LK v Director-General Department of Community Services

[2009] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S524 of 2008

B e t w e e n -
LK
Appellant
and
DIRECTOR‑GENERAL DEPARTMENT OF COMMUNITY SERVICES
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 FEBRUARY 2009, AT 10.16 AM

MR P.G. MAIDEN, SC: May it please the Court, I appear with my learned friend, MS D.L. WARD, for the appellant. (instructed by the Legal Aid Commission of NSW)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS V.A. HARTSTEIN, for the respondent. (instructed by the Department of Community Services Legal Services Branch)

FRENCH CJ: Yes, Mr Maiden.

MR MAIDEN: Your Honours, the first matter is in respect of a document which is titled “Amended notice of appeal”. We seek leave of the Court to rely upon that amended pleading.

MR WALKER: We do not oppose leave.

FRENCH CJ: Yes, leave will be granted.

MR MAIDEN: Thank you, your Honours. Your Honours, the essential issue to be decided in this case comes down to the position that we respectfully submit is that the Australian and English courts have elevated what has been termed by a number of commentators as the shared parental intent to become a necessary and integral part in respect of the determination of habitual residence in respect of The Hague Convention.

There is a secondary matter which relates to the issue of retention and the date upon which in this particular factual situation that retention of the children was to be determined. Both those matters are set out at length in the submissions. In respect of the matter I would firstly propose to go to the regulations, if I may. It is regulation 16 of which I do not understand there to be any difference between my friends and ourselves save for one matter which I will come to in a moment. There is no issue that the four boys of the father and mother are under the age of 16.

HEYDON J: Could I just interrupt, Mr Maiden. Is this the position? Your case is really this, that between the time when the children left Israel and the time when the mother refused to return them to Israel as contemplated by the return air ticket, some connection had been built up with Australia which was not taken into account by the Full Court and that if it had been, the result would have been different. In other words, that is a crucial – it is not a mere flourish on a test; it is a vital difference between two tests?

MR MAIDEN: Yes. While we are on that point, this was, in our submission, a normal situation in the sense – and we say it is irrelevant as to what were the intentions of father and mother save for this – that when the mother and the four boys came to Australia the airline ticket was just one part of the facts at the time. The judge made a factual finding that the mother had departed with his consent, and the condition to the matter was not that they would return from the holiday or from a sabbatical or some other specific time; the condition that the mother return was that the relationship – that is, of man and wife – with the children in their family home would be resumed, in Israel, and his Honour so found.

However, his Honour went on in the factual matters to find that because of communications, the mother may have been ambivalent as time went forward. His Honour refers to the emotional difficulties that both experienced at the time of the mother and four boys leaving in May of 2006, the father and mother having separated back in September, and it is 5 September 2005 – not that it matters much – which was the date of separation.

In respect of this issue of the airline ticket, in respect of the learned trial judge’s determination it was irrelevant. It was irrelevant because his Honour took the view under the authorities, as he understood them, that the test was about the agreement or what was in the mind of the father and the mother. Many reasons might be given as to why people change their mind or what happened, but what we do know is that there was no reconciliation between father and mother and that it was in this unusual situation where it was the father who changes his mind to say that he wanted mother and children to come back to Israel.

It was not a situation of an abduction. It was not a case of a stay after holiday or sabbatical, as we have read in many cases that your Honours have been referred to, where mother stays on or one of the other parties makes a unilateral decision. This was a decision made by the parties – or by the mother and father – and then changed unilaterally by the father. There is mention in one article about this situation in an English case but I do not think it is relevant here to what, we respectfully submit, is the position that should now exist in Australia and this case goes to perhaps highlight how, since the Convention, as we have it at the moment, came into existence, how times have changed greatly and, in particular, in respect of airline travel and as people travel regularly throughout the world.

In the cases that have been referred to there are many factual situations that show how it is not simply abduction or one party wrongly retaining because they have had the consent to go away. This case perhaps will happen more and more frequently; parties change their mind after the parties have come into an agreement to go or move to another country. There have been some decisions ‑ ‑ ‑

FRENCH CJ: Anyway, you were taking us to the regulation, were you not?

MR MAIDEN: I was. Thank you, your Honour. Regulation 16(1)(a) - no difficulty here. The application was made by the Central Authority on 15 March 2007. Regulation 16(1)(b) - the application was filed within one year of the removal/retention irrespective of the date of the retention, the dates of the retention being some time in July; August, being the return airline ticket date or, on another view, December of 2006.

Regulation 16(1)(c) - the Central Authority satisfies the Court that the retention was wrongful – yes, indeed. Regulation 16(1A) sets out the circumstances when retention will be considered wrongful. Regulation 16(1A)(a) - the children are all under 16 with ages varying between 10 – and the youngest one is now three.

Regulation 16(1A)(b) is a critical one – habitually resident, that is, the children are habitually resident in a Convention country immediately, and the critical words “before . . . retention in Australia”. Regulation 16(1A)(c) - no difficulty there. Israel has similar laws in respect of the shared parenting arrangements or contact between parents and children. Regulation 16(1A)(d) - the children’s retention was in breach of rights of custody. Here the retention is in breach of the father’s right to determine the place of residence of the children and we say that that particular factual matter is different from certainly any other Australian case that we have had thus far.

Regulation 16(1A)(e) - it is conceded that the retention rights – that the father was entitled to exercise rights. Section 16(2) - this is where we get into a little area of difference between my learned friends and ourselves, in this regard. Section 16(2) applies to applications filed more than one year after which the child was first removed or retained. Objects of the Convention were for the speedy return of children abducted or wrongfully retained. This applies to, we submit, a different class of case where there has been, we would submit, a lengthy delay.

Then regulation 16(3) - the “court may refuse to make” a return order in certain circumstances. In this case the trial judge found that he did have a discretion simply because there had been an initial consent by the father and the mother for the children and the mother to live in Australia. He consented to that, but he then changed his mind a month or two later.

FRENCH CJ: Was that a consent to removal or a consent to retention?

MR MAIDEN: For either.

FRENCH CJ: Or both.

MR MAIDEN: Or both.

FRENCH CJ: You mean both, do you not?

MR MAIDEN: Yes.

FRENCH CJ: So what did you say about regulation 16(1A)(d):

the child’s removal to, or retention in, Australia is in breach of –

the father’s rights of custody?

MR MAIDEN: The father has a right to custody in Israel. He would have a right to custody in Australia. Clearly, he having changed his mind, he is then allowed, or he then seeks, to implement the Convention, which we accept.

FRENCH CJ: You are accepting it for the sake of argument here or, indeed, conceding that that condition is satisfied?

MR MAIDEN: Yes. Regulation 16(2), we say, is the separate category of case, not the speedy return, the slower return of children, 16(2), and 16(3), and that gives the Court to – or it may refuse a return order in this case because the judge came to the view that he did have a discretion, because initially the trip to Australia by mother and children was done with the agreement of the father and that he, the father, changed his mind. Therefore, in exercising of his discretion the trial judge decided to return the children back, but he could have kept the children in Australia.

FRENCH CJ: That is relevant on your case to the reception of additional evidence and the taking into account of certain facts, (a), and (b), to the question of the Full Court’s position by reference to the delay in delivery of judgment.

MR MAIDEN: Indeed, and there is no issue on this that in the original pleading section 3 – that is, there had been a consent to the removal – was raised on the pleadings, such as they are or as they were, and that matter was dealt with by the judge effectively dealing with the pleadings or the counterclaim made by the appellant here.

Regulation 16(3)(a)(ii) goes to the amendment and to the circumstances, we would submit, in respect of when the matter came before the Full Family Court, that after what was, I think effectively, five months before the trial judge - it was a very lengthy period of time, more than 12 months because of delay in the judgment – that, we respectfully submit, made the application or the issues quite different – that is, because the children had been, which is relevant to length of time, in Australia and their respective activities and connections to the country here and to Israel, that became an issue and that was moving all the time.

Your Honours, in respect of the submissions, we have been assisted by three articles provided by the Court and if I can just deal with, firstly, the article referred in our submission ‑ ‑ ‑

HAYNE J: Just before you come to deal with those, is it possible for you to conveniently identify where the Full Court error, what you attribute to error, is most easily found?

MR MAIDEN: Yes, your Honours.

HAYNE J: Which paragraph or paragraphs of their Honours judgment encapsulate what you say is the error?

MR MAIDEN: If not remitted, then the same exercise would happen here. In the paper of ‑ ‑ ‑

GUMMOW J: Under some legal systems in some of these Convention countries, some of which are quite remarkable, as we have observed from time to time, the father might have the sole right, but we do not need to go there.

MR MAIDEN: I hope you do not ask me the question. I will start to get worried. In relation to the matters, I have been assisted by the article of Rhona Schuz that is referred to and annexed to our papers, which is picked up in the New Zealand decisions. In that article the writer, at page 5, refers to the Shah determination. That was a matter that Lord Brandon sat on and agreed with Lord Scarman in that matter but he, Lord Brandon, does not raise it in the case which is next referred to, Re J (A Minor) (Abduction: Custody Rights), which both submissions deal with. Then over the page, top of page 6, we see the reference to the settled intention and the reference to:

a month can be, as I believe it to be in this case, an appreciable period of time.

Again, that is dealing with what we say is the narrow test. Then the writer deals with settled purpose and then goes on, at page 7, to consider the dependency model. Page 10 is the parental rights model.

HEYDON J: Which is no use in this case presumably, even if it were the law, because one wanted one and one wanted the other.

MR MAIDEN: The parental rights model is what the trial judge did here.

HEYDON J: “[T]he parent who has the right to decide where the child lives”.

GUMMOW J: No parent had the sole right.

MR MAIDEN: Both parents, yes. It should mean both.

GUMMOW J: Exactly.

HEYDON J: But they were in disagreement.

MR MAIDEN: Initially in agreement, then in disagreement when the father changes his mind. Mother still of the same mind, “I will come back, subject to the family being reunited”.

At page 539, point 50 of volume 2, starting at paragraph 73 their Honours consider the position and they consider the New Zealand authorities and notwithstanding that there was clearly a difference of approach – and at this point if I could, in respect of Justice Hayne’s query to me, there are three positions in respect of the habitual residence which self‑evidence that the boys are habitually resident in Israel, they are habitually resident in Australia or that they have lost their habitual residence in Israel; three positions.

The court here does not seem to consider that in terms of a broad factual inquiry, as discussed in the New Zealand decisions, and disregards it for reasons that are unclear to me. In paragraph 74, second line in that paragraph, the court states:

we do not need to resolve the apparently significant departure of the New Zealand courts from that authority. In his judgment in SK v KP (supra), Glazebrook J said the differences may in the end not be as great as they initially appear.

I have difficulty in understanding that but, in any event, the differences are great because in respect of the various text writers what the English and Australian approach has been called as the parental rights test, that is, it is what the parents agree and it is effectively unrelated to any other matter and in relationship to this matter to the determination by the trial judge that is what his Honour found. There had been an agreement for the mother and children to come to Australia, that was reversed and then he said, “Well, exercising discretion I will send the mother and children back to Israel.”

The test propounded in New Zealand and in SK v KP and in the other case of Punter those cases deal and refer to at length the paper prepared by Rhona Schuz, which was referred to in our submissions, and referred to in both ‑ ‑ ‑

HAYNE J: Again, forgive me for delaying you, I just want to get some questions of groundwork identified. I had read your submissions as tending to suggest, though perhaps not casting the submission quite in this form, but I had read your submission as tending to suggest that the error in the Full Court could be identified as their endorsement of the trial judge’s approach described in paragraphs 20 and following of their Honour’s reasons and, in particular, if singular error is to be identified, it lay in their Honours’ endorsement – see paragraph 72 – of the trial judge’s analysis which required a settled intention of abandoning habitual residence in Israel. I had read your argument as attributing error by giving too much prominence to that question of intention, but am I either misreading the submissions or interpreting them wrongly?

MR MAIDEN: No, your Honour. What we submit is this, that in respect of that inquiry it is one of the factors to be considered in this broad factual inquiry referred to in the other two approaches and, fundamentally, that the approach of simply considering any agreement or changing an agreement between the parents is not a proper test.

HAYNE J: I interrupted you; you were taking us to some other writings.

HEYDON J: While you are still in a state of being interrupted, is this the position, that you tried in front of the Full Court to adduce further evidence of linkages with Australia? That is paragraph 71 on page 539.

MR MAIDEN: Yes.

HEYDON J: Am I right in thinking that in paragraph 80 the Full Court rejected that application for the admission of that further evidence?

MR MAIDEN: Not only by the appellant, but also by the respondent. Both parties sought to put material, it was all rejected.

HEYDON J: Your position is that if the Full Court had adopted what you are calling the New Zealand test, they would really have been compelled to receive that evidence and evaluate it to see whether its significance was as you were alleging?

MR MAIDEN: That is so.

HEYDON J: They, however, seem to regard the evidence as inherently immaterial. In paragraph 72 they say that some of the events occurred before August and some of them occurred before the father indicated the marriage would not continue. In other words, there seems to be a separate reason they are advancing for not receiving the evidence. Is it the case that that is why they said “We do not need to resolve the departure of New Zealand courts from Australian and English authority”?

MR MAIDEN: I am unclear on that, but it seems to be consistent with the narrow approach, that is, it is a question of the parental agreement.

HEYDON J: Except that these events in paragraph 71 are to some extent events which would actually involve the way the children interacted with the Australian community.

MR MAIDEN: Indeed.

HEYDON J: They were not purely unilateral parental acts; not all of them were. Do you have to confront paragraph 72 and try and overturn the Full Court’s dismissal of the significance of the evidence?

MR MAIDEN: On a rehearing that issue would have to be decided.

HEYDON J: What worries me is we do not here moot points. In other words, if there is some factual way home for Mr Walker by upholding paragraph 72 and if the Full Court were right in saying that it was not necessary to decide whether the New Zealand courts were right or Anglo Australian authority was right, then there would not be much point in us pronouncing one way or the other because it would not help you; it would be an abstract.

MR MAIDEN: Except for this, that in respect of what we submit is the critical issue of the retention date, that is, the date that the evidence as to what the situation, that is, the ties or whatever you wish to call it, between the children in the country in which they are and the country from whence they have come, has to be determined. Here we have arrival on or about 15 May 2006; June, the father’s change of mind; July and then August is the tickets. The trial judge says it is probably some time in July 2006. The Full Court say it is perhaps in August and then later it is mentioned to be December 2006, and certainly if one takes the later point of time that adds to the strength of the appellant’s position.

HEYDON J: Which one do you take? December?

MR MAIDEN: On instructions I would take December.

HEYDON J: What, in principle, determines the answer to the question of what the critical date is? If it were the date when the mother, in effect, failed to return the children, that would be 27 August 2006.

MR MAIDEN: No, with respect.

HEYDON J: Is that not the date that they were going to return by air to Israel?

MR MAIDEN: That is a matter that really is irrelevant to the tests that the trial judge applied. It was not the date of the airline ticket. It was the date that he says that the agreement between the father and mother changed.

HEYDON J: Right, well, that is his justification for that date. What is your justification for a later date?

MR MAIDEN: If I can just perhaps go to the case against me. The reason for the airline ticket date as one of the possibilities is that that was the father having said it is clearly before the airline ticket date and therefore the flight was available to go home, presumably subject to confirmation. However, that flies, we submit, in respect of what the test the judge applies, because it is not dependent upon what one party thinks. It is the factual matrix of other matters. It is just what is the agreement between the parents. That is what the test is, as we submit, in the English and Australian position.

HEYDON J: So you reject 23 July 2006 because it rests on an invalid test. What is your preferred date and on what sound legal ground can you offer it as the preferred date?

MR MAIDEN: I am reminded that at page 412 of the appeal book at point 28 is part of a transcript referred to in the judgment. It is referring to a conversation that takes place on 11 June 2006 where the mother responds:

What? You don’t want us back?

The father responded:

No, I don’t.

She then said:

I won’t come back with the boys in August. I need to stay here for at least the rest of the year. I will reconsider our situation after that. I can’t believe that you have done this [N] –

who is the respondent. They are the variable dates.

HEYDON J: You are submitting then that December is the crucial date, and why so?

MR MAIDEN: Because that is what is in the mother’s mind. She is with the boys and in terms of her decision to move, or what she is doing, that is a matter in her control. We submit that the judge accepted that the father accepted that proposition that they would stay on, that is after the date of the airline ticket.

HEYDON J: The language of the regulation commands attention to habitual residence immediately before retention in Australia. That is then a question of what the date of retention in Australia is.

MR MAIDEN: That is right.

GUMMOW J: And what is meant by retention? Is there any explanation of that in the regulation?

MR MAIDEN: No, but what we do have ‑ ‑ ‑

GUMMOW J: That is another thing that was left under the carpet by the people who drew this to ‑ ‑ ‑

MR MAIDEN: Another thing which the academic commentaries and the cases have had to grapple with and therefore to look at the facts to find that critical date, that is as to what indeed is the date of retention, bearing in mind on this factual scenario, if there was an agreement, if the Court found there was an agreement for the mother and boys to stay on until December by agreement with the ‑ ‑ ‑

GUMMOW J: This phrase “wrongful retention” where does that enter into the discourse? It is not used in this legislation, is it?

MR MAIDEN: No, it is not.

GUMMOW J: It is a gloss and there is a hunt for some wrongdoings that have been attached to the notion of retention, is there not?

MR MAIDEN: Indeed. I am not sure which of the perhaps research assistants found the article by Professor Cavers.

GUMMOW J: We research ourselves, Mr Maiden, you might be surprised. We hope counsel does, too, but we are often disappointed. Is there anything on the word “retention”?

MR MAIDEN: In respect to the computers, there are some who are better than others in respect of that matter but in respect of that matter it is the matter that Professor Cavers is warning about in respect of this case and we submit that this is an example of where there have been definitions that have become binding and in terms of the facts upon which the court is obliged they consider themselves to be bound and in this case the trial judge considered himself bound by the authorities, that is the English and Australian authorities, on what we would call the narrow test.

GUMMOW J: But is there any indication in the authorities of what this word “retention” means?

MR MAIDEN: No, it is just given an ordinary meaning, that is, kept. That is, it has been kept after – children are kept in a country where there is to be a finding to bring the Convention into effect, that is, of wrongful retention.

FRENCH CJ: Whatever it is, it assumes a removal which was not necessarily wrongful, does it not?

MR MAIDEN: It does.

FRENCH CJ: And whatever it is it is in breach of the other parent’s rights of custody.

MR MAIDEN: There are a number of American decisions where they are looking at the question of sabbatical, where one of the parents goes to a country for a specific period of time yet habitual residence is not given up – the family moves together, one returns with the child or children. Again, it seems it is that particular matter, that finding is a factual finding based upon conversations between parents, factual matters involving possibly airline tickets, contracts of employment, financial matters or other matters but going to the issue of having to put a precise date on it so that the regulation can then take effect.

