MOTHER APPLIES FOR A CONTRAVENTION ORDER AGAINST THE HUSBAND, THE LATTER ASSERTS THAT SUCH ORDER IS NOT MAINTAINABLE
Greenfield & Conley (No 3) [2021] FCCA 426 (5 March 2021)
This is a contravention application filed by the mother alleging contravention of the overseas child order by the father. The latter asserts that said application is not maintainable.
Facts:
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 by the City A Juvenile and Domestic Relations Court in the state of City A, USA (“the US orders”).
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.
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 argued that it 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.
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.
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.
Issue: Is the mother’s contravention application maintainable?
Law:
- Family Law Act 1975 SS.70G, 70H, 70J, 70K, 70L
Analysis:
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, 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.
The presumption of interpretation against retrospective operation does not apply to S.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.
As to the second argument of the father, 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.
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.
Conclusion: The mother’s contravention application is to proceed and is listed for hearing.
