Merrick and Wellington

[2014] FamCA 514

FAMILY COURT OF AUSTRALIA

MERRICK & WELLINGTON

[2014] FamCA 514

 FAMILY LAW – CHILD PROTECTION CONVENTION – Application for parenting orders which reflect orders made in the United Kingdom – Best interests of child – Consent order – Recognition by operation of law – Registration for enforcement – Simple and rapid procedure – Injunctive nature of parenting orders in Australia – Direct judicial communication.

1996 Child Protection Convention
Family Law Act 1975 (Cth) ss 111CD, 111CT
Family Law (Child Protection Convention) Regulations 2003

APPLICANT: Ms Merrick

RESPONDENT: Mr Wellington

FILE NUMBER: MLC 5378 of 2014

DATE DELIVERED: 14 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Fitzharris,
Brighouse Wolff

SOLICITOR FOR THE RESPONDENT: Mr Learmonth
Coyne Learmonth LLP

Orders

BY CONSENT IT IS ORDERED THAT:

1.The applicant mother and respondent father have equal shared parental responsibility* for the child A, born … 2008 (“the child”).

2.The child live with the mother.

3.The mother and father do all acts and things necessary to ensure that the child spends time and communicates with the father as follows:

a)For a period of two consecutive weeks (14 days) during the three week period that the mother shall bring the child to the United Kingdom in July, commencing July 2015 and each year thereafter and daily contact for the other week (7 days) during that period.

b)For a period of no less than two consecutive weeks (14 days) between December and February, commencing December 2014 and each year thereafter. Any such contact shall be inclusive of Christmas Eve, Christmas Day and Boxing Day on alternate years only.

c)Such other times as can be agreed between the parents and which falls during the long summer school holiday that takes place between December and February each year.

d)There shall be contact between the child and the father by way of Skype and/or some other form of electronic communication on no less than two occasions per week.

e)The time spent with the father at paragraph 3(a) above shall be facilitated by way of the mother bringing the child to the United Kingdom. The mother shall pay the costs of and incidental to her travel and accommodation and the father shall pay the costs of the child’s travel.

f)The time spent with the father at paragraph 3(b) above shall be facilitated by the father travelling to Australia and the father shall pay the costs of same.

g)The father may take the child on holiday (including abroad) during the periods set out above.

4.For the purposes of the parents meeting their respective obligations under sub-paragraphs 3(a) and (e) of this Order:

a)The mother forthwith advise the father in writing of details of her bank account which is to be used by the father to facilitate payment of the costs of air travel.

b)By not later than 1 February in each year, the mother advise the father by email of the dates of travel of herself and the child to Australia and the cost of the child’s airfare.

c)Within 4 days of compliance by the mother with paragraph 4(b) hereof, the father cause to be deposited in the mother’s bank account clear funds equivalent to the cost of the child’s travel and promptly confirm with the mother by email that the funds have been so deposited.

d)Immediately upon the mother receiving confirmation of flight details and ticketing for the child and herself, the mother provide the father with a copy of that confirmation by email.

5.The mother and father shall keep each other informed at all times of their residential address, personal email address, Skype address and personal contact telephone number and advise the other of any change within 24 hours of such change being made and, if possible, 24 hours prior to such change.

6.Unless otherwise agreed between the parents in writing, and pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the mother and father are permitted to remove the child from the Commonwealth of Australia to travel overseas as follows:-

a)The mother, for up to 40 days per annum;

b)The father, for up to the time specified in sub-paragraph 3(b) of this Order -

provided that the travelling parent provides the other parent with not less than thirty (30) days prior written notice (or other such notice period as may be agreed) of the intended trip, specifying the proposed dates and destination and provides the other parent with not less than fourteen (14) days written notice (or such other notice period as agreed) of the confirmed dates and times of travel, itinerary, return ticketing details and contact details for the child for the duration of the trip.

7.Overseas holidays be taken with the child during Western Australian gazetted school holiday periods unless otherwise agreed in writing between the mother and father.

