LK v Director-General Department of Community Services

[2008] HCATrans 382

[2008] HCATrans 382

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S337 of 2008

B e t w e e n -

LK

Applicant

and

DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 10.07 AM

Copyright in the High Court of Australia

MR P.G. MAIDEN, SC:   May it please the Court, I appear with my learned friend, MS D.L. WARD for the applicant.  (instructed by Andrew Hamilton, Solicitor)

MR 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 Department of Community Services Legal Services Branch)

GUMMOW J:   Yes, Mr Maiden.

MR MAIDEN:   Your Honours, this case perhaps can be summarised briefly into two propositions which go to the factual matrix that confronted the trial judge relating to the fact of whether or not habitual residency changed and on what date it changed under the regulations.

GUMMOW J:   There is a threshold question, is there?  What do you mean by “habitual residence” in the case of a child?

MR MAIDEN:   As the many authorities have said, that is a matter of fact and the words speak for ‑ ‑ ‑

GUMMOW J:   What do you mean by matter of fact?  What are the relevant facts?  Lawyers produce these shibboleths that say nothing.

MR MAIDEN:   Your Honours, there are many decisions ‑ ‑ ‑

GUMMOW J:   I know there are many decisions.

KIRBY J:   We have had a few of them.

MR MAIDEN:   ‑ ‑ ‑ that look at this particular issue and in respect of the retention of children ‑ ‑ ‑

GUMMOW J:   None of these many decisions bind us, so you have to approach this matter, if you are going to get special leave, on some level of conceptual analysis.

MR MAIDEN:   Yes.  The two propositions that we seek to put to you ‑ ‑ ‑

GUMMOW J:   You do not attract my mind by saying it is a question of fact.  I want to know what the relevant facts are.  Then the question is how you then construe the provision.

MR MAIDEN:   And in relation to that particular matter, and to the question of the issue of what was the date upon which the Court should find that the mother and children were still habitually resident in Israel could have been said that was the date that the mother and children, on the factual situation that confronted them with the agreement of the father, left that jurisdiction and came to Australia.

KIRBY J:   Left the jurisdiction with the mother having return air tickets for the children to Israel.

MR MAIDEN:   Yes, that is certainly ‑ ‑ ‑

KIRBY J:   The father’s consent, one would infer, was on the basis that he understood that the children were coming back to Israel.

MR MAIDEN:   That was part of the argument on the affidavits.  The mother’s situation was, the father having left the matrimonial home in September previously – that after that date, after separation, the father agreed to the mother obtaining Australian passports for the children for the return air tickets and for the placement in schools in ‑ ‑ ‑

KIRBY J:   Return air tickets which seem to me to be a very important factual ingredient in determining what was the habitual residence of the child.

MR MAIDEN:   With respect, because there was no cross‑examining, we do not know whether the return air ticket was, in effect, a cheaper ticket than a one‑way ticket or what the ‑ ‑ ‑

KIRBY J:   It does not matter.  It was to return the children to Israel.

GUMMOW J:   If it is a question of fact, why are the facts not explored?

MR MAIDEN:   I am sorry, your Honour.

GUMMOW J:   If it is a question of fact, why does the Family Court not explore the facts?

MR MAIDEN:   Well, indeed.  In respect of this matter, if the mother on her affidavit material was accepted, the habitual residence changed when the children and she ‑ ‑ ‑

KIRBY J:   Well, it changed in her mind and it changed in a sense in fact by their coming back here, but that fact was always qualified by the fact that the father had agreed to the coming here on passports but with tickets that took them back to Israel.

MR MAIDEN:   There was another factual matter and that was that the family motor vehicle and the chattel items of furniture within the matrimonial home were sold.

GUMMOW J:   We are not going to approach this case on that level of minutiae.  Is there some difference of opinion between the United Kingdom authorities and the New Zealand authorities?

MR MAIDEN:   Yes, with respect, your Honour.

GUMMOW J:   Justice Finn seemed to think there was.

MR MAIDEN:   Which is the second point we would seek to ‑ ‑ ‑

GUMMOW J:   That is why, in the second round in the Full Court there was a stay.

