[3] Gambini referred to the decision in Jiang which accepted a ‘three-stage approach’ in Australia to determining whether a removal breached rights of custody and would thus be wrongful: Wenceslas stated this three-stage approach as the following:143
‘1. The first task of the court is to establish, on the evidence before it, what rights, if any, the parent seeking the return had under the law of the foreign country in relation to the child at the time of removal;
2. The next stage is to resolve, as a matter of Australian law under the Regulations (being the law of the forum where the Convention has been invoked), whether they amount to 'rights of custody' within the meaning of the Regulations; and.
3. Finally, the question is whether or not the removal or retention of the child was in breach of those rights, and therefore whether or not the removal was wrongful within the Regulations.’
This three-stage process is also used by the Australian courts to be able to capably make requisite decisions. The final requirement for a successful application, ‘Habitual residence’, shall be discussed below.
[2] The leading case which subsequently determined the content and meaning of habitual residence in Australia was that of LK v Director-General, Department of Community Services [2009] HCA 9148 which stated:149
‘International treaties should be interpreted uniformly by contracting states.150 Although the questions in this matter turn immediately upon the proper construction and application of the Regulations, the Regulations provide that,151 unless the contrary intention appears, an expression used in the Regulations and in the Abduction Convention has the same meaning in the Regulations as in the Abduction Convention. It follows that, unless it is shown that the term is used in the statute law of other contracting states in a sense different from the way in which it is used in the Abduction Convention, care is to be exercised to avoid giving the term a meaning in Australia that differs from the way it is construed in the courts of other contracting states. But it is no less important to recognise that, because the term is not defined in the Abduction Convention, and the absence of definition reflects the stated intention that it should be treated "as a question of pure fact", conclusions reached in the courts of other jurisdictions are not lightly to be treated as establishing principles of law which govern the term's meaning and application. Rather, they are to be read and understood as resolving the particular controversy tendered for decision.’
Regulation 1A(2) provides that the Regulations are to be construed as having regard to the principles and objects mentioned in the Preamble and Article 1 of the Hague Convention in ‘that 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.’152 This case emphasized that the abducting parent’s settled intention or purpose was a necessary and integral part of determining habitual residence.153 However, in regards to what matters are to be taken into account when determining questions of habitual
Hague Convention: N Lowe A Statistical Analysis of Applications made in 2003 Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Preliminary Document No. 3, Pt. II of November 2006 (revised version); Kirby op cit (n22) 10; Bowie op cit (n22) 15.
147 McCall v State Central Authority supra (n27) at 81, 523 referring to A v A (Child Abduction) [1993] 2 FLR 225 at 235;
Bates op cit (n144) 130.
148 This case concerned a pre-condition that children must be habitually resident in the country from which they were taken.
The main Judge held in this case that the children were habitually resident in Israel before being taken to & retained in Australia. The full court of the Family court affirmed this conclusion and the mother’s appeal was dismissed. The High Court concluded that the Family Court had applied notions of ‘domicile’ (which imports parental intention) instead of the concept of ‘habitual residence’ (which is primarily factual). See Kirby op cit (n22) 10. The fifth meeting of the Special Commission on the Child Abduction Convention seemed to suggest that contests over the ‘habitual residence’ of children are becoming more common as an effective defence against return, as the Convention ordinarily envisages. Lowe op cit (n146) and Kirby op cit (n22) 10. Another case which considered the concept of habitual residence prior to this was: Cooper v Casey (1995) FLC 92-575.
149 LK v Director-General, Department of Community Services supra (n145) at ‘Order’ paras [1] & [36].
150 Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189 at 202, para [25].
