KELLETT & KELLETT

In the matter of *Kellett & Kellett*, Rees J of the Family Court of Australia considered a dispute concerning a child brought to Australia by the father. The father was apprehended by police while attempting to remove the child from Australia. Crucially, Indonesia, the child's country of habitual residence, is not a signatory to the Hague Convention. The court was therefore required to determine the matter according to the best interests of the child through a summary hearing.

The primary legal issues before the court were whether the child should live in Australia or return to Indonesia, and the weight to be given to expert evidence presented by the father regarding Indonesian law and processes. The father sought to rely on an affidavit from his Indonesian lawyer concerning the legal proceedings in Indonesia and their likely consequences for him. However, this affidavit did not comply with the Family Law Rules 2004 (Cth) and contained broad, unsubstantiated, and partisan opinions.

Rees J reasoned that the child could benefit from the proximity of both parents if he lived in Indonesia. The court noted grave concerns about the father's willingness to facilitate the child's relationship with the mother and the existence of domestic violence proceedings against the father in Indonesia. Given the lack of compliance with procedural rules and the partisan nature of the father's expert evidence, the court found that little or no weight should be given to the opinions expressed in the affidavit. The court concluded that there was no evidence to suggest that Indonesian courts would not properly inquire into and determine the child's permanent custody.

Consequently, the court ordered that all prior orders be discharged and that, pending determination of proceedings in Indonesia, the child live with the mother. The mother was permitted to remove the child permanently from Australia and return to Indonesia. The father's time with the child was to be as agreed or ordered by an Indonesian court. The father was also ordered to deliver the child's passports to the mother and was restrained from applying for a passport for the child. The Australian Federal Police were requested to remove the child from the Airport Watch List and deliver any passports in their possession to the mother.