MILS & MILS [2025] FCWA 125

This decision concerns a jurisdictional dispute in parenting proceedings. The primary issue was whether the Australian court had jurisdiction to determine parenting arrangements for two Australian children, or whether the matter should instead be determined in a non-Convention country (“Country A”), where the mother wished to live with the children.

The parties were both Australian citizens who married in Western Australia and had two children, both also born in Australia.

In March 2024, the family relocated to Country A. The father maintained that the move was intended as a temporary trial or adventure, whereas the mother argued there was no fixed timeframe and that the family intended to establish a life there. The father continued working in Australia on a fly-in fly-out roster while regularly returning to Country A, and the mother homeschooled the children.

The parties separated in June 2024. Initially, both parents agreed that the mother and children would return to Perth by March 2025. In late 2024 the mother then informed the father that she intended to remain permanently in Country A with the children. When the mother later brought the children to Australia for a visit in February 2025, the father commenced parenting proceedings and obtained interim orders placing the children on the AFP Watchlist. The mother applied to have the father’s application dismissed, arguing that Country A was the proper forum because it had become the children’s habitual residence.

Justice Tyson first considered whether the Court had jurisdiction under s 69E of the Family Law Act 1975 (Cth). The Court found that jurisdiction clearly existed because, at the time proceedings commenced, both children were present in Australia, both parents were Australian citizens, and the father was ordinarily resident in Australia.

Her Honour then examined whether Division 4 of Part XIIIAA of the Act limited that jurisdiction. The mother argued that a competent authority in Country A should determine the dispute. However, the Court held that she failed to provide admissible evidence demonstrating the existence of a competent authority in Country A with jurisdiction over parenting matters. Her reliance on confidential legal advice from a foreign lawyer was considered inadmissible hearsay rather than expert evidence. Consequently, there was no competing jurisdiction that engaged ss 111CC or 111CD of the Act.

Even if those provisions had applied, Justice Tyson concluded that the children were habitually resident in Australia. Although they had lived in Country A for approximately eleven months, they had spent the overwhelming majority of their lives in Australia, where they were born, educated, integrated into the community, and surrounded by extended family. The move to Country A was temporary, supported by the family retaining their Australian home, the father’s ongoing Australian employment, the children’s limited schooling overseas, and the absence of permanent residency or citizenship in Country A. Importantly, the father never consented to a permanent relocation, and one parent cannot unilaterally change a child’s habitual residence.

Justice Tyson therefore dismissed the mother’s application, finding that the Family Court of Western Australia had jurisdiction to determine the parenting proceedings. The interim orders preventing the children’s removal from Australia remained in place while the substantive parenting dispute continued. The decision reinforces that jurisdiction depends not only on a child’s physical location but also on habitual residence, parental intention, and the existence of a genuine competing foreign authority. Each case must ultimately be determined on its own facts.