151 Regulation 2(1B) of the Family Law (Child Abduction Convention) Regulations, 1986.
152 LK v Director-General, Department of Community Services supra (n145) at para [6].
153 Ibid at para [17]; LK v Director-General, Department of Community Services [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 454 [73].
residence, the approach of the New Zealand case of Punter v Secretary for Justice [2007] 1 NZLR 40, where the approach was described as a broad factual inquiry into all the factors relevant to determining the habitual residence of the child, of which the settled purpose or intention of the parents is an important but not necessarily decisive factor, became decisive herein.154
To approach the term only from a standpoint which describes it as presenting a question of fact has limitations155 and the identification of what is or may be relevant to the inquiry is not to be hidden by stopping at the point of describing the inquiry as factual.156 Some criteria should be engaged at some point in the inquiry and these are found in the ordinary meaning of the expression.157 Consideration is given to where a person resides and whether this can be described as habitual.158 However, it is sufficient that the application of the expression ‘habitual residence’ permits consideration of a wide variety of circumstances that influence where a person is said to reside and whether that residence can be described as habitual, and secondly; the past and present intentions of that person will often have effect on the significance which is to be attached to particular circumstances e.g. the duration of a person’s connections within a particular place of residence.159 However, the use of the terms ‘habitual residence’ does amount to a rejection of other possible connecting factors such as domicile of nationality.160 It thus has been used in the Hague Convention ‘[t]o avoid the distasteful problems of the
… concept [of domicile] and the uncertainties of meaning and proof of subjective intent.’161 Habitual residence does identify the centre of a person’s personal and family life which is disclosed by the facts of that individual’s activities.162 Therefore it is unlikely but not impossible that a person will be found to be habitually resident in more than one place at a time and this habitual residence can be abandoned
154 LK v Director-General, Department of Community Services supra (n153) at para [18]; Zotkiewicz & Commissioner of Police (No. 2) supra (n146) at paras [3], [13], [69] & [97]; Secretary, Attorney-General’s Department (Cth) & Donald supra (n144) at para [41]; LK v Director-General, Department of Community Services supra (n145) at para [44]; Punter v Secretary for Justice [2007] 1 NZLR 40 at 62-62, para [88].
155 LK v Director-General, Department of Community Services supra (n145) at para [22]; DF Cavers ‘“Habitual residence”:”
A useful concept?’ (1972) 21 American University Law Review 477 - 479.
156 LK v Director-General, Department of Community Services supra (n145) at para [22].
157 Loc cit.
158 Loc cit.
159 Ibid at para [23].
160 LK v Director-General, Department of Community Services supra (n145) at para [24].
161 Ibid at para [24]; EF Scoles, P Hay, PJ Borchers & SC Symeonides Conflict of Laws: Hornbook Series (4th ed) (2004) at 247, section 4.14.
162 LK v Director-General, Department of Community Services supra (n145) at para [25]; Scoles, Hay, Borchers and Symeonides op cit (n161) at 247, section 4.14.
without immediately becoming habitually resident in some other place.163 Habitual residence is also voluntarily adopted, however, this does not need to be done consciously.164
[3] The habitual residence of a child is determined through the examination into where the person or persons caring for the child have their habitual residence.165 In Australia it is also difficult, in regards to a very young child, to speak of their habitual residence as distinct and separate from that of the place of habitual residence of the person or persons whom the child depends on for care.166 If the parents lived together at the time of the removal and retention of the very young child, then the habitual residence of the child is that of the parents.167 However, unlike domicile, considerations for determining where one is habitually resident are not confined to the concepts of physical presence and intention and this is also not given any controlling significance.168 Individuals do not always act with a clearly formed and singular view of what is intended and their intentions may thus be ambiguous.169 When considering where a child is habitually resident, the intentions of the parent who has the day-to-day care of the child are not the sole considerations.170 It will usually be necessary to consider what each parent intends for the child. The general rule is that neither parent can unilaterally change the child’s place of habitual residence as the consent of either parent (or a court order) is usually necessary.171 In examining both
163 LK v Director-General, Department of Community Services supra (n145) at paras [25] & [32]; Zotkiewicz &
Commissioner of Police (No. 2) supra (n146) at paras [12] & [77]; Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 at para [23]; State Central Authority & Wattey supra (n146) at para [15]; Director-General, Department of Families and Kinnunen [2001] FamCA 393 at 15.
164 State Central Authority & Wattey supra (n146) at para [14]; Re B (minor) (1993) 1 FLR 993 at 995; Secretary, Attorney- General’s Department (Cth) & Donald supra (n144) at paras [36] & [41].
