Duckworth & Jamison
[2014] FamCA 308
•15 May 2014
FAMILY COURT OF AUSTRALIA
| DUCKWORTH & JAMISON | [2014] FamCA 308 |
| FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Meaning of habitual resident – Consideration as to whether child is habitually resident in Australia – Where mother, father and child Australian residents – Where child has lived in Switzerland with father since August 2012 – Where father moved to Switzerland with child for work with the consent of the mother – Where parties subsequently separated – Where mother conceded child is not habitually resident in Australia, but was habitually resident in Switzerland having only spent some weeks in Australia since 2010 in between father’s jobs – Where the phrase ‘habitually resident’ is not defined in either the Family Law Act or 1996 convention – Where court noted whether or not a person or child is habitually resident in a particular State is a question of fact, based upon the individual considerations that the individual case throws forward – Where the court satisfied the child is habitually resident in Switzerland. FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Whether father has submitted to jurisdiction – Where father filed a response to mothers application for final orders dealing with children and property – Where father did not object to jurisdiction – Where court satisfied it has jurisdiction under section 69E – Where court noted submission to jurisdiction does not preclude a forum non conveniens argument as to whether or not it should be exercised – Where father’s submission to jurisdiction is not fatal to his present argument. FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Consideration as to whether submission to jurisdiction is indistinguishable from acceptance of jurisdiction – Meaning of accepted in respect of acceptance of jurisdiction under section 111CD(3)(c) – Where court noted s111CD(1) does not confer or remove jurisdiction, but rather regulates the exercise of jurisdiction that otherwise exists – Where court noted s111CD(3)(c) permits the court to exercise its validly invoked jurisdiction only if the parties agree to so exercise it – Where court noted parties may accept a court’s jurisdiction to take some measures but not others – Where court found the father’s filing of a response to the mother’s application was not an irrevocable acceptance of the exercise of jurisdiction – Where court found acceptance of jurisdiction would need to be expressly accepted rather than merely filing a response. FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Consideration of the determination of the best interests of the child in relation to the exercise of discretion under section 111CD(3)(d) – Where the court noted section 111CA provides that unless contrary intention appears, expressions used in Division 4 have the same meaning as they have in the 1996 convention – Where the court noted Article 10 of the 1996 Convention is not circumscribed by section 60CC considerations – Where court found it is not necessary to have regard to 60CC considerations when determining whether to exercise jurisdiction to take a particular measure in the best interests of the child for the purposes of s111CD(3)(d) – Where court noted however when determining whether or not to make parenting orders section 60CC factors would inform whether or not the best interests of a child are reflected in a particular order or not. FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Where consideration as to whether to exercise jurisdiction to make parenting orders on the facts – Where mother argued in reliance of section 111CD(1)(c)(v) that although the child was habitually resident in Switzerland the court could exercise jurisdiction to make parenting orders as the parties had property and spousal maintenance proceedings on foot – Where parties matrimonial property and spousal maintenance proceedings have not been finalised – Where court found parenting orders which the mother seeks are Commonwealth personal protection measures – Where child is in a convention country and habitually resident in Switzerland – Where difference in wording between s111CD(1)(c)(v) and the 1996 Convention – Where court satisfied different phrasing within Part XIIIAA is a drafting anomaly – Where court considered whether proceedings for property and spousal maintenance are ‘proceedings concerning the divorce or separation’ of the parties – Where court considered meaning of the term ‘separation’ – Where two competing interpretations – Where court considered meaning of ‘legal separation’ – Where terms ‘divorce, legal separation and annulment’ not defined – Where court found the phrase ‘proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage’ was intended to capture all proceedings between married spouses or de facto partners arising out of the termination of their relationship – Where court found the extant property and spouse maintenance applications were ‘proceedings concerning the divorce or separation’ of the parties and the requirements of section 111CD(1)(c)(v) met. FAMILY LAW – STATUTORY INTERPRETATION – Consideration of the relationship between section 111CD and section 69E – Where the court considered the meaning of the phrase ‘has effect’ in section 111CB within the division of the Act – Where court noted the phrase was intended to mean that insofar as there may be inconsistency between Division 4 and other parts of the Act, the Division prevails – Where court noted section 111CD wording ‘may exercise’ is the opposite to ‘may decline to exercise’ – Where court found section 111CD does not confer jurisdiction, but regulates the exercise of jurisdiction. Family Law Act 1975 (Cth): ss60CA, 60CC, 69E, 90RD, 111CA, 111CB, 111CC, 111CD, 111CF, 111CI, 111CK, 111CM, 111CS Bunyon v Lewis (No3) [2013] FamCA 888 Zheng v Cai (2009) 239 CLR 446 | |
| APPLICANT: | Ms Duckworth |
| RESPONDENT: | Mr Jamison |
| FILE NUMBER: | TVC | 898 | of | 2013 |
| DATE DELIVERED: | 15 May 2014 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 21 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Mayes |
| SOLICITORS FOR THE APPLICANT: | Purcell Taylor Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms De Vere |
| SOLICITORS FOR THE RESPONDENT: | Sarah Bevan Family Lawyers |
Orders
The further prosecution of parenting orders sought by the Applicant Mother in her Initiating Application filed 20 September 2013 be permanently stayed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duckworth & Jamison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC898/2013
| Ms Duckworth |
Applicant
And
| Mr Jamison |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Over the years, Peter Allen’s anthem “I Still Call Australia Home” has doubtless been sung by innumerable expatriate Australians in varying states of sobriety in many far flung corners of the world. The reason why it has proved so popular, is probably because its lyrics reflect a fundamental truth: no matter how far and how wide many Australians citizens roam, they do indeed still call Australia home. Including its courts, which many would assume will continue to be available to them to regulate their affairs, and particularly, should they separate from their expatriate Australian partner whilst overseas, the arrangements pertaining to their division of their property and the parenting of their Australian citizen children.
This case directly raises the issue of whether or not that expectation, at least insofar as it extends to children, has survived the 2002 amendments to the Family Law Act which saw the introduction of Division 4 of Part XIIIAA into the Act. Particularly it raises the question of whether this court has jurisdiction, or if it has, whether on the particular facts it should exercise it, to make parenting orders in relation to a child of two Australian citizens, which child has lived with her father in Switzerland since August 2012.
