Family Court of Australia

Family Court of Australia

Australia

15 November 2013

Bunyon & Lewis (No. 3)

[2013] FamCA 888

First instance

• Article 5(1)
• Article 9

• Article 1
• Article 2
• Article 6
• Article 7
• Article 10
• Article 11
• Article 12
• Article 13
• Article 14
• Article 16
• Article 17
• Article 18
• Article 32
• Article 35
• Article 44
• Article 50

Family Law Act 1975 (Cth)

Not provided

The proceedings concerned a child living in the Netherlands with her father. The applicant, a relative of the child's deceased mother residing in Australia, sought parenting orders enabling the child to maintain a relationship with members of her maternal family. The Family Court considered whether it had jurisdiction under Australia's implementation of the 1996 Hague Child Protection Convention. The court found that the child was habitually resident in the Netherlands, a Contracting State, and that jurisdiction therefore rested with the Dutch authorities pursuant to Article 5 of the Convention. The court further considered whether a request should be made under Article 9 for the transfer of jurisdiction from the Netherlands to Australia. Although the child had substantial connections with Australia, the court was not satisfied that Australian authorities were better placed than the Dutch authorities to determine the child's best interests. The request for transfer was refused and the proceedings were dismissed.

The Family Court held that it lacked jurisdiction to make parenting orders concerning a child habitually resident in the Netherlands. Under the 1996 Hague Child Protection Convention and Australia's implementing legislation, jurisdiction rested with the Dutch authorities. The applicant's request that Australia seek a transfer of jurisdiction from the Netherlands pursuant to Article 9 of the Convention was refused because the court was not satisfied that Australian authorities were better placed than the Dutch authorities to assess the child's best interests. The proceedings were therefore dismissed.