MR MAIDEN:   This is the issue on this particular judgment of the Full Court that we have difficulty with.  If the New Zealand approach, we respectfully submit ‑ ‑ ‑

GUMMOW J:   What is the New Zealand approach?

MR MAIDEN:   We say it is a broader factual matter where we look at not just what was the state of mind as to whether persons ‑ ‑ ‑

GUMMOW J:   Whose state of mind?  Children do not have relevant states of mind.

MR MAIDEN:   Well, in the various cases, depending on their age.  In this case, they do not.

GUMMOW J:   Why does it depend on the age if you are construing the section?

MR MAIDEN:   Well, the various jurisdictions – that would go to whether or not the children have expressed a wish.  On the broader approach, that is one of the matters to be taken into the broader factual inquiry under the New Zealand approach.  Under the English authorities it is not.

GUMMOW J:   The English authorities seem to derive, by an adoption of what Lord Scarman said in a very different case – a visiting student case – of Shah.

MR MAIDEN:   That is right.  It goes back there, and that is in my friend’s ‑ ‑ ‑

GUMMOW J:   That was translated in the later House of Lords case by Lord Brandon into the Hague Convention.

MR MAIDEN:   Indeed.  In respect of this matter, the proposition is put that on a broader factual inquiry, as following the New Zealand approach and some of the American appellate divisions in that jurisdiction, that the issue of the father’s withdrawal of consent is one of the factors that goes to the finding of what would be the trial judge.  It is one of the factors; it is not determinative.  The trial judge here ‑ ‑ ‑

KIRBY J:   But the father never gave consent for permanent removal to Australia.

MR MAIDEN:   There is an issue on the material as to that.  The mother’s view was that he did, that is, she would only ‑ ‑ ‑

KIRBY J:   Why did she buy a return ticket for the children?

MR MAIDEN:   We do not know.  It may have been cheaper, as I suggested earlier, without getting into the minutiae.

KIRBY J:   It is a very powerful fact that indicates that the mother took the children on the assumption that the father had that they would be coming back.

MR MAIDEN:   With great respect, your Honour, the mother’s evidence was that she wanted the family to be back together again – no doubt about that – but in the absence of she being accepted back as man and wife, she was not going back because the matrix of the breakdown – the marriage was over and she could not survive.  In that regard, it was submitted, and we would respectfully submit that that was in fact the position – that when the house was emptied and she was driven to the airport with a ticket to go and Australian citizenship for all and, in respect of the plans for schooling and whatever, that her mind was not dependent on the consent of the boys’ father.  It was not dependent on – that was her state of mind.

KIRBY J:   Let me understand this.  Is the point you want to argue that the New Zealand courts have the right approach by looking at the so‑called broader factual inquiry, whereas as you contend the Full Court said no, you look at the imputed purpose of the children by reference to what the parents intend.

MR MAIDEN:   Indeed; and particularly in respect of the – I am sorry.

KIRBY J:   If I have a choice between those two, I will prefer the first, because the imputed purpose of the parents is a fiction.  The wider inquiry is looking at a larger realm of discourse, but the matter that concerns me is if you do look at the broader factual inquiry, then there is a looming iceberg there for you and that is that the mother brought the children here with return air tickets to Israel and therefore that you are sailing on towards disaster.

MR MAIDEN:   Consistent with her affidavit material, where she was accepted by the trial judge, was that if the family got back together again – if they were a family again – she would go back.  No doubt about it.  However, the trial judge referred to later emails and communications between the parties.  At page 15 of the appeal book he deals with this matter, where he accepts the mother’s evidence on this matter – that is, that there was in fact an agreement to go to Australia and that return of ‑ ‑ ‑

GUMMOW J:   How did the primary judge reach these conclusions about these matters of fact?  Was there any testing of this material?

MR MAIDEN:   No, there was not.  That is the difficult ‑ ‑ ‑

GUMMOW J:   Then how does it work?