8.The mother do all such acts and things as are necessary to ensure that the child has a current passport and to apply for a current passport not later than 9 months before the expiration date shown on the child’s passport.

9.The mother provide the father with a copy of the child’s passport (not including blank or unendorsed pages) within 7 days and of any new passport within 7 days of the new passport coming into her possession.

10.Provided that the father has complied with paragraph 6 of this Order, the mother deliver the child’s passport to him upon his arrival in Australia or so soon thereafter as the father sees the mother and in any event not later than 2 clear days before the father and the child are scheduled to depart Australia and the father return the passport to the mother promptly upon the return of the child to Australia.

11.Without limiting the operation of paragraph 1 of this Order (equal shared parental responsibility) upon the child and mother arriving in Australia:-

a)The mother provide such consents and authorities as may be required:

(i)by any school attended by the child in Australia to enable both parents to receive reports, notices and correspondence relating to the child and to permit both parents to attend special events or other school activities involving the child and to speak to the child’s teachers concerning the performance of the child at school; and

(ii)by any hospital, medical practitioner or other health care professional in Australia including counsellors, psychologists and/or psychiatrists to enable both the mother and father to receive information and reports in relation to the child’s health, welfare and treatment.

b)As soon as practicable, the mother provide to the father copies of any merit cards, awards, medical reports and other written material pertaining to the child’s academic, health and extra-curricular activities.

c)The parents consult with each other and the written consent of both parties be obtained prior to any non-urgent medical treatment including counselling being provided to the child and that each parent is at liberty to contact the treating practitioner and have discussions regarding the consultations, treatment and recommendations.

d)The mother and father will inform the other of any medical treatment the child receives and the treating doctor as soon as practicable after the child has received the treatment and advise of any medication prescribed for the child from time to time and provide the medication and appropriate instructions for its administration.

e)Each parent contact the other parent as soon as practicable to advise in the event that the child:

(i)becomes seriously ill;

(ii)is hospitalised; or

(iii)is involved in an accident, in the circumstances requiring the attention of a medical practitioner or admission to hospital.

f)That each party be at liberty to obtain all relevant medical records and consult the child’s medical practitioner(s) to obtain any information they require and a copy of a sealed copy of this Order delivered to the practitioner or proper officer of any hospital is sufficient authority for that purpose.

IT IS FURTHER ORDERED

12.I grant leave to the practitioners for the parties to appear notwithstanding that neither is entitled to practise in the Supreme Court of Victoria or has signed the Register of Practitioners kept in the High Court of Australia.

13.I relieve the parties from compliance with the Family Law Rules 2004 in order to minimise the expense to the parties of making this application and to deal with the application in a manner which is as simple and rapid as due process permits.

14.I reserve liberty to each of the parties to apply on short notice to a Judge of the Family Court of Western Australia in relation to the implementation of this Order and any party seeking to so apply should produce a copy of this Order to Ms M, court administrator, and in due course to the Associate to Justice Crisford, List Judge, or if she is not reasonably available, to Chief Judge Thackray, under cover of correspondence which describes the circumstances in which the application should be returnable urgently or accorded a special listing.

15.Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS DIRECTED

16.The correspondence passing between my Chambers and the Office of the Head of International Family Justice for England and Wales and my Associate and the practitioners for the parties remain on the court file.

17.My reasons for decision be transcribed and published to the parties, His Honour Judge Lancaster, to the Office of the Head of International Family Justice for England and Wales and to the Australian Central Authority.

IT IS NOTED

18.Paragraphs 1 to 11 of this Order reflect the child arrangements order made by his Honour Judge Lancaster in the Family Court at Lancaster on 12 May 2014 and are intended by the parties to apply immediately the child is removed from the jurisdiction of the United Kingdom for the purpose of relocating to Perth, Western Australia in the care of the mother.

19.The child arrangements order made on 12 May 2014 was registered in this court on 14 July 2014 pursuant to Regulation 12 of the Family Law (Child Protection Convention) Regulations 2003.

