In Nicoli & Jeryn [2022] FedCFamC1F 42, the child, X (7 years old) left Australia for the Russian Federation with her father on 26 October 2020. The father was permitted by the Federal Circuit and Family Court of Australia (Division 1) to remove X from Australia for the purpose of a family holiday to Russia, but was obliged to return X to Australia by 19 November 2020. The father failed to return X to Australia by this date.

The applicant mother sought to enforce the court approved Australian parenting orders – and the return of X to Australia – in the legal system applying in the Russian Federation. To do that, the applicant had to rely on Chapter IV of The Hague Convention of 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”).

Article 7 of the 1996 Convention provides that in the case of wrongful removal or retention of a child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention retains jurisdiction until the child has acquired a habitual residence in another State. The removal or the retention of a child is considered to be ‘wrongful’ where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention.

The application was opposed by the father who contended that X became habitually resident in the Russian Federation in January 2021 and that X’s parenting arrangements should, therefore, be determined by the courts of the Russian Federation.

However, Bennett J outlined that according to Article 7 of the 1996 Convention, Australia has primary jurisdiction. Bennett J also found that the father’s action in unilaterally altering X’s habitual residence whilst retaining her in the Russian Federation is contrary to the law of habitual residence according to Australian jurisprudence.

The father agreed that:

• The mother never consented to nor agreed that he could retain X in the Russian Federation after 19 November 2020.
• Neither he nor the mother did anything immediately prior to 19 November 2022 to alter X’s habitual residence in Australia.

The Federal Circuit and Family Court of Australia found that there is no question that at the time of the father’s wrongful retention of X in the Russian Federation, on 19 November 2020, X was habitually resident in Australia. The court ordered that X be immediately returned to Australia. The return application is still pending by virtue of the father’s appeal filed 13 September 2021.