THE FACTS
Relationship history
Ms Duckworth, (“the mother”) who is the applicant mother in these proceedings, was born in 1978 in Adelaide, and is currently 35 years of age. The respondent father, Mr Jamison, (“the father”) was born in the United Kingdom in 1966 and is currently 47 years of age. He migrated with his parents to Adelaide in 1969.
The parties met when the mother took a class that Mr Jamison was teaching. She was then 14, he was 27. She was a student in his class for approximately 12 months.
When the mother was 17 years of age, the parties met each other again, and soon commenced a romantic relationship. In 1998 they started living together in a de facto relationship in Adelaide, before marrying in 2002. They were still living in Adelaide at the time of the birth of the child the subject of these proceedings, B, (“the child”) who was born in 2005.
In 2007 the parties moved to Sydney for employment reasons. They continued to live there until June 2010, when the father accepted an offer of two years employment in Western Asia. The family moved to Western Asia in that month pursuant to a two year employment contract. The child attended C School.
At the conclusion of the two year contract, the parties returned to Sydney in 2012. Either shortly before or after the parties returned to Australia, the father was offered employment in Switzerland, commencing July/August 2012. Because at the time the mother was studying, she and the father agreed that he would move to Switzerland with the child in August 2012, and she would remain in Sydney. She says that it was agreed that she would travel to Switzerland in between semesters, or alternatively the child would travel to visit her in Australia.
Pursuant to this arrangement the mother travelled to Switzerland in November 2012, however in light of events which thereafter occurred, on 17 December 2012 she informed the father that they were separating. The mother returned to Sydney in early 2013, and shortly thereafter relocated to Townsville to live with her parents. The child remained – and has thereafter remained – living with her father in Switzerland.
Although she has maintained regular telephone and Skype communication with the child, the mother’s efforts to negotiate spending time face-to-face with the child did not bear any fruit until December 2013, when the mother travelled to Switzerland and for the first time since the parties’ separation, spent time with her daughter.
Therefore, apart from some weeks in the middle of 2012 during the hiatus between the father concluding his Western Asian employment and commencing his new employment in Switzerland, the child has not lived in Australia since 2010, but rather has lived initially, for about two years in Western Asia, and thereafter, in Switzerland. Unsurprisingly, in the light of that, ultimately at the hearing of this matter, the mother conceded that the child was not habitually resident in Australia, but was habitually resident in Switzerland.
History of these proceedings
On 20 September 2013, the mother commenced these proceedings. She sought final orders dealing with parenting matters, and effecting a division of the property of the parties. Amongst the interim orders that she sought was that the child reside with the mother in Australia and be returned to her care within 30 days of the interim orders being made, as well as interim spouse maintenance.
The father filed a Response on 19 November 2013. In that he sought both parenting and property orders, on both a final and interim basis. He did not object to the jurisdiction of this court, or foreshadow any argument that the court should not exercise any jurisdiction that it may have.
The matter first came before me in a duty list on 19 November 2013. The mother then pressed her parenting orders, however the court raised with the parties whether or not it had jurisdiction, given that the child appeared to be habitually resident in Switzerland. The solicitor who then appeared for the father indicated that counsel’s advice was needed. It was plain that the question of jurisdiction was not ready to be argued on that occasion and was therefore adjourned.
The jurisdiction issue ultimately came for hearing before me as a preliminary matter in February 2014, at the conclusion of which leave to deliver further written submissions was given.
In that hearing the mother said that her application for parenting orders was validly instituted under the Family Law Act s 69E. Further, as ultimately put, the mother relied upon s 111CD(1)(c)(v) of the Family Law Act and argued that, although the child was habitually resident in Switzerland, because this court is exercising jurisdiction in extant property division and spouse maintenance proceedings between the parties, it therefore also may exercise jurisdiction to make the parenting orders sought. In so arguing, she further said that all of the preconditions in s 111CD(3) for the exercise of jurisdiction were met. On the other hand the father argued that the court was without jurisdiction, and further contended that the necessary pre-conditions for the exercise of any jurisdiction that the court may have were not established.
Against that background it is convenient therefore to initially discuss the relevant statutory provisions, and then to consider whether or not the court has jurisdiction, and if it does, whether it should exercise it.
APPLICABLE STATUTORY PROVISIONS
The necessary factual preconditions for a party to be able to institute proceedings seeking parenting orders under the Family Law Act are contained in s 69E. Subsection (1) of that provision provides as follows:
69E(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection(2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
However in 2002, Division 4 of Part XIIIAA of the Family Law Act was inserted. That Division was intended to give effect to Australia’s treaty obligations[1] under what is commonly referred to as the 1996 Hague Child Protection Convention.[2]
[1]As outlined in the Revised Explanatory Memorandum, Family Law Amendment (Child Protection Convention) Bill 2002 (Cth):
21. Item 25 creates a new Division 4 (International Protection of Children) in Part XIIIAA of the Act to implement the Child Protection Convention.
[2]Its long title is “Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children” and was concluded on 19 October 1996. In these reasons I shall refer to it as “the 1996 Convention.”
Section 111CD, which is in Division 4 of Part XIIIAA, relevantly provides as follows:
(1) The Court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
…
(c) A child who is present in a Convention country, if:
…
(v) the child is habitually resident in a Convention country and the Court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or
…
…
(3) A Court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth protection measure relating to a child if:
(a) One or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and
(b) One or both of the parents have parental responsibility for the child; and
(c) The jurisdiction of the Court to take the measure as accepted by the parents and each other person with parental responsibility for the child; and
(d) The exercise of jurisdiction to take the measure is in the best interests of the child; and
(e) The proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.
I will consider the interaction of s69E and s111CD in due course.
