Murray and Tomas and Anor

The proceedings involved the applicants, Mr and Mrs Tomas, who sought sole parental responsibility and for a child, S Tomas (also known as Murray), to live with them. The respondent was the child's biological mother, residing in Samoa. The applicants, who are the maternal great aunt and great uncle of the child, had migrated to Australia from Samoa in 1997. The respondent sought a declaration that the Family Court of Australia lacked jurisdiction, that the application be stayed or dismissed, and for the child to be returned to Samoa.

The central legal issue before the court was whether the Family Court of Australia possessed jurisdiction to hear the matter, which the applicants framed as parenting proceedings under the *Family Law Act 1975* (Cth). The respondent contended that the proceedings were, in substance, adoption proceedings, which fell outside the Family Court's jurisdiction. Further issues included whether the applicants were using the court to validate an irregular or illegal adoption and immigration arrangement, and if jurisdiction was found, whether making orders would create a conflict of laws with Australian and New South Wales adoption and immigration requirements.

Justice Loughnan determined that the Family Court of Australia did not have jurisdiction to hear the proceedings. The court reasoned that the applicants' request for sole parental responsibility and for the child to live with them, in the context of a Samoan adoption order (later discharged) and the applicants' efforts to secure New Zealand citizenship and a passport for the child to enter Australia, indicated that the substance of the application was to validate an adoption. The court found that the *Family Law Act 1975* does not grant original jurisdiction in adoption proceedings, and that the circumstances involved private inter-country adoption from a non-Hague Convention country, which required specific validation under Australian and New South Wales law, including immigration requirements, that had not been met. The court concluded that the Family Court was being used for a collateral purpose to circumvent these legal requirements, constituting an abuse of process.

Consequently, the court made an order that there be no order, effectively dismissing the application for lack of jurisdiction.