State Central Authority and Thomas (No 2)

This matter concerned an application by the State Central Authority, on behalf of the father, for the return of two children to Austria under the Hague Convention. The respondent mother alleged that exceptions to return applied, specifically that the father had consented to the removal of the children from Austria or subsequently acquiesced to their retention in Australia. The court was to determine these issues at a final hearing scheduled for 17 March 2014.

The primary legal issues before the court were whether the father had consented to or acquiesced in the children's retention in Australia, and if not, whether the court should exercise its discretion to refuse their return. The court also considered the impact of ongoing first-instance proceedings in Austria, scheduled for 10 April 2014, which were understood to be potentially determinative of the parenting arrangements. The court also addressed the need for separate representation for the children.

Justice Bennett reasoned that the Austrian proceedings were likely to be determinative of the matter and that it was almost inevitable that evidence of their outcome would be adduced in the Australian proceedings. Consequently, the court vacated the scheduled final hearing and adjourned the matter to be relisted with utmost priority following the completion of the Austrian proceedings. The court also ordered the appointment of an Independent Children’s Lawyer for the children, citing the exceptional circumstances of contemporaneous proceedings in Austria and Australia, and the protracted nature of the return application. The Independent Children’s Lawyer was directed to give early attention to facilitating access between the father and children, considering a social science assessment, and exploring mediation.