MR MAIDEN:   That is the difficult – particularly with retention cases where it is not clear in respect of intentions of parties ‑ ‑ ‑

KIRBY J:   But is that not inherent in the Convention, the purpose of which is to transfer the dispute over custody, as it used to be called, to the place where the child had habitual residence?  Americans do not like giving effect to that.  Half the Circuit Courts have not done so because they think everybody is better off in the United States of America, but we, I hope, are loyal to the spirit of the Convention, which is to say fight that out here in Israel.

MR MAIDEN:   And in respect of the New Zealand authorities, where there is this transmigration backward and forward across the Tasman – and we can assume a greater opportunity for parties to change their minds or deviate – our closest neighbour in respect of the test to be applied, to retention – to the retention where, you might say, matters move that in respect of the matters that the trial judge sets out in paragraph 15, on one view ‑ ‑ ‑

GUMMOW J:   The primary judge said the best was being done as could be done on untested evidence – page 14, paragraph 21.  One sympathises with the judge’s position.

MR MAIDEN:   Then he goes over on to page 15 and accepts the evidence of the mother.

GUMMOW J:   Your side did not do anything to test the evidence ‑ ‑ ‑

MR MAIDEN:   Neither side did in respect because these applications ‑ ‑ ‑

GUMMOW J:   No.  We know what these applications are and we spoke about it a year ago.

MR MAIDEN:   Indeed.

GUMMOW J:   There is no earthly – 10 minutes’ examination would deal with a lot of these problems.  It happens every day in the equity division in all sorts of urgent matters with minimum but effective examination. 

MR MAIDEN:   Where the one party was – electronics can be organised to cross‑examine where the father was in Israel at the time of hearing, as I understand it.  But, critically, in respect of the matters that – we respectfully submit that the trial judge makes findings in favour of the applicant and accepts at point 30 that:

The obtaining of Australian passports is supportive of the mother’s case that the children may well remain permanently in Australia.

That, with respect, is at the time of departure from Israel.  Arguably, at that point of time, under the regulation that habitual residence moved away from Israel and that is the point ‑ ‑ ‑

GUMMOW J:   Right.  I keep trying to lure you into some considerations of principle.  I will have another go.  What is the difference between the New Zealand authorities and the British authorities other than this slogan “broader”?

MR MAIDEN:   The principle is that you do not look at just that one issue of fact on that particular day as being determinative of the question of the loss of the settled purpose.  The New Zealand authorities look at this question of the settled purpose and ‑ ‑ ‑

GUMMOW J:   Whose settled purpose?

MR MAIDEN:   Well, again ‑ ‑ ‑

GUMMOW J:   I will just ask you this.  How has it come about that notions from the common law countries of domicile of inference, domicile of dependence are translated into this notion of habitual residence and how is it that there is an imputed intention where that may have nothing to do with it; it may simply be an objective matter?  How has all this happened?  In construing this phrase “habitual residence” how have we got enmeshed in notions of dependence and children’s positions being determined by intentions of parents?

MR MAIDEN:   Because the words “habitual residency” have continued to be said is the factual inquiry on the issues of what does it mean.  It is the factual ‑ ‑ ‑

GUMMOW J:   What are the facts?

MR MAIDEN:   And what are the facts.

GUMMOW J:   You say, or everyone seems to say, the facts are what the parents were debating about.

MR MAIDEN:   That is where we respectfully submit that the New Zealand authorities – that is one of the matters, one of the matters, in respect of what is now the New Zealand approach under this broader inquiry because in terms of your Honour’s question about people saying “habitual residency” there has been perhaps a reluctance because of the various jurisdictions – common law and not common law.

GUMMOW J:   Do we have any authorities of what happens in civilian countries?

MR MAIDEN:   There is one case of Johnson, referred to in the American decisions, which was a Swedish decision.  Again it seems from just reading – in that particular case they were looking at the question of the retaining – that is there is a ‑ ‑ ‑

GUMMOW J:   I think in a lot of the civilian countries these matters are done administratively.

MR MAIDEN:   Yes, and that appears to be the situation in Sweden.

GUMMOW J:   As the Convention permits.

