Bunyon & Lewis (No 3)

In this matter before Bennett J, the applicant sought to have parenting orders made concerning a child, and also sought a transfer of jurisdiction from The Netherlands to Australia. The respondent sought the dismissal of the applicant's amended application.

The central legal issue before the court was whether Australia was a more appropriate forum than The Netherlands to assess the best interests of the child, for the purpose of potentially assuming jurisdiction over parenting matters. This involved an interpretation of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, specifically Articles 8 and 9 concerning the transfer of jurisdiction.

Bennett J considered the principles of jurisdiction under the 1996 Convention, noting that habitual residence is the primary jurisdictional factor. The court examined the criteria for transferring jurisdiction, particularly the requirement that the requesting court must be "better placed" to assess the child's best interests. His Honour reviewed relevant case law, including decisions concerning Article 15 of Brussels II bis, and distinguished between determining the most convenient forum and assessing which court is better placed to evaluate a child's best interests. Ultimately, while acknowledging Australia's capacity to assess such interests, the court was not satisfied that it was better placed than the courts in The Netherlands, given the child's habitual residence and presence there, and the fact that the child's sole parent resided in The Netherlands.

Consequently, the applicant's amended application was dismissed. The respondent's amended response was deemed filed on 8 May 2013 and was also dismissed.