Vernon & Vernon
[2025] FedCFamC2F 497
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vernon & Vernon [2025] FedCFamC2F 497
File number(s): SYC 3591 of 2024 Judgment of: JUDGE COLQUHOUN Date of judgment: 17 April 2025 Catchwords: FAMILY LAW – Parenting – jurisdiction – children reside in Country B – habitual residence Legislation: Family Law Act 1975 (Cth) Pt XIIIAA, Div 4, s 69E, 111CC, 111CD
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (1996)
Cases cited: Ahmad & Hadi [2020] FamCA 1041
Bajek & Bajek [2024] FedCFamC1F 466
Bunyon & Lewis (No 3) [2013] FamCA 888
Jasvir and Atwal [2023] FCWA 222
State Central Authority & Spring-Ernst (No 2) [2013] FamCA 906
Sun & Long [2019] FamCA 3
Yaling & Tsen (2022) 65 Fam LR 437
Division: Division 2 Family Law Number of paragraphs: 46 Date of hearing: 14 April 2025 Place: Sydney Counsel for the Applicant: Ms Reid (Direct Brief) Solicitor for the Respondent: Ms Montgomery of Farrar Gesini Dunn (as amicus curiae) ORDERS
SYC 3591 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VERNON
Applicant
AND: MS VERNON
Respondent
ORDER MADE BY:
JUDGE COLQUHOUN
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS ON A FINAL BASIS THAT:
1.The father’s application in a proceeding filed on 20 February 2025 is dismissed.
2.All outstanding applications are dismissed including the application for final orders sealed on 15 May 2024.
3.All previous parenting orders shall be discharged.
4.There be no order as to costs.
THE COURT NOTES THAT:
A.Pursuant to s 111CD(1)(e) of the Family Law Act 1975 (Cth), the Federal Circuit and Family Court of Australia (FCFCOA) should not determine the father's parenting application.
B.The father will need to file a new application if he wishes to seek orders in this Court in respect of property adjustment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COLQUHOUN:
These proceedings concern the parenting arrangements for X (“X”), currently aged 12, and Y (“Y”), currently aged 10. X and Y's parents are the applicant father Mr Vernon ("the father”) and the mother Ms Vernon ("the mother"). The father was represented by Counsel, Ms Reid. The mother filed a notice of discontinuance on 19 March 2025. Her solicitor, Ms Montgomery, appeared as amicus curiae.
There are two issues requiring determination:
(1)whether this Court has jurisdiction to determine a parenting dispute about X and Y in circumstances where they have been residing in Country B with their father throughout their lives; and
(2)whether the Court should make directions for the filing of an amended application to allow the father to seek property adjustment orders.
BACKGROUND
It is relevant to capture some of the background to this matter, including the procedural history.
The father was born in 1981 and is 43 years old. The mother was born in 1980 and is 44 years old.
In or around late 2008, the father moved to City C in Country B for his employment and the mother later joined the father in early 2009. The parties married in 2012. The family has resided in Country B since 2009.
There are two children of the relationship:
(a)X, born in 2012; and
(b)Y, born in 2015.
The parties and the children are all Australian citizens. The children were born in Country B and continue to live in Country B with the father.
The father states that he became aware of the mother’s misuse of alcohol in 2016.
The parties separated on a final basis in or around 5 November 2023.
The father commenced these proceedings on 15 May 2024.
The matter was listed for a first return date before Senior Judicial Registrar Buttriss on 12 June 2024 and orders were made by consent that the children live with the father and spend time with the mother as agreed.
The mother on various occasions has sought treatment for her alcoholism and in her affidavit filed on 2 July 2024 she deposes to living in City D for alcohol rehabilitation treatment and engaging in an “outpatient sober living program”.
On 31 October 2024 consent orders were made which provided for: joint decision-making for major long-term issues; that the children live with the father; and that the children spend time with the mother, progressing from informally supervised time to unsupervised time contingent upon alcohol testing showing a negative result.
On 14 January 2025 the single expert report by Dr E was released. The recommendations of Dr E are broadly as follows:
(a)the children live with the father;
(b)the time with the mother be supervised and the children’s views as to who the supervisor may be should be taken into account; and
(c)the mother continue with hair follicle testing every three months “until she has been abstinent from alcohol for a period of 24 – 36 months without relapse”.
On 20 February 2025 the father filed an application in a proceeding in this Court seeking orders that:
(a)he have sole parental responsibility for major long-term decisions;
(b)that the children live with him;
(c)that various orders made by consent be discharged;
(d)the mother spend time with the children as agreed by the parties provided that she complies with all alcohol-testing methods agreed; and
(e)that he permitted to travel domestically and internationally with the children.
