Hertwig and Hertwig (No 2)

In *Hertwig & Hertwig (No 2)*, the Family Court of Australia considered an application by the father seeking findings that the mother had contravened final parenting orders made in May 2019. The parties and their three children had been residing in Thailand since 2007, with all children being Australian citizens. The father had been evacuated from Thailand due to the COVID-19 pandemic and was residing in Australia, while the mother and children remained in Thailand.

The primary legal issues before the Court were whether it had jurisdiction to determine the contravention application, whether the application should be dismissed due to the mother's service complaints, and whether the application should be summarily dismissed on the basis that there was no reasonable likelihood of success. The mother argued that the father had failed to serve her with the contravention application in accordance with the Agreement on Judicial Assistance in Civil and Commercial Matters and Cooperation in Arbitration between Australia and the Kingdom of Thailand. She also contended that the Court should not exercise its jurisdiction due to ongoing proceedings in Thailand and that the parties had agreed for Thai courts to enforce the May 2019 orders.

Justice Hogan found that while the parties had not consistently adhered to the service treaty in past proceedings, the serious nature of contravention applications entitled the mother to rely on the treaty's provisions for service. However, the Court was not persuaded that the existence of proceedings in Thailand divested it of jurisdiction, particularly in the absence of expert evidence confirming the enforceability of the Australian orders in Thailand. The Court interpreted clause 20 of the May 2019 order as an agreement to facilitate registration and enforcement in Thailand if possible, rather than an agreement to grant exclusive jurisdiction to Thai courts. Crucially, the Court considered the specific allegations of contravention. Regarding the first count, concerning the retention of two children on 31 October 2019, the Court found it had no reasonable likelihood of success given the mother's stated reasons related to child abuse allegations and ongoing investigations by Thai welfare authorities. Similarly, the third count, alleging the mother frustrated the children's enrolment at a particular school, was also deemed to have no reasonable likelihood of success due to the children's prior suspension and the school's subsequent refusal of re-enrolment.

Consequently, the Court dismissed the father's application for contravention. The Court also dismissed an associated application filed by the father in May 2020.