165 LK v Director-General, Department of Community Services supra (n145) at para [27]; The case of Secretary of the Attorney-General & Stamatelos [2008] FamCA 1117 held that in regards to a child’s habitual residence, this depends on the habitual residence of the people who have custody of the child. In regards to sole custody, the child’s habitual residence is that of the sole parent (at paras [28]-[29]). In the case of separated parents, the child’s place of habitual residence is that of whom he lives with (at para [30]). In the case of joint custody, the child’s habitual residence is that of the couple and the one parent cannot unilaterally change this but it can be changed by agreement, acquiescence or court order and if one parent acts unilaterally then the child’s habitual residence remains that of the left behind parent (at para [31]).
166 LK v Director-General, Department of Community Services supra (n145) at para [27].
167 State Central Authority & Wattey supra (n146) at para [14]; Re B (minor) supra (n164).
168 LK v Director-General, Department of Community Services supra (n145) at para [28]; Zotkiewicz & Commissioner of Police (No. 2) supra (n146) at para [12].
169 LK v Director-General, Department of Community Services supra (n145) at para [29]; Zotkiewicz & Commissioner of Police (No. 2) supra (n146) at para [12].
170 LK v Director-General, Department of Community Services supra (n145) at para [33]; Zotkiewicz & Commissioner of Police (No. 2) supra (n146) at para [12]; Secretary, Attorney-General’s Department (Cth) & Donald supra (n146) at para [43].
171 LK v Director-General, Department of Community Services supra (n145) at paras [33]-[34]; Zotkiewicz & Commissioner of Police (No. 2) supra (n146) at paras [12] & [73]; Secretary, Attorney-General’s Department (Cth) & Donald supra (n144) at para [43]; State Central Authority & Wattey supra (n146) at para [14]; State Central Authority v McCall supra (n27).
parents’ intentions, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.172
[4] There is also no arbitrary period for acquiring habitual residence and it is important to find a strong and readily perceptive link between the child and country in which they may be habitually resident and this subsequently recognizes that if children are to be linked to a state and sent back there, they should have a real and active connection with that place.173 The requesting party also bares the onus of proving habitual residence on a balance of probabilities.174
[5] The case of Secretary, Attorney-General’s Department (Cth) & Donald agrees that the case of LK is still good law175 and in light of the Punters case, this is merely seen as assisting with the enquiry and broadening the factors. The case also expressly adopted the observations in the case of Department of Health and Community Services v Casse, wherein it was stated that: ‘All that the law requires for a
“settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’176 It was stated that: ‘… once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.’ It was also held that it follows that the authorities in regards to habitual residence do not comprise a closed list of considerations or establish principles of general application which pre-determine the weight to be given to particular factors.177 Therefore it is submitted as evident as to what the concept of habitual residence is and how it is determined for discussion in the present purposes.
172 LK v Director-General, Department of Community Services supra (n145) at paras [33]-[34]; Zotkiewicz & Commissioner of Police (No. 2) supra (n146) at paras [12] & [73]; Secretary, Attorney-General’s Department (Cth) & Donald supra (n144) at para [43]; State Central Authority & Hajjar [2010] FamCA 648 at para [109].
173 Zotkiewicz & Commissioner of Police (No. 2) supra (n146) at paras [80]-[81] & [82]; PR Beaumont & PE McEleavy The Hague Convention on International Child Abduction (1999) 101 & 108. This also distinguishes domicile from that of habitual residence.
174 Zotkiewicz & Commissioner of Police (No. 2) supra (n146) at para [122]; Secretary, Attorney-General’s Department (Cth)
& Donald supra (n144) at para [8].
175 Secretary, Attorney-General’s Department (Cth) & Donald supra (n144). The case of State Central Authority and Henfold [2010] FamCA 1172 at para [47], agrees with the submissions and position of the case of LK v Director-General, Department of Community Services supra (n145). The case of State Central Authority & Camden (No 2) [2011] FamCA 666 is another example of case law dealing with the concept of habitual residence.
176 Secretary, Attorney-General’s Department (Cth) & Donald supra (n144) at para [40].
177 Ibid at para [44].