State Central Authority & Metin

The case involved an application by the State Central Authority for the return of two children to Turkey under the Hague Convention on the Civil Aspects of International Child Abduction. The respondent mother contended that the children had been wrongfully retained in Australia more than one year prior to the filing of the return application, which would engage regulation 16(2) of the Family Law (Child Abductions Convention) Regulations 1986 (Cth). The hearing was conducted electronically due to COVID-19 pandemic restrictions.

The primary legal issues before the court were whether the children had been wrongfully retained in Australia within the meaning of the Regulations, and if so, whether they had become settled in Australia. A further issue concerned the determination of the children's habitual residence, particularly in light of the shift in jurisprudence towards an enquiry into the child's integration into their domestic and family life, and whether a parent could unilaterally change habitual residence. The court also considered the relevance of a child's state of mind to the determination of habitual residence and the application of regulation 16(2) where children are found to be settled.

Justice Bennett found that the children were first retained by the mother in March 2018, which activated regulation 16(2). The court then considered whether the children had become settled in Australia, taking into account a regulation 26 report. The reasoning involved an analysis of international jurisprudence on habitual residence and the manner in which a child's lived experience and age-appropriate orientation contribute to their integration into a community, thereby potentially changing their habitual residence.

Ultimately, the court determined that the children had become settled in Australia. Consequently, regulation 16(2) of the Family Law (Child Abductions Convention) Regulations 1986 ceased to have application, and the application for the children's return to Turkey was dismissed. The court discharged previous orders prohibiting the removal of the children from Australia and granted liberty to the parties to apply for parenting orders.