GREENFIELD & CONLEY (No.2) - [2020] FCCA 827

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GREENFIELD & CONLEY (No.2)

Details

AGLC: Greenfield and Conley (No.2) [2020] FCCA 827
Case: [2020] FCCA 827
Decision Date: 9 April 2020

CaseChat Overview and Summary

In this matter before Judge Young of the Federal Circuit Court of Australia, the father sought various parenting orders concerning the child X, born in 2013. The dispute arose in the context of existing parenting orders made in the United States of America, which had not yet been registered in Australia despite efforts to do so. The father's proposed orders were, in part, inconsistent with these overseas orders.

The court was required to determine whether the Federal Circuit Court had jurisdiction to make parenting orders in circumstances where US orders existed but were not yet registered in Australia. A key issue was the interpretation of "a court" within subregulation 23(6) of the Family Law Regulations, and whether this encompassed the Federal Circuit Court for the purpose of registering overseas orders. The court also had to consider whether there had been a significant change in circumstances warranting a reconsideration of the existing, albeit unregistered, US parenting orders.

Judge Young found that the Federal Circuit Court was indeed a "court" for the purposes of subregulation 23(6) and was therefore empowered to direct the registration of the US orders. The court concluded that there had been no significant change in circumstances since the making of the US orders that would justify a departure from them. Consequently, the court ordered that the US orders of 5 February 2018 be registered in the Federal Circuit Court.

The court made specific orders regarding communication between the child and the non-resident parent, requiring facilitation of weekly contact via telephone, Skype, or other electronic means. It also mandated that parents provide a written itinerary 30 days prior to any international travel with the child and ordered the child's name be removed from the airport watch list. All other extant applications were dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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