* Section 61B of the Family Law Act 1975 (Cth) (“the Act”) provides that “parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 65DAC of the Act provides that, where 2 or more persons share parental responsibility, they are required to make decisions about major long term issues jointly and, for that purpose, to consult with one another about the issue and make a genuine effort to come to a joint decision about the issue. “Major long term issues” are defined in Section 4 of the Act as including decisions about the child’s education, religious and cultural upbringing, health, name and changes to living arrangements that would make it significantly more difficult to spend time with a parent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merrick & Wellington 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 MELBOURNE

FILE NUMBER: MLC5378 OF 2014

Ms Merrick

Applicant

And

Mr Wellington

Respondent

REASONS FOR JUDGMENT

ex tempore

Introduction

1. This matter comes before me on the application of the mother, Ms Merrick, for orders to be made in this court which reflect the child arrangements order[1] made by his Honour Judge Lancaster sitting in the Family Court at Lancaster in the United Kingdom on 12 May 2014 in relation to the child A Wellington (“the child”) born in 2008 (“the UK Order”).

   [1] The Children and Families Act 2014 (UK) introduced “child arrangements orders”, replacing residence and contact orders. Pursuant to s 8(1) of the Children Act 1989 (UK) (as amended) a child arrangements order means an order regulating arrangements relating to with whom a child is to live, spend time or otherwise have contact and when a child is to live, spend time or otherwise have contact with any person. The amending provisions came into force on 22 April 2014.

2. The application is consented to by the child’s father, Mr Wellington.

3. The parent and the child are in the United Kingdom. The UK Order provides, inter alia, that

   “1.The mother, [Ms Merrick], shall be permitted to remove the child from the jurisdiction of the United Kingdom for the purposes of relocation to Perth, Australia.

   2.It shall be a condition of the permission granted in paragraph 1 above that the mother obtain an order from the Family Court of Australia that reflects the child arrangements order made below.”

   And there follows orders pursuant to which the father is to spend time with the child for two weeks each year in the United Kingdom, for two weeks each year in or from Australia and the communicate with the child by electronic means.

4. I set out below the procedure through which the UK Order has been registered as envisaged by the Child Protection Convention and reflected in the Order which appears at the commencement of these reasons.

Direct judicial communications

1. In June 2014 my Chambers was contacted by Ms L, Legal Secretary to the Head of the Judicial Office for International Family Justice for England and Wales with a request to facilitate the making of parenting orders in Australia to satisfy a condition precedent to the mother being able to relocate the child to Australia to reside here permanently.

2. The Office of the Head of International Family Justice (“OHIFJ”) was created in January 2005 by the Lord Chief Justice, then Lord Woolf, and the Lord Chancellor. Lady Justice Black was appointed Head of International Family Justice for England and Wales in 2013, on the retirement of the inaugural Head, Lord Justice Thorpe.  As its website states[2], the OHIFJ deals with a range of legal queries and correspondence from both internal and external sources (judges, practitioners and other officials in the field of international family law) including direct correspondence with foreign judges. It advises on legal issues related, but not limited, to international child abduction and relocation, including specific issues arising under the 1980 Hague Convention[3]. In this respect, it liaises regularly with the European Judicial Network and Hague Network judicial contacts, for the purposes of assisting in the smooth-running of complex cross-border parenting cases. It provides assistance to domestic and foreign judges and practitioners dealing with family law matters.

   [2] Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980.

3. Lady Justice Black DBE, Judge of the Court of Appeal, and the Honourable Mr Justice Andrew Moylan, Judge, High Court, Family Division, are the judges designated to the International Hague Network of Judges for England and Wales as my Chief Justice, the Honourable Chief Justice Bryant, and I are for Australia.

4. The relationship between Network Judges and their role in facilitating the making of orders such as those I now make is usefully described in the Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges published by The Hague Conference of Private International Law Permanent Bureau in 2013[4].