GUMMOW J: The date of the retention seems to be the date at which the “retention” became a state of affairs that was in breach of the other party’s rights of custody.

MR MAIDEN: That is so.

GUMMOW J: Has any attention been given to that question with regard to the father’s rights under the law of Israel?

MR MAIDEN: He has rights in both countries.

GUMMOW J: He had waived them to some extent, had he, by permitting the children to leave with their mother?

MR MAIDEN: To remain with the children. The question here is, where are the actual rights – the definition of what those rights are is to be heard – Australia or Israel? So he could have come to Australia and sought the Family Court’s assistance to get some definition of his rights.

GUMMOW J: This adjective “wrongful” is really derived from paragraph (d), I guess, namely, breach of rights of custody.

MR MAIDEN: It has to be. The decision of re J with Lord Brandon was the opposite. In that case the father had no rights to the Australian child from Western Australia because the parties were not married and the father had no right to the child, therefore, the Convention did not apply.

FRENCH CJ: His rights to custody under the law of Israel are joint rights with the wife.

MR MAIDEN: On the face of it, they seem to be similar to the Family Law Act of Australia.

FRENCH CJ: So, if he agrees to the wife taking the children to Australia – let us assume, first of all, a simple case – for a finite period with an expected return, that is not a waiver of the rights; that is in a sense an exercise of the rights in terms of the disposition of the children, where they are going to be. The point comes, what happens at the point at which he says “you can take them and keep them if we do not get back together”?

MR MAIDEN: That is what the wife argued before the trial judge and he accepted that.

FRENCH CJ: And that then becomes, on one view, another form of exercise of his rights of custody. An alternative view might be there is some kind of waiver. I am not quite sure what the legal consequence of that would be. That would then go into the question whether there was something characterised as retention, which must mean holding back, presumably against the will of the father.

MR MAIDEN: The retention to go back to the county of origin.

FRENCH CJ: Holding back in Australia against the will of the father, who has the right to say “bring them back”.

HAYNE J: That whole line of discourse is separate from the inquiry about habitual residence, is it not? Is that not the fundamental point, that the question of rights of custody invites close attention to what the law provides? On top this you have this notion of habitual residence, and everybody resolutely tells us, you do not worry about that, that is just a question of fact.

MR MAIDEN: The question of the Hague Convention is not related to custody per se.

HAYNE J: Maybe, but do you accept the proposition, which I did not think was running against you, maybe it does but I did not think it was, do you accept that custody rights are questions of law, habitual residence is a further and separate inquiry? Then we will come to examine what that further and separate inquiry is. Thus far so good?

MR MAIDEN: Yes, your Honour. Perhaps I can digress for a moment in respect of the word “custody”. The word “custody” here means rights of parenting, that is, of either contact, staying days, nights, weeks, months, years. It is a whole multitude of various alternatives based upon the fact that each of the parents has a right to be involved in the lives of the children.

GUMMOW J: This expression “rights of custody” in regulation 16(1) is interpreted by reference to common law, Australian statute law, or look at the law of the other country?

MR MAIDEN: Regulation 4, your Honour:

For the purposes of these regulations, a person, an institution or another body has rights of custody in relation to a child, if:

(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and –

HAYNE J: Regulation 4(2) is the killer, is it not? Regulation 4(2) is the real area of debate. It includes “the right to determine the place of residence”.

MR MAIDEN: Indeed. It is the forum argument. Which forum do we go to? Do we invoke the Convention to get the children and the mother back to Israel in this case?

GUMMOW J: As I understand it, neither parent under the law of Israel had the sole right to determine; it is a joint right.

MR MAIDEN: That is right, until there is an order of the court.

GUMMOW J: Exactly, and in absence of a joint exercise, the matter is remitted to the legal system of Israel, I suppose.

MR MAIDEN: That is right, and vice versa.

GUMMOW J: Yes.

MR MAIDEN: If not remitted, then the same exercise would happen here. In the paper of ‑ ‑ ‑

a month can be, as I believe it to be in this case, an appreciable period of time.

HEYDON J: Which is no use in this case presumably, even if it were the law, because one wanted one and one wanted the other.

MR MAIDEN: The parental rights model is what the trial judge did here.

HEYDON J: “[T]he parent who has the right to decide where the child lives”.

GUMMOW J: No parent had the sole right.

MR MAIDEN: Both parents, yes. It should mean both.

GUMMOW J: Exactly.

HEYDON J: But they were in disagreement.

MR MAIDEN: Initially in agreement, then in disagreement when the father changes his mind. Mother still of the same mind, “I will come back, subject to the family being reunited”.

HEYDON J: You were going to a third test.

MR MAIDEN: The third test on page 13, “The child‑centred model”.

HEYDON J: That is the one you favour?

MR MAIDEN: We go to the New Zealand test which is the intermediate test. The child‑centred model in the American test would not involve any issue of the parents’ agreement as to settled intent or intentions of the father and mother. That is purely related to an objective test regarding facts regarding children, irrespective of what father and mother may or may not think, agreed or thought.

HAYNE J: This framework for analysis which invites attention to the significance of intention of the parents runs into the temporal question, “Intention when?” It runs into the further set of questions, “Well, how fixed must this intention be? What is it content?” It assumes a bipolar intention, A or B, whereas humanity does not always work A or B and it does not always choose between. We are setting up a framework which does not quite seem to fit with the real world. Where are we going?

MR MAIDEN: In respect of the recent developments, the academic writers have looked at how in one way society has changed and that children are no longer to be thought of as possessions or owned by the parents and that in terms of the Conventions on the Rights of the Child that there should be consideration given to modern thought, if I can call it that, as to how children now are to conduct themselves, whether in this world or in this country or somewhere else.

I do not know the answer to that, except to say that if we look at the American decisions, three different approaches in three different appellate jurisdictions on this very issue, and are they helpful to us? The answer is probably not and, hence, we submit that the New Zealand decisions are helpful and because of the proximity and the similar legal systems between New Zealand and Australia that they are helpful to this Court in determination of this question, but certainly in New Zealand, having departed from the Australian and the English authorities, the time, we submit, has now come for there to be a change in Australia to bring us into line with, if I can use your Honour’s term, “modernity”.

FRENCH CJ: There is all this talk about tests, of course. We keep having to come back to the words of the statute, reflecting as they do the words of the Convention, importing Article 31 of the Vienna Convention on Treaties as to their ordinary meaning and having regard to their purpose, which is no different, really, from what we have to apply under our own Acts Interpretation Act and settled principles of construction. So it is against the words of the section “habitual residence” that one asks is it sufficient, if you are looking at getting away from focus on particular intentions as necessary conditions of characterisation, to ask the question where are they living, or does that just defer the problem into another set of words?

MR MAIDEN: No, that goes to the factual finding – that is, breaking it down, in terms of where the children are at the point of time ‑ ‑ ‑

FRENCH CJ: Not where they are. That is not enough, is it?

MR MAIDEN: No, but it is one of the matters to be balanced or considered in relation from whence they have come. It is really left hand, right hand in respect of the exercise of the judgment of the factual matrix and giving sufficient weight to each of those elements that are put before the trial judge.

FRENCH CJ: The question “Where are they living?” asks more than where are they, because if you ask “Where are they?” somebody might say “I am holidaying in Australia, but I live in Israel”. If the question “Where are they living now?” – that is, at the time of asserted wrongful retention – is answered by the word “Australia”, then one might have gone a fair way along the track to establishing that habitual residence had changed. But it depends upon what content you can give of a useful kind to that sort of question.

MR MAIDEN: Indeed, and in respect of that matter you would look at matters – I am repeating myself ‑ ‑ ‑

FRENCH CJ: This goes into issues of connection and all those sorts of factual matrix things.

MR MAIDEN: Exactly. It is the connection – length of time, language, families, extended families, friends, schools, churches, synagogues; whatever. We get back to the situation that when the Convention came there was this deliberate avoidance of the question of domicile, and an avoidance, presumably for reasons that at that time regarding abduction and wrongful retention appear to be simple.

HAYNE J: But does rejection of the concept of domicile consistent with its repeated rejection in Hague Conventions reveal a discarding, or perhaps only downplaying, of examination of intention?

MR MAIDEN: It is a downplaying, and it is related to which court should make the decision, taking in all the matters relevant to the issues of custody.

HAYNE J: I think there is at least some academic thought - see Scoles, Hay, Borchers and Symeonides on “Conflict of Laws” 4th edition, the American text that tends to suggest that habitual residence is intended to discard the requirement of intent to remain permanently as well as also discarding derivative domiciles and revival of domiciles of origin and so on.

MR MAIDEN: Indeed. I think in respect of that point it goes back to Professor Caver’s warnings as the difficulty this would be if there were to be elevation of the matters that were avoided at the time of the Convention. We had made a list of the matters that we thought would probably be relevant as to factors to be considered in respect of this issue of living, “Where are they living?” and we have put in this shared intent of the parents, the length of time that the various children here had been in the former country.

HAYNE J: Shared intent at what time?

MR MAIDEN: Between the respective countries. So, in Israel the youngest child has been substantially most of his life.

HAYNE J: No, shared intent of parents at what time?

MR MAIDEN: Shared intent of parents as before the retention.

FRENCH CJ: Immediately before, according to the regulation.

MR MAIDEN: Immediately before the retention or as close as factually able to, if there was. There may not have been. There may not have been any discussion at any time.

HAYNE J: How do you cope with the case where, as I understand your case on the facts, your case on the facts was there was a shared intention at the point of departure from Israel which he extended at least to going to Australia – leave aside how further it is qualified – and immediately before retention, or at the point of retention, at least, there is no shared intention. What do we do with those circumstances?

MR MAIDEN: In the test that we are propounding those facts are part of the total situation that is ‑ ‑ ‑

FRENCH CJ: You say there is no shared intention, let us look at what else there is.

MR MAIDEN: Exactly. Whereas, if we go to the narrower test, if one parent changes their mind that is the definitive moment and the definitive issue on the present Australian and English test and no other factor comes into play.

GUMMOW J: This phrase, “habitually resided in a Convention country”, I think you said to us that a situation could arise where the child had ceased to habitually reside in Israel, albeit was not habitually residing in Australia?

MR MAIDEN: That is right.

GUMMOW J: It is enough if there had been a cessation of the condition of habitual residence in Israel for paragraph (b) to not be satisfied, I guess?

MR MAIDEN: That is so.

GUMMOW J: In other words, as I understand the common law, an individual always had a domicile and the fallback position always was domicile of origin, I guess. That is not carried through. That notion of always having an habitual residence is not present here?

MR MAIDEN: That is so. Your Honours, the last case on our list ‑ ‑ ‑

HAYNE J: Apropos of the matters his Honour Justice Gummow was putting to you, that is, I think, a view that finds some reflection in Re J (A Minor [1990] 2 AC 562 where it is suggested, I think, is it, that a person can cease to be habitually resident in a country on one day but ‑ ‑ ‑

FRENCH CJ: It is 578.

HAYNE J: It is 578, is it? Thank you. I am indebted to the Chief Justice. At letter H:

A person may cease to be habitually resident in country A in a single day . . . cannot, however, become habitually resident in country B in a single day.

So there may be an hiatus.

MR MAIDEN: There are cases of one month, two months, six months, various suggestions by various of the academic commentators and various cases as to what that period or whether ‑ ‑ ‑

GUMMOW J: Did the primary judge focus attention upon the question as being whether there had been a cessation of habitual residence in Israel rather than upon a question of whether there had been an acquisition of habitual residence in Australia?

MR MAIDEN: That is where I find the judgment a little difficult because he accepts that the mother has gone to Australia by way of agreement which would ordinarily mean that habitual residence in Israel stops, but then he finds that because of the letters, emails and communications in the latter part of 2006 that that relationship between the wife and husband had not been extinguished and there may have been the possibility of her coming back. However, he then moves on to the discretion, subsection (3), which would appear to be at odds with that initial finding, but he does.

GUMMOW J: What did the Full Court say about this?

MR MAIDEN: They did not really deal with it. They seem to have said, “We just followed the English authorities. There was an agreement. The agreement was changed when the father changed his mind, and that is it”.

HAYNE J: Can I just take you back to the primary judge, page 422 of the appeal book, paragraph 38. What is the nature of the inquiry that is leading to the conclusion and absence of persuasion described in that first sentence? It seemed to me that there his Honour was seeking to identify whether the children had ceased to be habitually resident. It seemed to me that his Honour focused particular attention upon the intention of the mother as determinative of that question, hence my putting to you very early in the argument that it seemed to me your argument either did focus, perhaps even had to focus, upon the significance of intention of the mother; an intention to abandon. Intention to abandon does not sound unfamiliar to an Australian lawyer because we have grown up on motions of domicile, but we are not in that territory.

GUMMOW J: Taking up what Justice Hayne says, if you look at about line 40 on page 422:

I do not think that the evidence allows me to find any point in time where it could be said that the parents had reached a mutual understanding that Israel was no longer to be the home of these children.

MR MAIDEN: That raises the issue of whether or not it is the parents’ state of mind that determines the issue of habitual residence. In respect to that matter, we submit that it does not and should not.

HAYNE J: Just to follow it out, in the Full Court it seemed to me that their Honours at paragraphs 22 to 25 may perhaps be doing no more than recording what the primary judge did, though I suspect it is better read as recording and endorsing, but that I suspect may be reinforced by consideration of the last sentence in paragraph 72, that their Honours endorsed the approach of the primary judge.

MR MAIDEN: That is as we understand it and that is assisted – I think it is paragraph 33. The Full Court, “there were strong completing claims” is noted there and then they consider ‑ ‑ ‑

FRENCH CJ: Competing claims is only relevant to discretion, is it not?

MR MAIDEN: Yes.

FRENCH CJ: It is not really relevant to anything else.

MR MAIDEN: No. Which gets to then the discretion that he finds that he can exercise because of the initial agreement, that is, the intent to leave initially, subsection (3).

FRENCH CJ: Incidentally, was there a rejection somewhere in the – yes, the question of the requirement for the permanent cutting of ties with Israel, I think that was not a necessary condition of abandonment of Israel as an habitual residence.

MR MAIDEN: That is so. Again, that will change in case to case where people move between the ‑ ‑ ‑

FRENCH CJ: Yes, sure.

MR MAIDEN: There was one case involving, we read, the situation of Northern Ireland and Irish Republic where each day the children went between the border; over the border for school, church and various other activities and how was it to be decided where they were habitually resident and one looked at the objective factors. So, it is going to change, depending upon the situation that confronts people.

KIEFEL J: This is not a factually difficult case, though, is it, if you put aside the question of the parents’ intentions?

MR MAIDEN: It is a difficult factual case in respect of the material that was before his Honour because at that point of time it seems that everyone addressed just the question of intention as the issue to be determined between father and mother.

KIEFEL J: The regulations refer to habitual residence which has a component obviously of the ordinary meaning of “residence”, where one resides, and perhaps importantly, the additional question of the place from which the rights of custody are derived. The two tended to merge together. That leaves very little room for notions of intention which are so relevant to domicile. If that view of the regulations is correct, cases like in Re J would fairly readily be determined in favour of the place where they had just lived. Regardless of an intention to abandon that domicile, there would not be an hiatus, do you agree?

MR MAIDEN: I do, and in In re J, of course, that is the Western Australian case where the Convention did not apply because the father had no rights, the parties not being married.

KIEFEL J: This is the case if the mother’s intention to remain in Australia does not have such significance. The question of habitual residence is readily determined in favour of Israel, is it not?

MR MAIDEN: Not necessarily. It is a question of time and place as the date of retention.

KIEFEL J: The critical question here is time. It is the date of retention; that is it.

MR MAIDEN: Indeed, it is more favourable to Israel the closer to 15 May 2006, one assumes. As times goes on then in favour of Australia becomes more critical, assessing all the factors.

KIEFEL J: But that is not because of the mother’s intention; that is because residence and the question perhaps of ‑ ‑ ‑

MR MAIDEN: The objective facts.

KIEFEL J: ‑ ‑ ‑ the rights of custody have shifted.

MR MAIDEN: And at that time, the Australian authorities were concerned with intention between father and mother and it appears that the affidavits address that issue at length and were scant on both sides until the additional evidence was sought to be put before the Full Court on the appeal.

KIEFEL J: You have not relied in your argument in relation to the facts which become important if the mother’s change of intended residence is important. You have not relied upon notions of Australian law, being that which is relevant to the rights of custody. You have not suggested that it is other than Israel.

MR MAIDEN: No. We are saying both systems. The question is which system tries the case. It appears that both systems have similar concepts in respect of the sharing of parental responsibility.

KIEFEL J: But do you say at any point that the rights of custody as defined in the regulation shifted from Israel to Australia?

MR MAIDEN: No.

KIEFEL J: It was always Israel?

MR MAIDEN: No.

KIEFEL J: You recognise that?

MR MAIDEN: No.

KIEFEL J: I am sorry; which are you saying?

MR MAIDEN: The question is where is the case to be heard, irrespective of where we go back. If the children are sent back, the case will be heard. It is a forum argument.

KIEFEL J: All right. Which is the correct forum?

MR MAIDEN: We would, on my instructions, say it is Australia.

KIEFEL J: No, not on your instructions. As a matter of law, which is the correct forum?

MR MAIDEN: That is for the trial judge to decide on all the material facts and obviously ‑ ‑ ‑

KIEFEL J: What would you argue as a matter of law?

MR MAIDEN: As a matter of law, the mother came to Australia, condition precedent to her returning, she is intending to stay here, the boys ‑ ‑ ‑

KIEFEL J: No, just tell me. Which country, do you say, which place, is the correct forum for a custody dispute at August 2006 and at December 2006, those two dates?

MR MAIDEN: We would submit Australia because the ‑ ‑ ‑

KIEFEL J: For both dates?

MR MAIDEN: For both dates.

GUMMOW J: No doubt the Family Court would have jurisdiction.

MR MAIDEN: Indeed.

GUMMOW J: The children and the mother are here.

MR MAIDEN: It has the same tenets as the Israeli law as to the sharing of custody or the rights regarding children.

KIEFEL J: But in strict application, which law would apply?

MR MAIDEN: It is where the children are, so the law would apply here in Australia at the time they are here. If they went back to Israel then the Israeli law applies. But at the time they are in Australia ‑ ‑ ‑

GUMMOW J: If it is tried here, it is the Australian act.

MR MAIDEN: In the Australian act.

GUMMOW J: Full stop.

MR MAIDEN: Full stop. The father could have come to an Australian court himself, directly, but while the children are here it is the Australian law, and it is only, obviously, the Convention that gets them back there that would invoke the Israeli law.

HAYNE J: The connecting factor of habitual residence will yield not only the jurisdiction, but also the governing law.

MR MAIDEN: Indeed, and obviously fundamental to the Convention from whence they have come. If that is what the Court here decides – to go back there, that is where they have been, that is where they have been habitually resident – fair enough.

HAYNE J: The sole determinative question is where were they habitually resident on the highest case against you at the date the father requested their return?

