GREENFIELD & CONLEY (No.2)
[2020] FCCA 827
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GREENFIELD & CONLEY (No.2) | [2020] FCCA 827 |
| Catchwords: FAMILY LAW – Parenting – US child orders – where US orders have not been registered in Australia despite efforts to do so – where father seeks wide-ranging orders in part inconsistent with US orders – Rice & Asplund hearing – definition of “court” in Family Law Regulations – where satisfied a reference to “a court” in subregulation 23(6) includes the Federal Circuit Court – where satisfied there are no significant change in circumstances that would merit a reconsideration of existing parenting orders – overseas orders directed to be registered in FCC. |
| Legislation: Family Law Act 1975 (Cth), ss.70G, 70J, 70K. Family Law Regulations 1984 (Cth), reg.23. |
| Cases cited: Rice & Asplund (1978) 6 FamLR 570 Re Halvard [2016] FamCA 1051 Re Grosvenor [2017] FamCA 366 Sigley & Sigley [2018] FamCA 3 |
| Applicant: | MR GREENFIELD |
| Respondent: | MS CONLEY |
| File Number: | DNC 314 of 2019 |
| Judgment of: | Judge Young |
| Hearing date: | 26 March 2020 |
| Date of Last Submission: | 26 March 2020 |
| Delivered at: | Darwin |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Czislowski |
| Solicitors for the Applicant: | Connolly Suthers Lawyers |
| The Respondent: | In person |
ORDERS
In relation to the child X born … 2013 (“the child”) the parent with whom the child is not with at a particular time may once a week, at any reasonable time, communicate with the child by telephone, Skype or other electronic means and the parent in whose care the child is at that time must facilitate such communication.
If either parent proposes to travel internationally with the child that parent must give the other parent a written itinerary for the proposed travel no later than 30 days before the travel.
The child’s name is to be removed from the airport watch list.
The court directs that the orders of the Court E, City A, United States of America, made on 5 February 2018, and appearing as Exhibit R2 in this proceeding, be registered in the court pursuant to subregulation 23(6) of the Family Law Regulations.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Greenfield & Conley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
DNC 314 of 2019
| MR GREENFIELD |
Applicant
And
| MS CONLEY |
Respondent
REASONS FOR JUDGMENT
This is a parenting matter concerning X, who is six years old. On 5 February 2018 a judge in the Court E in City A in the United States made orders concerning X ("the US orders"). Those orders have not been registered in Australia, despite efforts of the mother to obtain registration.
The background to the matter is set out in an earlier ex-tempore judgment of mine delivered on 27 August 2019. On that date I was satisfied that, as the parties and the child were now ordinarily resident in Australia and that the US orders did not provide for a time regime consistent with Australian school holidays, I should make time orders consistent with Australian school holiday periods but otherwise recognise the substance of the US orders.
The father has filed an amended initiating application where he seeks to substantially reproduce the US orders. However, he also seeks orders that would significantly alter the effect of the US orders. For example, he seeks an order that the child live with the mother in Darwin in the Northern Territory with a view to limiting the mother's freedom of international movement with the child that is permitted by the US orders. It is noteworthy that at the time the US orders were made the mother had indicated that she was seeking re-engagement with Employer B. She had previously been employed by Employer B in Country C. The father also sought some other relatively minor changes including provision for telephone or Skype communication with the child and provision for notice of interstate and international travel with the child.
The matter was adjourned to today to determine whether there ought to be any condition for or limitation on international travel with the child by the parties and for a Rice & Asplund (1978) 6 FamLR 570 hearing in relation to the father's application more generally.
Both issues are closely related. In relation to international travel, the US orders expressly permitted the mother to travel internationally with the child and for the father to travel internationally with the child as well during the child’s time with him. However, the child’s primary residence was to be wherever the mother was living at the time and the US orders expressly contemplated that she may relocate internationally.
The father's application for an order that the mother reside in Darwin is accordingly a proposal for a very major departure from the provisions of the US orders.
The applicant father, in my view, did not point to any significant change in circumstances that would merit such a major departure from the terms of the US orders. I formed the view that in relation to this point there was likely to be an effect, whether intended or unintended, of substantially rewriting the US orders.
The only or primary factor on which the applicant father relied as a significant change in circumstances for the purposes of the so-called rule in Rice & Asplund was that the US orders were not registered in Australia and accordingly were of no effect here. His counsel submitted that those circumstances necessitated the court making wide-ranging orders. That submission is to be seen against the background of the mother requesting registration of the US orders by a registrar of the Family Court of Australia (“Family Court”). According to correspondence tendered the registrar had been unwilling to register the US orders while proceedings were on foot in this court.
Generally speaking, beyond the necessity for crafting orders that recognise the Australian school holiday regime, there was no evidence before me of any significant change that would, in my view, necessitate a wide-ranging revision of the US orders. They were made relatively recently and they were forward-looking, recognising the historic and possible future international mobility of the parties. In my view, there is no basis in the evidence before me to interfere with that general intention.
However, as I have made some time orders, I consider that the father's request that there be some provision for telephone or Skype communication with the child is reasonable. The mother made no submission about that. I think it is appropriate that there be some provision for communication between the father, who resides in Perth, and the child when the child is resident in Darwin with his mother and between the mother and the child when the child is spending time with the father.
