What happened

Jespersen & Frankel [2020] FamCA 239 was decided by Rees J in the Family Court of Australia on 15 April 2020. The dispute concerned parenting orders for two children, X and Y, whose parents had separated. The father, Mr Jespersen, lived in Australia. The mother, Ms Frankel, and the children lived in State B in the United States. The children were Australian citizens, as was the father. The mother was not an Australian citizen, and the judgment inferred that she was a United States citizen ([1]–[2], background [10]).

The family history mattered to the jurisdictional question. The parents lived in Country D from 2008 to 2012. X was born in the United States in 2012. The family moved to Australia in December 2012, where Y was born in 2014. They travelled to the United States in June 2015. The parents disputed whether that trip was intended as a two-month holiday or whether the father was also looking for work there. In September 2015, the mother said she wanted to stay until her sister’s child was born, and the father agreed. In November 2015, the mother said she wanted to remain permanently. The father did not agree and later left for Australia, believing the mother and children would follow. They did not return (background [1]–[12]).

The father contacted United States lawyers in 2016 intending to pursue proceedings under the Hague Convention on the Civil Aspects of Child Abduction. He discontinued those proceedings on 9 January 2019, and there was no order requiring the children’s return to Australia (background [13]). He filed Australian proceedings in November 2017 seeking, among other things, sole parental responsibility and orders that the children live with him. He also sought interim orders requiring their return (background [14]).

The subsequent litigation history showed that the children’s residence and the forum for deciding parenting issues were contested. The mother’s Australian response said that the children’s “Habitual residence is USA” and sought that they remain living with her in State B (background [15]). In July 2018 the father himself sought orders that the children continue to live in the United States and that he visit when his personal and work circumstances allowed (background [17]). The mother’s 2018 response sought a stay or dismissal of the Australian proceedings, referring to the ongoing Hague application in the United States (background [18]).

In 2019 the mother commenced proceedings in State B seeking, among other things, that the children reside with her and declarations concerning State B’s status as their home state and its jurisdiction. Those proceedings remained on foot, and the father participated in them with legal representation (background [19]–[21]). The immediate dispute before Rees J included the father’s application seeking to restrain the mother from continuing her State B divorce proceedings and from commencing parenting proceedings outside Australia (background [22]–[23]). His later application, filed 3 February 2020, also sought orders concerning time with the children in State B, electronic communication, phone contact and non-denigration ([3]).

Rees J invited written submissions about ss 69E and 111CD of the Family Law Act 1975 (Cth) ([30]). The central question became whether the Court had statutory jurisdiction to determine parenting matters, rather than which parent should prevail on the merits. The Court found that the children were habitually resident in the United States and concluded that it could not exercise parenting jurisdiction. The father’s applications and all other outstanding applications were dismissed.

Why the court decided this way

The judgment began with s 69E, which sets out connections with Australia that may permit proceedings to be instituted under the Family Law Act. The listed connections include a child’s presence or citizenship, a parent’s citizenship or residence, and other specified links ([34]). Because the father and children were Australian citizens, the Court said it had jurisdiction “prima facie” under that provision ([35]–[36]).

That was not the end of the analysis. Rees J explained that Division 4 of Part 13AA, implementing the Child Protection Convention in Australian law, limited when the Court’s jurisdiction could be exercised. The Convention’s objectives include determining which State’s authorities have jurisdiction to take child-protection measures and providing for cooperation between contracting States. Its measures include decisions about parental responsibility, residence, custody and access ([38]–[40]). The Court considered parenting applications to fall within that scope ([40]).

The judgment relied on s 111B, which provides that Division 4 has effect despite the rest of the Act. Rees J quoted the explanatory memorandum’s explanation that the Division’s conflict-of-law rules prevail, to the extent of inconsistency, over provisions elsewhere in the Act, expressly including s 69E ([42]–[43]). In the Court’s analysis, therefore, the broad connections in s 69E could not independently answer the jurisdiction question. They had to be read subject to the more specific rules in s 111CD.

The United States had signed but not ratified the Child Protection Convention. The judgment consequently treated it as a “non-Convention country” for the relevant statutory provisions ([32]–[33]). Section 111CD(1)(e) addresses a child present in a non-Convention country. It requires both that the child be habitually resident in Australia and that one of the specified s 69E connections apply ([44]). The judgment described habitual residence as “paramount” to the jurisdiction question ([45]).