MR MAIDEN: Indeed. The last matter I wish to refer to is the matter of the case of Robert, the American case, which involved the French backwards and forwarding. Again, the Americans have not been able to come to one system that is definitive of the approach they are going to take.

HAYNE J: Sorry, I misstated the proposition. I misstated it in a fundamentally important way. The question is not where were they habitually resident, but was it shown that they were habitually resident in Israel? The distinction is not unimportant.

MR MAIDEN: Indeed. The three propositions – Israel, Australia or loss in Israel.

FRENCH CJ: Before you move onto further cases and so forth, just going back to that concession of yours in response to my question about paragraph (d), that the retention was in breach of the father’s rights of custody, your position is that at the time he requested the return he was purporting he had a right of custody – that is, a right to determine, jointly with her, where the children should be located and that, in refusing that request, she was in breach of his rights under the laws of Israel. Is that right?

GUMMOW J: Why is that so if they are joint rights?

MR MAIDEN: In respect of Israel ‑ ‑ ‑

GUMMOW J: Do we know what the Israeli law is on that question?

MR MAIDEN: Both parties have assumed that the law is similar. The sections are – we have them here.

GUMMOW J: I thought we had the Israeli law text.

MR MAIDEN: We have summarised the sections, but I do not have the text here - regulation 16(1A)(c). Israel Capacity and Guardianship Law No 49 of 1962 - section 14 – parents are “natural guardians”, section 15 – guardianship includes the right to the custody and right to determine place of residence.

GUMMOW J: Where does it say it is joint?

MR MAIDEN: Page 480, section 14 - “Parents” plural, “shall be the natural guardians,” plural, “of their minor children.” Then 15: “The guardianship of the parents shall include the duty and the right to take care of the needs of the minor” and the other sections are sections 19, 24 and 25.

FRENCH CJ: Is this a translation of the law, or is this a print from within Israel?

MR MAIDEN: It looks as if it is printed. I can get some instruction on that matter, but it looks to be a printed document. However, I see – the affidavit refers to an English version. Whether it is an official version or not, I am not sure.

HAYNE J: The regulations contemplate joint rights – see regulation 4(1)(b) – but they do not, I think, otherwise work out any consequence of the right being a joint right.

FRENCH CJ: What right does the mother breach? What right of the husband does the mother breach by refusing to relocate the children to Israel upon the husband’s demand if the only right to determine residence is joint?

MR MAIDEN: I do not know specifically the answer to that question because in the document by the Central Authority there is no application, nor is there any document anywhere which sets out what orders the father would seek in Israel. Indeed, the documents are silent as to whether he seeks joint custody or joint parentship or anything else. It is a request by the Central Authority, they having been contacted.

FRENCH CJ: This must be a problem of general importance to the working of the Convention, must it not?

MR MAIDEN: One would assume so, but here all that happens is that apparently if the request is made, then the Central Authority in Israel contacts the Central Authority here and there is no definition as to what is sought by the father.

FRENCH CJ: All I am going to is the words of the regulations themselves and the characterisation of the retention as wrongful, that being a necessary condition of that characterisation.

MR MAIDEN: One assumes that that is put on the broadest extent, that is, a right to see, speak.

FRENCH CJ: Just talking about rights of determined residence at the moment.

MR MAIDEN: We do not know. Under the Convention ‑ ‑ ‑

KIEFEL J: Is it wrongful because they are taken away from the jurisdiction of the courts – to return to our earlier discussion – where the other parent could obtain orders? Is that a possible approach?

MR MAIDEN: I assume it is wrongful in the sense that the request having been made to return, that failure then amounts to being wrongful.

KIEFEL J: But this is in a situation where the notions of joint custody have broken down, it is no longer joint, and there might be an assumption that in that circumstance a person would be about to exercise their rights of custody through the courts.

MR MAIDEN: Courts, contact, any other, schools. There may be any other rights attaching to the rights of the parent, medical, blood transfusions, operations, all manner of things, or just one of those or one specific one, but it does not mean per se that there is ‑ ‑ ‑

GUMMOW J: I think there is authority we have looked at before which suggests that expression “rights of custody” includes, even in a joint situation, the right of one parent to approach the court – the home court, if I can use that expression – which is what Justice Kiefel is putting to you, I think.

MR MAIDEN: Again, part of what is I think the ‑ ‑ ‑

HEYDON J: The home court is where the child habitually resided immediately before removal. We are in a circle.

GUMMOW J: Someone should look at that. I have an idea there is a decision of the Supreme Court of Canada on that point we have been taken to in the past.

MR MAIDEN: Your Honours, could I go to the decision of SK v KP.

GUMMOW J: It is a decision of Justice La Forest, I think.

MR MAIDEN: Thank you, your Honour. Perhaps I could just give the paragraph section. At SK v KP. it is page 5 ‑ ‑ ‑

HEYDON J: You have nothing more to say about Robert? You took us to Robert.

MR MAIDEN: Just briefly with Robert, again that case, it does not assist in terms of narrowing the different decisions of the American courts. That is the liberal view again following the Feder Case and Friedrich, I think it is, the earlier decisions, which seem to be at odds with that appellate court with the decisions of Mozes and Gitter and the other cases in other divisional courts which my friends have referred to. So, again, the simple proposition that they are not helpful, save for looking at the factual situations concerned. The paragraph references are in our submissions, page 596, paragraph [22] of SK v KP. If I can just quote one sentence:

The decision of the Court on habitual residence must, however, in the end always reflect the underlying reality of the connection between the child and the particular state. Obviously there will be circumstances in which having been considered the facts indicate to the Court that all the circumstances of the case rather indicate this underlying reality.

The point, just in respect of retention, is on page 611. It is paragraph [85] and following. Then the court, Justice Glazebrook, considers the American decisions of Gitter and Mozes that I have just referred to and does not follow those decisions. In Punter, the court there described both Friedrich and Feder v Evans‑Feder decisions as child centred approaches and at paragraph [108] of Punter, which is the final conclusion, effectively the Australian and English approach is rejected.

FRENCH CJ: Did you say paragraph [108]? It is talking about a shuttle custody arrangement.

HEYDON J: It is [108] of Punter.

MR MAIDEN: Paragraph [108]. They reject the propositions put forward. Mr Pidgeon was for the Central Authority and he was propounding the Australian and English approach. In the submissions, with the amendment, where leave has been granted, we set out there the difficulty that now face us, the situation of all the parties and the children in this matter, that we are now three years on and in respect of any test to be applied, it is very unfortunate that this matter was not tried at a much earlier point of time, but without going into the reasons, we now have the situation where clearly in respect of the boys their situation must have changed considerably from that that confronted the parties back in 2006. Those would be our submissions.

HEYDON J: We are talking about regulation 16(3)(a)(ii), are we, that “a person opposing return establishes that” the institution seeking the child’s return had consented or subsequently acquiesced? I do not think anyone ever did that; no one acquiesced in the delays in the courts.

MR MAIDEN: Certainly. None of the parties acquiesced in the delays of the court.

HEYDON J: I am having a bit of trouble seeing what the relevance of the delay is.

MR MAIDEN: The problem now is that ‑ ‑ ‑

HEYDON J: I know that what you are talking about and what you are drawing attention to is factually a most disturbing thing, but how does it fit into regulation 16(3)(a)(ii), which is what ground 7 of the amended notice of appeal directs attention to?

MR MAIDEN: That is where my friends and I differ because we say that the Full Court should have exercised a discretion at the time. If it found in our favour in respect of the initial argument the discretion should be exercised.

HEYDON J: But it can only do that if someone has consented or acquiesced. Now, who consented or acquiesced, when and by what means?

MR MAIDEN: The trial judge found that the father had consented and acquiesced and that gave ‑ ‑ ‑

HEYDON J: Until? From?

MR MAIDEN: His initial acquiescence opened the door for that.

HEYDON J: Until late July, but then ‑ ‑ ‑

MR MAIDEN: That is right, but having initially acquiesced.

HEYDON J: Rightly or wrongly, it has been held that he was allowed to change his mind.

MR MAIDEN: Indeed.

FRENCH CJ: But the initial consent, you say, engages the wide discretion, regardless of whether he changed his mind.

MR MAIDEN: Yes.

FRENCH CJ: Was that in issue?

MR MAIDEN: No, that is what his Honour found.

FRENCH CJ: No, but was the question whether the initial consent would engage that discretion, regardless of the fact that he changed his mind subsequently, was that in issue before the Full Court?

MR MAIDEN: On the affidavit material there was a difference between father and mother and the judge preferred the evidence of ‑ ‑ ‑

FRENCH CJ: I am just asking as a matter of law, was there any legal debate on the construction of that section to which Justice Heydon was directing you as to whether the consent, having initially been given, the discretion was engaged regardless of his later change of mind?

MR MAIDEN: I do not think so.

FRENCH CJ: And you are trying to plug this delay issue into that discretion, which is broad.

MR MAIDEN: Indeed.

FRENCH CJ: And contend that the Full Court in its role as the appellate court had the power to exercise that discretion in a substituted way having regard to its own delay.

MR MAIDEN: That is so, and I am just reminded that that was a matter that Justice Kay raised, without the assistance of either party, as I understand it. I stand corrected on that.

FRENCH CJ: Thank you. Yes, Mr Walker.

MR WALKER: Your Honours, before I come to the scheme promulgated pursuant to the Act by the regulations in order to implement the Convention, may I seek to sketch the issues as they were at first instance and in the Full Court because that gives some concrete understanding to what may or may not be perceived by your Honours to be difficulties or cruces raised by the text of the Convention.

It is our position that some but not all of those difficulties may require attention in this case and that certainly there are some that do not and should not be the subject of determination by this Court; (a) because it would be moot and (b) because it needs the concrete facts in order to throw up the appropriate range of argument. The case, of course, is one where, on the father’s allegations, conveniently for these purposes found in volume 2 of the appeal book, page 514 at about line 20, return air tickets were obtained for a jointly arranged trip and stay to and in Australia by the mother and the sons, it being clear that on the father’s allegations the dating of those return flights had to do with the Israeli school term. On the father’s allegations the evident inference, of course, is that one is away for a relatively short time and is coming back.

Before ones comes to any text or notes any issues as they came to be joined between the parties, as a matter of ordinary practicality – if I may we would suggest the word “common sense” – and worldly knowledge, no one, we submit, would dream of saying that at the point the mother and sons embarked the aeroplane for Australia anything was being done to affect what everybody has not only assumed but conceded and asserted in this case, namely, that up till that point their habitual residence was in Israel. No issues arise except for the fact which is, as I say, asserted and conceded on all sides that but for the events in question that is where their habitual residence not only was but would be.

Following their landing in Australia, by dint of the events about which, alas, we cannot say there are findings in the courts below but we have to deal with what we have, the common element, notwithstanding the competing versions for which in fact preference is not expressed by any of the judges between the parties, one thing is a common element clearly, namely, that the possibility of reconciliation or continued rupture between the spouses was – between the spouses, I stress, only the adults – an understood reason why it might be the mother would want to stay on longer, and I stress “might be”. Because, as your Honours know, the facts include subsequent admissions, including by her father – through her father’s evidence, I should say – that there was no intention, as it were, to shift permanently to Australia, it was only a question of when she would go back to Israel.

Now, just to remind your Honours, December - how did December come into it? Because of the statement which is narrated by the courts – alas, still no finding, but there it is; it is narrated by the courts – that, according to the mother, not accepted by the father, in the unhappy event – if it was unhappy – that the father said “I do not want you back; I am not going to live with you”, she wanted to stay till the end of the year. That is where December comes in.

FRENCH CJ: Is that “till the end of the year”, or “at least till the end of the year”?

MR WALKER: I am sorry and thank you, your Honour – at least to the end of the year. That is where December comes in. To develop what the Chief Justice has, with respect, reminded me of, even that has to be taken as subject to equivocation, uncertainty and contingency because the words “at least” probably mean that she estimates, does not seek to bind herself and clearly contemplates, as you would expect, reconsideration from time to time of such an important matter between the people involved. So that before one comes to the text of anything and, subject to the difficulty which does not divide the parties before your Honours, but is a difficulty for your Honours, of the lack of definitive findings choosing between conflicting versions, there is, nonetheless, this common core which was the reason why the Full Court upheld, adopted, perhaps slightly elaborated, the ultimate conclusion of the trial judge, which focused on what we have called in our paragraphs 14 and 15 of our written submissions “the ambiguity or uncertainty or equivocation” of the mother.

It is appropriate to note that particularly in light of the colloquy with my friend this morning that of course that goes directly to intention as well as actual physical conduct. So there is no doubt about it – parental intention, jointly and severally, was for their different purposes right at the heart factually of what the mother and the father presented – my client not so much on behalf of the father as pursuant to the treaty mechanism with which your Honours are familiar.

HEYDON J: It would help me if you just told me what the name of the station to which the train is heading is, so that I can appreciate the force of the separate integers of your reasoning in getting towards that destination.

MR WALKER: Yes. The notion of habitual residence is the habitual residence of the children – that is critical – but it is in the context of a convention, the purpose of which is to prevent determinations of their custody – custody matters – until after an application for their return has been determined. Return will be ordered only to a place of habitual residence immediately before the removal or retention. It will be ordered only if the removal or retention was wrongful. The station – I am not sure whether this is Redfern or Central, your Honour, but it is at least Redfern – is that when one looks at the content of the custody right – in French the “droit de garde” – which is at the heart of the Convention, held by the parents jointly, then in our submission it is clear that facts of the kind that I have described and tried to take from the common core of the conflicting versions are facts which could not have possibly have produced at the time which is crucial – and I have to come to that separately – Israel not being the habitual residence. In short, we did prove Israel habitual residence.

HEYDON J: Is it your argument that it would not matter what the test was?

MR WALKER: Yes.

HEYDON J: Your argument is, in effect, that special leave should be refused or that the appeal should be dismissed pretty briskly?

MR WALKER: Yes.

HEYDON J: Is that why the Full Court said, “We do not need to resolve the apparently significant departure of the New Zealand courts from Australian and English authority”?

MR WALKER: Yes, and that is why we have put what we have put in our notice of contention. It is why, in our attempt to analyse the issues presented today in ‑ ‑ ‑

GUMMOW J: You have ignored the stay judgment in the Full Court, have you not?

MR WALKER: I am so sorry, your Honour?

GUMMOW J: In your eagerness to embrace what was put to you, you have ignored the stay judgment in the Full Court – by the second Full Court.

MR WALKER: I am so sorry, your Honour, I cannot ‑ ‑ ‑

GUMMOW J: There was a stay, was there not, in the second Full Court?

MR WALKER: I am sorry. I am not ignoring the stay.

GUMMOW J: They thought there was a problem.

MR WALKER: I am so sorry, your Honour.

GUMMOW J: They thought there was a problem. They granted a stay.

MR WALKER: Your Honour, special leave was granted. There it is. I am not ignoring that. I accept that there is a reference in the stay reasons of a kind, with great respect, understandably conducing in favour of special leave. I need say no more about that. But there is also the reference in the substantive reasons to either the slightness of difference in truth, as they suspected, or the immateriality for the determination of the case before them in the Full Court and that, of course, conduces against special leave.

The same Bench might be thought on different occasions, perhaps for different forensic‑ish reasons because different forensic issues were before them, expressed themselves slightly differently.

HEYDON J: Mr Walker, this question of “on any test you must win” the evidence rejected in the Full Court included that the mother had arranged for the children to join a soccer club in mid‑June 2006, the Kick‑Start Soccer Camp in June 2006, music lessons in July 2006, cricket clubs in September 2006, music lessons in November 2006 and attendance at the synagogue throughout this period. You will have to concentrate on the date. Your proffered date is?

MR WALKER: The 23rd or 24 July.

HEYDON J: When the husband changed his mind? We have some evidence of events before that date.

MR WALKER: Yes, but that is the latest date as found below and as we have put, the latest date on which an insistence on the use of the return tickets, as we would put it, emerges. There is on father’s version – again I regret to say, the conflict between these versions is not resolved in the courts below – there was earlier talk, hence the reference to mid‑June, but I do not have a finding that it is mid‑June as opposed to late‑July. I do have a finding that it is at the latest late‑July.

What Justice Heydon has raised, of course, goes directly to the question which we think does not divide the parties, namely, whether things done without the arrangement, approval, consent, acquiescence of the father by the mother, such as enrolling activities to take place in Australia after the date on the return tickets, whether they can do anything to change the habitual residence.

HEYDON J: That is begging the question ‑ ‑ ‑

MR WALKER: I am sorry, your Honour?

HEYDON J: To pose the question that way is to beg it. If all that matters is the intention of the parents, then perhaps things do not ‑ ‑ ‑

MR WALKER: I am certainly not saying that is all that matters, for reasons I will come to, but it is relevant. I certainly will not be saying it is the sole issue and I will certainly not be saying it is always in all cases dispositive.

HEYDON J: On the New Zealand test, if you are just in a community, even if you are a very young member of it, things can happen to you quite independently of the desires of your parents.

MR WALKER: Yes.

HEYDON J: And on that test this evidence was admissible.

MR WALKER: Only if that material was capable of bringing about a change such that Israel was no longer the place of habitual residence immediately before the removal or retention. It is the temporal question which makes the relevance point.

HEYDON J: If the Full Court was to say, and perhaps it was saying, that it just cannot on any view achieve the purpose for which it was tendered ‑ ‑ ‑

MR WALKER: That is right, and they did say that. That was the first way they said it.

HEYDON J: Paragraph 72 on page 539?

MR WALKER: Yes, your Honour. Paragraph 80 I think is the culmination by way of summary of their reasons, page 541.

HEYDON J: Just take paragraph 80. Part of the evidence relates to the period before the departure for Australia. That was April.

MR WALKER: Yes, that cannot be sufficient in its ‑ ‑ ‑

HEYDON J: All that evidence in paragraph 71 has nothing to do with April. It is all post‑April. She did not apply for a Medicare card when she was in Israel, surely?

MR WALKER: No. Your Honour is quite right, with respect. I do not know that 71, although it is expressed as if it were exhaustive in its summary, I do not think that it is, with respect and I will ‑ ‑ ‑

HEYDON J: Maybe some of the evidence was inadmissible on any view, but why was the material identified as inadmissible on any view?

MR WALKER: You will see a reference in paragraph 40 on page 527, “sale of the family car”, “holding a garage sale”, et cetera. Some of those are obviously before departure.

FRENCH CJ: Is 80 picking up some of the references in 69?

MR WALKER: We think so.

FRENCH CJ: Albeit under the rubric of ‑ ‑ ‑

MR WALKER: “[F]ailure to conduct a broad factual inquiry”.

FRENCH CJ: ‑ ‑ ‑ admission of further evidence, yes.

MR WALKER: We think so, but it is not clear, with respect. School enrolment is, certainly, yes. Can I go back to try to ‑ ‑ ‑

GUMMOW J: Just looking at paragraph 80:

and the other part arises in circumstances where the mother was aware of the father’s wish for the children to return to Israel.

