DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SVOBODA

The Family Court of Australia heard an application by the Director-General, Department of Family and Community Services, as the Central Authority, seeking the return of two children to the Czech Republic under the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The respondent mother opposed the application, initially arguing that the children were not habitually resident in the Czech Republic at the time of their removal and, in the alternative, that their return would pose a grave risk of harm. The latter defence was abandoned at the hearing.

The central legal issue before the court was whether the children were habitually resident in the Czech Republic immediately prior to their removal by the mother. The court was required to apply the principles established in *LK v Director-General, Department of Community Services* (2009) 237 CLR 582 regarding the determination of habitual residence. The court also considered the criteria for wrongful removal under Regulation 16(1A) of the Regulations, which included the child being under 16, habitually resident in a convention country, and the removal being in breach of custody rights that were being exercised or would have been exercised.

Justice Watts noted that the mother's defence of grave risk was abandoned, simplifying the matter to the question of habitual residence. The court examined the evidence presented by both parents, acknowledging the volatile nature of their relationship and instances of family violence. The court applied the principles from *LK*, which state that a person can have one place of habitual residence, no place of habitual residence, or, in unlikely circumstances, more than one. The court found that the children were not habitually resident in the Czech Republic at the time of their removal.

Consequently, the application by the Director-General, Department of Family and Community Services, was dismissed. The interim orders made on 28 June 2012, restraining the mother from leaving Australia with the children and placing their names on the airport watch list, were discharged. The court also noted that any future application for parenting orders by the father in the Family Court would be expedited.