MR MAIDEN:   Yes.  In Mozes they referred to the Swedish decision of Johnson in respect of that case.  But looking through the American authorities and ours, the issue of the civilian countries has not been specifically, as I tried to research this, brought to the fore.  Clearly people have avoided the definition of “habitual residence” to avoid jurisdictional or jurisprudential issues and stuck to what is the question of the fact.  However, that has devolved into “special purpose”, we might respectfully

submit, to the Full Court in the stay application as to perhaps their invitation to this Court to resolve, as they saw it, the question they had regarding the interpretation of these particular words and comments coming from the various decisions and from, on the face of it, New Zealand decisions which are apposite to ours.

GUMMOW J:   I think we will hear from Mr Walker.  Yes, Mr Walker.

MR WALKER:   Your Honours, our answer to Justice Gummow’s question is that Lord Brandon in Re J, who is attributed as the source of what I will call current doctrine in this country, asserts, in accordance with what we would submit is a commonsense perception of what might be thought of as social realities ‑ ‑ ‑

KIRBY J:   This is attributing to the child the intention of the parent.

MR WALKER:   This is the imputation point that your Honour has asked about, which has to be confronted.

KIRBY J:   Just another fiction of the law – instead of working a little bit harder to try and find a more factually‑based conclusion.

MR WALKER:   If that were the final position that were left, then that would be unsatisfactory.  I am going to try and persuade your Honours in the next few sentences that is not where it is in fact left.  But going back to the source of it intellectually, it appears to be the assertion one finds at the end of his Lordship’s list of reasons – that where a child – and it appears that we now need parenthetically to introduce a vague notion of “young” there, but where a child of an age where this is relevant is in the lawful custody – in his Lordship’s example it was the sole lawful custody of the mother – by extension that is now treated as the lawful custody of the parents - then necessarily – that is his Lordship’s word – the residence is the same for the child as the parents.

Now, partly that has to do with the commonsense rejection of the notion of a freedom to abscond on the part of the child; partly it has to do with what in some, not all, countries will be a legal – probably in all countries will be a moral or social - expectation that the parents will look after the child at that age where the child needs to be looked after.  It is not possible to trace anything more precise than that, in answer to Justice Gummow’s question.  That appears to be the basis in what I will call authority.

Now, in our submission, none the worse for that in one sense because that is an intensely factual approach which is cross‑jurisdictional and is multicultural.  It has to do with parental responsibility rather than the rather ugly expression “parental rights”, which is the label that has been attached to it by people intent on academically criticising that approach.

In our submission, that is also of its very nature intensely factual and will yield in highly special cases of a kind we do not presently need to consider to other matters.  One can think in particular of disruptions – severe and socially pervasive disruptions – to residence between parents and children such as might occur with either informal or formal refugee arrangements.

Those can be dealt with when particular cases come up because, at bottom, the doctrine is the same in New Zealand as in all of the United States jurisdictions, as in England and Wales, and as in all the civil jurisdictions which are referred to in the reported cases.  That is this, that habitual residence is a matter of fact to be determined in the circumstances of each case, one of those shibboleths or phrases that one uses in order, as it were, to deny or defeat further analysis and that can be thrown up by watching the repeated, in the travaux preparatoire at international gatherings from the beginning of the 20th century onwards and relevant to this Convention, one finds repeated consideration and concerted rejection of further definition of the concept.  With respect, for example, common law notions of domicile are misleading and inaccurate to be introduced into the matter.

KIRBY J:   Well, that was a common law notion.  You would not normally graft that without clear language on an international convention.

MR WALKER:   If this case threw up that possible fallacy, then it would be difficult for us to resist the general importance of the case to be settled by this Court, but it does not and it is not said that it does.  One then moves to the next part of Lord Brandon’s approach, which is the current law in this country and which we submit is simply not the subject of any criticism or difference in the New Zealand jurisprudence upon which this special leave application hangs – and that is this, that as you would expect from the English of the Convention expression “habitual residence”, while you may lose it or give it up in an instant as you close your suitcase and leave your house for the last time as you intend to emigrate, you do not necessarily acquire it in the place to ‑ ‑ ‑

GUMMOW J:   Who is the “you”?