So what? Does that not throw up the question of construction?

MR WALKER: It does.

GUMMOW J: Namely, domicile of dependence.

MR WALKER: I will not and cannot say that, but, yes, your Honour. What we think that is a compendious reference to is this notion, also not crisply enunciated in the Full Court’s reasons, of the date for the purpose of the crucial question. I think it is accurate to call it the date of the retention. I query whether one calls it the date of the wrongful retention. I am going to come to that because that is one of the difficulties thrown up by the text of the regulation and Convention. But just calling it the date of retention at the moment, that expression ‑ ‑ ‑

GUMMOW J: No. The phrase “domicile of dependence” was pejorative, but it does throw up there that sentence in paragraph 80 the apparent reliance on what your opponent calls the dependency model.

MR WALKER: Without any question, your Honour, or a parental rights model. I am going to come to the models. We say some of them are straw men, but nonetheless they are usefully they are talked of in Schuz, however, we say they have no usefulness in understanding the text and that they should be noticed in order to be removed from the debate hereafter. But, yes, we entirely accept, with respect, what Justice Gummow has said, namely, that that reference in paragraph 80 is a reference to, if you like, a driving importance of what I am going to call a veto. I call it a veto for the following reasons.

If it would be useful for me to go directly to this particularly given some of the unfinished business in attempting to answer some of Justice Heydon’s questions. Your Honours were asking my friend about the Israeli law. By the means of proof which are permitted to be used and obliged to be accepted ‑ ‑ ‑

GUMMOW J: It seems to me to come to this, Mr Walker. Unless you are successful in persuading us to this theory of parental rights or whatever you call it you cannot say that this evidence was irrelevant and that the matter has to go back to the Full Court for it to be admitted.

MR WALKER: Your Honour, I am going to try and persuade you that that is not right. May I do that in an extended fashion though? But just to flag it, in particular I am going to try and persuade you that there ‑ ‑ ‑

GUMMOW J: Because they rejected it on the ground of relevance. It is the last sentence in that paragraph.

MR WALKER: Quite so. I am going to try and justify that by a mixture of a temporal question and a question of the inherent impossibility of what is called in the literature, unilateral conduct changing habitual residence. When I say change I do not necessarily mean acquiring a new one, I simply mean changing it so that it is no longer the one which in this case on all sides is solidly agreed to have been Israel but for the things which divide us.

So I am going to put a position that I do not have to uphold anything called a test or a model of any kind under any label. I do not in particular have to insist on anything called a parental rights one or a dependency one, but that properly understood the test raised by the critical expressions which are in a context and for a purpose are, certainly on the facts of this case with the joint rights involved, simply incapable of having been added to by way of relevant or admissible material in the Full Court and that their Honour’s determination of that matter was right.

Now, if your Honours will forgive me, I think practically everything else I am going to say today really will be in further elaboration of that answer to Justice Gummow. Could I at the outset though, having painted the facts as I have concerning the dealings between the parents and the happenings, that is, where they were, et cetera, what they were doing in relation to the children, could I put that in the context which the Convention and the regulations requires at the bottom, namely, the Israeli law, the law of the place putatively of habitual residence at some earlier time?

You will find it in volume 2 of the appeal book. The relevant passage in what is described in the affidavit as the English version of the law – I am afraid like my friend I cannot take that any further ‑ ‑ ‑

GUMMOW J: Do we know the date of the law?

HEYDON J: In Israel ‑ ‑ ‑

MR WALKER: I am so sorry, your Honour?

HEYDON J: Israel was once a British colony.

MR WALKER: Quite.

HEYDON J: Is it not the case for a long time that perhaps even now that it is in effect bilingual, you have a Hebrew version and an English version?

MR WALKER: It may be more than bilingual. Multilingual, yes.

HEYDON J: The birth certificates are in both languages.

MR WALKER: But there are many official documents that your Honours will have seen, including I think law reports in English. Your Honour, the answer to Justice Gummow’s question is that there is a date to be seen at page 479, 1962 we think, if I am reading that correctly.

HEYDON J: David Ben‑Gurion was the Prime Minister.

MR WALKER: Your Honour, that has caused me some doubt ‑ ‑ ‑

HEYDON J: He ceased to be Prime Minister by 1962, I think.

MR WALKER: So do I, your Honour. I am sorry I cannot be more exact. He was first after all. That of course may be as a result of – I am so sorry. My friend draws to attention – this looks like it does come from a set of books containing laws. The one beforehand ‑ ‑ ‑

GUMMOW J: Is some other law.

MR WALKER: Is some other law. I cannot believe in any country that the Minister of Finance is charged with the implementation of these matters about children.

HEYDON J: No, but the relevant names are on page 485: David Ben‑Gurion, the Prime Minister, and the Minister for Justice and the Chairman of the Knesset.

MR WALKER: Yes, without any doubt, your Honour. Your Honours, this comes from something called the Laws of Palestine, English Edition.

HAYNE J: No. That is part of what they have repealed.

MR WALKER: Yes. Your Honour is quite right. I am so sorry.

HAYNE J: See section 82. The Ottoman Commercial Code is also repealed by this, which is important to notice, I am sure.

MR WALKER: Thank you, your Honour. We do not have to worry about fathers alone, then. I just wanted to take your Honours to, on page 480, sections 15 and 19 because, with great respect, one of the questions the Bench raised with my friend included the Chief Justice’s question, where is the breach in case of a joint right? In 15 you will see that against the sub‑title “Functions of parents” the parents are in the plural – that is both of them. The repository of the duty and the right which is there set out which shall include – second‑last line – the right “to determine his place of residence”. That is a right which is given to the parents. No one has doubted in this case, though there is precious little what I will call juristic analysis of the fact, as a matter of expert evidence or otherwise, that in this case the mother and the father jointly had that right.

I think, as Justice Hayne pointed out to my friend, those who prepared the Convention were well familiar with such a phenomenon, and hence the reference to whether jointly or not.

HAYNE J: This Court touched on these issues in DP v Commonwealth Central Authority 206 CLR 401, particularly at page 412, paragraph 27, where there is some discussion of issues which may touch this. Whether we have looked at it again I am not sure.

MR WALKER: Yes. Section 19, which I do not think gets any mention in any of the reasons below but nonetheless it is in the material, in its first sentence refers to a position of no agreement in a matter relating to property. In its second sentence it talks about a position of no agreement in any other matter within the scope of their guardianship. That will include the right to determine place of residence. Then – I do not know how useful this is because people who have reached no agreement:

may together apply to the Court, and the Court, if it does not succeed in bringing about agreement between them and if it deems it appropriate to decide in the matter, shall either decide it itself or refer the matter for decision to whom it may think fit.

Notoriously, that could well include rabbinical determination of course – adjudication.

That supplies content to what might otherwise follow as a matter of logic, namely, that where a child has a place of residence, having been determined by earlier conduct or arrangement of the parents, and that must have been so in this case, then changing that is something which one of two ‑ ‑ ‑

GUMMOW J: It is really sections 24 and 25, is it not?

MR WALKER: It again depends on the temporal question about when that applies.

HAYNE J: The parents were certainly living separately.

MR WALKER: Again it depends at the time, but, yes, your Honour. Under 24 – however, 24 is again an incomplete answer because it says “they may agree” – in effect, you may agree to give up what after all has been described in 15 not only as right but also a duty subject to the approval of the court. That really reinforces what I wanted to say flowing from 15 and 19. Sections 24 and 25, in our submission, are to the same effect, namely, that unilaterally one of the two parents with the joint right and duty, or the joint right in this case, cannot determine the place of residence and that is because the right to determine the place of residence is given to both of them from which it follows because it is to be a joint determination that the determination of one is not an exercise of a right under 15.

That is why I referred earlier to a veto, effectively. It means that if you do not agree, then you have prevented that parental determination of a new place of residence from occurring.

FRENCH CJ: I am just looking at the terms of the schedule itself. Article 3 is the relevant article, but the regulation certainly does not follow its wording, but I am not sure that there is any material difference or any assistance to be gained in the interpretation of it.

MR WALKER: I will go to both, your Honour.

FRENCH CJ: Would you, in due course?

MR WALKER: I will go to both, but I will be using the regulation as the primary source because that is the Australian law, but for obvious reasons, I will go occasionally to the Convention.

FRENCH CJ: Of course, yes.

GUMMOW J: We have said that the fact these regulations do, in some respects, go beyond the Convention. If they do, it does not matter because they are laws with respect to external affairs, even if the external affair goes beyond the treaty.

MR WALKER: No one has raised the slightest suggestion about either of two matters. One I cannot talk about because of 78B, namely, beyond power legislatively, or, two, one that I could talk about but will not because there is no such issue, namely, going beyond the statutory authorisation for the making of the regulation.

FRENCH CJ: The only legitimate area of discourse would be whether there is any constructional implication, that is all.

MR WALKER: That is right, exactly. If your Honours will forgive me, I will come back to the matter the Chief Justice has raised later. Just to complete what I wanted to say against the facts concerning parental dealings or arrangements, the facts concerning what happened with the children, the dates which are critical, the nature of the Israeli law, particularly what follows in terms of giving or depriving either of them from unilateral determinations of a new place of residence, it followed that one could never overlook matters of intention and that is because at the heart of the question concerning habitual residence are the obvious factors that contribute to any behaviour by a person, or position of a person being described as “habitual”. It will have to do with duration. It may also have to do with voluntariness.

Issues which may arise one day, but certainly do not arise in this case, are, by the commentators in, as it were, law school moot fashion, often referred to by reference to prisoners and the like. A more practical example are soldiers under compulsion to obey orders for overseas garrison et cetera. They do not arise in this case, but clearly consideration of them according to the facts of any particular case will go to the component conjured up by the word “habitual”. With children – and this Convention is entirely about children and it is about parental rights with respect to children – it is plain that it is not simply the conduct of the children which will determine the place of residence. I have there deliberately used the expression that one finds in the regulation and in the Convention and, as it happens, in the Israeli law – see section 15 – about the part of the content of this right. It is a right to determine. That is why it is totally beside the point to denigrate something called the parental rights model or to denigrate something which is called a dependency model.

This is a Convention about the infringement of parental rights – a parental rights expression is clearly not alien to the convention – and it is certainly about sending a child back to the place determined by his or her parents to be his or her place of residence there having been no change in that place of residence. That, of course, would rather tend, subject to the limited exception for so‑called objection by children, that will obviously tend in many ways to make the child dependent. Obviously that conjures up ‑ ‑ ‑

HAYNE J: Dependent according to what law, Mr Walker, because is not the argument you are advancing circular?

MR WALKER: No, your Honour, because of the temporal requirements.

HAYNE J: With the circularity lying in the fact that by reference to rights you are necessarily referring to a system of law.

MR WALKER: Yes.

HAYNE J: The question is, which system of law? The only question that must first be determined is this connecting factor question of habitual residence. How is light cast on that question of connecting factor by assertions about rights that would exist if the habitual residence were country A rather than country B?

MR WALKER: That would be illogical. I am not putting these as abstract propositions divorced from the facts of this case, as I think I have said.

GUMMOW J: You said this Convention was directed to parental rights.

MR WALKER: Yes, it is. It uses that expression.

GUMMOW J: That is a rather broad proposition and, therefore, it runs against, or may run against, the common law idea of the paramount interests of the child.

MR WALKER: Unquestionably. As your Honours will see in provisions I am going to take you to, it is expressed as if there is no tension.

FRENCH CJ: In terms of approaches to construction, these models, or the invocation, for example, of parental rights, is presumably just a way of referring to purpose by reference to which one construes and applies words in their ordinary meaning. See Article 31 of the Vienna Convention and so forth.

MR WALKER: When I say the purpose is directed to parental rights, we accept, with respect, that at first and possibly subsequently sight that seems to be intentioned with the common law paramount interests of the child.

GUMMOW J: The fact is there is a compromise and the interests of the child are respected by 16(3) so we get back to this connecting factor that Justice Hayne put to you, shorn of the relevant emotion.

MR WALKER: The Convention says, as it were, we dissolve all that tension by saying it is in the best interests of the child that custody questions be determined after one of these parental return applications has been decided and it will be determined in the place of return if return is ordered and it will be determined elsewhere if return is not ordered. Now, whether in a particular case a child would thank the makers of the treaty for that outcome is not to the point. There is scope – there are some self-adjusting mechanisms in the Convention reflected in our regulations, the provisions about settlement, the provisions about objection. But at the end of the day ‑ ‑ ‑

FRENCH CJ: But we are not in that territory here because of the age of the children.

MR WALKER: No, quite. At the end of the day, what arises for decision is whether or not there is any error in the Full Court declining to see in New Zealand, as a matter of law, really – it is a matter of principle or interpretation of our regulations – a new or materially different departure in the way in which these provisions should be understood and applied to particular facts. And it is clear from the reasoning in New Zealand, upon which reliance is placed on the other side, that that argument is centred on this so-called choice between so-called competing models. We are trying to persuade your Honours that it is not useful, except as shorthand, in referring to different ways of attributing purpose to the Convention; it is not useful to categorise approaches by reference to these models. And at the outset we would point out, in particular, it will not do to say there is no place for parental rights by reason of the provisions, to which I am shortly going to come, which make it clear that they are at the heart of the exercise.

Justice Hayne has asked me about circulatory. The only way illogical circulatory is avoided is by observing the importance in this case factually of the acceptance by everybody that but for the events in question, or until the events in question, the children were habitually resident in Israel‑that is, there was a time before any controversy when that is where they were habitually resident. That is a conceded common ground and that is a matter of fact upon the basis of which we can say there was a time when section 15 of the Israeli law 1924-25 obtained. What does that mean in relation to what happened thereafter? And if it can be said – and we have got to establish this factually as well – that nothing occurred before the retention which, as a matter of Israeli law, saw the residents determined to be otherwise than Israel ‑ ‑ ‑

HAYNE J: Why by Israeli law? Where have you suddenly injected that requirement in?

MR WALKER: Because, your Honour, it gave the capacity to the parents to determine the place of residence. If, as a matter of fact – by reason, for example, of the conversations that are narrated by their affidavits – they had agreed that the children were to reside in Australia, that would be the end of the case.

HAYNE J: I suspect you simply illustrate the circularity, rather than dispel it, Mr Walker, but do go on.

MR WALKER: Well, no, your Honour, it does depend entirely on the facts of this case. It is not an abstract proposition regardless of what has happened between parents and children. Where there was a joint right to determine a place of residence it is factually relevant to find out, for example, whether it has been exercised so as to change that residence. In this case there was no such exercise. In this case there was no joint exercise of a right to determine Australia as the place of residence. That means, therefore, that assuming that it be the end of July when the question of place of habitual residence has to be answered, immediately before the latest point at which the father said the air tickets should be used, in effect, the question is whether what had occurred up to that point had changed the place of habitual residence from Israel, either by merely losing it or by not only losing it, but obtaining Australia as it ‑ ‑ ‑

HAYNE J: And to lose it required what? A conscious asserted intention by both joint custodians, do you say?

MR WALKER: Yes, I do say. Again, at the risk of what your Honour has invited me to deal with, yes I do say that. In our submission it must be otherwise unless there is some tenet of our law that says about habitual residence that, for example, your presence in Australia gives you a right unilaterally to do something which you could not have done at home. That would then raise questions such as: does this apply to people who come for a holiday to the Barrier Reef? That cannot be right. No one has suggested that. So that in this case we say yes, because the law of Israel, which we submit is plainly important because its content is one of the foundational matters - in order for an order for return to be made you have to look at its content - under the law of Israel nothing had happened to change their residence and there is nothing in Australian law that gives the mother, contrary to the law of Israel, any right to change the residence. The presence of the children had changed, unquestionably – and presence for an appreciable period, to use vague but necessary language, may well contribute very greatly – in some cases enormously so – to a determination that residence has changed, without any doubt. But no one has said, and no one could say, that such a lengthy period had expired by the end of July 2006, in this case. So one could put that long duration intuitive response that there has been a change of residence because young children have lived for so long in a particular place.

The temporal question is critical, obviously, in order then to deal with the subsequent issues concerning the discretion that my learned friends say the Full Court should have exercised for itself not to order return.

GUMMOW J: Why do you say it would be irrelevant to consider such questions as the social structure in which the children were living in May and June 2006?

MR WALKER: The ways ‑ ‑ ‑

GUMMOW J: That they joined a soccer club, were making friends, had music lessons, all the other things that go with bringing up children in a particular place, particular society.

MR WALKER: The happenings, as I have called it – the events, the conduct of the parents and children which go to habitual residence ‑ ‑ ‑

GUMMOW J: No, which go to the question of the loss of habitual residence in Israel.

MR WALKER: Sorry, which goes to the issue of habitual residence ‑ ‑ ‑

GUMMOW J: We are not asking whether there has been an acquisition of a new domicile.

MR WALKER: No, no, quite so – which in this case translates only to loss of habitual residence - of its nature will involve properly involved examination of the physical movement – that is not in doubt and not a problem – will involve examination of the arrangements between the parents because no one saw fit to put any evidence, as it were, of or from the children before the court – understandably given their age and circumstances. By dint of age and choice of the mother and father in the litigation it is the parents’ arrangements about the stay and that is why it was relevant to explore what the arrangements were for return air ticket, an arbitrary date, perhaps a discount purchase with the second half to be cancelled – no, according to the father it coincides with school term.

So you have the air ticket return date, then you have the things on the other side of the ledger which were taken into account by the Full Court and it is of necessity a broad inquiry; everything that casts light on that which will render a departure a cessation of residence or a cessation of habitual residence. Thus, for example, it might be that an arrangement will include keeping a residence in Israel, but intending such intermittent or uncertain use of it that you cease to have habitual residence there. In this case, bearing in mind the relatively short time for the return tickets, the reason for the dating of the return tickets according to the father, that in our submission it could not be said, looking at all the material concerning their arrangements, it could never be said that there was the loss of either the habitual quality of residence in Israel or indeed the loss of residence outright in Israel.

GUMMOW J: What does there have to be?

MR WALKER: There has to be physical movement. That is one of the reasons why we have said that parental intention is neither sole nor dispositive. One of the straw men propositions put up by Schuz, for example, is that the so‑called narrow view says of parental intention that that will determine everything regardless of what the child is doing. That cannot be right. It is residence and it is residence of the child, therefore, the presence, where the child actually is located, is a critical and obvious matter and not in doubt in this case.

GUMMOW J: Suppose you take a child in 1940 in the United Kingdom whose parents agree to ‑ ‑ ‑

MR WALKER: Send them to Ireland.

GUMMOW J: - - - the child being sent to Canada for the duration of the war, what is the habitual residence of the child in 1941?

MR WALKER: A priori and in the abstract it is not a question that can be answered but highly likely, bearing in mind the intended duration and nature of the stay, the habitual residence would after a period be in Canada, though one is bound to say, depending upon the hopes that may have been entertained in 1940 of a quick end to the war, one is bound to say that it does not follow that even something as large as crossing the Atlantic to get away from the war would necessarily mean there and then you had lost habitual residence in England because many people may have said, “Let’s hope this is for a short time. I hope we will see you soon when this unpleasantness is over”.

