Kwon & Lee

This case concerned an appeal by a mother against orders for the return of her child to a foreign jurisdiction and the dismissal of proceedings she had commenced in Australia seeking parenting orders. The mother argued that the trial judge erred by applying the "clearly inappropriate forum" test rather than the "best interests of the child" test, contending that the latter should have been applied as some of the orders sought were parenting orders. She also sought to distinguish or have overruled the principles established in *B and B (Re Jurisdiction)* [2003] FLC 93-136.

The central legal issues before the Full Court were whether the trial judge had correctly applied the relevant legal tests when determining the appropriate forum for the parenting dispute, and whether the trial judge had given adequate weight to factors favouring the child remaining in Australia under section 68F(2) of the *Family Law Act 1975* (Cth). The Court also considered applications by both parties to adduce further evidence on appeal.

The Full Court held that the matter was distinguishable from *B and B (Re Jurisdiction)* and clarified certain principles. Crucially, the Court affirmed that when a child is within the jurisdiction of the Family Court, the doctrine of *forum non conveniens* has no application to a dispute concerning the custody of the child. Instead, the Court's duty is to make such orders as will best promote and protect the interests of the child, as mandated by section 60CA of the *Family Law Act 1975* (Cth). While acknowledging that the trial judge had erred in applying the "clearly inappropriate forum" test, the Court found that her ultimate decision to return the child to the foreign jurisdiction was within the reasonable ambit of her discretion and was supported by her consideration of the child's best interests, despite not explicitly referencing each factor under section 68F(2). The applications to adduce further evidence were rejected.

The mother was ordered to pay the father's costs of the appeal, as she was wholly unsuccessful and the proceedings originated from her wrongful removal of the child.