The matter was listed before Senior Judicial Registrar Buttriss on 5 March 2025. By consent, the time with the mother was suspended until further order or written agreement between the parties. Senior Judicial Registrar Buttriss listed the matter for a hearing before a Judge on a date to be advised, noting concerns about the jurisdiction of the Court to hear the matter with particular reference to Yaling & Tsen (2022) 65 Fam LR 437 (which I address below).
On 19 March 2025 the mother filed a notice of discontinuance.
On 31 March 2025 the matter was listed for hearing before me in relation to the question of jurisdiction on 14 April 2025.
EVIDENCE AND SUBMISSIONS
The father filed a case outline document setting out the documents relied upon:
(a)Initiating application filed by Mr Vernon on 15 May 2024;
(b)Affidavit of Mr Vernon dated 20 June 2024;
(c)Interim consent orders dated 31 October 2024;
(d)Child impact report by Dr E dated 6 January 2025;
(e)Application in a proceeding filed on 20 February 2025;
(f)Affidavit of Mr Vernon filed on 20 February 2025; and
(g)Affidavit of Mr Vernon filed on 10 April 2025.
The father's submissions, further elaborated upon in oral submissions, were essentially that:
(a)Section 69E of the Family Law Act 1975 (Cth) (“the Act”) was satisfied as the mother is an Australian citizen and has spent time in Country F, Country G and Australia over the past seven to eight years. Of these countries she has the closest connection to Australia.
(b)The father had obtained advice from a senior family law solicitor in Country B which confirmed that if orders are made by this Court and are registered in Country B those orders will be recognised and given the same force as if they had been made by the court in Country B.
(c)The father is seeking leave to amend his application to include interim and final orders for property adjustment. The property of the parties is largely made up of real estate in Australia and therefore the Court will have jurisdiction in relation to property matters which will make this Court the most convenient forum for the parenting proceedings.
(d)The father concedes that the courts in Country B constitute a competent authority as referred to in s 111CC(b) of the Act but maintained that the Federal Circuit and Family Court of Australia (FCFCOA) would take precedence over the courts in Country B when considering the question of “forum conveniens”. The parties had incurred significant costs in the FCFCOA to date and it would be unfortunate for those costs to be thrown away.
(e)The father also informed the Court from the bar table that a local municipality court in Country B had recently made a restraining order against the mother protecting the father and children.
Ms Montgomery informed the Court that the mother had filed a notice of discontinuance in the proceedings because they had formed the view that the Court did not have jurisdiction to determine the parenting matter. She submitted that s 111CC of the Act had been enlivened and this meant that the Court's jurisdiction was limited by s 111CD(1)(e) of the Act, which provides that this Court can exercise jurisdiction to make parenting orders in relation to a child who is present in a non-Convention country only if the child is habitually resident in Australia and any of the paragraphs 69E(1)(a) to (e) applies to the child.
JURISDICTION
In determining whether the Court has jurisdiction to make parenting orders in relation to these children there are three questions to answer:
(1)Do the children or parents have a connection to Australia in accordance with s 69E?
(2)Is there a jurisdictional “issue under this Act” within the meaning of s 111CC?
(3)Are the children habitually resident in Australia in accordance with s 111CD(e)?
Do the children or parents have a connection to Australia in accordance with s 69E?
For proceedings in relation to parenting arrangements to be instituted in this Court there must be some connection between either the parents or the children and Australia. Sub-section 69E(b) provides that proceedings may be instituted under this Act in relation to a child only if the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day.
It is common ground that both children are Australian citizens. Accordingly, s 69E is satisfied.
However, as observed by Cohen J in Jasvir and Atwal [2023] FCWA 222 at 103 (“Jasvir”) satisfying s 69E does not resolve the question of jurisdiction:
…that is not the end of exercise, as the note to s 69E draws the reader's attention to Part XIIIAA Division 4 of the Act ("the Division"), which has effect despite the rest of the Act. Division 4 does not confer but rather regulates the exercise of jurisdiction.
It is next necessary to consider whether there is a jurisdictional “issue under this Act” which would engage Division 4 of Part XIIIAA of the Act.
Is there a jurisdictional “issue under this Act” within the meaning of s 111CC?
The broad jurisdiction conferred on Australian courts through s 69E is constrained by Division 4 of Part XIIIAA. This division implements the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (1996) (“Child Protection Convention") which came into effect in Australia on 1 August 2003.
