Greenfield & Conley (No 3)

[2021] FCCA 426

FEDERAL CIRCUIT COURT OF AUSTRALIA

Greenfield & Conley (No 3) [2021] FCCA 426

File number:

DNC 314 of 2019

Judgment of:

JUDGE YOUNG

Date of judgment:

5 March 2021

Catchwords:

FAMILY LAW – parenting – contravention application – overseas child order – whether the application alleging contravention of the overseas child order is maintainable – whether the presumption of interpretation against retrospective operation applies – whether the court is required to cancel the registration in Australia of the overseas child order – where the overseas child order was registered in the Federal Circuit Court on 16 April 2020 – where the alleged contravention of the overseas child order occurred before registration – where a Registrar made a Subdivision C parenting order subsequent to the registration of the overseas child order – where no indication the Registrar was aware the overseas child order was registered when making the Subdivision C parenting order – where no indication the Registrar was satisfied of the threshold requirements to exercise jurisdiction – court satisfied the presumption of interpretation against retrospective operation does not apply – court satisfied the contravention application is maintainable – court not satisfied it is required to cancel the registration of the overseas child order

Legislation:

Compensation to Relatives Act1897 (NSW)

Family Law Act 1975 (Cth) ss 70G, 70H, 70J, 70K, 70L

Judiciary Act 1903–1920 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 16.05

Cases cited:

Attorney-General of NSW v World Best Holdings (2005) 63 NSWLR 557

Boral Windows v Industry Research and Development Board (1998) 83 FCR 215

Lauri v Renad [1892] 3 Ch R 402

Leggett & Domroese (1996) 20 Fam LR 213

Maxwell v Murphy (1957) 96 CLR 261

Minister for Home and Territories v Smith (1924) 35 CLR 120

Simpson & Brockmann (2010) 237 FLR 458

Trnka & Trnka (1984) 10 Fam LR 213

Number of paragraphs:

29

Date of last submission:

12 February 2021

Date of hearing:

12 February 2021

Place:

Darwin

Counsel for the Applicant:

Ms Brasch QC

Solicitors for the Applicant:

Ward Keller

The Respondent:

Appearing on her own behalf

ORDERS

DNC 314 of 2019
BETWEEN:	MR GREENFIELD Applicant
AND:	MS CONLEY Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	5 MARCH 2021

THE COURT ORDERS THAT:

1.The mother’s contravention application is to proceed and is listed for hearing at 10:00am on 30 July 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Greenfield & Conley (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. This is a parenting case about X, who is seven years old. The mother has made an application alleging contravention by the father of orders made on 30 January 2018[1] by the City A Juvenile and Domestic Relations Court in the state of City A, USA (“the US orders”). Those orders were made following a contested hearing and are comprehensive and detailed, corresponding in substance and effect to final parenting orders made under the Family Law Act 1975 (Cth) (“the Act”).

   [1] I have previously referred to the order having been made on 5 February 2018. In fact the order appears to have been pronounced on 30 January 2018 and entered by the City A court on 5 February 2018.

2. The US orders were registered in this court pursuant to s 70G of the Act after a contested hearing before me on 26 March 2020 where the father, among other matters, contested the power of the court to register the orders. The orders were registered on 16 April 2020.

3. The mother’s contravention application was filed on 26 August 2020. She alleged that the father contravened the US orders on various dates between 5 February 2019 and 1 September 2019 by drinking alcohol while the child was in his care, demeaning and belittling her and failing to follow the treatment recommendations of the child’s medical practitioners.

4. As a preliminary issue the parties agreed to deal with the question of whether the mother’s application alleging contravention of the US orders by acts or omissions of the father occurring before registration of the orders in this court was maintainable.

5. The father submitted that there were two reasons why the mother’s application was not maintainable. First, it was said that on the proper interpretation of the statutory regime the legislature did not intend that acts or omissions occurring prior to registration of an overseas child order could constitute a contravention of that order for the purpose of contravention proceedings under the Act. It was said this would give the statute a “retrospective operation” and it should not be construed in such a way “… unless its language is such as plainly to require such a construction”: Lauri v Renad [1892] 3 Ch R 402 at 421 per Lindley LJ, cited by the Full Court of the Family Court in Simpson & Brockmann (2010) 237 FLR 458, [16].

