In the case of State Central Authority & Kinkaid Nicholes Family Lawyers acted on behalf of the Respondent Mother who had returned to Australia with her child after being restrained from leaving Turkey for four years.

Keturah Sageman of Nicholes Family Lawyers, instructing Mr Ian Mawson QC and Mr Robin Smith of Counsel were successful in obtaining a dismissal of the application of the State Central Authority in the Family Court of Australia, thus enabling the mother and child to remain in Australia.

The Court found that although the child’s place of habitual residence was in Turkey, the father had by his conduct, acquiesced to the child’s removal to Australia.

The mother was born in Australia and the father in Turkey, with both parties becoming dual nationals subsequent to their marriage. They met in Melbourne in 2001, were married in Turkey in October 2002 and lived in Sydney from 2004. Their only child was born in Sydney in January 2010. In mid-2010 the family travelled separately to Turkey. During trial the father claimed the family was moving permanently to live in Turkey, while the mother claimed they went for a three month holiday to visit the father’s family.

At the end of September 2010 the father commenced divorce proceedings in Turkey without the knowledge of the mother and obtained a travel ban on the child leaving Turkey. In 2012 on the wife’s request, Australia requested Turkey seek the return of the child to Australia under the Hague Child Abduction Convention. At the conclusion of the trial in mid-2015 both divorce and Hague proceedings were continuing in Turkey.

The mother escaped from Turkey with the child back to Australia in 2014.

Following an extensive review of Australian and international case law in relation to habitual residence the Court found that on departure from Australia there was no common intention by the parties to abandon Australia as their habitual residence. However, the Court also found that over the following four years the mother, and independently the child, acquired a habitual residence in Turkey. In making this finding the Court emphasised that parental intention is now only one relevant factor in determining habitual residence of a child, even a baby, rather than being determinative, and that a focus on the situation of the child is required.

On the question of ‘acquiescence’ by the father, it was noted that on return to Australia the mother had immediately commenced proceedings for parenting orders. The father participated in these proceedings, stated to the court through his lawyers that he had no intention of seeking the return of the child to Turkey, and on affidavit stated he accepted the mother’s decision to return the child to Australia. When giving evidence the father told the Court he only said this to enable him to be given access to his child.

The Court emphasised case law from the UK that states “where words or actions …. unequivocally show …. that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced”

The Court found the father’s conduct was so blatant that his later evidence as to his intentions could not overcome his acquiescence and nor could it be withdrawn. In those circumstances the Court exercised its discretion not to return the child to Turkey, particularly as it found it was in the child’s best interests to have a meaningful relationship with both parents and this was more likely to occur in Australia.