   [4]  type="1">

5. Parenting orders are made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

6. Section 69E of the Act provides that proceedings may be instituted under that Act only if, on the day that the application is filed, the child or a parent of the child or a party to the proceedings is present in Australia, a citizen of Australia, ordinarily resident in Australia or “it would be in accordance with a treaty or arrangement between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.”

7. In this case the application is in accordance with a private international law treaty, namely, the 1996 Convention[5].

   [5] The full title is the Convention on Jurisdiction, Applicable Law, Recognition and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996 it is also referred to as the “Child Protection Convention”.

8. When the 1996 Convention entered into force for Australia, our hitherto expansive jurisdiction[6] to make parenting orders became restricted in the terms of section 111CD of the Act. In effect and relevantly for this case, section 111CD(1)(c) provides that a court may exercise jurisdiction to make a parenting order (called “Commonwealth protection measure”) in relation to a child who is present in a convention country (as the child A is) if the child is habitually resident in Australia or a competent authority (a court) in the country of the child’s habitual residence agrees to the court assuming jurisdiction.

   [6] Section 69E provides that an application for parenting orders can be made based on the residency, citizenship or presence of the child, a parent or a party in Australia

9. Whilst the child will acquire habitual residence in Australia in the context of her permanent relocation, she is not yet habitually resident in Australia. However, I am prepared to infer that his Honour Judge Lancaster agrees to the Family Court of Australia assuming jurisdiction over the family by making the child’s relocation conditional upon this court first making orders which specifically reflect that part of his Honour’s child arrangements order which is to take effect once the child arrives here.

10. In proceedings for a parenting order, the court may make such parenting order as it thinks proper subject to the court applying (or not applying) a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility for the child.[7] Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

    [7] Family Law Act 1975 (Cth) ss 65D(1) and 61DA.

1996 Convention

1. Australia ratified the 1996 Convention on 29 April 2003 and it entered into force in Australia on 1 August 2003. It is an interesting aspect of Australia’s participation in the 1996 Convention that, for the first ten years or so, the other contracting states were countries with which Australia did not experience to any great degree the dynamics which the 1996 Convention addresses. The 1996 Convention is currently in force between Australia and 38 contracting states but proceedings either pursuant to, or in contemplation of, the 1996 Convention are a relatively recent occurrence in our family law courts[8].

   [8] Our family law courts are the Federal Circuit Court of Australia (formerly the Federal Magistrates’ Court) which is the trial court and the Family Court of Australia which is the superior court, a court with jurisdiction at first instance and the intermediate appellate court. 

1. The 1996 Convention entered into force between the United Kingdom of Great Britain and Northern Ireland and Australia on 1 November 2012.

2. Relevantly for this case, the 1996 Convention:-

   a.establishes that a parenting order made in one contracting state (such as England) and enforceable there is by operation of law recognised in another contracting state (such as Australia) (see Article 23(1));

   b.establishes that recognition under Article 23(1) may be refused pursuant to Article 23(2);

   c.establishes that a parenting order made in one contracting state (such as England) and enforceable there must, at the request of an interested party, be  declared enforceable or registered for enforcement in another contracting state (such as Australia) (see Article 26(1));

   d.establishes that a declaration of enforceability or recognition may be refused “only for one of the reasons set out in [Article 23(2)]”;

   e.provides that the court (referred to under the broader definition of ‘authority’) of the requested state (in this case Australia) is bound by the findings of fact on which the court which made the order based its jurisdiction (see Article 25);

   f.provides that, without prejudice to such review as is otherwise required under the preceding Articles, there be no review of the merits of the order (Article 27);

   g.establishes that orders made in one contracting state (in this case the United Kingdom) and declared enforceable or registered for the purpose of enforcement in another contracting state (in this case Australia) shall be enforced in the latter state as if it were an order made by the courts of that state. Enforcement takes place in accordance with the law of the requested state (in this case Australia) to the extent provided by such law, taking into consideration the best interests of the child (see Article 28);

   h.establishes common rules of jurisdiction in relation to children in cross border parenting cases (see Articles 5 to 14 inclusive) by according pre-eminence to the child’s state of habitual residence or, exceptionally, on the presence of the child in another state or where the state of habitual residence has transferred jurisdiction to another state.