THE MOTHER’S ARGUMENT
Overview
It is clear that the pre-conditions in s69E for the institution of proceedings in relation to the child are met here: the child is an Australian citizen, both her parents are Australian citizens, and the mother is now ordinarily resident in Australia. Therefore it is not s69E which is the centre of the controversy, but rather s111CD(1) and (3). As to those provisions, whilst conceding that the child is ordinarily resident in Switzerland, the mother says that nonetheless because her Application also seeks the division of the property of the parties to the marriage, and spouse maintenance, this court may exercise jurisdiction to make parenting orders in relation to the child. I will deal with the individual aspects of her argument in the order that they arise from a consideration of ss111CD(1)(c)(v) and (3).
The mother is seeking a Commonwealth Personal Protection Measure [3]
[3]This criterion is derived from Family Law Act s111CD(1).
“Commonwealth personal protection measure” is defined in the Family Law Act in s 111CA(1) as follows:
Commonwealth personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child.
Ms De Vere, who appeared as counsel for the father, did not argue that the mother was not seeking a Commonwealth personal protection measure by seeking parenting orders including, for instance, who should have parental responsibility for the child, and with whom she should live. In my view that tacit concession was correct. Although the notion of “protection” of the person of a child might sound inapt in the context of questions such as parental responsibility and residence of the child, given that the definition of that term in the Family Law Act specifically refers to the 1996 Convention, then it is plainly permissible to have regard to its provisions.[4]
[4]See paras 42 and 43.
By Article 1, the objects of the 1996 Convention are, amongst other things, “to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child.”
Whilst the phrase “take measures” is not defined in the 1996 Convention, Article 3 provides particular instances of what those measures may comprise, including “the attribution, exercise, termination or restriction of parental responsibility”[5] and “rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence…”[6] and guardianship.[7]
[5]Article 3(a).
[6]Article 3(b).
[7]Article 3(c).
It is therefore plain that the parenting orders that the mother is seeking are Commonwealth personal protection measures.[8]
[8]See also Bunyon & Lewis (No3) [2013] FamCA 888 at [76], and clause 28 in the Revised Explanatory Memorandum.
The child is present in a Convention country [9]
[9]This criterion is derived from Family Law Act s111CD(1)(c).
It was common ground at the hearing that Switzerland is a convention country, in which the child is presently residing, and has so resided since August 2012.
The child is habitually resident in Switzerland [10]
[10]This criterion is derived from Family Law Act s111CD(1)(c)(v).
Ultimately it was conceded by Ms Mayes, counsel for the mother, that the child was habitually resident in Switzerland. In my view that concession was correct. Whilst the phrase “habitually resident” is not defined either in the Family Law Act or the 1996 Convention, it is a term which is commonly used, including in the 1980 Hague Convention on the Civil Aspects of International Child Abduction.[11]
[11]I will refer to this as “the 1980 Convention.”
There have been a number of cases dealing with the 1980 Convention, but relatively few cases about the 1996 Convention. Whilst one might think that the phrase has the same meaning in relation to topically related international conventions, that is not necessarily so.
In Bunyon & Lewis (No.3) (ibid), Bennett J had to consider the meaning of the phrase “habitual residence” for the purposes of s 111CD. At [177] her Honour set out, by reference to the High Court decision of LK v Director General, Department of Human Services (2009) 237 CLR 582 and the Revised Draft Handbook to the 1996 Convention, the relevant history and authorities as to the meaning of that term in the 1980 Convention, and the 1996 Convention. Her Honour concluded at [189] that whilst the factual matters which may properly be had regard to under the 1996 and 1980 Conventions will be similar, “the weight to be attributed to the different constituent parts of the evidence can be different depending on the purpose for which habitual residence is to be established.” Whilst it is unnecessary to determine that in this case, her Honour’s approach seems logical and correct.
What is clear, is that whether or not a person or child is habitually resident in a particular State is a question of fact, based upon the individual considerations that the individual case throws forward.[12]
[12] LK v Director-General, Department of Community Services (2009) 237 CLR 582, [21]-[22]; Revised Draft Practical Handbook on the Operation of the 1996 Hague Convention drawn up by the Permanent Bureau for the Special Commission of June 2011, [13.74]; Michael Nicholls QC, ‘Australia and the 1996 Hague Child Protection Convention’ (2013) 3 Family Law Review 123, 127; Nigel Lowe and Michael Nicholls QC, The 1996 Hague Convention on the Protection of Children (Jordan Publishing, 1st ed, October 2012), [3.7].
Here the father asserts that he has an indefinite (albeit not necessarily permanent) residence in Switzerland, and plainly on a day to day basis the child lives there, and has done so since 2012. She also goes to school there, engages in extracurricular activities there, has most of her friends there, and appears to have generally settled into life in Switzerland. I am satisfied that she is habitually resident there.
The Family Court is exercising jurisdiction in proceedings concerning the divorce or separation of the parties [13]
The relevant language of the Family Law Act and the 1996 Convention
[13]This criterion is derived from Family Law Act s111CD(1)(c)(v).
The phrase “exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage” is not defined in the Family Law Act. It appears to have its genesis in Article 10 of the 1996 Convention, which provides as follows:
(1)Without prejudice to Articles 5 to 9, the authorities of a Contracting State exercising jurisdiction to decide upon an application for divorce or legal separation of the parents of a child habitually resident in another Contracting State, or for annulment of their marriage, may, if the law of their State so provides, take measures directed to the protection of the person or property of such child if:
(a)at the time of commencement of the proceedings, one of his or her parents habitually resides in that State and one of them has parental responsibility in relation to the child, and
(b)the jurisdiction of these authorities to take such measures has been accepted by the parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child.
(2)The jurisdiction provided for by paragraph 1 to take measures for the protection of the child ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reasons.
It will be appreciated that there is a slight difference in wording between s111CD(1)(c)(v) of the Family Law Act on the one hand, and the 1996 Convention on the other. Specifically the Family Law Act uses the phrase “exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage”, whereas Article 10 uses the phrase “exercising jurisdiction to decide upon an application for divorce or legal separation of the parents .. or for annulment of their marriage…” (emphasis added).
