LK v Director-General, Department of Community Services

LK v Director-General, Department of Community Services - [2009] HCA 9 - HCA 2009 case summary — Zoe

[14]

FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ. A husband and wife, married and living in Israel, separated in September 2005. The four children of the marriage continued to live with the mother in the matrimonial home. All four children had been born in Israel but were entitled to Australian citizenship by descent from their mother[1]. In May 2006, the mother and the four children, then aged between 15 months and 8 years, travelled by air from Israel to Australia. They held return tickets to Israel for 27 August 2006.
Before the mother and the children left Israel, the father knew, and accepted, that they intended to travel to Australia. The father knew, and accepted, that the mother left Israel on the footing that she would return if she and her husband were reconciled, but would not if the husband persisted in his then stated intention to live separately from her. Both before she left Israel and immediately after arriving in Australia, the mother took steps for her and her children to establish a home in this country. Just over two months after the mother and children had arrived in Australia, the husband told the mother that he wanted the children to return to Israel but that, as he had said previously, he wanted a divorce. Were the children then habitually resident in Israel?
That question of habitual residence is the dispositive issue in this appeal from orders of the Full Court of the Family Court of Australia[2]. By those orders, the Full Court (Bryant CJ, Coleman and Thackray JJ) dismissed the mother's appeal against orders[3] of a single judge of the Family Court of Australia (Kay J) ordering the return to Israel of the four children pursuant to provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"). Those orders of the primary judge were made in proceedings commenced by the Director‑General, Department of Community Services, as the State Central Authority appointed pursuant to reg 8(1) of the Regulations for the purposes of the Regulations. The Director‑General's application to the Family Court responded to a request by the Central Authority for the State of Israel for the return of the children.
The Full Court should have held that the children were not habitually resident in Israel when the father asked the mother to return them to Israel. The appeal to the Full Court should have been allowed and the orders made by the primary judge set aside. The appeal to this Court should therefore be allowed and consequential orders made to the effect described.

[37]