3. For the sake of completeness, Article 23(2) provides that recognition may be refused:-

   a.if the jurisdiction of the court making the parenting order was not based on one of the grounds of jurisdiction in Chapter II of the Convention, namely, habitual residence of the child (Article 5), that the child is a refugee (Article 6), in cases of urgency (Article 11), provisionally but with no extra territorial effect (Article 12); where the state of habitual residence of the child requests that another state assume jurisdiction (Article 8); the state of habitual residence of the child accepts a request from another state that the other state assume jurisdiction (Article 9) and during divorce proceedings when the child is habitually resident in another contracting state but one of the parents reside in the state, have parental responsibility for the child and the order (measure) is accepted by the parents as appropriately made by the other state and it is in the best interests of the child (Article 10);

   b.except in the case of urgency, the parenting order was made in violation of fundamental principles of procedure of the requested state (in this instance, Australia) that a child be provided with an opportunity to be heard;

   c.except where the parenting order was made in a case of urgency, on the request of any person claiming that the parenting order infringes his or her parental responsibility and that he/she was not given an opportunity to be heard;

   d.if recognition “is manifestly contrary to public policy of the requested state (in this instance Australia) taking into account the best interests of the child”;

   e.if the parenting order is incompatible with a later order (or measure) in a non-contracting state of habitual residence of the child and the later order fulfils the requirements for recognition in the requested state;

   f.if the procedure in Article 33, in relation to placement of a child in foster care, institutional care or care by kafala or an analogous institution, has not been followed –

   I do not consider that any of the above grounds for refusal apply in this case.

Implementation of the 1996 Convention within the Act and by our Regulations

1. Upon ratification, the 1996 Convention was not directly effective in Australian domestic law. Instead, it was recognised and implemented by Part XIIIAA – Division 4 – International Protection of Children of the Act. Additional provision to enable the performance of the obligations of Australia or to obtain for Australia any advantage or benefit under the 1996 Convention[9] was made by the Family Law (Child Protection Convention) Regulations 2003 (Cth) (“the regulations”).

   [9] Family Law Act 1975 (Cth) s 111CZ.

2. It is our legislation and the regulations, rather than the 1996 Convention per se, which have the force of law in Australia.

3. The 1996 Convention, as implemented into our domestic law, operates so that an order made in another convention country (here, England) is to be recognised by operation of law in Australia. The effect of recognition is that UK Order can be followed and obeyed voluntarily in Australia without the need for any court proceedings or recognition procedure.

4. However, the 1996 Convention contemplates a two stage process in which recognition by operation of law is only the first stage. The second stage is to obtain a declaration of enforceability or registration of the relevant order. Accordingly, if an order which is recognised (at stage one) is not being obeyed and needs to be enforced, it is necessary to obtain a declaration of enforceability or registration. In the United Kingdom, this second stage is called “registration for enforcement”[10].

   [10] Practice Direction 31A pursuant to the Family Procedure Rules 2010 (UK) 

5. Relevantly for this case, regulation 12(1) provides that, on receipt of a document which is a foreign measure, the Registrar may register the foreign measure by filing a copy of the document in the court and noting the fact and date of registration on the copy.

6. Section 111CA(1) of the Act defines a ‘foreign measure’ to include a foreign personal protection measure within the meaning of the 1996 Convention which is taken by a competent authority of a country which is a party to the 1996 Convention. For the purpose of the 1996 Convention, a “competent authority” includes a court and a “foreign personal protection measure” includes a parenting order (other than a paternity order, an adoption order, an order about the given or family name of a child or a child support order). Accordingly, the UK Order in this case is ‘a measure’, ‘a foreign measure’ and ‘a measure directed to the protection of a child’s person’ within the meaning of the 1996 Convention.