The s111CD(1)(c)(v) phraseology is not restricted to s 111CD, but is also used in different contexts in s 111CF(2)(v), s 111CI(1)(v), s 111CK(1)(vi) and s 111CM(2)(b)(v). Importantly, the phrasing is used both to describe not only proceedings in Australian courts, but also in competent authorities of other Convention countries.
Further, whereas the above provisions refer to “proceedings concerning” divorce separation or annulment, slightly different phrasing is used in other provisions of related subsections of the Family Law Act. Thus for instance as has been seen, in s 111CD(3)(e) the phrasing that is used is “proceedings on the application for divorce, separation or annulment.” The use of that phrasing is not unique to that provision, but appears in other sections within Part XIIIA, again both in relation to such proceedings in Australian courts and in competent authorities in other Convention countries.
Where it appears, that alternative phrasing appears to be directed towards capturing the concept referred to in Article 10(2) of the 1996 Convention. However the language which is used in sub-Article (2) is in fact identical to that used in a sub-Article (1), namely “application for divorce, legal separation … or annulment…”
From that, it seems reasonable to infer that the different phrasing within Part XIIIAA is simply a drafting anomaly, and is not intended to convey any different meaning, and further, that in both respects, it is intended to capture the concepts referred to in Article 10.
The issue – what does “separation” mean in s111CD(1)(c)(v)?
The precise issue for my determination here is whether the orders which the mother seeks, dividing the property of the parties to the marriage, and for interim spouse maintenance, are “proceedings concerning the divorce or separation” of the parties. (Plainly they are not proceedings concerning the annulment of their marriage).
There are two competing potential interpretations of those words in s111CD(1)(c)(v). The first is that they relate to any other cause arising out of the marriage or relationship, so that the reference to “proceedings concerning the divorce or separation … or the annulment …” where used in the Family Law Act is intended to be descriptive, in a broad sense, of the sorts of proceedings which, amongst the various Convention States, or prospective Convention States, can ensue from relationship breakdown. The second is that it is only actual divorce, separation or annulment proceedings which need to be on foot. That second construction would seek to restrict the proceedings that are described to the formal, legal means by which the marriage or a relationship is brought to an end, but not encompassing the associated or incidental proceedings which might arise as part of the judicial termination of the relationship. However to so state the second alternative immediately highlights the difficulty in identifying, in Australian family law terms, what would be a “proceeding concerning separation” other than a division of property. Perhaps it could be a declaration under Family Law Act s 90RD(2) as to a de facto relationship having ended at a certain time, but that would be a relatively unusual proceeding.
Relevant principles of interpretation
The relevant principles applicable to statutory interpretation in Australia are well settled. In Project Blue Sky Inc. v Australian Broadcasting Authority[14] McHugh, Gummow, Kirby and Hayne JJ discussed the legal meaning of a statute as follows:
Ordinarily… the legal meaning … will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with literal or grammatical meaning.[15]
[14](1998) 194 CLR 355 at [78].
[15]See also Zheng v Cai (2009) 239 CLR 446 and Lacey v Attorney-General (Qld) (2011) 242 CLR 573.
Whilst it is clear that whilst the primary task of a court construing Australian law giving effect to international treaty obligations is to enquire what the Act provides, rather than what the treaty it relates to provides,[16] in cases where domestic statutes specifically refer to or adopt international instruments:
The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much an international instrument Australian law requires to be implemented… The subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires.[17]
[16]See Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243 per French CJ at [11] and Heydon J at [263].
[17]NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52 at [61] per Callinan, Heydon and Crennan JJ.
In Herzfeld, Prince & Tully Interpretation and Use of Legal Sources[18] at 25.2.510 the learned authors say (footnotes omitted):
In cases of ambiguity, Australian courts will favour a construction of Commonwealth or State legislation which accords with Australia’s obligation under a treaty. A number of tests have been proposed in this respect. First, if the language of the legislation is susceptible of a construction which is consistent with the terms of an international instrument and the obligations which it imposes on Australia, then that construction should prevail. Second, it is an accepted canon of construction that Commonwealth and State legislation is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with established rules of international law. Ambiguity has been described in this context as “reasonably capable of more than one meaning.” If there is no relevant ambiguity in the legislation under consideration then there will be no occasion for resort to the international obligations contained within a treaty.”
If a statute transposes the text or a provision of a treaty into legislation so as to enact it as part of national law, the prima facie legislative intention is that the transposed text should bear the same meaning in the statute as it bears in the treaty. To give it that meaning, the rules applicable to treaty interpretation must be applied to the transposed text and the rules generally applicable to statutory interpretation give way. Where legislation purports to give effect to a treaty, Australian courts may look at the treaty as an aid to interpretation in order to resolve any legislative ambiguity. However, a treaty cannot qualify or modify the meaning of legislative words or expressions which are otherwise clear.
[18] Lawbook 2013.
Australia is also a party to the Vienna Convention on the Law of Treaties. Section 3 of that Convention, provides some Articles in relation to the interpretation of treaties. The text of Article 31 and 32 are set out as follows:
31. General rule of interpretation
1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2.The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a)any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b)any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3.There shall be taken into account, together with the context:
(a)any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b)any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c)any relevant rules of international law applicable in the relations between the parties.
4.A special meaning shall be given to a term if it is established that the parties so intended.
32. Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
There are at least two potential sources of permissible assistance in construing the 1996 Convention. The first is an Explanatory Report in relation to the 1996 Convention by Paul Lagarde commonly known as “The Lagarde Report”. It was published in Paris on 15 January 1997, and provides an extensive commentary in relation to each and every Article within the 1996 convention.
The second potential source of permissible extrinsic assistance is the “Revised Draft Practical Handbook on the Operation of the Hague Convention of 19 October 1996…” published by the Permanent Bureau of The Hague in May 2011. In broad terms, it provides conceptual commentary on the practical operation of the 1996 Convention, together with illustrations as to its application in specific factual situations.
What does “legal separation” mean in Article 10?
One of the primary objectives of the 1996 Convention as established by Article 5 is that “the judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s personal property.” Subsequent Articles deal with exceptions or other instances of jurisdiction residing with the authorities in a Contracting State which is not the habitual residence of the child. It is within that context that Article 10 appears.
