By Ryan Attard, Law Clerk & Amanda Humphreys, Special Counsel
Request for jurisdiction – Family Court of Australia better placed than Norway Court to determine the best interests of an Australian Aboriginal child.
In Lynch & Hagen (No 2)  FamCA 727, the Family Court of Australia determined it was better placed than a Norwegian court to assess the best interests of an Aboriginal child found to be habitually resident in Norway. Orders were made for a request to be made of a Norway Court for Australia to assume jurisdiction in respect of the child pursuant to Article 9 of the Hague Child Protection Convention.
The mother, Ms Lynch, is an Australian Aboriginal woman. The father, Mr Hagen, is Norwegian. The parties met when they were university students in Sydney. In 2016, they had a child together. Being the child of an Aboriginal woman, the chid is also Aboriginal. In 2018, the parents and the child moved to Norway. The mother contended this was subject to a condition that if she were not happy in Norway, the family would return to Australia. This was disputed by the father. Following other travel, the mother returned to Australia to visit family on 24 January 2020. The father did not agree to the child travelling with her. On 23 February 2020, the mother wrote to the father informing him she would not return to Norway.
The mother filed an application for parenting orders in relation to the child in Australia. The father also commenced proceedings in Norway. Both Norway and Australia are contracting parties to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”). In July 2020, Rees J of the Family Court of Australia determined the child was habitually resident in Norway. This determination meant the Australian court did not have jurisdiction to hear and determine the mother’s application for parenting orders and jurisdiction rested with the Norway Court.
Upon the Family Court of Australia determining the child was habitually resident in Norway, the mother asked the Court to make a request of the Norway Court under Article 9 of the Child Protection Convention (section 111CG of the Family Law Act) to assume jurisdiction in relation to the child. The Court may only make such a request if the Court considers it is better placed, than the Norwegian Court in this instance, to assess the child’s best interests.
Rees J took guidance from Article 8 of the Child Protection Convention and first found the child has a substantial connection with Australia because:
- she is an Aboriginal child;
- an Australian citizen;
- she was born in Australia;
- she lived in Australia for the first half of her life; and
- her mother is an Australian citizen and habitually resident in Australia.
The Court was then required to address the question of whether the Family Court of Australia is better placed than the Norwegian Court to assess the child’s best interests.
In considering this question and referring to English authority, Her Honour observed that, in general, the Norwegian Courts are engaged in the same task, using the same tools and approaches as the Family Court of Australia when determining issues about children. However, Rees J noted nuanced differences in the respective approaches of the two courts due to the child being an Aboriginal child. Her Honour referred to jurisprudence of the High Court of Australia, discussing the common law in relation to Aboriginality and the nature of the connections of Aboriginal people with the land of Australia, including spiritual and cultural connections and a sense of belonging to the land.
She noted the following statement of Nettle J in Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 375 ALR 597 (at ) has persuasive authority:
“… with its recognition of Aboriginal societies as the source and sanctuary of traditional laws and customs, the common law must be taken always to have comprehended the unique obligation of protection owed by the Crown to those societies and to each member in his or her capacity as such.”
Rees J also looked to specific provisions in the Australian Family Law Act which directly relate to Aboriginal children including the stated Objects and Principles underlying the Act and statutory considerations required for an assessment of the best interests of an Aboriginal child. This includes for example, the right of an Aboriginal child to enjoy her Aboriginal culture, including the right to enjoy that culture with other people who share that culture.
Her Honour found that both the Australian and Norwegian courts have similar facility to appoint experts to report on these issues, however an Australian expert in Australian court proceedings will be bound by the Australian Standards of Practice for Family Assessments and Reporting. Those standards include specific provisions to accommodate the full participation of Aboriginal persons in the assessment process and requires consideration of specific matters relevant to a person’s Aboriginal cultural background, heritage, community and identity.
Having regard to these matters, Her Honour determined that the Australian Court was better placed to determine the best interests of the child and ordered the Australian Central Authority to make a requires of the Norwegian Court to agree to the Family Court of Australia assuming jurisdiction in the matter.
Parenting arrangements for children in international families, whether by agreement or determination by a court, require expert advice. Matters of a child’s habitual residence, jurisdiction and the operation of the Hague Child Abduction and Child Protection Conventions are complex areas of law requiring specialist assistance.
Amanda Humphreys, Special Counsel with Taussig Cherrie Fildes, has significant expertise in international parenting cases. She is a fellow of the International Academy of Family Lawyers (IAFL) and is recommended by Doyles Guide as a Leading Parenting and Children’s Matters Lawyer in Victoria. Amanda will be presenting at the 8th Family Law and Children’s Rights Conference: World Congress 2021, Through the Eyes of a Child, discussing this and other Australian cases utilising the Hague Child Protection Convention. Registration for the World Congress virtual conference (12 to 16 July) is now open: https://wcflcr2020.com/