Rees J
These ongoing proceedings relate to a parenting dispute between Lynch, the child’s Aboriginal mother who resides in Australia, and Hagen, the child’s Norwegian father who resides in Norway. This matter concerned which jurisdiction should hear the dispute. Rees J held that the Australian Family Court is better placed to assume jurisdiction in determining the best interests of Aboriginal children.
Background
Lynch and Hagen met in Australia, had the child in 2016, and moved to Norway in 2018. In January 2020, Lynch returned to Australia while Hagen and the child remained in Norway. Lynch applied for the Australian Family Court to assume jurisdiction under s 111CG(2) of the Family Law Act 1975 (Cth) and the associated international convention. Lynch relied on Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 375 ALR 597 (‘Love’) to contend the Crown’s unique obligation to protect Aboriginal people means that Australian courts are most appropriate to assess the best interest of an Aboriginal child, compared to other jurisdictions.
Decision
Rees J found that an Australian court was better placed to determine the dispute, and ordered that the Norwegian Court be requested to allow the Australian court to exercise jurisdiction. This was determined on the basis of the child’s Aboriginality, as generally the competency of European courts to determine issues about children is accepted. It was accepted that the Common Law has articulated the unique protection owed Indigenous people by the Crown, described variously in Love. Rees J noted that determining the best interests of Aboriginal children requires additional considerations pursuant to the Family Law Act 1975 (Cth), precedent and associated scholarship. Further, only experts appointed in Australia are bound by Australian standards which provides for the assessment of Aboriginal Torres Strait Islander cultural issues. Therefore, although the Norwegian court could consider Aboriginal parenting and the jurisprudence in relation to Aboriginal culture, it would inevitably lack the general expertise of Australian courts in this area, derived from generations of evidence from Aboriginal people, anthropologists, and social scientists.