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No Parenting Order for Child Removed to Netherlands

Family Court denies request to order father to return child to Australia after mother’s death

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Sydney, NSW -- (SBWIRE) -- 12/22/2013 -- The Family Court has declining to enter a parenting order after the child of divorced parents was taken to the Netherlands by her father after her mother’s death. The Family Court decided that Australian courts should not intervene on behalf of the maternal family that helped raise the child during her mother’s illness. The four-year-old girl lived with her mother in Australia at the time of her mother’s death from an asbestos-related lung disease. The mother obtained custody after she divorced the child’s father. She left her estate in trust to her daughter and named her cousin as trustee.

The mother’s cousin asked the Family Court to appoint her as guardian of the girl. That request was supported by the girl’s maternal grandparents, who took care of the child after her mother’s health deteriorated. The child’s father, however, made a claim for control of the trust, which is worth more than $1 million. He then took his daughter to the Netherlands, without notifying the court or the mother’s family of his intent to remove the child from Australia.

After the father took the child to Australia, the cousin obtained an interim order from the Family Court that provided for the cousin and the father to share parental responsibility for the child’s long term care. The maternal family hoped that the Family Court would intervene so they could once again be involved in the child’s life. The father, who did not participate in the proceeding, was ordered to return the child to Australia. The father then retained counsel and appealed the order, which was discharged a month after it was made. Lengthy court proceedings followed, including the preparation of a Family Report that largely favored the father. Notably, there was no evidence that the child was endangered by the father, despite the maternal family’s misgivings about his character. Because the father was deeply in debt, he could not afford counsel and eventually represented himself without returning to Australia.

More than a year after the child left Australia, Justice Victoria Bennett ruled that the Family Court lacks jurisdiction to make the requested parenting order. Justice Bennett noted that no parenting order was in place when the mother died. The father therefore had exclusive parental authority over the child at the time he moved with her to the Netherlands. Absent any parenting order to the contrary, he was entitled to decide where the child would live. Relying on the 1996 Child Protection Convention, which governs the choice of forum to decide international custody disputes, Justice Bennett concluded that the child’s “habitual residence” is now in the Netherlands because the father intends to make the Netherlands her permanent residence. Pursuant to the Convention, parental responsibility is determined by the law of the country that is the child’s habitual residence. Justice Bennett concluded that she lacked jurisdiction to make a parenting order unless she was invited to do so by Dutch authorities. Justice Bennett declined to ask the Netherlands for a transfer of jurisdiction to Australia because she could not say that Australia was better positioned than the Netherlands to assess the best interests of the child.

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