7. Registrar Sikiotis of the Melbourne Registry of the court has registered the UK Order pursuant to regulation 12(1).

8. Regulation 12 also provides that:-

   (2)A foreign measure so registered (a recognised foreign measure):

   (a)has the same effect as a Commonwealth measure in the same terms; and

   (b)may, on application by the Registrar of a court or a person interested in the measure (including the child who is the subject of the measure), be registered concurrently in any other court having jurisdiction under the Act.

   (3)A certificate by a court that the foreign measure has been registered in that court under this regulation is sufficient evidence to enable a concurrent registration to be made.

   (4)To enforce a recognised foreign measure, an interested person may take legal proceedings in any court that has jurisdiction.

   Note 1 Section 111CT of the Act sets out the effect of registered foreign measures.

   Note 2 For subregulation (4) — jurisdiction is conferred by section 39 of the Act.

9. A ‘Commonwealth measure’ in the context of regulation 12(2) includes a Commonwealth personal protection measure and, hence, a parenting order such as the UK Order.

10. Registrar Sikiotis has issued the certificate of registration as provided in regulation 12(3). Accordingly, the UK Order is enforceable in Australia subject only to the registration being cancelled.

11. Part XIIIAA – Division 4 – Subdivision E of the Act makes provision for recognition of foreign measures which includes the UK Order now sought to be reflected in an order made under our Act. In effect, section 111CT of the Act provides that:-

    111CT(1)This section applies to a foreign measure that is registered in a court in accordance with the regulations.

    111CT(2)      The  foreign measure:-

    (a)has the same force and effect as a parenting order; and

    (b)prevails over any earlier inconsistent parenting order in force in Australia, including an child orders made by a court in another state or overseas child orders which are registered here or any other order made, or agreement registered, under the Act.

12. The regulations make provision in Part 5 of the Regulations for registration, implementation, variation and cancellation of parenting orders (referred to under the broader definition of ‘foreign measures’) in Australia.

13. Whilst there is no suggestion that the registration of the order will be sought to be varied or cancelled, it is as well to know the grounds upon which cancellation of registration of the measure could occur and the UK Order, thereby, be rendered unenforceable in Australia. Division 2 of Part 5 of the Regulations provides:-

    Division 2 Variation or cancellation

    15     Application for variation or cancellation by court

    (1)On the application of an interested person, a court may make an order:

    (a)varying the application of a recognised foreign measure; or

    (b)cancelling the registration of a recognised foreign measure relating to a child.

    (2)      An order may be made only if:

    (a)the competent authority in the Convention country in which the foreign measure was taken did not have jurisdiction in accordance with the Child Protection Convention to take the measure; or

    (b)in taking the measure, the competent authority in the Convention country is taken to have acted contrary to fundamental principles of procedure under Australian law; or

    (c)the registration, or enforcement, of the measure in Australia is contrary to public policy, taking into account the best interests of the child concerned; or

    (d)the court has jurisdiction under the Act to take a measure of protection for the child in accordance with Division 4 of Part XIIIAA of the Act.

    (3)For paragraph (2) (b), a competent authority in a Convention country is taken to have acted contrary to fundamental principles of procedure under Australian law if it:

    (a)did not give the child, or a person with parental responsibility for the child, an opportunity to be heard before the foreign measure was taken; and

    (b)did not take the measure as a matter of urgency.

    (4)For paragraph (2) (c), it is a relevant consideration that a court, in proceedings under the Family Law (Child Abduction Convention) Regulations 1986, has previously refused to order the return of the child from Australia to his or her country of habitual residence.

    16     Matters relevant in proceedings relating to a foreign measure

    (1)This regulation applies to proceedings affecting, or involving, a foreign measure.

    (2)The court is bound by findings of fact on which the competent authority, in the Convention country in which the foreign measure was taken, based its jurisdiction.

    (3)Subject to regulation 15, the court must not review the merits of the foreign measure.

    (4)Any document relating to the foreign measure that is provided by a competent authority in a Convention country is admissible as evidence of any facts stated in the document.

    (5)An affidavit relating to the foreign measure that is made by a witness who resides outside Australia, if filed in the proceedings, is admissible as evidence even though the witness does not attend the proceedings for cross-examination.