Those are not arrangements or movements in circumstances which, as a matter of fact, given knowledge of the world, means that you would have lost your habitual residence in London any more, with respect, than in an earlier time if you left London because of the plague, you would have been thereupon losing your habitual residence. To return slowly to, I hope, a more direct answer to Justice ‑ ‑ ‑

HAYNE J: Just before you do, recognising the difficulty of expressing the relevant expression in other words, it seems to be something that has frequently been attempted and in McClean’s book Recognition of Family Judgments in the Commonwealth at paragraph 1.39 the author says:

It has sometimes been suggested that habitual residence is in essence the same as domicile; it has been interpreted as meaning the ‘life‑centre’ or the ‘social domicile’ of an individual. German courts, considering the Hague Convention on Protection of Minors 1961, have interpreted a child’s habitual residence as the ‘centre of gravity of its life’ and a Dutch decision is to the same effect.

Are you propounding a meaning that is significantly different from those necessarily imperfect synonyms?

MR WALKER: No, not at all, and I am confessing an inability to offer a paraphrase which is better than habitual residence, that would be absurd, or which is better, with great respect to some of the commentators and judges who have opined on it. Whether there be check lists or paraphrases or definitions, the fact is content has to be given to the expression “habitual residence” and for better or worse, we are left with the, in effect, authors of the Convention telling us now this is not to be trammelled with arcane legal definition. This is a matter that may be applied by other judicial or administrative authorities and it is a matter fact and everyone keeps saying it is a matter of fact. Of course it is a matter of fact but that does not mean you cannot commit serious errors of law.

GUMMOW J: Facts have to be admitted and they have to be admitted because they are relevant to something.

MR WALKER: Exactly. If I can return to answer Justice Gummow’s question ‑ ‑ ‑

GUMMOW J: So you have to know the something.

MR WALKER: It may, apparently, against myself but not, given the way the Full Court actually did this case – of course, there is a broad factual inquiry involved. The nuances, the details, the subtleties, the tedious repetition of conversations, for example, by people who are in marital discord, they may be very considerable, depending upon a particular case, in casting light on the intention with which the parents, who are both factually and, as it happens, legally determining the place of residence, proceed to make arrangements, tacitly or otherwise, for where the children will live or will be, because one does not say that a child is living in Australia when they have come here for a fortnight’s snorkelling on the Barrier Reef with tickets to be back in school in London thereafter.

One says, “I’m going to stay in Australia. I’m going to Australia. I’ll be in Australia”. You do not say you are living in Australia. In our submission, there are irreducible matters of what I will call jury impression, and all the better for being so, bearing in mind the infinite variety of circumstance that may present itself. All this expands rather than contracts the field of relevance of material and all of that, of course, at first sight contributes to my learned friend’s argument about the Full Court’s discretion not to admit further evidence.

Where, however, we succeed on that is that the material that was assembled was either well within a relevant period and well, so far as.....is concerned, of a kind that would without objection have been considered up front but was adding nothing. That was their expression, was adding absolutely nothing.

GUMMOW J: You keep saying that they were going to go back to Israel at the end of the summer vacation.

MR WALKER: No, your Honour. I have kept saying that on the father’s allegations ‑ ‑ ‑

GUMMOW J: Because the school year was starting.

MR WALKER: The resumption of school term was his understanding of the mother’s position concerning the timing of the flight. I do stress, I can only say father’s allegation because there is not a finding about that.

GUMMOW J: Were they not enrolled at a school in Sydney?

MR WALKER: Yes, your Honour, but many a person enrols a child in a school for a very short ‑ ‑ ‑

GUMMOW J: Even before they had left Israel?

MR WALKER: I think so, yes. But, your Honour, with respect, many people enrol their children in overseas schools during a limited period for all sorts of reasons. The less worthy is child minding. The more high minded is that it is a wonderful experience for the children, and what I am saying – and that was considered.

GUMMOW J: I do not deny that. What I am asking you is why is that an irrelevant matter?

MR WALKER: Your Honour, that was taken into account, with respect.

FRENCH CJ: One thing was the issue of the Australian passport.

MR WALKER: The trial judge refers to that, your Honour.

FRENCH CJ: One of those elements was the issue of Australian passports, of which the Full Court said, at paragraph 70 on page 539, that these matters add nothing or take the matter no further.

MR WALKER: The passport is something that they say weighed in the mother’s favour, that is, they did take it into account and said it did weigh in her favour.

FRENCH CJ: They said:

These were all matters that occurred prior to the mother leaving –

I am sorry; where do they say that about the passport? I am just looking at 70, because 70 is referring back to 69 which has as a dot point that the children would become Australian citizens and issued with Australian passports. The significance of that, of course, was that they had been on Israeli passports and their visas would have been limited in time.

GUMMOW J: The first sentence of paragraph 70, “take the matter no further”.

MR WALKER: It is about habitual residence that we are talking about here. This is what the issue was tendered on, not a discretion.

FRENCH CJ: That is right.

GUMMOW J: You are talking about a lack of habitual residence in Israel.

FRENCH CJ: And what is relevant to it.

GUMMOW J: And what is relevant to it.

MR WALKER: The reasoning in 70 ‑ ‑ ‑

GUMMOW J: The fact that before you leave the country of undoubtedly habitual residence you become a citizen of another country, you get a passport which entitles you to go and live in the other country for a long time, you are booked into a school in the other country. All of that seems to be rather relevant as to whether there has been a loss of habitual residence in country A.

MR WALKER: Yes, is the short answer. At paragraph 69, page 538 ‑ ‑ ‑

GUMMOW J: Well, that is an opposite for you to seeing that which seems to have been taken with the Full Court.

MR WALKER: That is not an answer that disposes of that issue. Paragraph 69 is not ‑ ‑ ‑

GUMMOW J: It is not a question of whether it disposes of it. The question is whether it is relevant to it. It is no good skating, Mr Walker.

MR WALKER: Yes, it is relevant. I have tried to say that of its nature this is an inquiry which will include a very broad range of evidence casting light on the physical conduct of the children and explanations for it. Why are they going to school in Australia? Why are they getting passports, et cetera?

GUMMOW J: Because they are not on holiday here – that is one commonsense answer.

MR WALKER: Quite, your Honour.

GUMMOW J: They just have not come on a holiday to see their grandparents during the summer in their home country.

MR WALKER: Your Honour, I am for the designated personage under the Convention or the regulations ‑ ‑ ‑

HAYNE J: No, your client is, Mr Walker; you are not.

MR WALKER: I am sorry, I did not say I was. I said, “I am appearing for”.

HAYNE J: I thought you did.

MR WALKER: Perish the thought, no – I am appearing for. So of course my submissions do not merely concede but embrace what Justice Gummow has put. Of course that must be so. Paragraph 69, however, is not a catalogue of material that the Full Court for the first time was having brought to its attention. Please look at that. That is a catalogue of material which was before the trial judge and complaint was being made factually that his Honour had got it wrong, factually, because of failure to find in favour. It is a weight argument.

HAYNE J: Do you support or disclaim the last sentence of paragraph 70?

MR WALKER: I have to support that, but it has to be understood, not as a matter of principle ‑ ‑ ‑

GUMMOW J: This is a “properly understood” ‑ ‑ ‑

MR WALKER: Quite; that is right. Not as a matter of principle about relevance because in principle, and obviously, these matters are relevant. But this is not the initial tender at a trial of material. This is asking a Full Court to take into account material which was well and truly available to a litigant at trial in an appeal by way of rehearing, and exercising an appellate discretion as to whether to admit further evidence. Their Honours say “Well, we have looked at the kind of material and how it might affect the issues before his Honour and”, to use the expression, “it takes the matter no further”. It is a bit like taking a peep at something and then saying “And now I am not going to look at it”. That is, there is a contradiction involved.

GUMMOW J: Is there evidence whether this school was a fee‑paying
school? I assume it was. It is not a State school.

FRENCH CJ: There was some evidence of financial support by the grandfather, was there not?

MR WALKER: Paragraph 70, I stress, is about the paragraph 69 matters.

FRENCH CJ: Yes.

MR WALKER: They are relevant matters.

FRENCH CJ: That is not additional evidence.

MR WALKER: No, they were – and I have erred. I had understood some of your Honours’ questions ‑ ‑ ‑

HEYDON J: Is this the position - 69 records a complaint that Justice Kay should have taken into account five matters?

MR WALKER: Yes.

HEYDON J: Paragraph 70 is silent on whether or not he did but, in effect, they are saying it does not matter that he did not, if he did not, because they do not take the matter any further and then neither ‑ ‑ ‑

MR WALKER: That is right because they are neither consistent nor inconsistent with the settled intention or the acquisition of a new habitual residence asserted by the mother.

FRENCH CJ: The way the primary judge used the passports and citizenship is at paragraph 23 of his judgment at 418, but that is going to the mother’s version of events rather than the issue of whether there has been a loss of habitual residence.

MR WALKER: Yes. Could I elaborate that slightly?

FRENCH CJ: Yes.

MR WALKER: This is volume 1, 418, paragraph 23. This is where there is a conclusion or preference being formed as to some things:

supports [his Honour’s] conclusion that the mother’s version of events is more probable –

I am not able to tell your Honours exactly whether that is a wholesale acceptance of everything the mother said as opposed to what the father said, but in relation to the possibility of staying on it clearly includes that.

FRENCH CJ: It is clearly relevant to that.

MR WALKER: It is clearly relevant to that and he takes it into account.

FRENCH CJ: For that purpose, but it is not ‑ ‑ ‑

MR WALKER: Furthermore, he takes it into account in her favour, see the last sentence of the first dot point in 23.

FRENCH CJ: Yes.

MR WALKER: Now, paragraph 69 - and I do apologise – some of the questions your Honours have asked about paragraph 70 I have misinterpreted as being an expression of their Honours’ reasons for refusing to admit further evidence on appeal.

FRENCH CJ: No, it is as to the – this stuff adds nothing further.

MR WALKER: I apologise. Paragraphs 69 and 70 are explanations of their Honours’ reasons for not finding error or a reason to come to a different conclusion themselves on the matter of factual determination in light of the matters noted in paragraph 69 as having been before the trial judge and according to the appellant insufficiently given weight in the overall determination. Paragraph 70 is, in our submission, an unexceptionable appellate expression of (a), consideration of that material on its merits, and (b), declining to find that it affected the outcome.

FRENCH CJ: You would accept, would you not, that the trial judge did not have regard to the matters, or in particular, the citizenship and passport matter, in determining whether there had been a loss of habitual residence as part of that broad factual inquiry. He simply used it to determine whether or not the mother’s account of their agreement was right and what she had said and so forth, did he not?

GUMMOW J: He is using it for paragraph 26 because one of the branches of the argument initially seems to have been that the initial removal was an abduction.

MR WALKER: That is right.

GUMMOW J: He is not using it on the retention question. That seems to be what upset the appellant.

MR WALKER: I think, with respect, that is right. In paragraph 23 the explanation for the passport matter is supportive of the mother because it is explained, and the father’s consent to it being done is thus explained, by the possibility which the trial judge and the Full Court both find as being entertained by both parents – the possibility, I stress, of the children remaining permanently in Australia.

That is why I drew to attention the ultimate conclusion of fact that the Full Court either adopts or elaborates, namely, there is this ambiguous or conditional or equivocal quality to the mother’s intention with respect to where the children will reside which, coupled with the father’s plain statement, in effect, use the return tickets in July meant that, come the time of the children’s originally conditionally intended return – August, the air ticket – there was a retention. With respect, as Justice Gummow points out, this case was never run as being a wrongful removal when they got on the plane for Australia.

GUMMOW J: I think it was initially.

MR WALKER: No.

GUMMOW J: I think that is what paragraph 26 was talking about.

MR WALKER: Your Honour, understandably that reference by his Honour might give rise to that view but on my instructions it was not run that when they got on the plane that was contrary to the father’s – after all, his evidence talked about looking forward to seeing them in three months.

HEYDON J: There is some support for what you are saying on page 417, paragraph 20. What is asserted is that “the mother retained the children” after the husband ‑ ‑ ‑

MR WALKER: Yes. This is a retention case. The father’s own allegations were, “See you in three months”. I should say at trial the change of habitual residence was, in effect, raised by the judge. Could I take your Honours to page 421 in volume 1. Your Honours will see in paragraph 35 a reference in the third sentence starting at line 20 to the way in which this matter arose in the course of argument. That is what led to an amendment to allege that the children were not habitually resident in Israel at the date of the filing of the application, which of course is neither here nor there.

The case was run as wrongful retention because the children did not come back as, I say, arranged. Your Honours will appreciate the arrangement is conditional or equivocal in the sense I have drawn to attention, namely, there is a finding – we do not challenge – that the father understood that possibility to exist. There is also, as your Honours know, evidence and a finding that the mother’s expectations included the planned return to Israel unless, and the “unless” included something which she was unwilling or unhappy to have happen; namely for the rupture to become final.

Given all those circumstances, in our submission it is not surprising that the material referred to in paragraph 69, upon reconsideration in the Full Court, was not enough to change the finding as to the intentions of the parents, jointly and severally, concerning the arrangement for the stay in Australia. Or to put it another way, in this Court an argument about that is simply another go at simply a factual issue of a kind that has been adequately dealt with, we submit, first by the trial judge and, second, by the Full Court.

FRENCH CJ: Is this a convenient time, Mr Walker?

MR WALKER: Yes, your Honour.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, could I try to clear up the further evidence matter as follows. In paragraphs 70 and 71 in the Full Court 2 appeal book page 539 there are five, as it were, items of further evidence referred to in paragraph 71, descriptions of which are mentioned in paragraph 72, with what appears to be at least part, perhaps the whole of the reasoning for the rejection of the application in paragraph 72.

In paragraph 80 on page 541, in stating the rejection of the application itself, there is what announces itself as the repetition of the characterisation or description of that evidence and there is a particular reference to alleged discussions between the mother and the person described as the husband’s girlfriend – see about line 40 on page 541. Now, I draw to attention that that last item does not appear in the items listed in paragraph 71, but that does not appear to be of any moment.

Paragraph 71, together with that item, reflects what is found in the affidavit setting out the so‑called further evidence which may be found in volume 2 starting at page 458. I have just called it now the so‑called further evidence because – and I apologise for not having put this earlier – on analysis, apart from the girlfriend’s conversation, to which I will come, there is nothing further about it at all and it did deserve the dismissive descriptions given by the Full Court in paragraphs 72 and 80 as adding nothing.

HEYDON J: You just said two things. As to the first, the deponent was perfectly frank about it and said that the evidence could have been called at the trial but was not.

MR WALKER: I am not talking about being available, no. I am talking about further in the sense of adding to what was at the trial; not available at trial, but at the trial. The first is the girlfriend conversations. That starts at page 458, about line 25. I am going to come back to that. Under the heading, “Additional Factual Matters” on page 460 there are items on the next two pages, a) through h), where I will proceed. They accord with paragraph 71 sufficiently, and I will proceed to give your Honours the references to the evidence which was put by the mother in her case at first instance, comparison with which will show that nothing of any moment at all was added by these supposed additional factual matters.

I do not need to go to the detail of them. The references are to passages where it is obvious that the same matters are being touched on. The first is the enrolment in school achieved before leaving for Australia – volume 1 of the appeal book at page 79 in paragraph 102 – that is already deposed to. It actually starts:

On 2 May 2006, we enrolled . . . Mum assisted me with the enrolment.

That is gone. That is the first part. What is added? You have confirmatory correspondence a year later from the school of that fact being attached. That is not further evidence in any real sense and the Full Court was right to say, well, that cannot matter one way or the other. You can also see the reference at page 70, paragraph 83.

HEYDON J: This is a very dangerous argument you are putting. If you are right, it might point to the fact that the Full Court did not even give any weight to the primary first round evidence.

MR WALKER: Your Honour, it is a danger I have to court and I am not here to play tactics, obviously.

HEYDON J: No.

MR WALKER: The material is relevant. Of course it was relevant. There is no sign, however, that the Full Court regarded the trial judge, the first instance judge, as having wrongly referred to these matters, as having wrongly taken any of this into account. This, I stress, is a discrete matter raised for the first time in this Court that there was a further evidence application wrongly dealt with by the Full Court and what I am in the course of saying is, well, it was not wrongly dealt with because they said this added nothing and they were right, and here are the particulars of it being right, all this material was before the court at first instance.

HEYDON J: You are performing brilliantly, Mr Walker. You may have a very good point, but the Full Court did not reject this evidence on the ground that it had been before the trial judge, did they? They rejected it because in their judgment it simply did not assist for reasons they give in 72 and 80.

MR WALKER: Your Honour, with great respect, what your Honour has just put is probably the case. May I, however, suggest one alternative view and that is – and I am bound to say that the description in paragraph 71 which obviously sets the context for reading paragraphs 72 and 80 strongly supports what Justice Heydon has put. I do not think I can properly seek to persuade your Honours that there was any other approach than saying it did not assist in the sense that it did not support or contradict. That is the expression used at page 541, about line 38, or on page 539, that it was not supportive or neither consistent nor inconsistent at about line 45 on page 539.

FRENCH CJ: You said of the attached letter referred to at page 460 under the heading 5(a) that it added nothing to the substantive statement, but when one looks at the letter, it seems to have to do not with their enrolment but with their subsequent attendance and interaction and performance and so forth.

MR WALKER: Quite, but after a certain date that does not matter for the reasons their Honours did put, namely, that it came after the husband had said they should be coming back to Israel. There is evidence that the children did go to school, at trial.

FRENCH CJ: “Since starting at Masada the boys have”, so it covers a period of – I am sorry; I got the impression you were saying that that simply confirmed that she had enrolled them and nothing further.

MR WALKER: But there were attendances proved. I have already referred you to page 91, paragraph 128. There was clear evidence at first instance that the children had gone to school, not merely been enrolled at the school. So the fact of going to school, which is only relevant up to the date of retention – after that obviously it is not suggested that on the issue of habitual residence being lost it could be relevant, that is still not suggested. It would clearly be relevant if the issue of settlement ever came up. It would clearly be relevant if a discretion ever came up. But on the question of habitual residence, no, and all this further evidence was tendered only on the issue of habitual residence and in this Court it is said that was an important error because if there was a so‑called New Zealand broad factual inquiry this is grist to the mill of such an inquiry, which the Full Court declined by its rejection of the further evidence to undertake.

In final answer to Justice Heydon, we point out that the appellate power here is to do what ought to have been done, and what ought to have been done is to have rejected this as further evidence because it added nothing.

The next reference I wanted to make concerns Medicare and Centrelink, which is 5)b) and 5)c). The attached material, either from Medicare or Centrelink, says nothing as to why they were treated as eligible or what was said in any application for the benefits, but your Honours can put two and two together: they were all citizens. That had been proved at first instance and the references include volume 1, pages 97 and following, with citizenship by dissent certificates for the boys, and at page 410, in the first instance, reasons, paragraph 3, the citizenship of the mother from whom they were descended is found.