6. Secondly, it was submitted that s 70K of the Act requires a court to cancel the registration of an overseas child order if it makes a Subdivision C parenting order in relation to the child. It was not in dispute that Registrar Maitland made such an order in the COVID-19 list on 14 January 2021. It was said that the court must now cancel the registration of the overseas child order, thus rendering the contravention application futile.

7. The relevant legislative provisions are set out in Part VII – Division 13 of the Act.

   Subdivision C—Registration of overseas orders

   70G  Registration of orders

   The regulations may make provision for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders.

   70H  Effect of registration—general

   An overseas child order registered in a court under section 70G has the same force and effect as if it were an order made by that court under this Part.

   Note:    Division 4 of Part XIIIAA (International protection of children) may affect the operation of a registered overseas child order.

   70J  Effect of registration on exercise of jurisdiction

   (1)A court in Australia that is aware that an overseas child order is registered under section 70G must not exercise jurisdiction in proceedings for the making of a Subdivision C parenting order in relation to the child concerned unless:

   (a)       each person:

   (i)        with whom the child is supposed to live; or

   (ii)       who is to spend time with the child; or

   (iii)      who is to have contact with the child; or

   (iv)who has rights of custody or access in relation to the child;

   under the overseas order consents to the exercise of jurisdiction by the court in the proceedings; or

   (b)the court is satisfied that there are substantial grounds for believing that the child’s welfare requires that the court exercise jurisdiction in the proceedings.

   (2)If a court exercises jurisdiction in proceedings for a Subdivision C parenting order in relation to a child who is the subject of an overseas child order, the court must not make a Subdivision C parenting order in relation to the child unless it is satisfied:

   (a)that the welfare of the child is likely to be adversely affected if the order is not made; or

   (b)that there has been such a change in the circumstances of the child since the making of the overseas child order that the Subdivision C parenting order ought to be made.

   70K  Cancellation of registration if Subdivision C parenting order made

   If a court:

   (a)is aware that an overseas child order is registered under section 70G; and

   (b)makes a Subdivision C parenting order in relation to the child concerned;

   the court must cancel the registration of the overseas child order.

   70L  Relationship between Australian orders and registered overseas child orders

   (1)       In this section:

   Australian child order means:

   (a)       a Subdivision C parenting order; or

   (b)       a State child order.

   responsible person, in relation to an Australian child order or an overseas child order, means a person:

   (a)with whom the child is supposed to live under the order; or

   (aa)whom the child is supposed to spend time with under the order; or

   (ab)whom the child is supposed to have contact with under the order; or

   (b)who is responsible for the child’s day‑to‑day care, welfare and development under the order; or

   (c)who has a right to custody of, or access to, the child under the order.

   (2)       This section applies if:

   (a)an Australian child order, whether made under this Part or another law, is in force under this Part in relation to a child; and

   (b)an overseas child order, other than an excluded order, that relates to the child but that has a different effect from the Australian order has been registered under section 70G (whether before or after the making of the Australian child order) and its registration has not been cancelled.

   (3)A responsible person under the overseas child order may apply to a court having jurisdiction under this Part for the discharge of the Australian child order.

   (4)A responsible person under the Australian child order may apply to a court having jurisdiction under this Part for the cancellation of the registration of the overseas child order.

   (5)       If an application is made under subsection (3) or (4), the court must:

   (a)if a condition specified in subsection (6) is satisfied—cancel the registration of the overseas child order; or

   (b)in any other case—discharge the Australian child order.

   (6)       For the purposes of paragraph (5)(a), the conditions are:

   (a)each responsible person under the overseas child order consents to the cancellation of the registration of the order; or

   (b)the court is satisfied that there are substantial grounds for believing that the child’s welfare will be adversely affected if the overseas child order continues to operate in relation to the child; or

   (c)the court is satisfied that there has been a change in the circumstances of the child since the overseas child order was made that makes it inappropriate for the order to continue to operate in relation to the child.

8. The respondent’s first argument turned on the correct interpretation of s 70H which provides that:

   An overseas child order registered in a court under section 70G has the same force and effect as if it were an order made by that court under this Part.