For the meaning of habitual residence, Rees J cited the High Court’s decision in LK v Director-General, Department of Community Services [2009] HCA 9. The passage quoted from LK says the inquiry concerns where a person resides and whether the residence can be described as habitual. The judgment also quoted LK’s observation that, particularly for a young child, it is important to examine where the person or persons caring for that child live ([46]–[47]). These were the High Court’s words as quoted in this judgment; Rees J applied the inquiry to the evidence before her.

The evidence and submissions pointed to the United States as the children’s habitual residence. The children had not been in Australia since June 2015, had lived in State B for nearly five years by the time of judgment, attended school there, and received state health-care and food-assistance benefits ([48]–[49]). The father’s counsel acknowledged that, given their continuous residence in the United States since mid-2015 and their young ages, the Court was unlikely to find that they remained habitually resident in Australia ([50]). The father’s earlier application seeking that the children continue to live in the United States also supported the finding ([51]). Rees J concluded that the children were habitually resident there ([52]).

The father also argued that the mother had conceded the Australian Court’s jurisdiction and should not be allowed to change position. Rees J rejected that submission. The mother had consistently maintained that the children were habitually resident in State B and had sought a stay or dismissal of the Australian proceedings. Her reference to the ongoing Hague Convention proceedings did not amount to acceptance of Australian jurisdiction ([53]–[58]). The Court added that the Family Law Act provided no statutory basis for an acceptance or acquiescence exception and described s 111CD(1)(e) as specific and proscriptive ([59]–[60]).

Before and after state of the law

The judgment presents the relevant statutory framework as a two-stage relationship between general jurisdictional connections and a more specific restriction. Section 69E identifies connections with Australia, including citizenship and residence. On the facts here, the father’s and children’s Australian citizenship meant that jurisdiction appeared available at first instance under s 69E ([34]–[36]).

Part 13AA, Division 4, then qualified that apparent jurisdiction. The judgment states that this Division has effect despite other provisions of the Act, and it relies on the explanatory memorandum’s identification of s 69E as one of the provisions that may yield where inconsistent ([42]–[43]). For a child present in a non-Convention country, s 111CD(1)(e) required habitual residence in Australia as well as one of the specified s 69E links ([44]). Because the children were habitually resident in the United States, that test was not met ([52], [61]).

The decision therefore does not say that Australian citizenship is irrelevant in every international parenting case. Rather, it shows that citizenship was not enough to satisfy this particular statutory route where the children were present in a non-Convention country and the statutory habitual-residence condition was absent. The judgment’s stated conclusion is confined to the children and applications before Rees J.

Nor does the judgment describe a general “before and after” change to the law. It applies the legislation in force and explains how the Convention-related provisions constrain the broader jurisdictional provision. The supplied judgment does not set out earlier cases establishing a different rule, nor does it discuss subsequent legislative amendments. Any account of later changes or a broader historical development would require sources beyond this judgment.

Key passages with plain-English translation

At [36], the Court said that it had jurisdiction “prima facie” under s 69E. In plain English, the Australian citizenship connections initially appeared to bring the proceedings within the statutory jurisdictional framework. The word “prima facie” signals that this was an initial assessment, not the final answer after considering the rest of the Act.

At [42]–[43], Rees J relied on s 111B and the explanatory memorandum to explain that Division 4 prevails over inconsistent provisions elsewhere in the Act, including s 69E. In plain English, the Court could not stop after finding an Australian connection. It also had to apply the special rules governing international child-protection jurisdiction.

At [47], the Court quoted the High Court’s observation that a young child’s habitual residence will often be closely connected to where the people providing care and housing live. In plain English, the child’s place of residence is not assessed in isolation from the practical arrangements on which the child depends. The passage is especially relevant here because X and Y were young and lived with their mother in State B.

At [50], the father’s counsel acknowledged that the children’s continued United States residence and young ages made it unlikely that they remained habitually resident in Australia. The significance is evidential and procedural: the father’s own submissions recognised a substantial obstacle under the statutory test, although the Court made its own finding.

At [52], Rees J stated, “The children are habitually resident in the USA.” This was the decisive factual finding for the application of s 111CD(1)(e). In plain English, the Court found that the children’s habitual home was in the United States, not Australia.