At volume 1, page 92, the boys’ Australian citizenship was before the court at first instance, referred to as being a reason why the local Jewish community subsidised the fees for the school.

GUMMOW J: Where do we see the subsidy?

MR WALKER: At page 92, paragraph 128.1, about line 18. It is called paragraph 128.1, but it appears in a paragraph in fact numbered 131. That is the reference. So all of this was at first instance. I am looking at the so‑called further evidence item at page 461, 5)d). The soccer, that was covered at first instance, volume 1, page 93, paragraph 129.8. Nothing is added by the name of the soccer club.

Later events, after the retention, in relation to soccer are neither here nor there either. I am so sorry, your Honours, I am reminded for Centrelink – that is, item 5)c) – could I draw to attention that at first instance volume 1, page 92, item 128.2 referred to getting money from Centrelink – slightly different nomenclature, but obviously the same thing is being talked about, single parent and family. So 5)d), the soccer, and then with 5)d) cricket comes after soccer, September 2006. That is after the putative retention and, therefore, after any time relevant to an inquiry into habitual residence, because it is habitual residence immediately before the retention that is in question.

With 5)e), on page 461, the music lessons – at first instance that was before the court, volume 1, page 91, paragraph 128 – that is the real paragraph 128 and one can also see at the top of page 92 the swimming lessons that are referred to in the same item. Item 5)f), page 461, those matters which are stated in general terms so as to continue beyond the relevant date in August 2006 were at first instance also dealt with: volume1, page 92, at the top of page in 131, then within that section, on the same page, 128.6, and then especially at 129.7, which is found on page 93, for the birthday parties.

Obviously, item 5)g), the English version of the Israeli law, is neither here nor there as further evidence, and then 5)h) there is a reference to a matter not itemised in paragraph 71 of the Full Court reasons, but plainly nothing to do or to provide by way of further evidence unless it was indicated that there was some admission concerning matters preceding the end of August 2006, and it is not so argued. Those are proceedings of 2007, in Israel.

So we come back then to what occupied half the further evidence affidavit, which is the telephone calls with Lilach Rubin. They started on 21 September 2007 – more than a year after the relevant date. Leaving aside parties, it is possible, of course, that conversations after the relevant date could be relevant material at first instance and thus candidates to be considered for the exercise of discretion to receive further evidence on appeal. But that would only be if they contained something in the nature of admissions concerning the relevant period. It is not said that there was anything here of that kind.

HEYDON J: Mr Walker, I am sorry to interrupt. On the Full Court’s approach on the law as to the meaning of “habitual residence”, all this material about soccer and integration into the local community and so on was immaterial because it is no part of the shared parental state of mind. The Full Court’s test involved an exclusion of this type of evidence, whether it was tendered before the Full Court or tendered before the trial judge. The appellant’s contention is for a different test. If the appellant is correct as to the test, does not the matter have to be reconsidered by someone in the Family Court of Australia with a view to a judgment as to the significance of this evidence, which may completely fail in the end, but that is not an enterprise which has yet been undertaken. Am I right?

MR WALKER: The short answer is yes, unless – and I do not put this to the forefront – on consideration by your Honours the material was simply incapable of affecting habitual residence when even the proper test is applied, and that is our notice of contention, but otherwise it is precisely, with respect, as your Honour puts it. Your Honour, with respect, the way your Honour has put what the Full Court did might be an overstatement because they did not – and they themselves refer to facts – say that the way or the reasons why, and the explanation for the presence in Australia and what they were doing in Australia, they do not say that in limine all of that is irrelevant.

It is, with great respect, true that the way they dealt with the further evidence in paragraphs 71, 72 and 80 lends itself to a reading to that effect, which is probably the better reading. The only alternative to their Honours saying it is irrelevant is the related but different concept that they were saying that it was not helpful; it was neither here nor there. That does not mean it was not relevant. It meant that it did not tend one way or the other; relevant but equivocal, relevant but weightless.

In our submission, one does not find, in any of the directions the Full Court gave itself by reference to authority, to which I will come in a moment, you do not find any acceptance of a proposition that what the children are doing in the place from which return is sought in the period before the retention is irrelevant. You do not find anything to that effect. So the Full Court does not, in terms of ‑ ‑ ‑

HEYDON J: Yes, maybe you do not find a statement to that effect but you do not find any analysis of it either and on the Full Court’s approach it would have been wrong to engage in an analysis of it.

MR WALKER: I accept that. Your Honours, the references we have just made to all of the so‑called further evidence, in our submission, suffices to demonstrate that, so far as this Court is concerned in relation to its admission as further evidence, that which the Full Court did was that which the Full Court ought to have done within the meaning of the High Court appellate powers, because, be it relevant or not, the material was – I am sorry. The material which was relevant was already before the first instance judge and had been considered by him and so did not call for admission as evidence, so‑called further evidence by the Full Court, to which one may add that there is no conclusion in the Full Court that the consideration by the first instance judge of that material was otiose or was consideration of irrelevant material. Then as to the girlfriend conversation material, there is no attempt in this Court to suggest how or why that would affect habitual residence, which is the issue upon which the further evidence was said wrongly to have been rejected.

Thus it falls out that the ground of appeal to do with further evidence in the Full Court of the Family Court, regardless of any deficiencies in the expression of reasons for its disposition by the Full Court should be left undisturbed, that is, the outcome on that application by the Full Court was the correct one.

Could I now take your Honours, if I may, directly to the regulation and this is principally to make good our proposition that approaching its reading by reference to models or types or tests with labels such as the author Schuz applies and which Justice Glazebrook has adopted in New Zealand is not helpful and, at most, we submit, overelaborates the necessary exercise, at worst and more likely, could lead to error. We have drawn to attention parts of the Convention in our written submissions that cast light on the implementation of it by the regulations and we have tried to refer to all the relevant regulations in our written submissions.

May I jump, therefore, quickly to the ones that matter for my present argument. One sees a reference in regulation 1A(2)(b) to the driving purpose of the Convention:

the appropriate forum for resolving disputes between parents relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence –

So that notion, “country of habitual residence” has the jurisdiction whose courts – which will provide the forum, judicial or otherwise, for such matters is at the very forefront. In the interpretation provisions it is critical to see that rights of custody have the meaning given by regulation 4 and under regulation 3(2) that “wrongful” is an expression used to describe removal or retention which goes directly to Article 3. Can I take your Honours to Article 3 in the English text. Article 3 stipulates that:

The removal or the retention of a child is to be considered wrongful where –
a it is in breach of rights of custody attributed to a person –

and its known what “rights of custody” mean –

an institution or any other body, either jointly or alone –

jointly is important –

under the law of the State –

so one is immediately driven to finding a state and its law, and then comes the possibility of some impossible circularity –

in which the child was habitually resident immediately before the removal or retention –

The rest of Article 3 is obviously important but is of no moment in this case because it produces no dispute between the parties in this case.

It is for that reason that I was putting before the adjournment to Justice Hayne that it is of the first importance to our position that in this case the parties fought on the basis that once upon a time these children were habitually resident in Israel and that the factual question was, had that changed? That is where issue was joined. And all together leaving aside questions of onus, it was nonetheless established between these parties – it can be seen from the way both reasons are expressed in the courts below – that it was accepted it was Israel. The only question was, had it changed? When I say “was”, I mean at some time.

The change was critical because if that change had occurred before the various dates that had been referred to in the reasons and in the written submissions, then plainly the application must fail because the threshold requirements could not be met. But, of course, it is certainly rendered relevant factually in this case the fact that the mother and the father both had joint rights once upon a time and factually nobody ever suggested that they had been exercised so as to change the habitual residence by abandoning that of Israel or, what might amount to the same thing on the facts of this case, changing it to Australia.

HAYNE J: By using the language of change, do you intend to carry with that word notions of intention?

MR WALKER: The short answer is, yes, I do. I do not mean that change may be accomplished by intention. I do mean that unless you look at intention, you will have deprived yourself of relevant material to examine the question of change.

HAYNE J: That is not a proposition with a great deal of content, Mr Walker.

MR WALKER: Intention alone can never suffice. Some of the commentators have suggested that some of the models include parental intention, determining a child’s habitual residence regardless of where the child is. That is a straw man, it is clearly not correct. The child must be, at least for an appreciable period, whatever that may be, in a place before they can be said to reside there and it is then a further question as to whether it is habitual. On the question of habitual residence, the whole point of this Convention is to recognise and, by determining the place where custody, et cetera, will be determined, to give effect to what are called rights of custody, including the right to determine the residence, the place of residence.

That comes then to the definition in 4(2) which is critical, because the definition in 4(2) uses that very expression “residence”. It assumes that there is such a thing as a right to determine the place of residence of the child. It is for those reasons that intention or state of mind, the reasons or motives for which people make moves across national boundaries, will be an integral part of the inquiry into whether there has been a change of habitual residence for a child who has been the joint responsibility of the parents, and I stress the joint or shared responsibility of the parents.

HAYNE J: Does that not elide paragraphs (b) and (d) of regulation 16(1A)?

MR WALKER: No.

HAYNE J: Are you not ramming together two distinct steps through this focus upon the word “change”, not the word found in the regulation anywhere and nothing but a description of a result that may or may not be of value when you have focused upon the relevant question which is, was the child habitually resident in Israel at the particular time?

MR WALKER: The short answer to your Honour’s question is, yes, I have elided them, yes, there is the danger that your Honour raises, but, no, it has not fallen in in this case for this reason. And repeating, the parties proceeded on the basis that clearly enough, once upon a time it was Israel. That is where they lived. The question is, that having been the place of the children’s habitual residence, as it were, if nothing more is known, we win that part of the case.

The question as joined between these parties was, had it changed? It was raised by the judge, actually, as I drew to your Honour’s attention before the break. In that factual issue, special to the parties in this case, the way they had framed the issue, had it changed, there does not seem to have been a great deal of attention paid to whether or not it was a change simply by losing Israel or whether it was a change also by acquiring Australia. I am sorry to use the word “acquire”, it sounds like domicile – a change by Australia having become the case of habitual residence.

That will not matter for present purposes because unless there had been what has been called an abandonment of Israel, then Israel would – there would be a tick in that box – 16(1A)(b) – a tick in that box for Israel. It is for those reasons that although, with great respect, Justice Hayne correctly observes that it is best not to stray from, (a) the discrete steps, or the separate steps and (b) the language of the regulation, in this case by talking about change we are accurately and fairly and without any danger of being misled, describing what was the issue joined between these parties on the concessions, assumptions and facts upon which they were fighting.

The importance of my affirmative answer to the question, do I say intention is relevant, comes from the fact that it is a state of mind by which somebody determines the place of residence of a child. There is some decision or position reached, reflected one way or the other, poorly or well communicated, which is the notion of determining anything. It is a deliberate decision and it may come out by acquiescence but, nonetheless, it is intentional conduct. So, in our submission, one could never in this case ever have disregarded or put to one side that which was, we submit, for the reasons put in the authorities considered by the Full Court, integral to the notion of a child’s place of habitual residence when – and I stress this is the case covered here – when the child was before the retention the joint responsibility of both parents.

It is quite different if it were otherwise and that is why, in our submission, it is relevant to observe, as was put before the court, to observe what the position was in relation to rights of custody in Israel, why the concession is properly made, with respect, by my learned friends that all the rights of custody including exercise or would have exercised it are all made out in favour of our position. The only question was, had it ceased to be Israel? So that there would be a negative answer to the matter required under 16(1A)(b) and that was the only question on that critical part of the case.

GUMMOW J: You took us to the definition in regulation 2(2) and Article 3 of the Convention. That has nothing to do with regulation 16, has it, because of 16(1A)?

MR WALKER: There is repetition or redundancy. If one looks at 16(1A)(d), there is a reference to being in breach of those rights of custody as being part of the component of something being wrongful. Your Honour, there may be redundancy in 2(2) but there is no contradiction or inconsistency, we think.

GUMMOW J: Regulation 17, on the other hand, can be understood.

MR WALKER: The definition in 2(2) is obviously necessary for 17, bearing in mind ‑ ‑ ‑

GUMMOW J: A contrary intention.

MR WALKER: ‑ ‑ ‑ the opening words of 16(1A), which say for subregulation (1), not for 17. But my submission is that there is no contradiction introduced by those who drew subregulation (1A) of regulation 16. There is complete consistency between Article 3 of the Convention and the notion of being in breach of rights of custody, particularly when one sees the definition of rights of custody in regulation 4(1).

GUMMOW J: There is nothing about 16.....is there?

MR WALKER: Regulation 17 obviously stands quite apart from regulation 16. They are different species of proceeding. They are necessary for the mirror reflection which another country, from which return is sought, may undertake.

Your Honours, if we are correct about the central role of this right to determine the place of residence of a child, there is simply no place, as I say, for the deprecation of a reference to parental rights so‑called. Of course, the language of parental rights might include some kind of outmoded chattel idea, but that can be dismissed because it has all been defined here in a way that makes it quite plain that the right or, as the Israelis call it, the right and the duty include determining place of residence and the children in this case are of such an age as not to raise any difficulties in that regard.

There is nothing between these parties concerning any objection or contrary desire of the children or any problem about a breach of their human rights. So we do not have to worry about the matters which in another case could well arise by reference to the provisions, in particular, of 16(3). Before coming to 16(3), your Honours know that it is only the question under 16(1A)(b) that was in question and remains in question between these parties as to entitlement or requirement for an order of return.

GUMMOW J: Regulation 16(1A) is a definitions section, actually.

MR WALKER: Yes, it is. It gives content to regulation 16(1)(c). That is, somebody in my client’s position:

satisfies the court that the child’s removal or retention was wrongful under subregulation (1A).

That is what it does. So it is only (1A)(b) that was and is in question on the question of requirement to make the order. Subsection (2) divided the cases in a way which emphasises that lapse of time has been dealt with by relatively cut and dried approaches which conduce against what my learned friends argue about the Full Court having its own discretion to refuse to make an order for return. I will come back to that. But you see the division is of one year, and there is no doubt the application in this case was made within that one year.

It is only if the application is made after one year that something that looks awfully like habitual residence as a matter of English – namely settling: whether a child has settled in his or her new environment becomes a matter upon which the parties can join factual issue and then there is that rather curious placing of onus in (c):

the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment -

That is the way in which the intuitive or lay reaction a child who has been in Australia for two of its three years is surely a child habitually resident in Australia is dealt with in this Convention. It is because this Convention is not concerned with habitual residence changing after, let alone by reason of a retention; it is only concerned with habitual residence before the retention. Because that will lead – and one bears in mind matters which come to a focus with the best interests of a child to cases where you may have two of the child’s three years of life having been spent in Australia, from which return is sought – we have the line drawn by the combination of (2)(b) and (c). That line is one that says that if the application was made more than one year later then you may enliven a discretion – you may enliven a discretion – by proving settlement.

Under 16(3) there falls out the remaining issues in the case. The way in which this case was fought, consent was held at first instance to have been given to the retention by the conversation of 11 June in which, in response to “I will have to stay for at least the end of the year”, the husband says, “Do what you like”. I paraphrase. That was held to have been the consent to retention. We did not challenge that, but as a matter of principle I should draw to attention that another way of looking at it was there was no retention of any kind, let alone a wrongful one, until the arranged date of return – August – has been not observed. If the father can repent, as he was allowed to, it is difficult to see why the mother could not have repented and complied with the prior arrangement. That, however, I am bound to say ‑ ‑ ‑

HEYDON J: The date is not when the father rang up and communicated a change of heart; it is when there was a failure to get on the plane in August.

MR WALKER: That is what we submit.

HEYDON J: To be frank, it is hard to work out what the stand of the parties is on these dates, but that is your stand, is it?

MR WALKER: Paragraph 43 of our written submission is our stand – your Honour may say “wobble” because I use the word “probably” in its last line. One of the reasons I do that, with respect, is that I have to deal with the fact that, as I pointed out, the way my friends put it in their paragraph 49 is right. Their paragraph 49 cruelly sets out the inconsistencies and obscurities of this matter in the reasons below; we accept it.

HEYDON J: Their 49 of?

MR WALKER: I am so sorry – paragraph 39 of their written submissions. They are right, and I have said it is a point well made. We have said in our paragraph 43 the better view probably is that there cannot be a retention, let alone a wrongful one, until an arrangement such as that conditionally indicated by the return tickets has been breached. This must be strong policy reason in favour of allowing somebody who says “I am not going to honour the arrangement” to think about it and, on more mature reflection, before the time for which performance has arrived to say, “I will”. If that is a policy reason for holding that an arranged return needs to be breached before there is a retention, then that, in our submission, is, in pragmatic terms, satisfying. It prevents also the spectre of unnecessary anticipatory applications.

Now, this Court does not have to decide that definitively. I have to point out that the way issues have been joined, both in the Full Court and in this Court, we did not challenge that there was a consent given to a retention by that conversation in the middle of June. I am not going to do anything about that now, but it is certainly arguable that that was not, given its terms, a consent to a retention indefinitely. At most, it was a consent to a retention till the end of the year. But that is the kind of detail that is beyond us to quibble about in this Court now. It is one of those incomplete aspects of the factual record.

So we are accepting the position that there was a discretion available under 16(3). I have digressed as I have, simply to point out it may not follow in a case very similar to this on facts that there would be any discretion under 16(3) because there would not have been a consent to the retention as it was practised. Under 16(3) the discretion to refuse to make an order is available, if the parties agree, only by reason of 16(3)(a)(ii). Contextually one needs to point out that the desire of a child, which is dealt with both by our Act and by our regulations, which is relevant to an objection, is separately dealt with in (c) and has no application in this case. Whatever difficulties arise do not need to be confronted and should not be.

Under 16(3)(a)(ii), one of the first questions that arises is whether consent and acquiescence – which one sees from the word “subsequently”, probably mean approval in advance or ratification afterwards – “consent” being approval in advance; “subsequent acquiescence” being ratification afterwards – requires critically attention to the action or conduct captured by the words “removed to, or retained in”. In our submission, the court would certainly reject the proposition that there is any removal or retention when the children embark on the plane in Israel for Australia. Otherwise, these provisions would cover the position where anybody agrees for a child to go away on an overseas holiday or to visit foreign grandparents without an inkling of the possibility of non-return. So “removal” and “retention” in our submission have some semantic content beyond simple physical translocation.

In this case the difficulties that that may raise in the holiday or grandparent visit case need not be exhaustively reviewed because, as I say, we are stuck, we, the respondent, is stuck with the position we accepted in the Full Court, namely, that there had been a consent to the retention. At that point we accept, and we do not think there is any dispute between the parties, we accept that a discretion arose and may I try and deal very quickly with the ground of appeal which complains that the Full Court wrongly declined to exercise a discretion it had under 16(3). I will deal with that so I can then conclude my address by reference to the ‑ ‑ ‑

GUMMOW J: Just explain to me again, Mr Walker, what is the basis for the existence of the discretion? Did you accept?