Article 1 of the Child Protection Convention sets out the following objects:
(a)to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
(b)to determine which law is to be applied by such authorities in exercising their jurisdiction;
(c)to determine the law applicable to parental responsibility;
(d)to provide for the recognition and enforcement of such measures of protection in all Contracting States;
(e)to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.
Justice Bennett in Bunyon & Lewis (No 3) [2013] FamCA 888 at [76] confirmed that the definition of "Commonwealth personal protection measures" under the Act encompasses parenting orders in Australia:
It is clear that a Commonwealth personal protection measure, as referred to in s 111CD(1) of the Act for the implementation of the 1996 Convention includes, a parenting order as defined by s 64B(1) and (2) of the Act.
Justice Bennett described the effect of the Child Protection Convention in State Central Authority & Spring-Ernst (No 2) [2013] FamCA 906 at [44]:
This court must be satisfied of certain jurisdictional facts before it can make parenting orders in relation to a child who is not habitually resident in Australia. The jurisdictional facts differ depending on whether the country in which the child is habitually resident is a Convention country or a non-Convention country. A Convention country is a country for whom the 1996 Convention has entered into force with Australia. A non-Convention country is a country for whom the 1996 Convention has not entered into force with Australia.
It is uncontroversial that Country B is a non-Convention country. The father submitted that Country B had ratified the Convention but conceded that it was not yet in force.
Section 111CC of the Act provides that this subdivision applies only:
… if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:
(a) a central authority or competent authority of a Convention country;
(b) a competent authority of a non-Convention country.
Accordingly, before this subdivision can apply to these proceedings the Court must make a finding that there is "an issue under this Act" in relation to whether the Court has jurisdiction to take measures directed to the protection of the child "as opposed to" a competent authority in Country B. In Yaling & Tsen (2022) 65 Fam LR 437 (“Yaling”) Harper J observed at [51]:
… In Bunyon, Bennett J took the view that it was not necessary for there to be “duelling courts” or litigation in two or more jurisdictions before s 111CC applied. It was only necessary for there to exist two or more competent jurisdictions which could be used to resolve a dispute between parties in relation to the protection of the person of a child. In this sense, there existed a conflict of jurisdictions. The distinction is between two jurisdictions which have been invoked and two jurisdictions which could be invoked. The latter is sufficient to raise an “issue under the Act” as to jurisdiction. In Alfarsi, Foster J addressed a different question. He found there was no issue under the Act because there was no evidence of any jurisdictional conflict, because there was no evidence of the existence of any “competent authority” in the non-Convention country.
His Honour further stated at [54] - [55]:
… it is not necessary for there to exist competing applications or proceedings in courts or tribunals in Australia and a foreign competent authority for there to be an issue under the Act about conflict of jurisdiction enlivening the application of Subdivision B. The definition of “competent authority of a non-Convention country” also supports this conclusion. The question is opposition between a court in Australia and a competent authority, which may include, but is not limited to a court, and by reason of the wide definition of “entity” includes corporations, unincorporated and government bodies. The existence of “duelling courts” may be one way in which the requisite issue under the Act may arise and be demonstrated, but it is neither the only way or a necessary way. A corporate or government body in a foreign jurisdiction may have jurisdiction to take measures for the protection of a child, for example, exercisable by administrative action, not proceedings in a court.
Rather the fundamental question is a conflict of jurisdiction. Two jurisdictions may be relevantly in conflict in the sense they both may be invoked to take measures for the protection of a child, without being actually invoked by the initiation of court or tribunal proceedings or other available processes. This is the import of the reasoning in Bunyon and Korrapati.
Justice Harper went on to conclude at [58] that the fundamental factual question requiring resolution by way of evidence was "the existence of a foreign competent authority and the nature and extent of its jurisdiction in relation to the person of a child, over whom this Court could also exercise jurisdiction". Such evidence would usually be expert evidence: Yaling at [59] and Bajek & Bajek [2024] FedCFamC1F 466 at [15]. However, it may not always be necessary or practical for expert evidence to be obtained: Jasvir at [132] - [134]:
There was no expert evidence before the Court which directly addressed “the existence of a foreign competent authority and the nature and extent of its jurisdiction in relation to the person of a child” but the mother implicitly conceded this and the case outline for the father stated:
The Applicant does not take issue with the fact that [Country B] courts constitute a competent authority as referred to in s111CC(b) of the Act. As in the case of the FCFCOA, [Country B] Courts have jurisdiction “to take measures directed to the person of a child”. It is not in question that “there are two competent jurisdictions either of which could be invoked to resolve the current dispute between the parties” (per Bennett J in BUNYON).
