Section 111CM — Family Law Act 1975: Limitations when prior proceedings pending in a Convention country

(1) This section applies to the exercise of jurisdiction by a court in accordance with paragraph 111CK(1)(a), subparagraph 111CK(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CK(1)(c). (2) The court must not exercise that jurisdiction to take a Commonwealth property protection measure relating to a child if: (a) a corresponding measure has been sought from a competent authority of a Convention country at the time of commencement of proceedings before the court; and (b) any of the following applies: (i) the child is habitually resident in the Convention country; (ii) the child is present in the Convention country and is a refugee child; (iii) a request to assume jurisdiction is made to a competent authority of the country of the child’s habitual residence or country of refuge; (iv) a competent authority of the country of the child’s habitual residence or country of refuge agrees to the competent authority assuming jurisdiction; (v) the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); (vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. (3) Subparagraph (2)(b)(v) only applies (subject to subsection (4)) if: (a) one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are commenced; and (b) one or both of the parents have parental responsibility for the child; and (c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised. (4) Subsection (2) does not apply if the competent authority of the Convention country has declined jurisdiction or is no longer considering taking the measure sought.