9. It was argued that this section should be interpreted to mean that an overseas child order registered in this court has the “same force and effect as if it were” an order of this court made on the day of registration. It was said that this interpretation avoided retrospective operation.

10. The father referred to case law which was said to support his argument. In Simpson & Brockmann (2010) 237 FLR 458 the Full Court of the Family Court dealt with the effect of a change in the law between the time of orders made at trial and the time of an appeal by way of rehearing. The factual difference makes the case of limited relevance but the court, at [16], cited passages from a decision of Hill J in Boral Windows v Industry Research and Development Board (1998) 83 FCR 215, including general statements of policy:

    Retrospective legislation is somewhat distasteful.  Retrospective legislation which takes away accrued rights is even more so. A construction not retrospective and a construction that does not operate in respect to vested rights will always be preferred if open.  But ultimately this court must give effect to the language which Parliament is used and the legislative purpose to which that language points. 

11. A case cited to similar general effect by the father was Maxwell v Murphy (1957) 96 CLR 261. In that case a change in law extended the time to bring an action for compensation under the Compensation to Relatives Act1897 (NSW) from one year to six years. Before the change in law the plaintiff’s action for compensation for the death of her husband was barred but following the change in law, and within six years of his death, the plaintiff brought an action. The High Court held that the amendment did not revive the plaintiff’s right to maintain proceedings.

12. Maxwell v Murphy (1957) 96 CLR 261 is important because not only is it an expression of the presumption against retrospective operation but it outlines the limit of that presumption. Dixon CJ summarised the law as follows (at 267):

    The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.

13. At 270 his Honour said:

    Perhaps there could be no more practical summary of the principle, which, as was said, emerges from the English and Canadian cases, than the following,—“unless the language used plainly manifests in express terms or by clear implication a contrary intention—(a) A statute divesting vested rights is to be construed as prospective. (b) A statute, merely procedural, is to be construed as retrospective. (c) A statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.”—Dixie v. Royal Columbian Hospital, per Sloan J.A. [citation omitted].

14. Statutory Interpretation in Australia, D Pearce, 9^th ed, at 10.3, says:

    All legislation impinges on existing rights and obligations.  Conduct that could formally be engaged in will have to be modified to fit in with the new law… It cannot therefore be said that legislation having this effect is retrospective because it is what all legislation does. Legislation only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation.

15. At 10.6 Pearce says:

    The presumption against retrospectivity only arises where so to read the legislation would impinge on a person’s accrued rights or duties.

16. At 10.8 Pearce says the rationale of the presumption against retrospective operation is stated in On the Interpretation of Statutes, P B Maxwell, 1^st ed., at 190, as follows: “Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation”. The concept of fairness directs the interpretation of legislation that has an element of retrospectivity: Attorney-General of NSW v World Best Holdings (2005) 63 NSWLR 557, [54].

17. The US orders created obligations to which the parties became subject at the time the orders were made on 30 January 2018. Those obligations were not affected by the registration in this court of the US orders. The registration, to use the language of Maxwell v Murphy (1957) 96 CLR 261, did no more than provide a remedy by “… appointing or regulating the manner in which they are to be enforced …“. No vested or accrued rights were affected.

18. The principle is illustrated in Minister for Home and Territories v Smith (1924) 35 CLR 120. In that case the Judiciary Act 1903–1920 (Cth) was amended to empower the High Court to take steps that would enable an arbitral award made by it to be enforced.  The court held that the amendment applied to permit the enforcement of awards made before the commencement of the section.  Isaacs ACJ and Starke J said the section did not alter rights; it simply invested the High Court with “a measure of original jurisdiction to ascertain and compel the observance of rights”. See the discussion of this and related cases in Pearce at 10.23.

19. In my view, the presumption of interpretation against retrospective operation does not apply to ss 70G or 70H of the Act. The provisions provide a remedy and are essentially procedural to allow a party “to ascertain and compel the observance of rights”. The registration does not produce unfairness because the obligations already bound the parties and registration did not alter those obligations in any way.