Both the primary judge[9] and the Full Court[10] concluded that, immediately before the retention of the children in Australia, they were habitually resident in Israel. The primary judge treated the retention of the children as beginning when the father withdrew his consent to their remaining in Australia and identified[11] this withdrawal of consent as occurring "no later than July 2006". Whether that withdrawal of consent was seen as requiring the immediate return of the children or only their return by use of the bookings made for 27 August 2006 was not explored. On its face the latter seems more likely but it is not necessary to examine that question further. The Full Court proceeded[12] on the basis that it had been conceded at first instance that retention in Australia occurred either when the mother did not use the return air tickets that had been booked for 27 August 2006, or when the mother told the father, in December 2006, that she did not intend to return to Israel.
In the particular circumstances of this case it will not be necessary to decide what date should have been fixed as the date of retention. That will not be necessary because even if that date was as early as July 2006, it should have been found that at that time the children were not habitually resident in Israel.
It is convenient to notice two points about the proceedings in the courts below. First, the initiating process filed by the Director‑General in the Family Court did not distinctly identify whether it was alleged that this was a case of wrongful removal of the children or wrongful retention. And in so far as it was alleged that there was a wrongful retention, neither the initiating process nor the supporting material identified when the retention was alleged to begin. Of course, it was open to the Director‑General to seek to make alternative cases and there may well be circumstances (of which this may have been one) in which that is at least desirable, even inevitable. It is ordinarily to be expected, however, that the case (or cases) which an applicant seeks to make will be distinctly identified.
The second point to make about the procedures followed at first instance concerns the resolution of disputed questions of fact. Three members of this Court pointed out in MW v Director‑General, Department of Community Services[13] that the requirements of the Regulations[14] that applications by a Central Authority for an order for the return of a child are dealt with expeditiously does not yield any general, let alone inflexible, rule prohibiting cross‑examination of deponents of affidavits filed in support of or opposition to the application. As the plurality reasons said[15], "prompt decision making ... is one thing, and a peremptory decision upon a patently imperfect record would be another".
In the present case (which was decided by the primary judge before MW), the affidavits before the primary judge deposed to conflicting accounts of what had been said between the mother and the father both before and after the mother travelled to Australia. Although no deponent was cross‑examined, the primary judge found that "the mother's version of events is more probable than the father's"[16]. This finding was accepted[17] in the Full Court of the Family Court and was not challenged in this Court.
Both at first instance and on appeal to the Full Court, the intentions of the mother (perhaps the intentions of both parents) about where the children should live were treated as critical to the identification of the place of their habitual residence. It was said[18] that the determination of the "settled intention" or "settled purpose" of the mother was a necessary and integral part of determining the place of habitual residence of the children. The conclusion that the mother was not shown to have a "settled intention" or "settled purpose", before the date of the return booking, of abandoning her Israeli place of residence was treated[19] by the Full Court as determinative. It will be necessary to examine what is meant in this context when reference is made to "settled purpose". It is convenient to introduce that consideration by reference to a particular submission made in the Full Court.
Counsel for the mother submitted in the Full Court that the Family Court should depart from earlier decisions in Australia[20] and the United Kingdom[21] about what matters are to be taken into account in deciding questions of habitual residence, and instead follow what was said to be a different approach adopted in New Zealand[22]. The approach adopted in Australia and the United Kingdom was identified[23] as treating questions of "settled purpose" as a necessary and integral part of the determination, whereas that adopted in New Zealand was described as requiring "a broad factual inquiry" into all factors relevant to determining the habitual residence of a child, of which the settled purpose or intention of the parents is an important but not necessarily decisive factor.
The Full Court concluded[24] that it did not need to resolve "the apparently significant departure of the New Zealand courts" from previous Australian and United Kingdom authorities. Yet as noted earlier, it is clear that the Full Court treated the finding that the mother did not have a settled purpose or intention to abandon habitual residence in Israel as dispositive.
These reasons will demonstrate that the Full Court erred in treating the absence of a "settled purpose" of abandoning habitual residence in Israel as determining the issue in this case about the habitual residence of the children. To do that it will be necessary to begin by saying something about the term "habitual residence" as it is used in the Abduction Convention and in other instruments, then to examine some of the difficulties and ambiguities which can arise in a search for a settled purpose or intention about a place of residence or its abandonment, and lastly deal with the proposition that New Zealand cases considering the Abduction Convention take a different path from that taken in Australia or in the United Kingdom.

[38]

The expression "habitual residence", and its cognate forms, have long been used in international conventions, particularly conventions associated with the work of the Hague Conference on Private International Law[25]. Although the concept of habitual residence was used in a Hague Convention (on civil procedure) as long ago as 1896[26], and has since been frequently used in other Hague Conventions[27], none of those instruments has sought to define the term. Rather, as one author[28] has put it, the expression has "repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts". Thus the Explanatory Report commenting on the Abduction Convention said[29] that "the notion of habitual residence [is] a well‑established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile" (emphasis added).
To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations[30]. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
Use of the term "habitual residence" to identify the required connection between a person and a particular municipal system of law amounts to a rejection of other possible connecting factors such as domicile or nationality. In particular, it may be accepted that "habitual residence" has been used in the Abduction Convention (as it has been used in other instruments) "[t]o avoid the distasteful problems of the English concept [of domicile] and the uncertainties of meaning and proof of subjective intent"[31]. It was said[32] in the nineteenth century that the notion that lies at the root of the English concept of domicile is that of permanent home[33]. But it was soon recognised[34] that domicile, in English law, is "an idea of law". Thus, in considering acquisition of a domicile of choice, questions of intention loomed large, and the relevant intention had to have a particular temporal quality (an intention to reside permanently or at least indefinitely). Use of "habitual residence" in the Abduction Convention rather than domicile as the relevant connecting factor entails discarding notions like the revival of domicile of origin and the dependent domicile of a married woman which marked the English law of domicile[35]. More importantly for present purposes, use of "habitual residence" in preference to domicile entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired.
It may well be said of the term "habitual residence", as it was of the expression "domicile"[36], that "if you do not understand your permanent home ... no illustration drawn from foreign writers or foreign languages will very much help you to it". Yet it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the center of a person's personal and family life as disclosed by the facts of the individual's activities"[37]. Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
In deciding where a child was habitually resident at an identified time it is, no doubt, important to consider the context in which the inquiry is required. Here, the chief contextual consideration is that, in accordance with the Abduction Convention, the purpose of the Regulations[38] is to facilitate resolution of disputes between parents relating to a child's care, welfare and development in one forum - the child's country of habitual residence - rather than any other forum. While that may tend in favour of finding that a child does have a place of habitual residence, neither the Regulations nor the Abduction Convention provides for a particular vindication or enforcement of rights in relation to the child. Vindication and enforcement of rights is to be a matter for the forum to which the Regulations and the Abduction Convention point: that of the child's habitual residence.
When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live - where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.

