State Central Authority and Thomas

The Family Court of Australia heard an application by the State Central Authority on behalf of the father for the return of two children, S and M, to Austria, alleging wrongful removal by their mother, Ms Thomas. The children had been in Australia since November 2012. The father contended that the children were habitually resident in Austria prior to their removal and sought their return under the 1980 Hague Convention. The mother argued that the father had consented to the removal or, alternatively, had acquiesced to their retention in Australia.

The court was required to determine whether it had jurisdiction to make orders for the children's return, considering the ongoing litigation in Austria concerning parental responsibility and the children's best interests. A key issue was the impact of Austrian court decisions on the mother's removal and retention of the children in Australia, and whether any such decisions constituted consent or acquiescence by the father. The court also needed to consider the timing and practicality of any return order, particularly in light of upcoming Austrian proceedings scheduled for April 2014.

Justice Bennett noted that while the children were habitually resident in Austria, the court's jurisdiction was limited to provisional orders under the Family Law Act 1975. The court acknowledged the complex Austrian legal proceedings, including appeals and further assessments of the parents' circumstances. To assist the Austrian court and inform its own decision, the court ordered that a family report be prepared by a Family Consultant, if practicable, assessing the children's best interests and their assimilation into life in Australia. The court also authorised communication between the Australian and Austrian Hague Network Judges to facilitate the proceedings.

The court scheduled the hearing for the return application to commence on 17 March 2014. It also ordered that the mother file and serve any further material regarding consent or acquiescence by 28 February 2014, with the State Central Authority to respond by 10 March 2014. The court indicated that it would consider the mother's defence of consent or acquiescence as an exception to the return order.