At [59]–[60], Rees J rejected the argument that the mother’s conduct could amount to acceptance or acquiescence that supplied jurisdiction. The judgment says there was no statutory basis for such a concept and that the provision’s terms did not admit an exception. In plain English, the parties’ conduct could not replace the statutory requirement that the children be habitually resident in Australia.

At [61], the Court stated that s 111CD(1)(e) meant it “may not exercise jurisdiction” over the parenting matters. In plain English, the Court treated the statutory condition as a limit on its authority to decide the parenting dispute, not as a factor to weigh when choosing between the parents.

What fact patterns trigger this precedent

The decision is most directly relevant to a situation with the same statutory features: children are present in a country the judgment treats as a non-Convention country; a party seeks Australian parenting orders; and the question arises whether s 111CD(1)(e) permits the Australian court to exercise jurisdiction. Under the provision as set out in the judgment, the child must be habitually resident in Australia, and one of the s 69E(1)(b) to (e) conditions must also apply ([44]).

The judgment is also relevant where a party argues that an Australian connection, such as Australian citizenship, is sufficient by itself. Jespersen & Frankel illustrates that the Court regarded the s 69E connection as only a prima facie basis for jurisdiction, subject to Division 4 of Part 13AA ([35]–[44]). It may also be relevant when the child has lived for a sustained period outside Australia, particularly if the child is young and the person providing daily care and housing lives in that other country ([47]–[52]).

The Court’s treatment of parental acceptance or participation may be relevant if a party argues that the other parent’s conduct conferred or conceded jurisdiction. On these facts, participation in the Australian proceedings did not displace the statutory test, and the mother’s responses were not treated as accepting jurisdiction ([53]–[60]).

The judgment does not decide every question that could arise under s 111CD. Its quoted statutory text includes other categories and conditions, but Rees J’s dispositive reasoning concerned s 111CD(1)(e), children present in a non-Convention country. The decision should not be read from this source alone as resolving cases involving children present in Australia, a Convention country, urgency, refugee status, a request or agreement by a competent authority, or other statutory routes.

How later courts have treated it

The supplied judgment contains no account of later judicial treatment of Jespersen & Frankel. It therefore does not establish whether later courts have followed, distinguished, explained or otherwise treated this decision. No subsequent cases are identified in the materials provided, and it would be unsafe to infer a later line of authority from this judgment alone.

Within Jespersen & Frankel, the identified precedent is LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582. Rees J cited LK for the approach to habitual residence and quoted passages about the ordinary meaning of the term and the relevance of a young child’s carers’ residence ([46]–[47]). The judgment applies those considerations to the facts; it does not discuss a later court’s treatment of LK.

For research purposes, the decision’s own description of its reasoning is clear, but an assessment of its current precedential weight would require checking later judgments and any relevant amendments to the Act. That information is not included in the source text provided here.

Still-open questions

The judgment resolves the jurisdiction issue on its findings about these children and the statutory text quoted in the reasons. It does not provide a comprehensive account of how habitual residence should be assessed in every factual setting. The quoted High Court guidance identifies relevant considerations, including the child’s residence and, for a young child, the residence of those providing care and housing ([46]–[47]). Questions about the weight of other factors in a different case remain outside the decision’s express determination.

The judgment also does not analyse in detail how s 111CD(1)(e) might apply where a child has recently moved between countries, has divided living arrangements, or has a different relationship with the adults providing care. Nor does it consider whether a particular factual or legal distinction might alter the classification of a country as a Convention or non-Convention country. It applies the stated position that the United States had signed but not ratified the Child Protection Convention and was not a Convention country for the legislation ([32]–[33]).

A further boundary is the relationship between the specific statutory route in s 111CD(1)(e) and the other routes listed in s 111CD. The judgment reproduces several of those provisions but decides the case under paragraph (e). It does not need to decide how the other paragraphs would operate on different facts.

Finally, the reasons do not address the merits of the parents’ competing parenting proposals. The dismissal followed from the Court’s conclusion that it could not exercise jurisdiction, not a determination about which parent should have care or what arrangements would best serve the children. The separate proceedings in State B remained on foot, but Rees J did not decide their merits or predict their outcome ([19]–[21]).

This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, have a qualified Australian lawyer check it.