14. It is unfortunate, in my view, that any challenge to the enforceability of a foreign order or application for variation and cancellation of registration of an order is not required to be addressed once and for all when application for registration is made. As matters currently stand, a child arrangements order made in England will be recognised as a matter of law here and can, on application, be registered for enforcement but it is only when the order is actually being enforced by one party that the other party will be impelled to allege that any of the grounds for refusal or variation or cancellation exist. In practical terms the grounds for variation, cancellation or refusal of registration are narrow. The bases for refusal to recognise or cancellation of registration are, in summary, that the original order was made with an absence of jurisdiction as recognised by the 1996 Convention (habitual residence conferring pre-eminent jurisdiction) or lack of procedural fairness or the registration or enforcement of the order is contrary to public policy. Challenges may be few and far between. However, our implementation of the provisions in the 1996 Convention in relation to refusal of recognition of foreign measures and cancellation of registration for enforcement makes enforcement amenable to last minute challenges and contests. The interests of children of families who live and parent across international borders are best served by predictability and certainty in arrangements and confidence that the courts in the jurisdiction between which the children live and spend time will work co-operatively and swiftly to implement parenting arrangements.

Is recognition and/or registration sufficient?

1. Where recognition of parenting arrangements for a child is sought between Australia and another convention country, it is difficult to imagine a situation where a parent from the country from which the foreign measure emanates would not seek that the measure be rendered enforceable in addition to being recognised.  For instance, if parenting proceedings were concluded in Australia on the basis that a parent could relocate a child abroad, a precondition to the child being able to depart Australia would very likely be that the parenting arrangements for spending time with the parent who would remain in Australia were recognised and rendered enforceable in the country to which the child is to be relocated. It would not be considered sufficient for the arrangements to be merely recognised because that would mean that the second step of obtaining a declaration of enforceability or registration would have to be undertaken before the arrangement can be enforced. That does not strike me as appropriate where the access parent or the child is likely to have to travel a long distance (which, with the exception of New Zealand, is always the case in Australia), may incur the cost of inflexible or non-refundable air fares and have very limited time in which to seek enforcement or compliance before a court which is, necessarily, in a country in which they do not reside.

2. A further complication when dealing with parenting orders from the United Kingdom is that orders from that jurisdiction appear to be drafted in more passive language that is customarily used in our courts. The absence of specific times and specific obligations around providing advance notice of dates for travel and buying air tickets could well lead to uncertainty about arrangements, ambiguity in interpretation and, at worst, diminished compliance. Our orders tend to be expressed in injunctive terms in no small measure because they are then more readily enforceable. In my view, whilst the UK Order can and has been registered for enforcement in its original form, in the event of non-compliance and absent any agreement otherwise, the parties would most likely have to initiate proceedings in the Federal Circuit Court or this Court to obtain parenting orders which are more specific.

3. For the sake of certainty, I have treated the application for orders to be made in this court reflecting the UK Order to be a request for orders to be made in Australia which are enforceable Australia in addition to the UK Order being recognised and registered as enforceable here pursuant to provisions of the 1996 Convention as it is implemented into Australian law. In doing so I am mindful that if his Honour merely intended that his order be registered for enforcement under the 1996 Convention, it would have been easy to express the order thus.

4. The Order which I have made, set out at the beginning of these reasons, contains all of the terms of the UK Order together with some machinery provisions so that it will be readily enforceable in Australia.

Procedure in this application

1. Article 26(2) of the 1996 Convention provides that each contracting state shall apply a “simple and rapid procedure” to the declaration of enforceability or registration under Article 23(2).

2. On receipt by my Chambers of the request from Ms L from the OHIFJ in London on 19 June 2014 for orders to be made in this matter, I directed that the file be opened. Exemption from payment of any filing fee was obtained on the basis that it was a transfer of a matter from another jurisdiction.