[39]

Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous. The facts of this case provide one example of such circumstances. The mother left Israel on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return. In those circumstances, it is not possible to say that the mother then had a settled intention which was sufficiently described either as being an intention to reside permanently in Israel or an intention to reside permanently in Australia. Neither description would acknowledge the significance attached to the possibility of reconciliation.
Both before and after she left Israel she set about establishing important connections with Australia consistent with her and her children establishing the centre of their lives here rather than in Israel. In particular, before she left Israel, she registered the children as Australian citizens and procured enrolment of the two older children at an Australian private school. In Australia she soon sought and obtained Centrelink benefits, the two older children started school and the next oldest was enrolled at preschool, the older children joined a soccer club and took music lessons. Later, with the assistance of her parents and the local Jewish community, she rented and furnished a home for her to live with the children.
All of these steps (except the last) were taken before the father asked, in July 2006, for the children to be returned to Israel. All of the steps identified are consistent with, indeed support, the view that by registering the children as Australian citizens and enrolling the older ones in school before she left Israel, the mother was then set upon a course from which she did not thereafter deviate: to move to Australia unless the father decided (contrary to the then state of affairs between them) to live with her and the children.
Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left, were to that extent ambiguous. Even accepting that to be so, because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.
Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day‑to‑day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.

[46]

As was pointed out by the majority of the Full Court of the Family Court in DW v Director‑General, Department of Child Safety[51], the conclusions expressed by Waite J may be seen as at odds with the view of Rattee J, sitting at first instance in the Family Division of the High Court of Justice in A v A (Child Abduction)[52]. In A v A, Rattee J said[53] that the reference in Lord Brandon's speech in re J to settled intention should be understood as "a settled intention to take up long‑term residence in the country concerned". It is to be noted, however, that the conclusions expressed by Waite J about the state of the law in the United Kingdom were later adopted by the Full Court of the Family Court in Cooper v Casey[54] and Panayotides v Panayotides[55].
To the extent to which the Full Court in the present matter is to be understood as preferring the view of Rattee J to that of Waite J, it would constitute the adoption of a view that does not appear to command general acceptance in either the English courts or the earlier decisions of the Full Court of the Family Court mentioned above[56]. And, as earlier explained in these reasons, if references to settled intention were to be understood as requiring inquiries about intention like those that are necessary to the application of the law of domicile, such an understanding would be sharply at odds with the use of the expression "habitually resident" in the Regulations and the Abduction Convention in preference to domicile.
In its reasons in the present matter, the Full Court examined whether its earlier decisions required it to apply principles different from those adopted in New Zealand. Particular reference was made[57] to SK v KP[58] and the reasons of McGrath J and Glazebrook J.
It is, however, not necessary to examine the decision in SK in detail. Rather, it is sufficient to observe that in Punter v Secretary for Justice[59], the effect of the decision in SK was described[60] in the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O'Regan JJ) as holding that the inquiry into habitual residence is "a broad factual inquiry". The plurality went on[61] to say in Punter:

