Duckworth & Jamison

In this matter before Tree J of the Family Court of Australia, the applicant mother, Ms. Duckworth, sought parenting orders concerning her child. The respondent father, Mr. Jamison, argued that the Court lacked jurisdiction to make such orders, contending that the child was habitually resident in Switzerland, not Australia. The dispute also involved ongoing property and spousal maintenance proceedings between the parties.

The primary legal issues before the Court were whether the child was habitually resident in Switzerland, whether the father had submitted to the Court's jurisdiction, and if so, whether the Court should exercise its jurisdiction to make parenting orders. The Court was required to interpret the meaning of "habitually resident" under the Family Law Act 1975 (Cth) and the 1996 Hague Convention, and to consider the implications of the father's filing of a response to the mother's application on the question of jurisdiction and acceptance of jurisdiction. Furthermore, the Court had to determine whether property and spousal maintenance proceedings constituted "proceedings concerning the divorce or separation" for the purposes of exercising jurisdiction under section 111CD(1)(c)(v) of the Act, and how the best interests of the child, as considered under section 111CD(3)(d), related to section 60CC considerations.

Tree J found that the child was habitually resident in Switzerland, having lived there with the father since August 2012 with the mother's consent. The Court determined that the father's filing of a response to the mother's application did not constitute an irrevocable acceptance of the Court's jurisdiction to make parenting orders, but rather a submission to jurisdiction that did not preclude a forum non conveniens argument. The Court also found that the extant property and spousal maintenance applications were "proceedings concerning the divorce or separation" of the parties, thus satisfying the requirements of section 111CD(1)(c)(v) for the exercise of jurisdiction. However, the Court concluded that while jurisdiction was validly invoked, it was not appropriate to exercise it for the purpose of making parenting orders in this instance.

Consequently, Tree J ordered that the further prosecution of the parenting orders sought by the applicant mother be permanently stayed.