3. On 24 June 2014 my Associate sent an email to the practitioners for the parents, being Brighouse-Wolff Solicitors of Merseyside for the mother and Coyne Learmonth LLP for the father.  The practitioners were requested to make contact with my Associate so that arrangements could be made for a hearing.

4. On 26 June 2014 the practitioners were advised by email that a hearing could be convened by video conference using software, called Cisco Jabber, transmitting between the practitioners’ offices and this Registry of the Court.

5. Cisco Jabber is client software that allows external users to connect to the Court’s video conference environment using their own personal computer/laptop. The client software is available for Windows and MAC operating systems which is downloaded and installed by the users on their system provided they have the prerequisite computer requirements.  This allows for parties to proceedings to participate from home, office, remote locations and overseas. As it operates by internet connection it is more cost efficient than connection by video link which operates by telephone line (or multiple telephone line) connection. Once authorised as a participant a practitioner for each party was sent a link to download the package on to their computer. They were given a one-time specific user name and log in details for the time of the particular video conference. It is the visual equivalent of a telephone conference with multiple participants. Multiple users can be linked in to the video conference.

6. It was proposed that each party attend the office of their legal practitioner for a hearing to be conducted at 8.30 am (UK time) which is 5.30 pm Melbourne time.

7. Nothing further was heard from the practitioners in the United Kingdom and follow up correspondence was sent on 2 July 2014. As it happened the mother had decided to delay her departure from the United Kingdom.

8. On 9 July 2014 the parties were sent a draft order which repeated all of the provisions of the UK Order with the addition of machinery provisions to facilitate notification of dates for travel, payment of airfares, travel generally and to support the order for joint parental responsibility. The practitioners for the parents could have amended the draft minutes by agreement between themselves. They requested only one alteration which was effected.

9. A preliminary test of the software was conducted on 10 July 2014.

1. The parents signed the minutes of order and it was sent back to my Chambers. The father’s maternal grandmother passed away and he asked to be excused from personal attendance at the hearing, which I permitted.

2. Neither practitioner is admitted to practise in Victoria and nor have they signed the Roll of Counsel maintained by our supreme court, the High Court of Australia.  Accordingly, it was necessary that each practitioner to have permission (leave) to appear, which I granted.

3. The hearing took only 10 minutes or so on 14 July 2014. The reception from the mother’s practitioners was poor but the images and sound were clear enough for the mother and her lawyer to understand.  Reception was not of sufficient quality to support a remote hearing of any contested matter.

4. Orders were made, by consent, in the terms of minutes of order subject to the one amendment which I have mentioned.

5. I directed that all correspondence remain on the court file.

6. I was concerned to avoid a situation where time is not spent between the father and the child because the parenting/child arrangement breaks down and the parties cannot get the matter before the court quickly enough to remedy any non-compliance. An expedited hearing is difficult to obtain at the best of times. However, it is absolutely essential when the parents have to commit to the expense of long haul flights during holiday periods.

7. The mother proposes to reside in Perth, in Western Australia. As such I considered it necessary to seek some guidance from the Chief Judge of the Family Court of Western Australia about the wording of the liberty to apply on short notice and I have done so.

Findings

1. I am satisfied that the order sought is proper and that it is in the best interests of the child A that it be made.

The form of the Order

1. I note that the minute of the Order which I have made was submitted to and signed by, or on behalf of, the parties prior to the hearing before me. 

2. As indicated, the Order included machinery provisions around passports and payment of commercial air travel. Examples of the machinery provisions include paragraphs 2 and 4 to 11 (inclusive) of the Order which is set out at the beginning of these reasons. This drafting puts his Honour’s parenting arrangement order into the language of our legislation in sufficient detail for it to be readily enforceable here.

3. Pursuant to pursuant to s 62B and s 65DA(2), the particulars of the obligations that the Order creates according to Australian law and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Fact Sheet” a copy of which will be annexed to the Order.

Conclusion

1. Registration of the UK Order and the making of a further parenting order to reflect its terms has obtained for the family the maximum certainty for the implementation of the parenting arrangements order made in England.

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 July 2014.

Associate: 

Date:  17 July 2014