[50]

When the mother left Israel with the children she was not shown to have the concluded intention that, come what may, she and the children would settle in Australia. The father did not agree to the children leaving Israel on any basis other than that expressed by the mother: that if the marriage was reconciled she would return, if it was not she would not. It follows that, when the children left Israel, the intentions of their parents could not be completely and accurately stated as being that the children would thereafter live in Australia. In that limited sense, it could not be said that the parents intended to "abandon" Israel as the place where their children habitually resided. But that statement could not be made because the parents' intentions were more complicated than the bald proposition of abandonment acknowledges. The more accurate statement of the parents' intentions, when the mother and children left Israel, was that mother and children were going to make their home in Australia unless the father chose to alter his then stated determination to live separately from the mother.
The absence of an agreed and singular purpose or intention at the time of departure from Israel (which could be completely described by reference only to residence in Australia or in Israel) was not to be treated as deciding the question of habitual residence. First, the question in this case was not to be asked in relation to the time of the children's departure from Israel; it was to be asked in relation to the time of their allegedly wrongful retention. And as earlier indicated, that time may be assumed to be when the father first asked in July 2006 for their return to Israel. But secondly, and more importantly, the intentions of the parents are not the only factors which bear upon whether in July 2006 the children were habitually resident in Israel.
Where, as here, the parents' intentions at the time of departure from Israel were expressed conditionally (to live in Australia unless ...) and the mother took the steps she did, both before and after arrival in Australia, to establish a new and permanent home for the children in Australia, it should have been found that the children were not habitually resident in Israel in July 2006. The possibility that they might again take up habitual residence in Israel (if their parents were reconciled) does not deny that they had ceased to be habitually resident there. Whether they were habitually resident in Australia when the father asked for their return need not be decided. What is decisive is that the children left Israel with both parents agreed that unless there were a reconciliation they would stay in Australia, and their mother, both before and after departure, set about effecting that shared intention.

[51]

Having regard to the decision reached about whether the children were habitually resident in Israel it is not necessary to consider the further issues agitated in the courts below and in this Court about whether, if they were, the case was one in which an order for return should have been refused on the basis that the father had consented to or subsequently acquiesced in the children's retention in Australia[67].
Nor is it necessary, if there was consent or subsequent acquiescence, to examine whether or how the delay that occurred between the hearing of the appeal to the Full Court of the Family Court on 5 December 2007 and delivery of judgment on 24 June 2008 bore upon the exercise of the discretion given by reg 16(3)(a)(ii) to refuse to make an order for return. It is enough to say that prolonged consideration by the Full Court of its decision in the matter was undesirable, especially when the primary judge had already pointed out[68], correctly, that the proceedings at first instance had not been dealt with sufficiently promptly.
Further, it is not necessary to examine whether the Full Court erred in refusing to admit the additional affidavit evidence relied on in that Court by the mother and by the Director‑General. None of that additional evidence contradicted or detracted from the description of circumstances touching the question of habitual residence provided by the facts as found by the primary judge.
No order for costs was made at first instance or on appeal to the Full Court of the Family Court. That is, the power given by reg 30 of the Regulations to order the person who in those courts was found to have retained the children to pay the costs of the application for an order for return was not exercised either at first instance or on appeal to the Full Court.
As was pointed out in MW[69], the matter of costs in this Court is controlled by the general provision of s 26 of the Judiciary Act 1903 (Cth). In the circumstances of this case there should be no order for the costs of the proceedings at first instance or in the Full Court of the Family Court. The appellant should have her costs of the appeal to this Court.
The appeal to this Court should be allowed with costs. The orders of the Full Court of the Family Court made on 24 June 2008 and 4 July 2008 should be set aside. In their place there should be orders that the appeal to the Full Court is allowed, the orders of Kay J made on 29 August 2007 are set aside and in their place there be an order that the application of the Director‑General, Department of Community Services made on 15 March 2007 is dismissed.

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