The term “legal separation” is not defined in the 1996 Convention, nor are either of the other two concepts of “divorce” or “annulment” defined. Some limited assistance on the meaning of Article 10 is able to be gleaned from the Lagarde Report where, at para 61, under the heading “Article 10 (the divorce court)” there appears:
61. The Convention of 5 October 1961 had provided the possibility for a Contracting State to make a reservation maintaining the jurisdiction of its authorities called upon to decide on an application for divorce, legal separation or annulment of the marriage of the parents of a minor, in order to take measures of protection for the minor’s person or property (Art 15). The withdrawal of this reservation by the majority of the States which had taken it has had the consequence that the divorce court no longer has the jurisdiction to take measures of protection for the child, unless it coincides with one of the fora provided for in the Convention of 5 October 1961. The Special Commission had accepted this result and had envisaged jurisdiction on the part of the divorce court to take measures of protection for the child only on a subsidiary basis, within the limited framework of Articles 8 and 9. At the time of the Diplomatic Conference, the Member States of the European Union, which were engaged in the negotiation of a convention called ‘Brussels II’ intended to extend the Brussels Convention of 27 September 1968 to ‘matrimonial causes’ and providing in particular for attribution of jurisdiction to the divorce court under certain conditions to decide on the exercise of parental authority, were afraid of too great a disparity on this point between the two conventions which were being drawn up. They therefor requested and obtained the insertion in the new Hague Convention of an article giving the divorce court jurisdiction to take measures of protection for the person and the property of the minor. This is the purpose of Article 10, to which is added, in Article 52, a co-called ‘deconnection’ clause authorising one or more Contracting States to conclude agreements on matters dealt with by the Convention, in respect of children having their habitual residence in one of the States Parties to these separate agreements.
Some limited assistance can also be obtained from the Revised Draft Practical Handbook, where at p30, in the course of discussing a specific example of the potential application of Article 10 (albeit in the context of determining a child’s best interests) it provides:
Factors that the authorities in Contracting State A could take into account in coming to the conclusion that it is in the best interests of the children for them to exercise jurisdiction might include: … that organising the custody and access arrangements with the divorce proceedings is simpler and quicker than waiting for the outcome of a second set of proceedings in Contracting State B, the State of their habitual residence.
Plainly that contemplates the practical opportunity in those proceedings in Contracting State A for there to be parenting orders made.
It appears as though some overseas jurisdictions use the phrase “divorce, legal separation and annulment” to describe exhaustively the alternatives by which a marriage or like relationship may be either terminated, or practically brought to an end.[19] In those countries or States, the meaning of the terms “divorce” and “annulment” are identical to the meaning of those terms as used in Australia, however the notion of “legal separation” in those countries does not appear to have any Australian equivalent. In the jurisdictions that employ such a concept, “legal separation” is a judicially effected separation between spouses, but one which does not end the marriage (or civil union, in some instances). If legally separated, normally both spouses are prohibited from re-marrying or entering into a domestic partnership with another person. A legal separation is commonly resorted to by couples that do not want to get divorced, but want to live apart and finally resolve the property and parenting issues that arise from separation. It is said that couples sometimes prefer legal separation rather than divorce for religious reasons. It is also used in at least some parts of the United States as a means of dealing with property and parenting matters where divorce proceedings cannot be commenced where the requisite period of residence in the State is not met.[20]
[19]For instance, in England pursuant to the Matrimonial Causes Act 1973.
[20]For instance, in California.
What seems clear however, irrespective of which of those three concepts is being considered in those jurisdictions, is that it is not the acts or decrees of divorce, legal separation or annulment alone which are intended to be encompassed by such terms, but rather the overall process by which the court addresses all issues arising from separation, including the division of the parties’ property, parenting issues and any other thing associated with or incidental to the divorce, annulment or legal separation.
Although I have been unable to find, whether with the assistance of counsel or by my own researches, any material from which any real clarity as to the intended meaning of the phrase “exercising jurisdiction to decide upon an application for divorce or legal separation of the parents .. or for annulment of their marriage…” can be distilled, upon balance, I conclude that it likely that it was the total processes associated with curial resolution of the consequences of the termination of the domestic relationship that were intended to be captured by Article 10. I so conclude because firstly, such an interpretation would better achieve the objects of the 1996 Convention, and secondly, because of the relevant part of the Lagarde Report recited above, and particularly the reference to the non-specific notion of “the Divorce Court,” would support a broad meaning. Simply, it makes more sense for a court seized of any aspect of proceedings arising from the conclusion of the parties’ relationship, to also potentially exercise jurisdiction for matters relating to their children as well, rather than restricting it only to a court terminating the formal, technical legal relationship between them.
Accordingly, in my view, the words “legal separation” where they appear in Article 10 encompass not only the process by which a formal judicial order for legal separation is made, but also the attendant and ancillary orders which may be associated with, or arise in consequence of, that exercise of jurisdiction.
Does “separation” in s111CD(1)(c)(v) mean “legal separation” as used in Article 10?
As discussed above, Australian Family Law does not contain any concept akin to legal separation of the kind recognised in some other jurisdictions. It is therefore not surprising that in s111CD, the phrase “legal separation” does not appear.[21] However the use of the word “separation” in legislation which was plainly and advertently intending to give effect to Australia’s obligations under the 1996 Convention, is problematic. There does not appear to be in any of the extrinsic materials to which it is permissible to have regard in interpreting s111CD, any express recognition of the fact that the then proposed amendment used the word “separation” as distinct from “legal separation”. However if “legal separation” as used in Article 10 of the 1996 Convention was intended to capture the notion of formal proceedings concluding property and parenting matters between parties who nonetheless remained married, unless “separation” is construed as having that meaning, then s111CD, and indeed the other provisions in Division 4 which use the word “separation” may potentially go beyond enacting Australia’s obligations under the 1996 Convention, or alternatively, not achieve or precisely replicate Australia’s obligations under that Convention either.
[21]Although that explanation does not carry forward with the same weight to s111CF(2)(b)(v).
