ADEL & BANES

This matter concerned an international child abduction dispute before Bennett J of the Family Court of Australia. The proceedings involved a child, X, born in 2013, and the father's application for the child's return to the United States of America pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The mother had submitted that the Australian court lacked jurisdiction to make parenting orders.

The court was required to determine several legal issues, including the court's jurisdiction to make parenting orders, the distinction between jurisdiction and the power to make orders, and the impact of a registered overseas child order on the court's power to make inconsistent parenting orders. Furthermore, the court considered the influence of the 1996 Child Protection Convention and a pending Hague return application on its power to make parenting orders, as well as the concept of habitual residence in the context of international child abduction. The court also addressed procedural matters concerning the preparation of an expert social science report, a preliminary Hague assessment, and direct judicial communication.

Bennett J rejected the submission that the court lacked jurisdiction to make parenting orders, distinguishing between the court's jurisdiction and its power to make orders. The court acknowledged the potential impact of a registered overseas child order and the pending Hague return application on its ability to make parenting orders inconsistent with such orders or applications. The court directed the preparation of a preliminary Hague assessment report by a family consultant, with specific instructions to ascertain the child's understanding of the proceedings, her welfare, and her views on potential return to the United States or remaining in Australia. The court also made orders regarding the exchange of affidavit material, the duration and frequency of electronic communication between the child and the father, and the mother's obligations in responding to any Hague return application.

The court ordered that the matter be listed for directions on 19 February 2019, with both parties to have read and considered the Regulation 26 report prior to that date. The court also directed that any application for the child's return to the United States be listed before Bennett J on the adjourned date and filed under the same file number. The court varied a previous order to require the preparation of the preliminary Hague report and detailed the specific inquiries the family consultant was to undertake. Further orders addressed the provision of electronic communication recordings, the filing of responding affidavits, and the arrangements for electronic communication between the child and the father. Liberty to apply was reserved in relation to non-compliance with communication arrangements, and the independent children's lawyer was granted liberty to alter the adjourned date.