Family Court of Australia (Melbourne)

Family Court of Australia (Melbourne)

Australia

14 January 2020

Dimas & Sarantos

[2020] FamCA 9

First instance

• Article 5(1)
• Article 7

• Article 11
• Article 12
• Article 23(1)
• Article 23(2)
• Article 26

Family Law Act 1975 (Cth)

Not provided

The parents and their two children, all ordinarily resident in Australia, travelled to Greece for a family holiday. Shortly before the scheduled return flight, the mother informed the father that she would not return to Australia with the children. The father subsequently commenced proceedings in Australia and sought a recovery order. Bennett J found that the children appeared to have been wrongfully retained in Greece within the meaning of the 1980 Hague Child Abduction Convention and considered the relationship between the 1980 and 1996 Hague Conventions. The court held that Australia had primary jurisdiction under Article 5(1) of the 1996 Convention because the children were habitually resident in Australia and that Article 7 preserved Australia's jurisdiction following the wrongful retention. While declining to make an immediate recovery order, the court ordered the children's return to Australia and emphasised that any substantive parenting issues should be determined by the Australian courts. The judgment also discusses the limited jurisdiction of the Greek courts under Articles 11 and 12 and the recognition and enforcement mechanisms in Articles 23 and 26.

The court declined to make the recovery order sought by the father because the immediate removal of the children from the mother's care upon their return to Australia would not be in their best interests. However, the court ordered the mother to return the children to Australia forthwith, imposed travel restrictions and watch-list orders, appointed an Independent Children's Lawyer, and held that Australia had jurisdiction to make parenting orders under Articles 5 and 7 of the 1996 Hague Child Protection Convention because the children were habitually resident in Australia and had been wrongfully retained in Greece.