Federal Circuit Court of Australia (Dandenong)

Federal Circuit Court of Australia (Dandenong)

Australia

28 November 2018

Mendelson & Kerner

[2018] FCCA 3344

First instance

Article 5(1)

• Article 1
• Article 2
• Article 3

Family Law Act 1975 (Cth)

Not provided

The father commenced parenting proceedings after discovering that the mother had taken the parties' infant child to a non-Contracting State and left the child in the care of extended maternal family members. Both parents remained in Australia on temporary visas. The mother argued that the child had become habitually resident in the foreign State and that the Australian court therefore lacked jurisdiction under Part XIIIAA of the Family Law Act 1975 (Cth), which implements the 1996 Hague Child Protection Convention. The court held that the child had lived in Australia since birth and had been abroad for only a short period when proceedings were commenced. The evidence did not establish that the child's move abroad was intended to be permanent or open-ended. In the absence of clear evidence that the child's habitual residence had changed, the court concluded that the child remained habitually resident in Australia. Australia therefore retained jurisdiction to make parenting orders notwithstanding the child's physical presence in a non-Contracting State.

The court held that it had jurisdiction to make parenting orders concerning the child. Although the child was physically present in a non-Contracting State when the proceedings commenced, the child remained habitually resident in Australia. Applying Part XIIIAA of the Family Law Act 1975 (Cth), which implements the 1996 Hague Child Protection Convention in Australia, the court concluded that the jurisdictional requirements reflecting the Convention's habitual-residence principle were satisfied. Australia therefore retained jurisdiction to determine matters concerning the child's care, welfare and development. The court also ordered the mother to take the necessary steps to secure the child's return to Australia.