On the other hand, if “separation” were given the meaning of the term “legal separation” in the 1996 Convention, then the effect of Division 4 may be to restrict its operations to married or civil union couples, as distinct from de facto couples, and hence see proceedings in relation to the children of de facto couples potentially governed by a quite different statutory regime. There is nothing in the extrinsic material which would suggest that was the intention of parliament in enacting Division 4.
Indeed little assistance can be derived from the extrinsic material on this issue at all. The closest that it comes to assisting in the task of interpretation is in clause 49 of the Revised Explanatory Memorandum to the Bill which relevantly provides:
Subsection 111CD(3) supplements paragraphs 111CD(1)(b)(vi) and 111CD(1)(c)(v) in their implementation of Article 10 of the Child Protection Convention in relation to the jurisdiction of a court hearing divorce proceedings to take a Commonwealth Personal Protection Measure for a child.
On one view, that lends some support to a broad compass of proceedings being within the purview of s111CD(1)(c)(v).
Upon balance, it is my view that the phrase “proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage” was intended to, and does, capture all proceedings of a matrimonial character between married spouses or de facto partners, arising out of the termination of their relationship. I so conclude because:
·The 1996 Convention was intended to potentially have broad application to a wide range of legal systems, concepts and doctrines, including common law and civil law systems, and therefore broad concepts were likely to be employed both in its Articles, and therefore necessarily in Australian domestic legislation giving effect to it;
·Many of the actual or prospective Convention States have an established usage of the terms “divorce” “legal separation” and “annulment” which, when used conjointly, are intended to describe all of the means by which a marriage or like relationship can be brought to an end, and when deploying the terms in one phrase, intend to describe the full panoply of proceedings associated with the termination of marriage, civil union or a de facto relationship by whatever means;
·The terms as used in Division 4 of Part XIIIAA the Family Law Act are intended to apply not only to Australian Family Law Act proceedings, but also to proceedings in other contracting States, which may employ quite different concepts and processes in relation to the termination of marriage or like relationships.
Conclusion
I therefore conclude that the extant property division proceedings and spouse maintenance application are “proceedings concerning the divorce or separation” of the child’s parents, and therefore, in this case, that particular requirement of s 111CD(1)(c)(v) is met.
Mother habitually resident in Australia when proceedings commenced [22]
[22]This criterion is derived from Family Law Act s111CD(3)(a).
This was conceded by the father. The mother had only travelled to Switzerland to spend time with the child during her semester holidays at the end of 2012. Whilst some aspects of the father’s material would support the suggestion that at an earlier stage the mother had intended to move to live in Switzerland with the father, plainly after the parties separated in December 2012, that no longer remained the mother’s intention, and she had not lived in Switzerland for nine months by the time these proceedings commenced. She was at that time habitually resident in Australia.
One or both of the parents have parental responsibility for the child [23]
[23]This criterion is derived from Family Law Act s111CD(3)(b).
Again this was not a matter in dispute. Plainly the father has parental responsibility for the child, either under Swiss law, or under Australian law, or both. The mother also contends that under the Family Law Act she has parental responsibility for the child pursuant to s 111CS(5)(a).
Jurisdiction of this court to take the measure is accepted by the parents [24]
The issue – has the father accepted jurisdiction?
[24]This criterion is derived from Family Law Act s111CD(3)(c).
This is a matter of some controversy. It will be recalled that by his Response to Initiating Application filed 19 November 2013, the father sought parenting orders, both on a final and an interim basis. However it was only after the first return date of the mother’s Application in a Case, during which questions of jurisdiction were raised by the court, that the father changed his position and disputed jurisdiction (although he has never amended his Response).
Ms Mayes, counsel for the mother, argued that by so acting, the father had accepted jurisdiction, which acceptance was either irrevocable, or alternatively, was a step which, even if it be revocable, could not be undone simply by counsel’s submission. I will in due course consider each of those arguments individually. However in my view, to understand the notions of “jurisdiction” and “accepted” it is useful to consider precisely what s111CD does, and what its inter-relationship with s69E is.
How does s111CD inter-relate with s69E?
The first question is what is the effect of s111CD on proceedings otherwise validly instituted under s69E. Amongst the provisions in Part XIIIAA Division 4 is s111CB(1) which provides:
This Division has effect despite the rest of this Act, except s 69ZK and 111B and the Regulations made for the purposes of s 111B.
The meaning of the phrase “has effect” is not further spelt out. It does not seem to be consistent with an intention to wholly exclude the operation of the balance of the Act, but rather to be intended to mean that insofar as there may be inconsistency between Division 4 and other provisions in the Act, the Division prevails.
Support for this view is contained in the relevant clause of the Revised Explanatory Memorandum as follows:
Section 111CB – Relationship between this Division and other provisions
41.Subsection 111CB(1) provides that Division 4 has effect despite any other provision in the Act. In order to ratify the Convention, Australian law must be adjusted so that the conflicts of law rules currently applied by courts under the Act conform to the provisions set out in the Child Protection Convention. Thus the effect of subsection 111CB(1) is that, to the extent of any inconsistency, the provisions in Division 4 prevail over provisions elsewhere in the Act such as subsection 31(2) (jurisdiction of the Family Court in relations to persons and things outside Australia), section 63E (registration of parenting plans), section 65D (making of parenting orders), section 67ZC (making of child welfare orders) and section 69E (child or parent to be present in Australia).
The reference to “conflicts of law rules” squarely raises a second question, namely whether Division 4 of Part XIIIAA determines the existence of jurisdiction, or whether it regulates the exercise of a jurisdiction which needs to otherwise arise. The answer to that is by no means clear, and the language deployed in the Division does not make the task of ascertaining its meaning an easy one.
Section 111CC deals with the application of Subdivision B of Division 4, which subdivision is headed “Jurisdiction for the person of a child.” Section 111CC provides:
This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a)a central authority or competent authority of a Convention country;
(b)a competent authority of a non-Convention country
It will be appreciated that a plain reading of that would support the notion that the issue which needs to have arisen is one of the existence of jurisdiction, rather than its exercise.[25] However in the Revised Explanatory Memorandum, the relevant clause in relation to s111CC reads as follows:
45. Section 111CC provides in effect that the new rules of jurisdiction in subdivision B apply only in the event of a conflict in jurisdiction between a court in Australia and a competent authority in another country.
