Garning and Department of Communities, Child Safety and Disability Services (No 2)

This matter concerned an application before Murphy J in the Federal Circuit Court of Australia. The dispute involved children who were in the care of the Department of Communities, Child Safety and Disability Services. The mother sought orders for the children to live with her, while the father sought orders for the children to spend time with him. A maternal great-aunt also sought to be appointed as a case guardian for the children. Crucially, existing orders provided for the children's return to their country of habitual residence under the Family Law (Child Abduction Convention) Regulations 1986 (Cth), but this return had not yet been facilitated by the mother.

The central legal issue before the court was whether the parties could seek parenting orders under the Family Law Act 1975 (Cth) in circumstances where the Family Law (Child Abduction Convention) Regulations 1986 (Cth) applied and existing orders mandated the children's return to their country of habitual residence. The Central Authority submitted that any such application under the Family Law Act would undermine the purpose and objects of the Regulations.

Murphy J reasoned that any application for parenting orders in this context should be made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The court determined that the parties should be afforded an opportunity to make applications and submissions under these Regulations. Consequently, the court adjourned the matter and ordered the mother and father to file and serve any applications for orders under the Regulations by a specified date. The maternal great-aunt was also ordered to file and serve any response or application under the Regulations by a subsequent date. The court also made provisions for notification in the event of an appeal that might affect the scheduled hearing.