There was also some evidence before the Court of an authority in Country B with jurisdiction to make parenting orders. The father filed an affidavit on 10 April 2025 annexing a letter dated 12 March 2025 he had received from a family lawyer in Country B, Ms H. This letter provided advice on whether any court orders made in Australia could be registered with the courts in Country B, so they would also apply in Country B and stated:
The Family Court in [Country B] may recognize a foreign court's ruling under the [Country B] Civil Code and the Family Code of [Country B], which provide that foreign judgments may be enforced if the foreign court's decision does not contravene [Country B] public policy. This includes rulings from foreign courts such as the Family Court of Australia.
With your case, if the Family Court of Australia issues a court order that you have the sole custody of your children, the Family Court in [Country B] may recognize such foreign judgment as it does not contravene [Country B] public policy. [Country B] Family Court would most likely consider the foreign judgment as it is in the best interests of your children who are living with you in [Country B].
In addition, while it was not in evidence, the father’s counsel advised the Court that restraining orders had recently been made for the protection of the father and children by a municipal court in City C.
In circumstances where there was no dispute that the Family Court in Country B had jurisdiction to take measures directed to the protection of the person of a child in accordance with s 111CC, I am of the view that further expert evidence is unnecessary (especially as the parties have already incurred significant costs in these proceedings). I accept that the Family Court in Country B is "a competent authority of a non-Convention country". It follows that I must find that there a jurisdictional “issue under this Act” within the meaning of s 111CC.
Are the children habitually resident in Australia in accordance with s 111CD(e)?
As s 111CD of the Act has been engaged as a result of my finding that the Family Court in Country B has jurisdiction to take measures directed to the protection of the person of a child, it is necessary now to consider s 111CD, which sets out the circumstances in which this Court may exercise jurisdiction for a Commonwealth personal protection measure. Subsection 111CD(1)(e) of the Act provides that a court may exercise jurisdiction for a Commonwealth personal protection measure in relation to a child who is present in a non-Convention country only if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
In Sun & Long [2019] FamCA 3, McClelland DCJ found that the relevant date on which he was to determine whether the child was habitually resident in Australia was the date of the hearing, and not what it might be in the future.
In considering the jurisdiction of the Court in Ahmad & Hadi [2020] FamCA 1041, Tree J made the following observation in relation to the impact of the Child Protection Convention on the Court's jurisdiction in relation to Australian citizen children at [69-70]:
I should acknowledge that there are some mildly disturbing aspects to this conclusion, not least of which being that an Australian citizen child, of Australian resident and citizen parents, is not amenable to the jurisdiction of Australian courts. More, and rather counter-intuitively, it seems odd that the jurisdiction over him will therefore be exercised by a Pakistani court, by virtue of the ostensible effect of the 1996 Convention, to which that country is not a signatory.
However in reality, that outcome is the result of s 111CD of the Act, which I am not free to ignore or subvert. Whether that provision in its terms was necessitated by the 1996 Convention is a matter I will leave to others to consider; suffice to say it is the binding statutory law of Australia, and no challenge to its constitutionality was advanced before me.
While the father's counsel emphasised that the parties and children are Australian citizens and that the family feels a strong connection with Australia, it was not contended that the children are habitually resident in Australia. The evidence establishes that the children were born in Country B and have always lived there. They return to Australia occasionally for holidays.
As I am unable to find that the children are habitually resident in Australia, it is irrelevant that sub-s 69E(1)(b) of the Act applies because the children are Australian citizens.
It is indeed unfortunate that these proceedings have been before the Court since 15 May 2024 and the parties have already incurred significant costs. The solicitor assisting the mother said that, notwithstanding the jurisdictional issue, the steps the parties have undertaken in this Court (including the preparation of a family report) have been productive and should assist them to resolve the matter. I hope that this is the case and that the parties are able to reach agreement on the parenting issues without the need for further proceedings in Country B. It is clear from the available evidence that the interests of the children would be best served by this outcome. I accept that there are likely to be property proceedings before this Court and that it would probably be more convenient to the parties to have their property and parenting matters determined by the same Court. I also accept that the father would prefer to have this Court resolve the parenting matters. However, these issues of costs and convenience do not permit me to ignore the provisions of s 111CD.
CONCLUSION
I find that, pursuant to s 111CD(1)(e) of the Act, the Court should not exercise jurisdiction to determine the father's application. The father's application must be dismissed and any interim orders made must also be discharged. As the Court does not have jurisdiction to determine the current application in relation to parenting orders, I am unable to give leave to amend the current application to include property adjustment orders. The father will need to file a new application for that purpose.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Colquhoun. Associate:
Dated: 17 April 2025
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