20. The second argument of the father concerns the consequences of the making of consent orders by Registrar Maitland in the COVID-19 list on 14 January 2021. Those orders were about the conditions (various COVID -19 related health precautions) applying to the child’s time with the father under existing orders made in this court on 7 February 2020 before the registration of the US orders. It was said that s 70K of the Act now requires the cancellation of the registration of an overseas child order registered under s 70G because the court is aware of the overseas child order and the Registrar made a Subdivision C parenting order. It was not in dispute that Registrar Maitland’s order was, at least in part, a Subdivision C parenting order.

21. The mother submitted that s 70L was relevant to this question although she did not make any detailed submission. In my view, s 70L does not deal with the present situation. Subsection 70L(2) states that the section applies if an Australian child order is in force under Part VII and an overseas child order, other than an excluded order, that relates to the child but that has a different effect from the Australian order has been registered under s 70G (whether before or after the making of the Australian child order) and its registration has not been cancelled.

22. The US orders do not have a different effect from the orders made in this court. The orders made by me on 7 February 2020 were intended to be consistent with the US orders (which were not yet registered). Relevantly, they were orders about the child’s time with the father during Australian school holidays. That was necessary because the US orders dealt only with US holidays. The orders of Registrar Maitland were generally about an aspect of the child’s time with the father during Australian school holidays.  The US orders do not have a different effect from any of the Australian orders.

23. The father’s application dealt with by Registrar Maitland was commenced by an application in a case. There was no substantive or initiating application on foot at that time seeking parenting orders. The only application on foot was the mother’s contravention application. The father’s application was thus commenced irregularly. The mother was unrepresented and there is nothing to indicate that Registrar Maitland received any submissions from the father’s lawyer about the consequence of making the orders, although the affidavits filed referred to the registration of the US orders. There is nothing to indicate that the Registrar was alerted to the effect of s 70K or, indeed, of any of the provisions dealing with the interrelationship between registered overseas orders and Australian orders. If that is correct, as appears to be the case, it is unfortunate and ought not to have happened. In particular, there is no indication that the Registrar’s attention was drawn to sub-s 70J(2) which states that the court must not make a Subdivision C parenting order in relation to a child unless it is satisfied:

    (a) that the welfare of the child is likely to be adversely affected if the order is not made; or

    (b)that there has been such a change in the circumstances of the child since the making of the overseas order that the Subdivision C parenting order ought to be made.

1. There is no indication that the Registrar was satisfied of the threshold requirements in subs 70J(2). She appears to have been presented with a proposed consent order and does not appear to have been invited to consider some of the complexities flowing from the making of the orders. In my view, it may be doubted that the Registrar could have been satisfied of one or both conditions without careful consideration. A consideration of whether the condition in subs 70J(2)(a) is satisfied would, in my view, require consideration of all the relevant circumstances, including all the consequences of making the order. A change in the country of residence of a child may satisfy the criterion in (b) but not necessarily: Leggett & Domroese (1996) 20 Fam LR 213, at 220. If, as the father submits, the making of the orders by the Registrar, which dealt with the narrow issue of the child’s travel in the January 2021 holiday, now requires the cancellation of the registration of the US orders then there will be no orders enforceable in Australia dealing with parental responsibility or with whom the child lives. It seems to follow that those questions would then need to be the subject of further litigation in a matter that has been the subject of bitter dispute in Australia since February 2019 and before that in the US. The father filed an initiating application on 3 July 2019 seeking, inter alia, orders that the child live with him. He later amended his application to substantially but not exactly reproduce the effect of the US orders. For example, he wished to limit the mother’s freedom of international movement with the child which is permitted by the US orders, reflecting her international career. That application was dismissed on 9 April 2020 at the same time I directed that the US orders be registered. The father opposed the registration of the US orders and, consequently, I infer that the father’s intention remains, if he can, to re-litigate these issues in Australia. In my view, sub-s 70J(2) required consideration of these factors before making a Subdivision C parenting order.    

