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Mother seeks order to allow child to remain in Scotland until safe to return to Australia.

Thursday 11th March 2021

By: Georgina Gregory

In this Family Court Judgment, the Judge considered the Mother's Initiating Application seeking urgent interim parenting Orders to be obtained ex parte the Father.

The Applicant Mother sought that her Application be listed as a Covid-19 matter, to be heard before 6.30pm on 4 June 2020. The Mother's Application was filed at 12.30pm on 4 June 2020.

The Applicant Mother sought that Family Court exercise its jurisdiction order permitting the child to remain in Scotland until it is safe to travel to Australia. 

The Judge observed that the Covid-19 list operates in the Family Court and Federal Circuit Courts of Australia and is "dedicated to deal exclusively with urgent parenting related disputes that have arisen due to the Covid-19 pandemic… designed to especially deal with disputes involving issues of risk and family violence…to be heard by a Judge within 72 hours of being assessed".

The Mother's Application was assessed as suitable for the Covid-19 list.

In her reasons for Judgement, the Judge  noted that the Applicant Mother in these proceedings was a 41 year old, British Citizen, currently living in Scotland, who had been diagnosed with obsessive compulsive disorder. The Father was a 32 year old Australian Citizen, who resided in Melbourne.

The parties commenced cohabitation in 2012 and separated in 2017 and that there was one child of the relationship, aged 7, who was an Australian Citizen by birth and a British Citizen by decent. The child was in Scotland with the Mother, travelling on a British passport.

The Judge observed that the Mother had removed the child from Australia and travelled to Scotland, without the knowledge or consent of the Father. The Father had initiated a Hague Return Application in Scotland and on 7 May 2020 a Judge of the Scottish Court ordered that the Mother return the child to Australia by 21 May 2020. The case in Scotland was adjourned to 28 May 2020, so that the Judge could be satisfied that there had been no difficulties with the child's return to Australia.

The Mother sought parenting orders, inter alia, for the child to remain in the UK until the end of the Covid-19 pandemic.

The Judge observed that Australia retained preeminent jurisdiction in relation to the child by virtue of the operation of articles 5 and 7 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of parental responsibility and measures for the protection of children ("1996 Convention) entered into between Australia and Scotland on 1 November 2012. Her Honour observed that, as a consequence of the 1996 Convention, the jurisdiction of the Scottish Court is limited to Article 11 (urgent measures) and Article 12 (provisional measures) and only to the extent that such measures or orders are not inconsistent with those made in Australia. 

The Mother's Application was adjourned to 5 June 2020 and required her and her solicitor to attend Court. An Independent Children's Lawyer was also appointed, the represent the best interests of the child.

Her Honour also ordered a Section 11F Report to be conducted on 28 July 2020 as a "child inclusive conference", intended to give the Court an understanding of the family situation and particularly the child's experience.

At the hearing, the Mother's solicitor, the Father's solicitor, Counsel for the ICL were all in attendance. The Mother did not appear, notwithstanding an Order that she was required to participate at the hearing. Her Honour Justice Bennett noted that she would require the Mother to swear an Affidavit explaining her failure to attend.



The Judge  dismissed the Mother's Application to retain the child in Scotland and required her to return forthwith. Her Honour noted that the parenting arrangements were to apply immediately upon the child returning the Australia, subject to the Mother and child having to quarantine for 14 days.  The Judge observed that, given the quarantine period, it was essential that the child be within the jurisdiction and in Melbourne by no later than 6 July 2020, to allow the quarantine time to run its course and completed before the Section 11F assessment took place on 28 July 2020. The Judge also stated that she was prepared to convene Court in Australia simultaneously with the Scottish Court hearing and connect the two hearings by video link or telephone, if this would assist the Scottish Court.

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