MR WALKER: We are stuck with it. That is, that there was consent to the retention.

HAYNE J: Consent when?

MR WALKER: It is apparently that conversation of 11 June, to a retention which we date at the end of August. Of course, consent is before the event. I accept that.

HAYNE J: That is retention until end that calendar year, is it?

MR WALKER: That is what the conversation suggests.

GUMMOW J: Where do we see the ‑ ‑ ‑

MR WALKER: Conveniently in the Full Court reasons, volume 2, 515, paragraph 13. You see:

She then said:
I won’t come back with the boys in August.

So on anyone’s version that is contrary to at least one conditional possibility of the arrangement:

I need to stay here for at least the rest of the year.

That is where December comes from –

I will reconsider our situation after that . . .

The father is then said to have replied . . .

Stay in Australia. Do what you need to do. That is fine with me.

Now, what exactly that is consent to, and I do not mean this critically of anyone, is obviously unclear. That does not mean it was not consent to something and it certainly ‑ ‑ ‑

HEYDON J: It is consent to staying in Australia.

MR WALKER: Yes. As I say, it is certainly consent as there expressed to the boys not coming back in August. There is no question about that. Now, as I say, this was not grappled with because of the conclusion based upon the later dealings between the parties.

KIEFEL J: The father did not agree with this version though.

MR WALKER: No.

KIEFEL J: So was there a finding on the contradictory evidence?

MR WALKER: Can I offer this as a possibility for that finding. Volume 1, 418, paragraph 25:

I am prepared to find on the balance of probabilities that the mother retained the children in Australia initially with the consent of the father but that consent had been withdrawn no later –

The first part of that, “initially with the consent of the father”, must be an acceptance of the mother’s assertion of words to the effect, “Stay in Australia, do what you need to do, that is fine with me”. I am sorry, I cannot put it higher than that, but I think that is how that should be read, with respect.

HEYDON J: Surely the withdrawal was in the letter of 24 July?

MR WALKER: That is right. That is what I was about to say. None of this was grappled with because it was all dissolved by the repentance by the father of that position. There is no analysis of was there any reason why that could not happen. It is accepted that it could happen and it is not an issue in this case that it could happen. It did happen factually. On 23 July there is the email which unequivocally expected the boys to return.

FRENCH CJ: The finding was at 21, but that did not go to the telephone conversations. It was paragraph 21 at 417, was it not, of the trial judge? It did not go to the telephone conversation where he says, “Stay as long as you want”. It says:

the mother left in the circumstances that she described, namely having made it clear to the father that the proposed trip to Australia may well be a one way trip and she did so with the father’s full knowledge and consent.

MR WALKER: Yes.

FRENCH CJ: That was based on evidence predating that telephone conversation, was it not?

MR WALKER: Yes. I have given your Honours ‑ ‑ ‑

FRENCH CJ: So they found consent that predated that.

MR WALKER: Yes. It depends what one means by consent. The children went to Australia by an arrangement, by agreement of the parents, if that is what consent means. There is no question of ‑ ‑ ‑

FRENCH CJ: And that “may well be a one‑way trip” and she ‑ ‑ ‑

MR WALKER: Quite. By the way, could I add a reference, it is an important one. Before the break I think I may have said it was only the father’s allegation about the timing with the school. That is not right. The mother’s version is found – I will not take you to it – in volume 1 of the appeal book, page 75, paragraph 95, and it is quite plain it is the same conditionality, and the reference to the school term is found there as well. But the Full Court holds that it was a conditional arrangement.

FRENCH CJ: Just before you move back to the Full Court, I just want to nail down what the trial judge said here. That finding at paragraph 21 on page 417 goes back to the mother’s evidence that at the airport she said to the father, “I will be staying and raising the Boys in Australia with my Mum and Dad”. He replied, “I understand. Look after the Boys for me, [L]”. Then she says, “I am not coming back if there is nothing for us to come back to”. So that is what, as I understand it, the trial judge characterises as her saying, in effect, that it may well be a one‑way trip and that he accepted that.

MR WALKER: The possibility is accepted and there are concurrent findings about that, yes.

GUMMOW J: The consent spoken of in 16(3)(a)(ii), what is the temporal fixing of that?

MR WALKER: The temporal fixing is by reference – it needs to be before the removal or retention, as the case may be; in this case, the retention. At the risk of a paraphrase, we would say a retention with consent as opposed to a retention later subsequently acquiesced in.

FRENCH CJ: The trial judge’s finding is of a consent, is it not, to the possibility of retention?

MR WALKER: There are real difficulties with the trial judge’s finding which we did not challenge, I stress, because ‑ ‑ ‑

FRENCH CJ: No, but I am just asking you, is that a wrong characterisation of what the trial judge finds at paragraph 21?

MR WALKER: No, it is a consent to a retention at least to the end of the year with reconsideration thereafter.

FRENCH CJ: One‑way trip, not coming back. This is before that telephone conversation about ‑ ‑ ‑

MR WALKER: No, I am sorry, your Honour. No, that is not what the trial judge was talking about. The trial judge when talking about the possibility of a one‑way trip is talking about the material to which I have just given reference in the mother’s version, volume 1 appeal book 75, paragraph 95.

FRENCH CJ: I am sorry, I thought I asked you before whether the finding at 21 refers back to the contested accounts of the airport conversation.

MR WALKER: I am sorry, your Honour, I thought you were asking about the June conversation. I do apologise.

FRENCH CJ: I am looking back to paragraph 7. You see, the finding of the trial judge at 21 is talking about the proposed trip to Australia. So he is addressing a time before she leaves. The only relevant time before she leaves is when they are at the airport having the conversation. Her evidence about that is paragraph 7 on page 411, “I’m not coming back”. He says, “I understand. Look after the Boys . . . Please think about this carefully. I am not coming back if there is nothing for us to come back to”.

MR WALKER: That is right.

FRENCH CJ: Now, as I understand it, what the trial judge does at 21 is characterise that as a proposition that this may well be a one‑way trip and that she had his full knowledge and consent.

MR WALKER: Yes. That is not the consent, however, as I understand it, which is the consent to the retention.

FRENCH CJ: Does it not consent to a retention if he says “You are not coming back” ‑ ‑ ‑

MR WALKER: Your Honour, it may well be, but not the way the trial judge decided it. The consent the trial judge seems to have acted on is the conversation later repented. It does not make any other sense, with respect, to understand how it was that by the email of 23 or 24 July, which ‑ ‑ ‑

GUMMOW J: There is something to be said for sending this back to be done again properly.

MR WALKER: There are matters of fact that need to be ‑ what the Chief Justice has been putting to me is that the material which led the trial judge and the Full Court to describe the position of the mother as being ambiguous, uncertain or equivocal, that is, it may be a one‑way trip; not it is a one‑way trip, it may be a one‑way trip, and they did so, and I am doing the best I can to explain it, they did so by saying, in effect, that she was not saying they are unequivocally, without qualification going to be brought up in Australia. She said “unless we can work things out, that is what I am going to do”.

FRENCH CJ: I am sorry, I do not want to go around in circles about this, but she says “I am going away, I am taking the kids with me and I might not come back” and he says that is okay.

MR WALKER: Yes. Your Honour, that is right, but your Honours have seen how both the trial judge and the Full Court characterised that and, in my submission, that is a characterisation with concurrent findings clearly on a matter of fact as to whether or not that was sufficient to say that Israel had ceased to be the place of their habitual residence.

KIEFEL J: In the last sentence on paragraph 6 on page 411, the trial judge sets out the father’s assertion to the contrary, but that is not dealt with at all in relation to a finding on probabilities.

MR WALKER: No. Excepting so far as there is the latter references which we have just been covering in the last few minutes.

KIEFEL J: But that is not consistent with his withdrawal of a consent. This is the difficulty. That sentence really says that he disagreed with the airport conversation.

MR WALKER: That is right.

KIEFEL J: Is that consistent with the affidavit material?

MR WALKER: Yes. Your Honours, may I make this clear. The way in which the habitual residence point fell out, the father was permitted by the reasoning of all of their Honours below to indicate on 23rd or 24th – I think it was a time difference matter – in his emailed letter that the boys were to return to Israel because that is where they came from, and that was seen, as I pointed out in the trial judge’s reason, as the plain indication after which there could not be reliance on material to establish a loss of habitual residence in Israel after that date. When it comes to the 16(3) question, we are dealing in a quite different area. By hypothesis, Israel is habitual residence, but even so, because of the consent, a discretion is enlivened and, doing the best I can, it appears that the way in which that has been reasoned is that there was the consent in the way I have put it. In any event, as I say, we are stuck with that and I am not challenging that there was consent.

KIEFEL J: Justice Hayne has drawn to my attention paragraph 23 on page 418 which might be seen to be a rejection of the husband’s assertion.

MR WALKER: Yes. That is what I drew to attention in relation to the passports, your Honours may recall. Yes, is the short answer, that that may well be, but these are matters of ‑ ‑ ‑

KIEFEL J: I have forgotten what the provisions are in relation to tourist and longer stay visas. At what point do you need a visa? If they were travelling on an Israeli passport, how long would have they have been entitled to stay in Australia?

MR WALKER: I do not know, your Honour, but from the Bar table it may well be the difficulty envisaged was that in order to get a different visa you would first have to leave Australia.

HAYNE J: They came in on Australian passports, all of them, did they not?

MR WALKER: Yes, but I think her Honour’s questions is why was that considered useful?

KIEFEL J: The question is why did they travel ‑ ‑ ‑

HAYNE J: Yes.

MR WALKER: Well, answer, because if they had come in on Israeli passports – I do not know whether this is right or not but it could well be – if they had come in on Israeli passports, they would not be able to stay and alter their position. They would have to go somewhere else in order to get a visa. Your Honours, there is no further factual exploration of that. It seems odd, because if they were entitled to get Australian passports by citizenship by succession in Israel, it would appear a fortiori they could have got it in Sydney.

KIEFEL J: I do not mean to go unnecessarily into an area which looks awfully like fact finding, but did the father give any evidence about his knowledge of the passports?

MR WALKER: There is evidence that he signed what was requisite in order for them to get passports in response to a suggestion to that effect by the mother. He co‑operated, or if you like, he consented to all of that.

HEYDON J: When you finish this factual analysis you have been doing, could I ask you a question about subregulation (3)(a)(ii)?

MR WALKER: Yes, your Honour. Your Honours, could I just add one matter of fact and then I have nothing else to add. Your Honours may recall a reference I made earlier to evidence from the mother’s father about an intention to return which may or may not be germane to what your Honours have been asking me about concerning the nature of the mother’s intention, the one‑way trip. I will just give you the reference, volume 1, page 414, paragraph 14. That is the one that ends up – it is only a question of the time of her return to Israel. That completes what I wanted to say about that.

HEYDON J: The question is this, on one view we have established that the father consented to the plane leaving Israel with the children on board and he either acquiesced or consented in the children remaining in Australia by reason of the June conversation, but then in July he changed his mind. I think it has been assumed in the argument, and possibly by the appellant as well, that that change of mind, as it were, totally annihilates and negates the earlier consent. Is that a correct construction? The competing view would be that if you can establish some consent or some acquiescence, then you get into the arena of a discretion. Now, however it plays out would depend very much on the facts, but what is the correct construction of (ii)?

MR WALKER: Your Honour, I would offer this as a reading of the way in which that has fallen out. On the issue of habitual residence, with respect, the way your Honour has put it captures the matter. Everything has proceeded on the basis that the later clear words of 23, 24 July, “Bring the boys back”, prevented there being the joint settled intention of the parents – to use the jargon they got from the cases – necessary before the return tickets came due to be used so as to lose Israel as the habitual residence. That is how it has been done.

Of course, it was a totally different issue when one comes to 16(3), when consent is a term of art in 16(3), which is why I have tried not to use the word “consent” for the agreement or arrangement or understanding of the parties in relation to the May conversations, the airport conversations. It is true that the trial judge talks about the embarkation for Australia as being a removal to which there is consent, but then this was always a retention case, and I have noted that it would be odd if every time you let your children go abroad without you it was a removal to which you are consenting within the meaning of that expression.

FRENCH CJ: Is this regulation meant to cover change of heart situations?

MR WALKER: I am not quite sure that it is.

FRENCH CJ: If a subsequent change of heart could annihilate the prior consent it is probably a bit hard to see what work the thing has to do.

MR WALKER: Your Honours, quite. Can I try and grapple with that this way? Retention is classically what happens where children are kept after they should not be kept. It covers a situation where their initial movement to that place of retention is not, we submit, a removal though it is exactly the same translocation as a removal would involve. Otherwise you would lose the mandatory protection - you, the parent who agrees to let the child go to Disneyland. You would lose that protection of the mandatory provisions for the making of the order of return by being so ordinary as saying, “Yes, the kids can go with you to Disneyland”.

It would be extraordinary in this Convention, given its purpose and given its contemplation of amicable settlement of these disputes, if that kind of translocation was ever regarded as a removal. Consent, rather, in our submission, needs to be a consent to that which would otherwise be wrongful. It is the consent that prevents it being wrongful, and because you remove the element of wrongfulness which is central to the scheme, for the reasons I have already put, you remove the notion of the infringement or breach of a right and you therefore remove the mechanism by which the supposed best interests of the children concerning where matters of their custody should be determined has been compromised in this Convention.

Now, if that is right, in this case the consent in question is only the consent to staying on after the August airline date. That is not a consent which, except conditionally, was expressed when they first left for Australia. The conditions which would render that possible had not yet occurred and, doing the best I can, that appears to be how the matter has been approached below.

On the other hand, the 11 June matter is plain consent or acquiescence, plain consent, agreement, non-objection. That seems to have been reversed. The reversal seems to have played a role in only the habitual residence argument. It has been held possible for the husband to say, “Even though the event which we contemplated by our conditional arrangement might lead to you staying on has occurred, I want the boys back”. There seems to be a revamping of the agreement unilaterally by him. But that is below; that has been treated as enough to prevent the joint determination of the parents – and I have deliberately invoked the language of the Israeli law there – so as to prevent the mother’s decision being unilateral.

So in answer to Justice Heydon, on habitual residence, for the reasons I hope I have just put, the reversal of 23, 24 July by the father is treated as being effective or efficacious. For the discretion, 16(3), it has no effect whatever and it may be that, as Justice Hayne has recently put it – or perhaps it was your Honour Justice Heydon –the gateway to the availability of the discretion was held to have been opened once and for all by any form of consent and whether or not that ‑ ‑ ‑

HEYDON J: The theory seems to be – take (d), that is sending a person who might have a claim to refugee status in Australia back to persecution.

MR WALKER: Yes.

HEYDON J: Subsection (c) is where the child rationally, as it were, objects.

MR WALKER: Yes.

HEYDON J: Subsection (b) is where physical and psychological harm would arise. We need not bother about (a)(i), that is not exercising the rights. Subsection (a)(ii) seems to rest on the theory that you cannot have a mother saying to her children, “Look, we have to go back to Israel. No, it is all right, your father said we can stay here so we’re all planning to do that”. Then, “No; we have to go back again”. That is regarded as a mischief that is overcome by this provision.

MR WALKER: That must be right, yes, with respect.

HEYDON J: All right, so we are into the discretion. Now, where does the argument go from there?

MR WALKER: My argument, your Honour?

HEYDON J: Yes.

MR WALKER: The way the case was determined – we accept we are utterly bound to this position. There was a consent rendering the discretion available. The next point – and this is also a concession – is that the exercise of that discretion factually will include all sorts of material post‑dating the retention and, one hopes, right up to date at the hearing and one hopes that would also be up to date with the judgment, which would follow very briskly. So that discretion opens up a plethora of material which would include, for example, the father’s girlfriend’s conversation, et cetera, what sort of a place ‑ ‑ ‑

HAYNE J: Does not this debate about consent and acquiescence and the difficulties that are thus presented cast light on the question presented back in (1A)(b) of habitual residence in this way? Is it not casting light on the effect or character of – I use the term neutrally – the arrangement at the point of departure?

MR WALKER: Yes.

HAYNE J: The arrangement at the departure we have been speaking of in terms of it was conditional, it was subject to conditions subsequent, et cetera. But what happened when she got on board the aircraft with the children, immediately before that, might be understood, may it not, as the father accepting, consenting, acquiescing, if we must, that what was happening was the acquisition of a habitual residence other than Israel; a habitual residence which, if certain events came to pass, might be re‑established? But only if we discard notions of domicile and persistence of domicile and dependence of domicile can we give proper effect to what is after all no more than a connecting factor.

MR WALKER: Yes, quite so. Logically, everything your Honour has put is, with respect, open.

HAYNE J: But it then means that we do not get into this necessarily very complex argument about consent once given, can it be withdrawn, must it be hedged about? Acquiescence once given be given, can that be taken away, et cetera? Those problems are ‑ ‑ ‑

MR WALKER: Can be left for when they need to be determined, yes, your Honour.

HAYNE J: No, not just left by this Court for when they need to be determined, I understand that, but left in the practical operation of this Convention in most cases at least, to cases of a kind very different from the present where there is a departure from one country to another, agreed in ‑ ‑ ‑

MR WALKER: By full agreement, yes.

HAYNE J: Followed by persistent living and residence.

MR WALKER: During the three months the events occurring of the kind that there has been sufficient reference to already, and also during the three months the father seeking return of the children. Now, why I say that is that the way it has been dealt with below – and this we do not think has been the subject of any challenge by the appellant – it has been treated as an arrangement which was made in which either return or staying on was seen as possibilities, and that it was seen as possible for the father to make his position clear that of those possibilities he now excluded staying.

For the purposes of the factual inquiry – and I am sorry for repeating the word “factual” but your Honours have seen that it has a mantra and status in the authorities on this expression “habitual residence” – on the factual determination of the circumstances in which the states of mind surrounding which the parent has dealt with by determining the place of residence of their children, he was not thereby assenting or agreeing, to use neutral expressions, to Israel ceasing to be the place where they lived.

Now, that involves, I am bound to say, an analysis factually, or raises the need for an analysis factually, which is not in the reasons below in either level, and not least because there is not fully found facts where there are conflicting versions. However, in our respectful submission, what there are are concurrent factual overall conclusions to the effect of those that we have noted in paragraphs 14 and 15 of our written submissions. They are conclusions which are not so much looking to the father, but even more strongly for our position looking to the mother and saying she did not have a requisite state of mind.

I apprehend and, with great respect, accept from what some of your Honours have raised with me that, of course, there are things to be said for an opposite view concerning the mother’s state of mind, but it is, I stress, as a matter of finding of fact in all the circumstances all four judges have said, the mother did not have a state of mind consistent with or indicative of, supportive of, losing, changing – to use the jargon – the habitual residence.

