Bajek & Bajek

In the case of Bajek & Bajek, the court addressed a contentious issue of jurisdiction in family law proceedings involving international child abduction. The father, Mr Bajek, sought orders to compel the mother to return their children from Country B to Australia. Country B is not a signatory to the 1980 Convention on the Civil Aspects of International Child Abduction, and there is no straightforward process for enforcing Australian parenting orders in Country B. The mother, Ms Bajek, initially submitted to Australian jurisdiction but later objected to it, arguing that the Australian litigation process would be futile. The court was required to determine whether it could exercise jurisdiction under the Family Law Act 1975 (Cth) and whether Australian parenting orders could be enforceable in Country B.

The court considered the habitual residence of the children in Australia and the fact that the mother and children had travelled to Country B for a holiday, intending to return to Australia. The court also noted the unavailability of the 1980 Convention and the 1996 Convention for enforcement purposes in Country B. The court concluded that it could exercise jurisdiction over the matter, as the children's habitual residence was in Australia and the parenting orders sought by the father fell within the definition of "Commonwealth personal protection measures." The court found that the Australian litigious process would not be futile, as the orders could be influential in Country B. Consequently, the court decided to exercise its jurisdiction and scheduled an interim hearing for the parenting relief applications.

The court dismissed the mother's application for expert opinion evidence from a Country B lawyer, as the use of single expert evidence was preferred. However, the court allowed the mother to present adversarial expert opinion evidence about Country B law. The court also dismissed the mother's application for two alternate orders but listed the interim parenting relief applications for hearing. The court's final orders included the dismissal of the alternate orders application and the scheduling of the interim parenting relief applications for hearing on 5 August 2024.