MR WALKER:   I am sorry.  Now I am talking about an adult.

GUMMOW J:   This one‑month old child.

MR WALKER:   No.  I am talking about an adult at the moment.

GUMMOW J:   All right.

MR WALKER:   The adult does not gain habitual residence the instant he or she steps off the boat in the new country.  It may or may not, but it may be an appreciable period, another of those necessarily vague phrases that has been used – the appreciable period required to combine with the so‑called settled purpose and the duration and circumstances of stay in order to produce a new habitual residence will be a matter of fact in each case.  Then one comes to what is critical for the Convention because the Convention is not about on its face, at all, the habitual residence of adults.

However, the Convention is about disputes between adults – parents – concerning the location, to put it neutrally, of children.  Therefore, as one would expect and as is conceded, even in the Punter decision, the five‑person Court of Appeal decision from New Zealand which is at the heart of the special leave application, of course parental intentions and parental conduct in relation to their habitual residence will be relevant to the inquiry concerning the child.

One then moves to what might be called at the higher level the jurisprudential question supposedly raised by this special leave application.  As we have put in writing, none truly appears.  It is true that in New Zealand that the ‑ ‑ ‑

GUMMOW J:   So you dispute what the Full Court said on the stay application?

MR WALKER:   Yes.

GUMMOW J:   Paragraph 27 on page 100.

MR WALKER:   We certainly do.  In our submission the differences are far more apparent than real, a matter which the Full Court in the judgment which is the subject of this special leave application itself ‑ ‑ ‑

GUMMOW J:   And at paragraph 30 on page 101.

MR WALKER:   Yes.  They doubted in the Full Court for the relevant judgment whether the differences were not more apparent than real.

GUMMOW J:   But they are perplexed, are they not?  That is why they granted the stay.

MR WALKER:   They granted the stay because they regarded it as arguable ‑ ‑ ‑

GUMMOW J:   And significantly it was a differently composed Bench to the Full Court itself.

MR WALKER:   Unquestionably the stay was granted because it was regarded it as arguable for the purposes of that invidious judgment required in the stay application – namely, the prospects of gaining special leave – arguable that there were differences of a kind which, in the context of the interpretation of international treaty language, needed to be addressed by this Court.  Again, that is where it remained.  Then the case does invite a grant of special leave.  However, in our submission, at what I will call the jurisprudential level the differences are more apparent than real because the question of the parents’ habitual residence and that which is required to be investigated in relation to their habitual residence is of course not irrelevant.

KIRBY J:   It is pretty difficult for you to persuade this Court, given the decision of the Full Court of the Family Court on the stay application, that there is not a difference between the jurisprudence.  The nature of our inquiry at the moment is quite brief.  The Family Court is the specialist court.  They perceive a difference and they gave effect to that in the stay.  So it is pretty hard for you ‑ ‑ ‑

MR WALKER:   For the stay ‑ ‑ ‑

KIRBY J:   The real issue as it seems to me is whether, even if there is this difference, this is the appropriate case to take the matter up because of the factual substratum.

MR WALKER:   That is the point I do want to come to in a moment.

KIRBY J:   Well, I think you would do better to be concentrating on that, just speaking for myself, because it is hard for you to say that three specialist judges of the Family Court are wrong in perceiving a nuanced difference in the approach.

MR WALKER:   The Full Court that made the decision on the appeal, not the stay.  They were not inclined to see that there were differences that mattered (a) on the facts of the case - that is the vehicle point to which I will come - but (b) when properly understood.  Could I take your Honours, for example, to paragraphs [91], [92] and [93] in Punter [2007] 1 NZLR 40 at pages 62 and 63. Your Honours will see scattered in that part of the discussion these models or theories being referred to. One has a “parental rights model”, a “dependency model”, “child centred” model or “independent model”. In our submission, that is not the stuff of debate that ought to be had in this Court or indeed, with respect, in any court. It is a question of interpreting the Convention language, which obviously requires a ‑ ‑ ‑

GUMMOW J:   I do not know.  It throws up the ambiguity in the phrase “habitual residence” and “intellectual property” in just saying it is a question of fact.

