LK v Director-General, Department of Community Services

Urgent Appointment of Independent Children's Lawyer

1. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children's Lawyer be urgently appointed for X born in 2022 ('the child').
2. Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child and forthwith upon such appointment, the Independent Children's Lawyer file a Notice of Address for Service.
3. The Court advise Legal Aid New South Wales of this order forthwith.
4. Leave is granted to the Independent Children's Lawyer to issue subpoena to such persons as they consider necessary for the appropriate conduct of the matter and/or as is reasonably requested by the parties.

1. The ICL Allocations department of Legal Aid New South Wales has been given access to this file via the Commonwealth Courts Portal ("CCP") and is granted leave to view copies of the documents available on the CCP.
2. The case involves significant jurisdictional issues concerning the operation of ss 111CC and 111CD of the Family Law Act 1975 (Cth) with respect to a child who is an Australian citizen and has been taken to Lebanon contrary to the express wishes of one of the parents.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym, Ball & Gordon, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The applicant seeks an urgent recovery order and a number of consequential orders by way of an Initiating Application filed on 16 January 2025.
2. The applicant has not served the respondent with the application and asks that the orders be made on an ex parte basis.

1. The proceedings concern a child born in 2022 in Australia. The applicant is the child's father. The child's father, mother, and much of their extended family live in Australia.
2. The applicant says that the respondent has lived in Australia between around one year of age and five to six years of age before returning to Lebanon. He says that the parties met in Lebanon in 2016. The applicant says that the respondent is Australian citizen, as is the child.
3. The respondent came to Australia to give birth to the child around mid-2022. The applicant soon followed on a tourist visa. The child has lived in Australia from birth until late 2025 when the respondent took the child to Lebanon. The applicant says that the respondent gave him no notice of the trip. He found out when he attended a couple of days later at the childcare centre and was told at the childcare centre that the child was not there, and that the centre was unaware of the location of the child.
4. The applicant says that he believes the respondent may be residing in an apartment that was formerly owned by his grandparents but is now owned in equal shares between him and two aunts. Unfortunately, it appears that he is in dispute with his aunts concerning that apartment.
5. The applicant seeks urgent orders as he is concerned that if the child achieves habitual residence in Lebanon, the Australian courts will lose jurisdiction. The applicant is also concerned that the respondent may bring proceedings in Lebanon or relocate within Lebanon and go to another country. The applicant sets out in his affidavit that the respondent has sought to register the child at the Lebanese consulate in order to obtain Lebanese citizenship for the child.

1. The court has jurisdiction to make parenting orders with respect to children who are Australian citizens: s 69E of the Family Law Act 1975 (Cth). The exercise of that jurisdiction is restricted by the operation of ss 111CC and 111CD of the Act, which relevantly provide:

111CC Application of this Subdivision

This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:

(a) a central authority or competent authority of a Convention country;

(b) a competent authority of a non-Convention country.

111CD Jurisdiction relating to the person of a child

(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:

(a) a child who is present and habitually resident in Australia; or

...

(e) a child who is present in a non-Convention country, if:

(i) the child is habitually resident in Australia; and

(ii) any of paragraphs 69E(1)(b) to (e) applies to the child;

1. Lebanon is not a country that is a signatory to a relevant convention, however it appears from submissions that Lebanon is a country where there is a functioning court system that may make court orders with respect to parenting matters. Thus, there is a potential issue with respect to jurisdiction, as contemplated by s 111CC. Pursuant to s 111CD, this court may only exercise jurisdiction over the child in Lebanon if the child is habitually resident in Australia.
2. In this case the child has only been in Lebanon since late 2025, the child is not yet of school age, and the child's presence in Lebanon is contrary to the express wishes of the applicant. The applicant has a very strong prima facie case that the child is habitually resident in Australia and not habitually resident in Lebanon. I am persuaded that the applicant has shown a strong prima facie case that s 111CD permits this court to exercise jurisdiction over the child.

1. There are two aspects of this case that give rise to real urgency. First, the child has only recently been removed from Australia to a foreign jurisdiction. Delays in bringing the proceedings will materially affect the likelihood of a court making orders that the child return to Australia on an interim basis. Second, as habitual residence depends upon the factual circumstances of the child (see generally LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582) it follows that the longer a child is in a foreign jurisdiction, the greater the chance that the child will be assessed as having become habitually resident in that jurisdiction.
2. In the circumstances of this case, there is clear and real urgency for the matter to be heard and determined, at least on an interim basis.

