Family Court of Australia

Family Court of Australia

Australia

11 May 2015

Zegna & Zegna

[2015] FamCA 340

First instance

Article 10

• Article Articles 5-9
• Article Chapter IV

Family Law Act 1975 (Cth)

Not provided

This case concerned the scope of the divorce-related jurisdiction under Article 10 of the 1996 Hague Child Protection Convention. The parties' children had been habitually resident in Spain since 2011. The father commenced proceedings in Australia seeking parenting orders, including the children's return to Australia, while the mother challenged the court's jurisdiction. The principal issue was whether the Australian provisions implementing Article 10 permitted the Australian court to exercise jurisdiction notwithstanding the children's habitual residence in Spain. The court undertook a detailed examination of Article 10, the Lagarde Explanatory Report, the Brussels II Regulation, the Borrás Report, the HCCH Practical Handbook, and academic commentary by Peter Nygh. It emphasised that Article 10 constitutes a limited exception to the Convention's fundamental principle that jurisdiction primarily belongs to the authorities of the child's habitual residence. The court concluded that Article 10 should be interpreted narrowly and is confined to proceedings directly concerning divorce, legal separation, annulment, or the validity of marital status, rather than extending to subsequent parenting or property proceedings arising from relationship breakdown. The court further held that, even if jurisdiction were available, the children's best interests strongly favoured determination of any parenting dispute by the Spanish courts, where the children had been living for several years and where evidence concerning their circumstances could most appropriately be obtained.

The Family Court of Australia held that it lacked jurisdiction under the Australian provisions implementing Article 10 of the 1996 Hague Convention to determine the father's parenting application concerning children habitually resident in Spain. The court rejected an expansive interpretation of Article 10 adopted in an earlier Australian decision, holding that the divorce-related jurisdiction is a narrow and exceptional basis of jurisdiction confined to proceedings formally concerning divorce, annulment, legal separation, or the validity of marital status. The father's parenting application was dismissed.