State Central Authority & Metin

[2020] FamCA 535

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & METIN [2020] FamCA 535

FAMILY LAW – CHILD ABDUCTION – where child sought to be returned to Turkey under the 1980 Convention – bifurcated hearing due to COVID-19 pandemic restrictions on international travel.

FAMILY LAW – CHILD ABDUCTION – where return application was filed on 16 April 2020 – where State Central Authority alleges that children were wrongfully retained in May 2019 – where respondent mother alleges that children were retained in February 2018 as a consequence of which reg 16(2) of the Family Law (Child Abductions Convention) Regulations 1986 (Cth) would apply, the return application being an application filed more than one year after the alleged wrongful retention.

FAMILY LAW – CHILD ABDUCTION – wrongful retention – where children are found to have been first retained by the mother in March 2018 and therefore, reg 16(2) is activated and the respondent has an opportunity to establish that the children had become settled in Australia.

FAMILY LAW – CHILD ABDUCTION – habitual residence, where habitual residence is discussed by reference to finding the children were first retained in March 2018, but if the court is wrong also if they were retained in May 2019 – division of authority in international jurisprudence around habitual residence discussed – whether previous “rule” that where both parents share equivalent parental responsibility, one parent cannot unilaterally change the habitual residence of a child still applies following the adoption in Australia of the test for habitual residence being an enquiry about the extent to which a child has integrated into domestic and family life in the state in which the child is retained – manner in which a parent can unilaterally change the habitual residence of the child discussed – habitual residence will not change by virtue of parental intention alone but may change in accordance with child’s lived experience of being integrated to some degree into the community and with any age appropriate orientation of the child’s perspective on where the child belongs.

FAMILY LAW – CHILD ABDUCTION - relevance of child’s state of mind to identification of habitual residence.

FAMILY LAW – CHILD ABDUCTION – whether the children were settled in accordance with reg 16(2) – where children found to be settled – assistance of a reg 26 report.

FAMILY LAW – CHILD ABDUCTION – where children are found to be settled – Family Law (Child Abductions Convention) Regulations 1986 (Cth) ceased to have application and the application to return is dismissed – parents have liberty to apply in relation to parenting orders from this Court.

FAMILY LAW – PRACTICE AND PROCEDURE – necessity to hear matter electronically due to COVID-19 restrictions – specialised Hague mediation – direct judicial communication.

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Evidence Act 1995 (Cth)
European Union Regulation (EC) No 2201/2003 jurisdiction, recognition and enforcement of matrimonial and parental judgments
Family Law Act 1975 (Cth)
Family Law (Child Abductions Convention) Regulations 1986 (Cth)