26 May 2009
A mother has unsuccessfully appealed against an order which required the return of a child to the United States pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The child, a dual citizen of the United States and Australia, was born in 2004 in Australia and commenced living in the United States with the mother and father in 2005. Following separation in 2007, the mother left the United States with the child and travelled to Australia where they continued to live. The father thereafter commenced proceedings in Colorado under the Convention for the return of the child to the United States.
On appeal, the issue requiring consideration was whether the trial judge made an error in his findings with respect to the exercise of jurisdiction by a court in the United States. The contention of the mother was that the child had not been resident in Colorado for a period of six months at the time of removal and, thus, there was no court in that state that could exercise jurisdiction over the child and that, as a result of this lack of jurisdiction, the father could not at that time enforce his rights of custody.
In dismissing the appeal, the members of the Full Court of the Family Court of Australia found the Director-General demonstrated, by reference to the relevant statute law, that there was a basis upon which the father could invoke jurisdiction in the United States to enforce his rights of custody immediately prior to the time of removal. Their Honours further found that a court in the United States had jurisdiction to hear and determine the proceedings should the child be returned.
The judgment of Sharmain & Director-General Department of Community Services(2009) FLC 93-396 is reported in the CCH update of Australian Family Law and Practice.