[25]Some additional support for such a construction can be gleaned from the reference to s69E in s111CD(1)(e) and (f).
Further, ss111CD(1) and (3) both commence “[a] court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to …” It is curious that if s111CD was intended to confer or take away jurisdiction, that it used the phrase “may exercise”. That phrase appears to be the opposite of “may decline to exercise” which is a concept well known to the law in forum non conveniens arguments, which may occur in the context of competitions between two validly invoked jurisdictions. If the correct characterisation of Subdivision B is that it sets out statutory preconditions relating to the exercise of jurisdiction, then its provisions would therefore have nothing to say in relation to whether the court has jurisdiction, but are restricted to competitions between competing fora. In that sense, s111CD would simply be a statutory forum conveniens formula.
Such an interpretation is supported by the relevant Second Reading Speech of the then Commonwealth Attorney-General. Relevant extracts include:
Existing family law litigation across international boundaries is subject to uncertainty as to jurisdiction and unpredictability in relation to the enforcement of orders abroad. The Convention attempts to overcome these uncertainties by providing clear jurisdictional rules..
…
International Jurisdiction
Conflict in jurisdiction between Australian courts and overseas courts in children’s matters has been a long standing area of difficulty. Australian and overseas courts sometimes make conflicting parenting orders in relation to the same children. The jurisdictional rules laid down in the Child Protection Convention are designed to remove uncertainty for parents and the courts in determining the appropriate forum to hear disputes as to parental responsibility.
In my view, s111CD does not confer jurisdiction, but regulates the exercise of jurisdiction. I say that because:
·Jurisdiction of Australian Courts with respect to a child is determined by s 69E;
·Section 111CD specifically refers to the “exercise” of jurisdiction, rather than the establishment of jurisdiction;
·Section 111CB(1) does not establish Division 4 as a stand-alone code, but rather gives it effect despite anything else in the Act (with some exceptions).
Has there been submission to jurisdiction?
Many civil courts expressly provide for a party who wishes to dispute the jurisdiction of the court in question to enter a conditional appearance, subsequent to which an application setting aside the initiating process or its service ensues as the vehicle for determining the appropriate jurisdiction for the litigation. Many of those sets of rules also provide that, in the event that an application seeking to either set aside the process or its service is not made within a specified time, then the conditional appearance becomes unconditional, with the consequence that the defendant is taken to have submitted to the court’s jurisdiction. Such a submission is generally irrevocable, albeit it does not preclude a forum non conveniens argument from being thereafter raised.[26]
[26]See for instance McManus v Clouter (1980) 29 ALR 101at 111-2.
A similar regime prevails in relation to the Family Law Rules. Rule 9.03 provides as follows:
(1) A respondent seeking to object to the jurisdiction of the court:
(a) must file a Response to an Initiating Application (Family Law); and
(b) is not taken to have submitted to the jurisdiction of the court by seeking other orders in the Response to an Initiating Application (Family Law).
(2) The objection to the jurisdiction must be determined before any other orders sought in the Response to an Initiating Application (Family Law).
The Response to Initiating Application filed by the respondent did not raise any jurisdictional point.
However there is a fundamental distinction between this court and many other civil courts, and that is that unlike in many other jurisdictions, where jurisdiction is based upon valid service, under the Family Law Act, in relation to both property and parenting matters, service does not appear to be the basis for substantive jurisdiction, which is governed by s69E in relation to children, and s39 in relation to other proceedings.
In [2000] FamCA 726 at [22] Chisholm J said as follows:
Thirdly, there were references in argument to the wife having submitted to the jurisdiction of the court. I think this term has the potential to mislead, in the present context. As a technical term, as I understand the law it relates to the question whether a court has jurisdiction in personam, the common law principles being the court has jurisdiction only if the defendant has been served within the jurisdiction, or has submitted to the court’s jurisdiction. In the present case, however, there is no issue about whether the court has jurisdiction: it does, because the children are Australian citizens, and because one party is resident in Australia. The question is whether this court should exercise the jurisdiction it unquestionably has. In cases involving overseas elements, such as this case, this is a matter of discretion. The court considers a range of matters specific to the case before deciding whether it should exercise jurisdiction. There is a body of law about the relevant principles for determining whether the Australian court is a “clearly an appropriate forum”. This is a fundamentally different question from whether the court has jurisdiction. References to a party submitting to the court’s jurisdiction thus have the potential to confuse, although, of course, a parties choice of forum and actions in the course of litigation may be very relevant matters in the exercise of discretion. (footnotes omitted)
In my view, this court plainly has jurisdiction under s69E in relation to the child, and any attempt by the husband to assert otherwise would fail. However it is quite another thing to say that a submission to jurisdiction precludes the father from seeking to thereafter argue that notwithstanding its jurisdiction, the Family Court of Australia should not exercise it. That is a matter which prior to the insertion of Division 4, would have been argued by reference to the common law rules of forum non conveniens.[27] Given that, in my view, s111CD is intended to regulate the exercise of jurisdiction, then in my view the father’s submission to jurisdiction is not fatal to his present argument.
What does “accepted” mean in s111CD(3)(c)?
[27]See for instance, Chen v Tan [2012] FamCA 225.
Against that background, I turn to consider the meaning of the word “accepted” in s111CD(3)(c). Ms Mayes appeared to argue that acceptance of jurisdiction to take the measure was indistinguishable from submission to jurisdiction. However in my view submission to jurisdiction is not what s111CD(3)(c) is directed to. As has been seen, in my view s111CD(1) does not confer or remove jurisdiction, but rather regulates the exercise of jurisdiction that otherwise exists. Therefore, acceptance of the jurisdiction to take the measure is not submission to jurisdiction, but rather an acceptance that the court should exercise the undoubtedly existing jurisdiction. Were it otherwise, then the existence of jurisdiction – as distinct from its exercise – could be vetoed by a litigant. It would take very clear words for me to be persuaded that the effect of s 111CD(3)(c) is to deprive the court of jurisdiction if one of the parents does not accept it. Rather, it makes far more sense if the provision is construed as permitting the court to exercise its validly invoked jurisdiction only if the parents agree to it so exercising its jurisdiction. Whilst at first blush that might seem odd, it does not seem so against the background of the 1996 Convention, which has as its primary starting point that the jurisdiction to make parenting orders in relation to the child should be exercised by a competent authority of the Convention country which is the habitual residence of the child. The effect of s111CD(3)(c) is to give the parties the option – should they both agree – to, in effect, opt out of that default position.
