DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES RESPONDENT
LK v Director-General, Department of Community Services [2009] HCA 9 11 March 2009 S524/2008
ORDER
1. Appeal allowed with costs.
2.Set aside the orders of the Full Court of the Family Court made on 24 June 2008 and 4 July 2008 and in their place order that:
(a) the appeal to the Full Court be allowed; and
(b)the orders of Kay J made on 29 August 2007 be set aside and in their place it be ordered that the application of the Director-General, Department of Community Services made on 15 March 2007 be dismissed.
On appeal from the Family Court of Australia
Representation
P G Maiden SC with D L Ward for the appellant (instructed by the Legal Aid Commission of NSW)
B W Walker SC with V A Hartstein for the respondent (instructed by the Department of Community Services Legal Services Branch)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
LK v Director-General, Department of Community Services
Family Law – Children – Family Law (Child Abduction Convention) Regulations – Whether children habitually resident in convention country immediately before retention in Australia – Relevance of past and present intentions of each parent – Relevance of habitual residence of each parent – Weighting of relevant criteria – Appropriate time for determining habitual residence.
Family Law – Children – Family Law (Child Abduction Convention) Regulations – Meaning of "habitually resident" – "habitual residence" distinct from connecting factors of domicile or nationality – Whether intention decisive of habitual residence or whether consideration of wide variety of circumstances permitted – Relevance of a finding of "settled purpose" – Meaning of "settled purpose" – Whether parent ceased habitual residence in Israel without making a final decision not to return there.
International law – Treaties – Interpretation – Convention on the Civil Aspects of International Child Abduction – Consistent construction of terms by courts of contracting states.
Words and phrases – "habitual residence", "habitually resident", "settled intention", "settled purpose", "wrongful retention".
Family Law Act1975 (Cth), s 111B(1). Family Law (Child Abduction Convention) Regulations, regs 4, 15, 16(1A). Convention on the Civil Aspects of International Child Abduction.
FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ. A husband and wife, married and living in Israel, separated in September 2005. The four children of the marriage continued to live with the mother in the matrimonial home. All four children had been born in Israel but were entitled to Australian citizenship by descent from their mother[1]. In May 2006, the mother and the four children, then aged between 15 months and 8 years, travelled by air from Israel to Australia. They held return tickets to Israel for 27 August 2006.
Before the mother and the children left Israel, the father knew, and accepted, that they…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
LK v Director-General, Department of Community Services [2009] HCA 9
Case
[2009] HCA 9
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the mother (LK) against the Director-General, Department of Community Services, concerning the habitual residence of children. The dispute centred on whether the children had ceased to be habitually resident in Israel, a prerequisite for determining if their retention in Australia constituted a "wrongful retention" under the Family Law (Child Abduction Convention) Regulations.
The primary legal issue before the High Court was the meaning of "habitually resident" in the context of the Hague Convention on the Civil Aspects of International Child Abduction. Specifically, the Court had to determine whether a parent's intention was decisive of habitual residence, or if a broader consideration of various circumstances was permissible. The Court also considered the relevance of a finding of "settled purpose" and whether the mother had ceased habitual residence in Israel without making a final decision not to return.
The High Court reasoned that habitual residence is distinct from domicile or nationality and requires a consideration of a wide variety of circumstances. The Court found that where parents' intentions at the time of departure are conditional, and one parent takes steps to establish a new home in the destination country, habitual residence in the country of departure can cease. The possibility of returning to the previous country of residence does not negate the cessation of habitual residence if a shared intention to remain in the new country is effected. In this case, the Court determined that the children had ceased to be habitually resident in Israel in July 2006, as both parents had agreed to remain in Australia unless reconciliation occurred, and the mother had taken steps to establish a permanent home there.
The High Court allowed the appeal, setting aside the orders of the Full Court of the Family Court and dismissing the application for the return of the children. The Court also ordered that the appellant have her costs of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Family Court made on 24 June 2008 and 4 July 2008 and in their place order that:
(a) the appeal to the Full Court be allowed; and
(b) the orders of Kay J made on 29 August 2007 be set aside and in their place it be ordered that the application of the Director-General, Department of Community Services made on 15 March 2007 be dismissed. (Joint judgment of the Court)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ
Where, as here, the parents' intentions at the time of departure from Israel were expressed conditionally (to live in Australia unless ...) and the mother took the steps she did, both before and after arrival in Australia, to establish a new and permanent home for the children in Australia, it should have been found that the children were not habitually resident in Israel in July 2006. The possibility that they might again take up habitual residence in Israel (if their parents were reconciled) does not deny that they had ceased to be habitually resident there. Whether they were habitually resident in Australia when the father asked for their return need not be decided. What is decisive is that the children left Israel with both parents agreed that unless there were a reconciliation they would stay in Australia, and their mother, both before and after departure, set about effecting that shared intention.Conclusion and orders Having regard to the decision reached about whether the children were habitually resident in Israel it is not necessary to consider the further issues agitated in the courts below and in this Court about whether, if they were, the case was one in which an order for return should have been refused on the basis that the father had consented to or subsequently acquiesced in the children's retention in Australia[67].[67]reg 16(3)(a)(ii). Nor is it necessary, if there was consent or subsequent acquiescence, to examine whether or how the delay that occurred between the hearing of the appeal to the Full Court of the Family Court on 5 December 2007 and delivery of judgment on 24 June 2008 bore upon the exercise of the discretion given by reg 16(3)(a)(ii) to refuse to make an order for return. It is enough to say that prolonged consideration by the Full Court of its decision in the matter was undesirable, especially when the primary judge had already pointed out[68], correctly, that the proceedings at first instance had not been dealt with sufficiently promptly.[68][2007] FamCA 1099 at [60]‑[63]. Further, it is not necessary to examine whether the Full Court erred in refusing to admit the additional affidavit evidence relied on in that Court by the mother and by the Director‑General. None of that additional evidence contradicted or detracted from the description of circumstances touching the question of habitual residence provided by the facts as found by the primary judge. No order for costs was made at first instance or on appeal to the Full Court of the Family Court. That is, the power given by reg 30 of the Regulations to order the person who in those courts was found to have retained the children to pay the costs of the application for an order for return was not exercised either at first instance or on appeal to the Full Court. As was pointed out in MW[69], the matter of costs in this Court is controlled by the general provision of s 26 of the Judiciary Act 1903 (Cth). In the circumstances of this case there should be no order for the costs of the proceedings at first instance or in the Full Court of the Family Court. The appellant should have her costs of the appeal to this Court.[69](2008) 82 ALJR 629 at 650 [120]‑[121]; 244 ALR 205 at 231.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