SECRETARY, ATTORNEY-GENERAL’S DEPARTMENT (CTH) & DONALD

This matter concerned an application by the Secretary, Attorney-General’s Department (Cth) on behalf of the father, seeking the return of a child to New Zealand under the Hague Convention on the Civil Aspects of International Child Abduction. The mother had retained the child in Australia. The central dispute revolved around whether the child was habitually resident in New Zealand immediately prior to the mother's retention of the child in Australia, or whether the child had subsequently regained habitual residence in New Zealand. The court was required to determine the meaning of habitual residence in the context of the Convention and whether the mother's immigration status in Australia affected this determination.

The court considered the meaning of habitual residence, drawing analogies from the law of domicile, particularly the approach to intention. It applied principles established in cases such as *LK v Director-General, DCS* and *Department of Health and Community Services v Casse*. The court examined whether a parenting agreement, which allowed the child to live with the mother in Australia, was conditional and whether the parents had abandoned their habitual residence in New Zealand. Crucially, the court determined that the status of an "illegal non-citizen" does not preclude a finding of habitual residence, as immigration status is only one factor to be considered.

Ryan J found that the mother's settled intention was to reside in Australia and that she had no lingering connection to New Zealand. Consequently, the child was found to have acquired habitual residence in Australia at the same time as the mother. The court concluded that the Hague Convention did not apply to the circumstances of this case. Accordingly, the application by the Commonwealth Central Authority was dismissed, and all prior orders were discharged.