Further support for this construction can be found in a consideration of other provisions within s 111CD(3). Particularly, subsection (3)(d) requires the court to, on a measure-by-measure basis, consider whether the exercise of jurisdiction is in the best interests of the child. What that provision does not say is that the court must consider whether the taking of any measure is in the child’s best interests.
Therefore, it is only in the context of a specific, identified measure, that the court’s jurisdiction to make it is accepted or not by the parties. It is conceivable that parties may accept a court’s jurisdiction to take some measures, but not others.
When and how can acceptance be intimated?
In part, perhaps because her argument did not draw a distinction between submission to jurisdiction on the one hand, and acceptance of the exercise of jurisdiction on the other, Ms Mayes contended that the father could not, by submission of counsel, refuse to accept the exercise of jurisdiction of the court to make the parenting order she sought. In my view it is quite permissible for the question of acceptance or otherwise to be made by counsel, who is the duly authorised agent of the parent. The signification by Ms De Vere that the father did not accept the otherwise of jurisdiction to take the specific measure is sufficient.
There is no reason why an acceptance of the exercise of jurisdiction by the court to take the particular protection measure should be irrevocable. Particularly because, in my view, the acceptance needs to be considered on a measure-by-measure basis, a party would need to be able to revise their position depending upon the particular measures being sought from time to time. I am therefore of the view that seeking parenting orders in his Response to Initiating Application did not foreclose the father thereafter not accepting the exercise of jurisdiction.
Conclusion
For those reasons in my view the father’s filing of a Response to Initiating Application in which both final and interim parenting orders were sought, was not an irrevocable acceptance of the exercise of jurisdiction of the Family Court to make the orders sought by the mother.
My conclusion in relation to this issue makes it unnecessary for me to consider the remaining matters which it would be incumbent upon the mother to satisfy me of, namely that the exercise of jurisdiction to take the measure is in the best interests of the child, and that the other extant proceedings are not finalised. Nonetheless I propose to make some observations in relation to those matters. As shall be seen however, the way in which the case was conducted before me would in any event have precluded me from reaching a conclusion in relation to the best interests criterion.
Is it in the child’s best interests for this court to exercise jurisdiction? [28]
[28]This criterion is derived from Family Law Act s111CD(3)(d).
Section 60CA provides that “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” Section 60CC lists numerous matters which the court must consider in determining what is in the child’s best interests. Australian lawyers are well familiar with the application of those provisions in determining where a child’s best interests lie, for the purpose of parenting orders.
Against that background it might be thought that the s 60CC considerations therefore apply in determining the question of the child’s best interests under s 111CD(3)(d), and indeed the other provisions of Division 4 which use the phrase “best interests”.[29]
[29]These being, at least, ss 111CG(1), 111CH(3), 111CI(2), 111CO(3) and 111CS(8).
However it must be remembered that s 111CA(2) provides that unless contrary intention appears, expressions used in Division 4 have the same meaning as they have in the 1996 Convention. The phrase “best interests of the child” is one of the phrases used Article 10 of the 1996 Convention. It therefore follows that, there being no contrary intention apparent on the face of Division 4, where it uses the phrase “best interests”, it must be given the same meaning as it has in Article 10. Article 10 is not circumscribed by s 60CC considerations. Therefore in determining whether to exercise jurisdiction to take a particular measure is in the best interests of the child for the purposes of s111CD(3)(d), it is not necessary under that section to have regard to s 60CC factors.
However that cannot be the end of the matter. As I have already indicated, Division 4 is not a stand-alone code. There is nothing inconsistent with, on the one hand, a court having regard to “best interests of the child” by reference to one concept or set of considerations for one purpose, and having regard to best interests of the child by reference to a different concept or criteria for another purpose. As to that, in Pascarl & Oxley (edited) [2013] FamCAFC 47, albeit in a different context, the Full Court noted that “the focus of the court should be on the application which it is considering and on the principles governing that application.”[30] Here, the application that is being made by the mother, and hence being considered by the court, is in fact her Application for specific parenting orders in relation to the child. The consideration of whether to make a particular parenting order or not is one which is governed by s 60CA. Therefore in determining whether or not to make the measure sought by the mother, in the sense of whether or not to make the particular parenting orders, it is the s 60CC factors which inform whether or not the best interests of the child are reflected in a particular order or not.
[30]At [73].
That is not the way in which the case before me was fought. Rather the parties were focussed on whether or not the exercise of the jurisdiction in a general sense was in the child’s best interests or not. In my view that is not what s111CD(3)(d) requires, because it is in terms directed towards the particular measure, rather than measures in general.
Since the case before me was not conducted on that footing, even if I had concluded that the father had accepted the jurisdiction of court to take the measures sought by the mother, it would have been necessary to re-list the matter for further hearing, to consider the specific orders sought by the mother.
Are the proceedings for divorce, separation or annulment not finalised? [31]
[31]This criterion is derived from Family Law Act s111CD(3)(e).
Although it is unnecessary to consider this criterion, it is appropriate to observe that it was common ground between the parties that the property settlement and spouse maintenance proceedings have not been finalised.
CONCLUSION
For the foregoing reasons I conclude that whilst the court does have jurisdiction to make parenting orders in relation to the child, it may not exercise that jurisdiction, because the exercise of that jurisdiction to take the particular measures sought by the mother has not been accepted by the father.
I will hear the parties as to the appropriate orders which ought flow from this determination and these reasons.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 15 May 2014.
Associate:
Date: 15 May 2014
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