2. The provisions enabling the registration of overseas child orders have as one of their important purposes, if not dominant purpose, the avoidance of unnecessary child litigation. Such litigation is not in a child’s best interests. The provisions are a mechanism for the recognition and enforcement of orders made in certain overseas jurisdictions where, it may be assumed, similar principles to those expressed in the Act are applied to disputes about children. I discussed the nature of the US orders in ex tempore reasons dated 27 August 2019 and 9 April 2020. I am satisfied that the US orders were made in a court exercising a similar jurisdiction to this court and in a similar manner. The processes and orders of the court reflect similar principles to those expressed in the Family Law Act 1975 (Cth), including regarding the best interests of the child as the paramount consideration. The orders were made after a contested hearing in which both parties were represented and a guardian ad litem, fulfilling a role indistinguishable from that of independent child’s lawyer, represented the child’s interests. The court made careful, detailed orders. The orders appear to be broadly appropriate. The decision of the City A court merits respect. These factors are recognised in the decision of the legislature to permit registration and enforcement in Australia of relevant orders made in City A.

3. The Full Court in Leggett & Domroese (1996) 20 Fam LR 213 considered s 68 of the Act, since repealed, and which is the precursor to s 70J. Section 68 was in similar but not identical terms to s 70J. The Court cited with approval Trnka & Trnka (1984) 10 Fam LR 213:

   …an onus has to be discharged by a party seeking to persuade the court first to exercise jurisdiction and then to make an order. The principle to be applied is that the registered overseas order is to be respected and the court is to refrain from entertaining proceedings unless it is satisfied, prima facie, that there are substantial grounds for the belief that the welfare of the child will be adversely affected if jurisdiction is not exercised.   

4. There is, as I have observed, no indication that the Registrar was alerted to these matters or invited to engage in such a process.  Apart from the fact that the overseas child order was referred to in the affidavit material there is no indication in the Registrar’s order or elsewhere that she was satisfied of the matters in sub-s 70J(2) which constitute a “threshold or prima facie test for the exercise of jurisdiction”: Trnka & Trnka (1984) 10 Fam LR 213 cited in Leggett & Domroese (1996) 20 Fam LR 213 at 222. In my view, this arguably points to jurisdictional error, although I am not exercising a power of rehearing or judicial review. Counsel who appeared for the father before the Registrar was obliged, particularly where her opponent was unrepresented, to alert the Registrar to this issue. There is no indication in the order or elsewhere that this happened.

5. The obligation in s 70K to cancel the registration of the overseas child order when a court makes a Subdivision C parenting order arises only “if a court … is aware that an overseas child order is registered …”. Ms Brasch, senior counsel for the father, submitted that, regardless of whether the Registrar was aware that the overseas child order was registered, once I became aware of the order made by the Registrar I must cancel the registration of the overseas child order, presumably because I now constitute the “court”. This is an unattractive submission, particularly in circumstances where there is no indication that the Registrar was aware of the registration and there is no indication that the jurisdictional threshold in sub-s 70J (2) was addressed. In my view, the requirement that a court be “aware” of the registration of the overseas child order before it makes a Subdivision C parenting order, resulting in cancellation of the registration, is an important protective mechanism to ensure proper consideration of the child’s best interests pursuant to s 70J and to avoid the cancellation of the registration as a result of inadvertence. The use of the word “aware” is apt to describe the state of mind of an individual, rather than an abstract entity and, consistently, the word “court” in s 70K should be construed as referring to the individual judicial officer exercising jurisdiction in the proceedings who makes the Subdivision C parenting order. In circumstances, such as this, where there is no indication that the Registrar was aware that the overseas child order was registered when she made the Subdivision C parenting order and there is no evidence that she was satisfied of the matters in the jurisdictional threshold in s 70J, or that she was invited to consider them, I am not satisfied that I am now required to cancel the registration of the overseas order. I decline to do so. Accordingly, the preliminary issue is resolved in the mother’s favour. The contravention proceedings are maintainable.

6. I have also given consideration to whether I should set aside the order made by the Registrar pursuant to r 16.05(2) of the Federal Circuit Court Rules2001 (Cth). There are at least two possible bases for doing so. First, it appears arguable that the order did not reflect the intention of the court given that I am not satisfied the Registrar intended to trigger the cancellation of the registration of the US orders. Secondly, after the Registrar made orders about the child’s holiday with the father in January 2021, she made an order transferring the matter back to my docket, presumably to address the matters raised in the mother’s response to the application in a case. Arguably, her orders were interlocutory and amenable to being set aside for good reason. As they dealt only with the January 2021 holidays, they no longer serve any purpose. However, given my conclusion about the construction of s 70K it is not necessary to reach a conclusion about that.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       5 March 2021