Lynch & Hagen (No 2) [2020] FamCA 727

Between: Lynch (Applicant) Hagen (Respondent)

Judges: Justice Rees

Judgment:

The Court was required to determine whether a hearing relating to parenting arrangements should take place in Australia or Norway. The Court considered that the child involved being Aboriginal was significant to deciding the matter. Justice Rees held that, in the interests of the child, an Australian court would have a greater awareness of, and access to, relevant expertise on Indigenous culture than a Norwegian court. Accordingly, his Honour declared that a request should be made to the Norwegian Court for the Family Court of Australia to assume jurisdiction over the matter [53]-[54].

Background:

Ms Lynch and Mr Hagen were parents of a child born in Australia in 2016. Ms Lynch, the mother, was an Aboriginal Australian woman and Mr Hagen, the father, was Norwegian. Ms Lynch and Mr Hagen moved to Norway in 2018. In January 2020, Ms Lynch decided to returned to Australia for a holiday and Mr Hagen would not agree to the child going with her. In February 2020, Ms Lynch informed Mr Hagen she would not be returning to Norway and initiated parenting proceedings in both Australia and in Norway.

In July 2020, Justice Rees in Lynch & Hagen [2020] FamCa 606 declared that because the child was habitually resident in Norway, the Family Court of Australia should not 'exercise jurisdiction in relation to her parenting arrangements' [68]-[69]. Rees J made his decision in light of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children (the Convention) having been incorporated into Australian law [15].

Ms Hagen then requested the Court consider a separate part of the Convention and request the Norwegian Court to direct that the Family Law Court of Australia assume jurisdiction over the matter under Article 9 [10]. Article 9 of the Convention requires a court to consider whether the Commonwealth assuming jurisdiction is in the best interests of the child [15]. 

Details of the Judgment:

The question Ms Lynch raised was whether the Family Court of Australia is better placed than the Norwegian Court to assess the child's best interests [21]. Justice Rees considered Love v Commonwealth of Australia; Thoms v Commonwealth of Australia (2020) 375 ALR 597 (Love and Thoms), which discussed the unique connection that Indigenous people of Australia have to the land and waters of Australia. In that case, Justice Edelman stated that 'the identity of Aboriginal people, whether citizens or non-citizens, is shaped by a fundamental spiritual and cultural sense of belonging to Australia' [36].

In Love and Thoms, Justice Nettle also noted that because the common law recognises Aboriginal societies as the source of traditional laws and customs, the common law must also include the principle that the Crown owes a unique protection to the members of such societies [272]. In determining what is in the best interests of a child, legislation in Australia requires specific considerations to be made in relation to the child's Aboriginal culture [37].

According to Justice Rees, the Norwegian Court may lack access to and an awareness of the wealth of expertise developed in Australia in relation to Aboriginal society and culture [53]. The Court therefore declared that an Australian Court would be better positioned to determine what is in the best interests of an Aboriginal child than the Norwegian Court and ordered that a request be made to the Norwegian Court to allow the Australian Family Court to hear the matter [54].

The Court ordered a request be made to the Norwegian Court to allow the Australian Family Court to hear the dispute of parenting arrangements for an Aboriginal child.