MR WALKER:   Your Honour, that is why I want to come to paragraph [93], because there they say of the two which, as it were, stand against the Full Court’s decision, says the applicant in this Court – namely the “child‑centred or independent model”, the following is said:

children are treated as autonomous individuals, the quality of whose residence in a particular country does not necessarily depend on the quality of their parents’ residence in that country.

GUMMOW J:   What is wrong with that as a possible view?

MR WALKER:   As a generalisation in relation to what I will call the dignity of every individual, that is one thing.

GUMMOW J:   Does the International Convention on the Rights of the Child have any bearing on these sorts of debates?

MR WALKER:   No, your Honour.  That is, there is coherence between the conventions in question but it has to be understood that this is a convention for the speedy return for the determination on the merits of matters of custody and residence and the like where there is no recognition in the text of what I will call veto by the child.  It turns, depending upon the one‑year rule, on habitual residence.

KIRBY J:   That does not mean one would not read the Child Abduction Convention in a way that took into account the interests of the child.

MR WALKER:   Quite.  The whole thing represents what I will call a conventional acceptance of the interests of the child mandate the rapid return to what I will call the home jurisdiction where the interests of the child will, on the merits and substantively in a way that may well include children/child’s preferences be taken into account.  My submission is that on the question of habitual residence there is nothing in the text of the treaty, nothing that has ever been relied upon that says child veto applies.  When one talks about three children, the eldest of whom ‑ ‑ ‑

GUMMOW J:   Child veto?

MR WALKER:   Yes.  A veto by a child.

GUMMOW J:   A one‑month‑old child.

MR WALKER:   That is right.  So when one talks about children, the eldest of whom was eight, and the one‑month‑old child, these are absurd propositions to be raised as if they were principles of law coming from the two words “habitual residence” producing rival models that this Court ought to be as it were choosing between.  That of course then moves to the last point I want to make.  This is an entirely inappropriate vehicle as a case in order to choose something which points to anything of substance, anything considerable or significant ‑ ‑ ‑

KIRBY J:   You say that a case where it would be raised would be a case of a mature child, say aged 12 or 13 ‑ ‑ ‑

MR WALKER:   Yes.

KIRBY J:   ‑ ‑ ‑ and a case where the facts had been explored on that issue at trial.

MR WALKER:   What is so far common ground on all the jurisprudence may one day call to be re‑examined, but this is not the case, is whether it is – it is not in question that one parent cannot, as the cases put it, unilaterally alter the child’s habitual residence contrary to the position of the other parent.

GUMMOW J:   What does “habitual” mean?

MR WALKER:   “Habitual” looks to the ‑ ‑ ‑

GUMMOW J:   It suggests a habit.

MR WALKER:   Quite.  It looks to the time in question and to a duration preceding that.

GUMMOW J:   But “habit” suggests some degree of mental activity.

MR WALKER:   Yes, “intent or purpose” are the words that have been used.

GUMMOW J:   How do you find intent or purpose with a small child?

MR WALKER:   That is why Lord Brandon said – and when the child is in the custody of a parent necessarily the residence, with the mental element in question, is that of the parent.

GUMMOW J:   Why do you have to find one?

MR WALKER:   I am sorry, your Honour.

GUMMOW J:   Why do you have to find a mental element in that circumstance?  Why do you say “it is necessarily”?

MR WALKER:   Lord Brandon uses the word “necessary”.

GUMMOW J:   I know Lord Brandon said that.

MR WALKER:   He did not say it was necessary to find a mental element for a child.

KIRBY J:   He was better at deciding where was the home port of a vessel.

GUMMOW J:   What was the right to salvage.

MR WALKER:   His Lordship was skipping over the nonsensical possibility of investigating the psychology of a toddler as to residence and simply saying, well, because that is what the child is, we look to the facts, including the psychology intention purposes of the parents.  I stress the cases in question, and this case is the same, do not in any way differ in relation to this notion that one parent cannot do it unilaterally.  That is important because it is not suggested that the facts in this case ever supported the notion that the father had intended to alter his children’s “habitual residence”, that is by his intentions concerning whether they would be, as a matter of settled purpose, permanently or indefinitely settling in Australia rather than coming back to Israel on a contingency that then remained open between the spouses.