1. The applicant primarily seeks parenting orders. It appears that this court currently has and may exercise jurisdiction over the child, despite the child currently being present in Lebanon.
2. There is a strong presumption against making orders prior to hearing from each of the parties, in order to ensure that the parties are afforded procedural fairness. The limited exception to this principle is where there is a real risk that the proceedings may be defeated or the child may be harmed if orders are not made on an ex parte basis.
3. In this case, it does not appear that the respondent is likely to flee Lebanon, as there is no evidence to show that she has another location to go to. In any event, once served with the orders, the respondent would not be further restricted in Lebanon as Australian orders do not have direct effect upon the border authorities or police in Lebanon. I am not persuaded that this is a risk sufficient to justify ex parte orders. However, relocation within Lebanon may present difficulties with the execution of any orders. It is open to the court to issue injunctive orders restraining the respondent from relocating from her current location (unless it is to return to Australia) until further order. To the extent that the applicant has shown risk in this regard, such an order appears to be the only practical protection that can be afforded at this point.
4. I am not persuaded that the case justifies parenting orders for the return of the child to Australia or for the child to live with the applicant on an ex parte basis, given that the child is very young and has been in the primary care of the respondent since birth, and that at this point, I have not had the opportunity to hear submissions or evidence from the respondent concerning the circumstances of the case. I am mindful that as a matter of judicial experience, cases which may appear stronger on an ex parte application can have a completely different complexion once evidence and submissions are made by the other party, hence the general rule that orders should not be made without hearing the other party, unless necessary to protect against risks that would arise from notifying the other party.
5. There is a real risk that if the respondent is notified of the proceedings, she may commence separate proceedings in Lebanon, resulting in a jurisdictional conflict between the two countries, depending upon the law of Lebanon concerning international parenting disputes. I have no evidence before me at this point concerning the Lebanese law on these issues. It is open to this court to preserve its jurisdiction by issuing an anti-suit injunction, prohibiting the respondent from commencing proceedings in Lebanon until further order.
6. The application to the Lebanese consulate for Lebanese citizenship for the child is ultimately a matter for the Lebanese authorities. I am not persuaded that I have jurisdiction to direct the Lebanese authorities as to whom they may or may not grant citizenship, even if that person is an Australian citizen. However, an incident of the parenting jurisdiction with respect to the parents and child would, in my view, include the power to issue an injunction requiring the respondent to pause any application for Lebanese citizenship for the child pending further order. The respondent can then notify the consulate that she does not wish for them to proceed further with the application until further order of this court. It would be appropriate for the parties to have liberty to provide a copy of the orders to the Lebanese consulate to ensure that they are informed of the proceedings and the injunctions issued against the respondent.

1. The circumstances of this case provide a narrative strongly focused upon the behaviour of the parents, however, the determination of the matter must be based upon the child's best interests having regard to the factors set out in s 60CC of the Act. At this early stage in proceedings, there is very little evidence upon which one may assess the child's best interests. It appears that the child has been in the primary care of the respondent and therefore is a factor in favour of not removing the child from the respondent's primary care. However, it is important for a child to have a relationship with both parents and family, which is a factor that would weigh heavily in favour of the child returning to Australia. If, as the applicant suggests, the respondent relocated to Lebanon without advising him, this is a factor that weighs heavily in the balance against the respondent's capacity to appropriately parent the child.
2. On balance I am not persuaded to make particular parenting orders as to parental responsibility, residence or contact today, but only to issue injunctions to protect the child from further relocation and to preserve the rights of the parties to the litigation.

1. I am not persuaded that it is appropriate to make formal parenting orders as to parental responsibility, residence or contact at this stage on an ex parte application. I am persuaded that there are sufficient risks to require a number of orders to protect against those risks and to bring the proceedings before the court on an urgent basis, in circumstances where the applicant and the respondent both have a proper opportunity to be heard.
2. I will therefore make orders restraining the respondent from commencing proceedings in any other court or lodging applications with any other authority concerning the child until further order. I will issue an injunction restraining the respondent from relocating again with the child (unless it is to return to Australia). The steps being taken concerning the citizenship of the child in Lebanon without the applicant's consent should not proceed until determination by this court as to whether they are appropriate, or whether the respondent should be granted sole parental responsibility with respect to such issues. As it is not appropriate to issue injunctive orders against the Lebanese authorities in this regard, I will issue an injunction against the respondent restraining her from proceeding with any application for citizenship of the child in Lebanon and requiring her to take all reasonable steps to request that any pending application be placed on hold or paused until further order. It is appropriate that the Lebanese consulate be made aware of the proceedings and the orders restraining the respondent in this regard, and thus I make orders that the parties be at liberty to serve a copy of these orders upon the Lebanese consulate.
3. The applicant has the respondent's Lebanese phone number, Australian phone number (which operates with WhatsApp) and her email address. I am satisfied that it is unrealistic to expect that personal service could be quickly effected upon the respondent in Lebanon, however that notification to her of the proceedings and the next court date by way of text message to her Lebanese phone number, message via WhatsApp, and email message would bring the proceedings to her attention. I will list the next court date by way of audio-visual link to ensure that she has a real opportunity to attend, make submissions, and has an opportunity to file affidavit evidence via the court portal should she choose to do so.
4. As these orders have been made on an ex parte basis it is appropriate that the matter be re-listed before the court as soon as is reasonably possible. I expect that service by electronic means can be effected by Saturday. I will therefore list the matter for a further audio-visual link hearing on Wednesday (to allow the respondent a short opportunity to obtain advice if she wishes to do so). The hearing on Wednesday will allow the respondent an opportunity to make submissions concerning what interim orders (if any) ought to be made, whether any orders made today on an interim basis should be discharged, and the appropriate orders that should be made for the management of the proceedings so that both the applicant and the respondent have a reasonable opportunity to place affidavit material before the court and to be heard.
5. As this case involves complex international issues I am persuaded that it is appropriate to make orders for the appointment of an Independent Children's Lawyer.
6. I therefore make orders accordingly.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.