Duckworth & Jamison

[2014] FamCA 308

FAMILY COURT OF AUSTRALIA

DUCKWORTH & JAMISON [2014] FamCA 308

FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Meaning of habitual resident – Consideration as to whether child is habitually resident in Australia – Where mother, father and child Australian residents – Where child has lived in Switzerland with father since August 2012 – Where father moved to Switzerland with child for work with the consent of the mother – Where parties subsequently separated – Where mother conceded child is not habitually resident in Australia, but was habitually resident in Switzerland having only spent some weeks in Australia since 2010 in between father’s jobs – Where the phrase ‘habitually resident’ is not defined in either the Family Law Act or 1996 convention – Where court noted whether or not a person or child is habitually resident in a particular State is a question of fact, based upon the individual considerations that the individual case throws forward – Where the court satisfied the child is habitually resident in Switzerland.

FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Whether father has submitted to jurisdiction – Where father filed a response to mothers application for final orders dealing with children and property – Where father did not object to jurisdiction – Where court satisfied it has jurisdiction under section 69E – Where court noted submission to jurisdiction does not preclude a forum non conveniens argument as to whether or not it should be exercised – Where father’s submission to jurisdiction is not fatal to his present argument.

FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Consideration as to whether submission to jurisdiction is indistinguishable from acceptance of jurisdiction – Meaning of accepted in respect of acceptance of jurisdiction under section 111CD(3)(c) – Where court noted s111CD(1) does not confer or remove jurisdiction, but rather regulates the exercise of jurisdiction that otherwise exists – Where court noted s111CD(3)(c) permits the court to exercise its validly invoked jurisdiction only if the parties agree to so exercise it – Where court noted parties may accept a court’s jurisdiction to take some measures but not others – Where court found the father’s filing of a response to the mother’s application was not an irrevocable acceptance of the exercise of jurisdiction – Where court found acceptance of jurisdiction would need to be expressly accepted rather than merely filing a response.

FAMILY LAW – CHILDREN – Jurisdiction of Family Court – Consideration of the determination of the best interests of the child in relation to the exercise of discretion under section 111CD(3)(d) – Where the court noted section 111CA provides that unless contrary intention appears, expressions used in Division 4 have the same meaning as they have in the 1996 convention – Where the court noted Article 10 of the 1996 Convention is not circumscribed by section 60CC considerations – Where court found it is not necessary to have regard to 60CC considerations when determining whether to exercise jurisdiction to take a…