GUMMOW J:   What is this particular expression by Lord Scarman in Shah’s Case that is the source of this?

MR WALKER:   It was ordinary residence and it is for a welfare ‑ ‑ ‑

GUMMOW J:   It was a statutory expression, was it not?

MR WALKER:   Yes.  With great respect, the comments that your Honours have made about the use in the case law of the learning on ordinary residence through to habitual residence is not something that we are concerned to dispute.  On the other hand, it has to be said in defence of that use that as a matter of fact, shorn perhaps of their immediate contexts, a notion of ordinary residence and habitual residence will, one would expect, overlap and probably be near exactly congruent in most cases.

KIRBY J:   Can I ask you this?  The father has never been to Australia.  Is that correct?

MR WALKER:   Yes.

KIRBY J:   He was here?

MR WALKER:   In terms of trying to take his children back, yes.  There were orders.  Not before this case was decided, no.

KIRBY J:   Yes.  If one is looking at the purpose of habitual residence of the child in the Convention one would think one is looking at the time of the alleged abduction.

MR WALKER:   Or retention, as it is called.

GUMMOW J:   This is a retention case, is it not?

MR WALKER:   Yes.  That is what happened.

KIRBY J:   But in terms of the factual matrix, at the time the family was together last, they were together in Israel?

MR WALKER:   Yes.  When they were “retained”, as it were, it was found by the trial judge that the father’s intention was to the contrary of the children staying permanently in Australia with their mother and there was no – there is no intended challenge to that finding in this Court.  See the last paragraph of the applicant’s reply submissions.  This is an inappropriate vehicle because it is not suggested that the father ever had, to use the jargon of the cases, the settled purpose or the intention that would produce a possible alteration depending upon then the circumstances in the new country, Australia, of his children’s habitual residence.

That means it is a case where it would only be the mother’s unilateral purpose, assuming she had one.  As your Honours have seen, the trial judge did not find that she had one.  That is the second reason factually why this case is a very bad vehicle to test any supposed differences, subtle or otherwise, between New Zealand and Australian authorities.  Her intention was, as it was found, equivocal as to whether she herself would return to Israel.

GUMMOW J:   Can I just put this to you, Mr Walker.  There is a case called B v Secretary of Justice [2007] 3 NZLR 447 at 449. What happened in that case was that the judge had found that by the time the child was “wrongly retained in New Zealand” the child was no longer habitually resident in Spain.

MR WALKER:   Yes, and that is the kind of ‑ ‑ ‑

GUMMOW J:   Is that not the framework of this dispute.

MR WALKER:   Yes, this is a case that required habitual residence at the critical time to be determined and, albeit, in the unsatisfactory conventional method adopted of so‑called untested evidence, nonetheless being conflicting and being weighed up, that was determined factually, namely that the habitual residence had not changed, had not ceased to be Israel.  Now that is critical because the finding of fact is not intended to be challenged in this Court, nor is the notion that the mother’s unilateral alteration of her intentions as an alteration of her children’s habitual residence – that is not intended to be argued in this Court either.

It is for those reasons, in our submission, that if there is, in truth, any difference between what the Bench of five in New Zealand has said and what the Bench of three in Australia has said following the House of Lords for a long time, then, in our submission, this is not the case that will enable it to be determined because nothing is pointed to which distinguishes or adds to, or detracts from the findings of fact about the parents’ states of mind and conduct in this case.  It is not said of any of these three children that there is something about them at the relevant time, that is immediately prior to the retention.  It is not said that there was anything over and above their parents’ intentions that could affect the question of habitual residence.  Not a single one of them, in short, is treated as an autonomous individual in the sense that their state of mind concerning their habitual residence has anything to do with the case.

GUMMOW J:   Thank you.

MR WALKER:   Thank you, your Honours.

GUMMOW J:   Anything in reply?