Then they add, as it were, and the reasoning adds for good measure, as it were, that you cannot do that unilaterally, but in order for that to have any meaning on the facts of this case, you first have to give full weight to the father’s – I call it reneging – on the 23rd and 24th. Now, that is an answer to Justice Heydon’s questions. That is, we understand, how the question of so‑called consent has played out on the different issues.

HEYDON J: If we go to ground 7, which is where a little while ago you started, ground 7 in the notice of appeal in relation to this discretionary question, the appellant, I think makes one explicit point; namely, because of the Full Court’s delays, Australia is the most convenient forum because all the schooling and living has been here for so long that it is easier to assemble the evidence. There is perhaps, not a subsidiary, but a point beneath the surface which is the best interests of the children really call for an analysis of the problem here rather than elsewhere. Is your only answer to that these House v The King type points that you ‑ ‑ ‑

MR WALKER: What we have put is what we have put. Plainly it was relevant, what I will call a general law consideration of more convenient forum. It plainly was relevant, if – I stress if – that discretion came to be exercised; the discretion under 16(3).

HEYDON J: The Full Court has got itself into a difficult position here. As each day went by it was building, giving weight to the appellant’s position. I do not want to be critical, but I suppose one approach would have been for the Full Court to have it re‑listed and said “Look, all this time has gone by, do you have anything to say about it?” Is not there perhaps an error, and this is not quite the way it is put in the notice of appeal – you see, your argument rests on rehearing not de novo hearing, there was no House v The King error on the material as it stood, but ‑ ‑ ‑

MR WALKER: And none is raised here, more to the point.

HEYDON J: The written submissions, though, of the ‑ ‑ ‑

MR WALKER: There is no ground of appeal in this Court that repeats the ground of appeal which was before the Full Court under House v The King saying that the 16(3) discretion had miscarried. There is no doubt about it. That was argued below in the Full Court. It was a ground of appeal and all the references are set out in our paragraphs 45 and 46. The Full Court determined and dismissed that ground of appeal, and they held – and that is my reference to House v The King - that there was not on orthodox grounds, any call to set aside his Honour’s exercise of discretion. There is no challenge to that in this Court, that is, there is no challenge to saying “Look at the first instance judge’s exercise of discretion”.

The Full Court should have set that aside, applying House v The King. That is what did not happen and I realise this is not an argument of merit, but it is an argument of power. Because that did not happen and that is not before this Court, it cannot be said that the Full Court erred by failing to exercise a discretion because it did not have the discretion and that is the point about rehearing and de novo. The rehearing ‑ ‑ ‑

HEYDON J: The Full Court had a discretion under (a)(ii) ‑ ‑ ‑

MR WALKER: No, your Honour ‑ ‑ ‑

HEYDON J: Because of the Full Court’s behaviour a new factor came into play and that is what the appellant is trying to have considered.

MR WALKER: Your Honour, if – let me make the concession as full‑blooded as I can – if they possessed a discretion their own delay and how the boys were going in the meantime, would - one have thought been a first and overwhelming element. If they had the discretion. I stress this is not an argument about the merit. This is an argument about whether in this Court it can be said that the Full Court erred by failing to exercise a discretion. It can only err in failing to exercise a discretion if you have it.

They did not have jurisdiction to exercise a 16(3) discretion because it had been exercised by the trial judge – by the first instance judge – and there had been an unsuccessful appeal against that and their own delay, of course, did not contribute to showing error in the first instance judges.

HEYDON J: Their own delay led to an extraordinarily unjust order, on one view.

MR WALKER: Your Honour, I do not wish to contend against the completely regrettable nature of it.

HEYDON J: If Justice Kirby were here he would be making a speech and he would say, “You know, we are in contact with the real world. We must not take leave of our senses” and neither the Full Court nor us should put up with the making of unjust orders.

MR WALKER: To your Honour my response is that it is one thing to find a human plight deplorable - which would be understandable here - it is another thing to say that there has been an error by a court failing to exercise a discretion which alas the court did not have. I say alas because one could well understand a substantive law that would say, for example, because there will always be, however prompt the judicial work, some delay between first instance and appeal in such cases. There could have been a substantive law that said “And on any appeal, regardless of error by the first instance judge under 16(3), that must be looked at again”.

You could have a substantive law to that effect and that would be a good law. It would certainly lead to what – to use Justice Heydon’s last words to me – might strike one certainly outside court as being more just but we do not have that law and the Full Court was exercising statutory powers which this Court has clearly explained in such a way as to prevent as a matter of ordinary and important principle an appellate court revisiting the exercise of a discretion without first having set it aside for error.

HEYDON J: Let us say the Full Court had listed the matter for further argument in view of the time that had passed. Do you say it would have been pointless to do so because they had no power to take that into account in making the orders?

MR WALKER: I think that follows that somebody in my position would say to the Full Court, “Well, your Honours, yes, this is terrible but what can your Honours do because you have decided that the exercise of discretion was correct and you have not set it aside, you have not become seized as an appellate court of the discretion to exercise it and it is exactly analogous with a sentencing case, if but only if the sentencing discretion below is set aside as being attended by error then the appellate bench with updating evidence then introduced or then considered re‑exercises the sentencing discretion, but they certainly do not elide the first step and go on to say, “Well, what would we have sentenced the prisoner to” without finding error in the sentencing discretion or finding – in most sentencing appeal provisions, finding some other sentence that should have been imposed.

When we apply that in this case we have a simple House v The King exercise. I do not mean the factual issues are not complex. I mean, it is simple to say of Justice Kay’s discretionary decision, is it wrong or not, should it be set aside. That was fully fought and has not been re‑fought in this case and there has been no attempt to show that the Full Court was wrong in failing to find error in his Honour’s decision of what was called a finely balanced matter.

KIEFEL J: Is the correct question whether or not the husband consented so as to enliven some discretion, or is it whether or not he had given up his rights of custody which withdraw therefore the question whether there had been a wrongful retention at all?

MR WALKER: Well, your Honour, first of all, as you appreciate from everything that has been written and said, the parties fought this and it has been hitherto decided on the former basis, mainly ‑ ‑ ‑

KIEFEL J: I appreciate that.

MR WALKER: Yes. Well, that is the first reason why my answer to your question is, it is the former, because that is the way in which the matters have been framed.

KIEFEL J: But the parties might not be able to fashion a case which is contrary to the requirements of the regulation if the court is required to determine ‑ ‑ ‑

MR WALKER: Quite so. Your Honour, perhaps another way of putting what your Honour has raised with me is this. It really just comes back to habitual residence. If they were all wrong on habitual residence, then this court should correct that, and the question would be whether they were wrong on habitual residence by considering, assessing, interpreting the dealings between the relevant people, which in this children’s case integrally must involve considering the parent’s states of mind, has miscarried.

KIEFEL J: What I am focusing on, of course, is regulation 16(1A)(c), that element of the wrongful nature of the retention which focuses upon the rights of custody of the husband.

MR WALKER: I am sorry, did your Honour say (c)?

KIEFEL J: Yes.

MR WALKER: Yes.

KIEFEL J: His rights of custody, they have to be ‑ ‑ ‑

MR WALKER: Well, what can I say, your Honour ‑ ‑ ‑

KIEFEL J: They have to be interfered with for it to be wrongful.

MR WALKER: Yes, quite so. Well, that is even more remote from ‑ ‑ ‑

KIEFEL J: But that is the context in which you have to determine what he said, do you not?

MR WALKER: No, it is in another case differently fought, a context in which that kind of dealing could very well require to be determined, namely, had he by his conduct given up rights of custody. By the way, no one has ever said that an agreement by one of two parents with joint responsibility that the children will now reside in another country, spends, that is, exhausts, that parent’s rights to determine residence. It may mean they are going to be stuck because not having exercised a veto they can be met with an exercise of veto, but you do not lose your rights because you have exercised them once.

KIEFEL J: But this has not been considered. There is no determination upon it.

MR WALKER: No, it has not. I am not trying to dissuade your Honour from the need for that to be further considered in this case, for this reason. You have heard several times, and I think it is also in writing, my learned friend assert that the father had rights of custody as defined. Indeed, you will recall that it is said both to be true both under the laws of Israel and under the laws of Australia.

KIEFEL J: I think that was the initial premise, but it was on the basis that he had rights of custody before any retention.

MR WALKER: No. The appellant has never said, and I am confident will not say, that the father lost rights of custody by any dealing. A right of custody is not lost because you have exercised one aspect of it in a particular way. You may find yourself, as I say, now on the wrong end of a veto power in the person jointly responsible for the child, as could very well happen in a case like the present, but you certainly do not lose rights of custody. For example, no one could suggest that this father could not seek to vindicate custody, living arrangements, education requirements and access, for example, in the courts of Israel; in other words, to seek to enforce his rights of custody.

I do stress that it has never been – it is the opposite of what your Honour puts to me – said that that he did not have rights of custody or does not have rights of custody. All that has been said is that there was such an arrangement for the movement of the children from Israel to Australia as to change the conceded previous position of habitual residence in Israel.

KIEFEL J: But is not the father arguably, by what he said, putting aside or agreeing to not assert a right in relation to where the children live, that is, to put aside his preference in favour ‑ ‑ ‑

MR WALKER: No.

KIEFEL J: So that aspect of his right of custody has been given away?

MR WALKER: That has certainly never been put. He certainly had no opportunity at first instance to answer any such allegation and the absence of, perhaps regrettable, cross‑examination in the case ought not to obscure the fact that that may make it even more important that there be a plain indication that, look, facts are going to be proved which somebody will in an important forum say, “You’ve relinquished the right of custody of these children”. No one has ever suggested that. To the contrary, from day one and still today, it has been said he has got rights of custody, as he had rights of custody. The dealings that your Honour has raised with me to consider as possible relinquishment of the rights of custody ‑ ‑ ‑

KIEFEL J: An aspect of them, at least.

MR WALKER: Thank you. And, importantly, the right to determine the place of residence are dealings which, taken at their highest against us, are the exercise, not the relinquishment, of a right to determine and because it is joint responsibility, taken at its highest against us – and we say even at its highest it should not amount to this, but for the purpose of argument, let it be assumed that those dealings are read as him saying, not conditionally but outright, “You can bring them up in Australia. You can keep them in Australia and bring them up in Australia”, that would be for them jointly to have participated in making a determination of the place of residence of those children. That is an exercise, not a relinquishment, of the right of custody.

He does not give up the right to determine because he never had a right to unilaterally determine. So by moving into a position where she could now exercise a veto about them coming back to Israel or going to the States or wherever, by moving into that position, which she has done by that assumed conversation, he has not relinquished anything. All he has lost is something he never had, namely, some unilateral disposition of their place of residence. So the right of custody held jointly is retained absolutely unaffected by its exercise by means of an agreement with her that they should move to Australia. I accept that on the way I am accepting for the point of argument that kind of conversation would lose habitual residence in the place you are leaving and either would very soon or pretty soon after ‑ ‑ ‑

KIEFEL J: I am not sure it would do that. It would not make the retention wrongful. There are two aspects to the wrongful retention for present purposes. One is habitual residence and the other is some interference with the right of a parent to custody and all that involves.

MR WALKER: Your Honour, it will depend upon facts, I accept, as to whether we go the next step to lose the right of habitual residence. If there is no right of custody, then, of course, given the definition of “wrongful”, nothing will be wrongful. But I do stress, that has never been put. It is a very serious thing for it to be entertained as a possible holding against the father when there has been no joining of issue on that at any stage, and particularly when substantively on the merits ‑ ‑ ‑

KIEFEL J: I am not suggesting that this Court could determine that the question is whether it should be determined.

MR WALKER: Your Honour, there has already been one first instance judicial suggestion as to what issues there may be and there could well be others. I just wanted to conclude what I say about what we call the third issue by pointing out that it still remains the case that in this Court that amended notice of appeal, written submissions and address, there has been no criticism of any kind because there is no appeal against the way the Full Court dealt with Justice Kay’s exercise of the 16(3) discretion. I am afraid that that, in our submission, means that, properly analysed, the Full Court, however it may have cried out for an updating exercise, had no power whereby there is not the error that the ground added by amendments seeks to demonstrate.

HEYDON J: Did it not have an inherent jurisdiction to desist from making an unjust order where the injustice flowed from its own failure to deal with the matter as expeditiously as it required to be dealt with?

MR WALKER: It would be a satisfying proposition that the apparatus of justice cannot be used to work injustice, but it is always justice according to law and, whatever be the nature of an inherent jurisdiction to prevent injustice flowing from the administration of justice, whatever ‑ ‑ ‑

GUMMOW J: They are charged by the Constitution to settle a controversy that constitutes the matter. The question is, what powers aid that settlement? What Justice Heydon is suggesting seems to be relevant.

MR WALKER: I am now being pushed into an area where I am not allowed to go because of 78B. There is a judicial power in section 71.

FRENCH CJ: But even without all of that, after the six‑month delay, the real difficulty arises that circumstances have changed.

MR WALKER: Of course.

FRENCH CJ: That means, in effect, there is fresh evidence, does it not?

MR WALKER: But fresh evidence on what point, and that is the key thing.

FRENCH CJ: On points relevant to the discretion that were not before the judge.

MR WALKER: Yes, your Honour. No, I am sorry, there is not fresh evidence because you can analyse it this way. May I start with an analogy with sentencing. Appalling prison conditions, dreadful things happing in prison which arise and become known only after the Court of Criminal Appeal has reserved its judgment and are well known beyond dispute before six months later they deliver judgment could not be the subject of a fresh evidence application for the same reason, in our submission, that such matters arising after the discretionary first instance sentencing could not be relied upon in an appeal. That is because it would not show any miscarriage of the sentencing discretion unless you could work it into that magic exception where you say, well, it is simply the fulfilment of what should have been prophesied.

HAYNE J: Your analogy may not be right.

MR WALKER: Can I abandon analogy?

HAYNE J: There is sentencing law about post‑diagnosed HIV and the like. Do not go there, Mr Walker.

MR WALKER: I will abandon analogy.

HAYNE J: Yes.

MR WALKER: In this case, in the nature of things, particularly with young children, relatively short periods of time will be proportionately and developmentally very important for them, whether that be friendships, community in the physical neighbourhood sense or whatever, schooling, language. Of course we accept that. It follows that what the Convention, and to a degree the regulations make clear, namely, that things should proceed briskly, demonstrates recognition of that inherent and obvious feature.

The six‑week rule, so‑called, whereby reasons for delay need to be supplied upon request by certain people, including my client, apparently was understood in this case to apply only in relation to the first instance court. We do not need to explore that further, I hope. Other means of doing something about the six‑month delay were obviously not productive. So there is nothing I can say, nothing I want to say to detract from the seriousness, the gravity of what Justice Heydon, in particular, has raised but which obviously concerns all your Honours.

It is still a question of power. When it comes to anything that is said to be an inherent jurisdiction, then it is of the first importance, in our submission, to accept without any qualification that the bestowal in terms of a statutory jurisdiction governs in every regard, including its boundaries, the exercise of that jurisdiction and that there in particular is nothing under the rubric of inherent jurisdiction ‑ ‑ ‑

GUMMOW J: Look, Mr Walker, there is many decisions in which we have discussed this in federal jurisdiction.

FRENCH CJ: The word in federal jurisdiction is implied incidental power. We are really talking in the same terms.

MR WALKER: I am not saying there is no inherent jurisdiction, I am saying that here we have expressed ‑ ‑ ‑

GUMMOW J: The word “jurisdiction” is inapt. The question is whether there is an implied power and we have debated this uphill and down dale in various cases.

MR WALKER: Your Honour, that is what I was about to say.

GUMMOW J: I am not about to do it again at five to four.

MR WALKER: So one looks therefore to the statute to see what does the statute imply should happen in this case and, unfortunately, the statute says nothing about 16(3) becoming re‑available on an appeal if, though there be no error, a certain amount of time has elapsed. Now, I say a certain amount of time because the statute – I should say the regulation under the statute does use, as the Convention requires it to do, certain periods, the six weeks, the one year.

KIEFEL J: But is it not arguable that the question of the habitual residence of the children is completely open because of the lapse of time – without even going to regulation 3 discretion?

MR WALKER: No, your Honour, because that question, falling to be determined at one time in the past only ‑ ‑ ‑

KIEFEL J: Which assumes a wrongful retention, so we are back to where we were before.

MR WALKER: We are. But the only issue joined in this case was, had there been habitual residence – I am sorry. Was Israel still habitual residence as at – and the date will be either late July or preferably August 2006. That was the only issue on habitual residence. The delay in the Full Court, the living of the children in Australia meantime by reason of the stay of an order, pending appeal – none of that, with respect, can affect the merits in any appellate sense of the habitual residence determination.

FRENCH CJ: Anyway, as to the effect of the delay you say it is simply a question of power, and there is no power.

MR WALKER: That is right.

FRENCH CJ: I think that is about it.

MR WALKER: That is right. That is why it is really a two‑paragraph analysis, because there has been nothing pointed to ‑ ‑ ‑

HEYDON J: About three‑quarters of an hour ago you said you had nothing to add to your two paragraphs in your submissions on this point. That was a true statement.

MR WALKER: I think I have been trying to answer questions, your Honour.

KIEFEL J: That is a reasonable defence, Mr Walker.

MR WALKER: May it please your Honours.

FRENCH CJ: Thank you, Mr Walker. Yes, Mr Maiden.

MR MAIDEN: Thank you, your Honours. In respect of the issue of the adducing of the further evidence, that evidence, in my submission, was rejected on the basis of relevance. At paragraph 73 on page 539 it is rejected because the Court finds that:

The conduct of a broad factual inquiry to consider “the objective connection the children have with different states” on the question of habitual residence is not part of the law in Australia.

We submit that in respect of the evidence, being not the conversations with the friend of the husband’s but rather with the other material that my friend pointed to – that from May to the relevant date, whenever that be, was indeed relevant if one is to undertake the broad factual inquiry or a test other than what has been described as the settled intention test, or to have the settled intention. The addendum to that, finally, is on page 569, which we referred to earlier in my submissions, which is at about point 25 on that page. It reads:

However, the Full Court’s conclusion that the broad factual inquiry did not assist the mother was determined through the prism that settled purpose ‑

That is on the stay application, when two of the judges who gave the initial judgement reflect on that particular matter. That would be my ‑ ‑ ‑

GUMMOW J: What relief do you seek from us? It has varied, has it not, in your revised notice of appeal?

HEYDON J: Initially you did not seek any order remitting the matter, but now you do.

MR MAIDEN: Fourteen. It is general.

HEYDON J: That rests on the theory that the court applied the wrong test and they should apply the right test to the trial evidence and whatever other evidence is properly admissible under 93(A)2 of the Family Law Act.

MR MAIDEN: Thank you, your Honours.

FRENCH CJ: Thank you, the Court will reserve its decision. The Court will adjourn until 10.00 am tomorrow.

AT 4.02 PM THE MATTER WAS ADJOURNED

[2009] HCATrans 7

Key Legal Topics

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Administrative Law

Statutory Interpretation

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Natural Justice