr Short (“the respondent”), is the child’s father and the respondent to this application and the appeal. In summary, the orders provide for the child to relocate to Australia with the appellant and to spend time with the respondent during school holidays. The primary judge set out the relevant factual history as follows:
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.
Although the primary judge said the orders were registered on 19 December 2017, it is common ground that they were registered as set out at the commencement of these reasons. Nothing turns on this point of difference.
In any event, proceedings were commenced by the appellant who sought to vary the parenting orders. In dismissing the application the primary judge found at [19] that the orders were overseas child orders to which the provisions of Pt VII, Div 13, Sub-Div C of the Family Law Act 1975 (Cth) (“the Act”) applied and which had been registered under s 70G of the Act. According to his Honour’s reasoning, the effect of this was that s 70J of the Act applied, and as the appellant had failed to establish the s 70J(1)(b) jurisdictional precondition to vary overseas orders which requires substantial grounds for believing that the child’s welfare requires that the court exercise jurisdiction, the application was dismissed.
By her Notice of Appeal filed on 11 October 2018, the appellant seeks that the orders made by the primary judge be set aside and the proceedings be remitted for rehearing by another judge. I will shortly explain that the parties agree that this should be the outcome.
By way of background and in support of her claim which would justify this case being given priority to the possible detriment of other cases, the appellant deposed that the appeal must be heard and determined before the next block contact period which will come into effect in December 2018. According to her, if the appeal was not expedited, then the final parenting orders would remain in force and her appeal would be rendered nugatory. In her affidavit filed on 11 October 2018 the appellant explained her reasons as to why she says the existing time arrangements needed to be changed; in particular, what she says are the now apparent special needs of the child.
When the application for expedition came before me last week, the merits of the appeal were discussed; in particular, whether the primary judge was correct in finding that the orders were overseas child orders to which the provisions of ss 70G and 70J of the Act applied. The parties were given the opportunity to explore this issue further. In the meantime, the court was informed that they had, in fact, been able to reach an agreement to the effect that the court would be asked to allow the appeal by consent, that his Honour’s orders should be set aside and that the parties would seek orders pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”).
The basis of the error which would see the appeal allowed by consent was discussed on the last occasion; namely, that the orders are not overseas child orders and the provisions to which his Honour made reference concerning the jurisdictional precondition to vary the orders had no application.
So that it is clear, the application for registration of the orders was made by the Commonwealth Central Authority pursuant to reg 12(1) of the Family Law (Child Protection Convention) Regulations 2003 (Cth) (“Child Protection Regulations”):
Court recognition of a foreign measure
(1)   Subject to regulation 13, on receipt (under regulation 10 or with an application by an interested person) of a document that is a foreign measure, the Registrar of a court may register the foreign measure by:
(a)    filing in the court a copy of the document; and
(b)    noting the fact and date of registration on the copy.
(2)   A foreign measure so registered (a recognised foreign measure):
(a)    has the same effect as a Commonwealth measure in the same terms; and
(b)    may, on application by the Registrar of a court or a person interested in the measure (including the child who is the subject of the measure), be registered concurrently in any other court having jurisdiction under the Act.
(3)   A certificate by a court that the foreign measure has been registered in that court under this regulation is sufficient evidence to enable a concurrent registration to be made.
(4)   To enforce a recognised foreign measure, an interested person may take legal proceedings in any court that has jurisdiction.
(As per original) (Notes omitted)
It is common ground that the United Kingdom is a signatory to the Hague Convention of Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Convention”) which signed on 1 April 2003, ratified on 27 July 2012 and entered into force on 1 November 2012.
As is clear on the face of the application, the Commonwealth Central Authority sought to invoke arts 23(1) and 26(1) of the Convention and the regulations to which reference has been made. It is clear that the provisions of s 111CA of the Act apply. It is also common ground that the United Kingdom orders could not have been registered pursuant to r 14 of the Family Law Regulations 1984 (Cth) (“the Regulations”). This is because s 70G of the Act requires that the orders, to be overseas child orders, are orders of a “prescribed overseas jurisdiction”. Suffice to say, by reg 14(a) of the Regulations, to be a prescribed overseas jurisdiction, each country or part of a country must be identified in column 2 of Sch 1A of the Regulations. The United Kingdom is not mentioned in that schedule.
It follows that these were not orders to which the provisions of s 70G of the Act applied, and thus s 70J of the Act also did not apply. As his Honour’s decision to dismiss the application is solely predicated on the application of s 70J of the Act, I agree with the parties that his Honour erred and the appeal should be allowed and the orders set aside.
This then requires consideration of the application for costs made by both the appellant and the respondent pursuant to the Costs Act. In my view, the preconditions in the Costs Act for the issuance of such certificates have been established.
I agree with the parties that this is not a case where an order for inter party costs is appropriate. It is clearly a federal appeal. It has been called on and disposed of at a hearing and I would give the certificates sought.
I note that certificates are only sought in relation to the appeal and pause to inquire whether the parties also would seek certificates in relation to the rehearing. The court is not in a position to issue a certificate unless it is requested.
The parties both indicate that they would also seek certificates in relation to the remitted rehearing and I would also give certificates for that purpose.

Austin J

I agree with the orders proposed and the reasons given by Ryan J.

Ainslie-Wallace J

As do I. Therefore the orders will be:
(1)That the appeal (EA 131 of 2018) be allowed.
(2)That Order 1 dated 17 September 2018 be set aside.
(3)That the Application in a Case filed 17 August 2018 be remitted for re-hearing by a judge other than McClelland J.
(4)There be no order as to costs.
(5)The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
(6)The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
(7)The Court grants to the appellant and the respondent costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the appellant and the respondent in respect of the costs incurred by them in relation to the rehearing.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Austin JJ) delivered on 30 October 2018.

Associate:

Date: 6 November 2018