MR MAIDEN:   Three brief matters.  Firstly, your Honours, the stay Bench of the Full Family Court changed by one, so it was still a majority which included Chief Justice Bryant.

GUMMOW J:   It included Justice Finn who was not in the first Bench, I think.

MR MAIDEN:   Justice Coleman substituted for Justice Finn.  That is so.

KIRBY J:   I think Justice Finn was the trial judge, was she not, in that MW v the Department?

MR MAIDEN:   She was in the MW Case, that is right, being one of the appellate judges in that one.  The second matter, your Honour, is the critical issues that one does not need a settled purpose in respect of the New Zealand authorities where the difference lays.

KIRBY J:   I cannot hear you, Mr Maiden.

MR MAIDEN:   I am sorry, your Honour.  One does not need, under the New Zealand authorities, a settled purpose.  That is the critical part and in respect of Justice Gummow’s questions of both my friend and I, your Honour, your Honour talked about the habit in underlying, possibly, what is meant in the words of the regulation, your Honour.  We would perhaps say that the word “experience”, your Honour, and this is where the problem of the facts came into effect here, that his Honour had difficulty in finding what was the date of retention.

KIRBY J:   But really you are trying to get Australian courts to decide who is the best custodial parent and that is the very thing that the international community has decided should not happen and has set up this convention.  I mean, ultimately, this Court is going to have to say you have to comply with the Convention or you have to renounce it.

MR MAIDEN:   With respect, no, your Honour.  The question is, in retention cases specifically, as distinct from abduction, where there is a retention and we ‑ ‑ ‑

KIRBY J:   There is a retention against return air tickets.

MR MAIDEN:   Well, your Honour, that is one of the factors ‑ ‑ ‑

KIRBY J:   A very important factor.  That was the basis on which the children came to this country.

MR MAIDEN:   Well, with respect, your Honour, we would submit that the question that the children obtained Australian passports to come to Australia and that all the furniture in the matrimonial home which the father had departed eight months earlier was critical to the fact of coming back.  The motor vehicle is sold, they are factors of which the return air ticket ‑ ‑ ‑

KIRBY J:   They are facts which were not fully explored and in your last paragraph of your reply you say you do not challenge the factual determination.

MR MAIDEN:   That is so.

KIRBY J:   The applicant does not challenge the factual findings of the primary judge.  Nor does she ask that the High Court determine any factual dispute.

MR MAIDEN:   Because the critical issue goes to the date of retention which his Honour has difficulty in finding and it is somewhere from July on, August, I think my friend, Ms Hartstein, said.  It was probably 27 August or possibly December.  It is critical as to the finding of the date of retention and that is not challenged.

KIRBY J:   Though you are asking this Court to reach a different conclusion on the facts which you disclaim and which would not be the proper province of this Court, least of all in the application of this Convention.  Otherwise, you reward abductors and you damage children.

MR MAIDEN:   What I am respectfully submitting, your Honour, is this, that in respect of that critical finding his Honour had difficulty in coming to it and therefore the application of the principle on the broader test, that is of the experience and all the factors to be brought in rather than on the English test of that finding of fact and what flows from that.  His Honour was unable to do it effectively on these facts.

GUMMOW J:   Justice Heydon and I would grant special leave in this matter.  That will involve an extension of the stay order, I imagine.

KIRBY J:   I refuse special leave.

GUMMOW J:   Now, there was an order.  It appears at page 105.

MR WALKER:   Your Honour, bearing in mind the subject matter, is it appropriate ‑ ‑ ‑

GUMMOW J:   It will be brought on as soon as possible.  We will see to that.  Is it enough for this Court to order that the order of the Full Court made on 4 July for the stay up to the disposition of the special leave application is to be treated as an order of this Court for the stay to continue until the disposition of the appeal by this Court or further order?

MR WALKER:   Yes, your Honour.

MR MAIDEN:   Yes, thank you.

KIRBY J:   If it could be brought on in December, I might myself be available to hear the matter.

MR MAIDEN:   We look forward to that, your Honour.

AT 10.47 AM THE MATTER WAS CONCLUDED