DW & Director-General, Department of Child Safety

This matter came before Finn, Holden and May JJ on appeal. The dispute concerned the habitual residence of a family, a determination critical for establishing jurisdiction in certain legal proceedings.

The court was required to determine the meaning of "habitual residence" in the context of family law and to apply that definition to the facts of the case. Specifically, the court considered whether a family could be considered habitually resident in a place even if they intended to move in the future, and whether a relatively short period of residence could suffice.

The court applied the principle that habitual residence refers to an abode adopted voluntarily and for settled purposes as part of the regular order of life for the time being, whether of short or long duration. The court found that the observations of Lord Scarman in *R v Barnet London Borough Counsel ex parte Shah* regarding "ordinarily resident" applied equally to "habitual residence," noting no difference in principle. The court reasoned that the family had settled in Scotland voluntarily and as part of the regular order of their life for the time being, and that even short periods of residence could be sufficient to establish habitual residence in the right circumstances.