I propose to make an order that the parent with whom the child is not with at a particular time may telephone or Skype the child once a week at any reasonable time. I also propose to make an order that if either of the parties contemplate international travel with the child they are to provide an itinerary to the other parent in writing no later than 30 days before the proposed travel. Otherwise, I see no reason for any alteration of the US orders.
The difficulty is that unless the US orders are registered in Australia they are not enforceable. The counsel for the father submitted that the US orders were not likely to be registered in Australia. The basis of that submission was that a registrar of the Family Court had so far declined to register the US orders. However, counsel did not provide any legal authority or point to evidence, other than the fact that they have not been registered to date, to support that submission.
Counsel for the father also said that if the US orders are not registered then the question of parental responsibility remains unresolved, at least in express terms, and also international travel. I accept that if the US orders are not registered then there is no express provision about parental responsibility in Australia. However, as I pointed out to counsel for the father, in my view, in the absence of an express order a legal presumption of shared parental responsibility of the parents would obtain.
The mother submitted that, notwithstanding her lack of success in having the US orders registered to date, that this court could register the orders pursuant to Regulation 23 of the Family Law Regulations1984 (Cth). That regulation appears to provide alternative routes to registration.
Under subregulation 23(1) if the Secretary of the Attorney-General's Department receives from a prescribed overseas jurisdiction a certified copy of an overseas child order that was made in that jurisdiction, and a certificate signed by an officer of the court or by some other authority in that jurisdiction relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction, and the child and parent of the child are ordinarily resident in Australia, those orders must, under subregulation 23(1A), be registered on the Secretary sending the documents to a registrar of the Family Court, a registrar of a state family court or a registrar of a Supreme Court of a state or territory.
City A is a prescribed overseas jurisdiction pursuant to Schedule 1A of the Family Law Act.
It was not disputed that the Secretary has not received such documents. It was also not disputed that such documents have been provided to a registrar of the Family Court in Brisbane. Photocopies of those documents were provided to me and I am satisfied that, although the Secretary has not received those documents, the requirements of subregulation (1) are otherwise satisfied.
The mother submitted that subregulation 23(6) enabled this court to register the US orders in those circumstances. Subregulation 23(6) provides as follows:
Where it appears to a court that the documents referred to in subregulation (1) have been received by the court other than from the Secretary, the court may, if all other requirements of subregulation (1) are satisfied, register the order.
Counsel for the father submitted that it was not clear that the reference to "a court" under subregulation 23(6) referred to the Federal Circuit Court. I was not directed to any definition of "court" in the Family Law Regulations and found none myself. However, in the Family Law Act the definition of "court" is:
"in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act."
I am satisfied, having regard to the context of Regulation 23 and in particular subregulation 23(3), that the use of the phrase "a court" in subregulation 23(6) is not limited to a particular court or the courts referred to in subregulation 23(1A).
Subregulation 23(3) provides as follows:
Where an overseas child order has been registered in accordance with subregulation (2), the order may, on the on application of the registrar of a court or a person interested in the order (including the child who is the subject of the order), be registered concurrently in any other court having jurisdiction under the Act.
Subregulation 23(3) therefore contemplates registration of an overseas child order in any other court having jurisdiction under the Act.
I am satisfied that the reference to "a court" in subregulation 23(6) includes the Federal Circuit Court.
The mother referred to Re Halvard [2016] FamCA 1051 as authority for the power of this court to register an order made in a prescribed overseas jurisdiction. In that case Forrest J ordered the registration of orders made in the USA about a child born under a surrogacy arrangement. Re Grosvenor [2017] FamCA 366 and Sigley & Sigley [2018] FamCA 3 were factually similar Family Court decisions by Forrest J. Those cases say nothing about the power of the Federal Circuit Court to order the registration of such orders. However, there is nothing said that is inconsistent with such a power.
In Re Halvard at [31] his Honour observed that there is no list of matters to be considered in exercising the power but it is nevertheless a discretion that must be exercised judicially. I consider it is relevant to the exercise of the discretion that City A is a prescribed overseas jurisdiction for the purpose of the Family Law Act, recognising the legislature’s acceptance of that state’s jurisdiction as broadly similar to that exercised under the Family Law Act and with similar objectives. The judicial processes are similar also. I have read the decision of the City A court, made after a trial, and I am satisfied that the decision was governed by the principle, however expressed, of the best interests of the child being paramount. I am satisfied that the orders made in City A were broadly appropriate in this case.
Accordingly, I propose to direct the US orders to be registered in this court.
The effect of that is that the circumstance said to merit the reconsideration of parenting issues by the applicant father is, in substance, removed. I am not satisfied that there is any significant change in circumstances that would merit a reconsideration of the existing parenting orders, including the US orders which I propose to direct be registered. Accordingly, I propose to summarily dismiss the father's amended initiating application pursuant to the rule in Rice & Asplund.
One matter should be noted. Section 70K of the Family Law Act requires the cancellation of an overseas child order registered pursuant to s. 70G if a court proposes to make a parenting order in relation to the child concerned. In addition, if there is a registered overseas child order, s. 70J requires the court to be satisfied that there are substantial grounds for believing that the child’s welfare requires the court to exercise jurisdiction and, if it does so, it must be satisfied the welfare of the child is likely to be adversely affected if the order is not made.
In this case there is no registered overseas child order at the present moment. There is no requirement to cancel any order before making the orders I have made. Of course, it is contemplated that the US orders will be registered in future but in my view until that occurs ss. 70J and 70K have no application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 9 April 2020
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