Wednesday, 13 August 2008

Family Court case: habitual place of residence under the Hague Convention

In the recent Full Court of the Family Court case of Ustinov v South Australian State Central Authority, the court had to consider in a Hague convention case the issue of "habitual residence".

To show that there had been wrong removal or wrongful retention, it is necessary to show that the removal or retention is from a convention country that is the child's "habitual residence".

The father, who was appealing from a decision to return the children to Bulgaria, argued in the Full Court that the trial judge had got it wrong, because:

The father had deposed that the arrangement for living in Bulgaria was only for approximately two years;
That was only a temporary arrangement;
There having been no cross-examination of the father, the trial judge should not have found contrary to his evidence that the arrangement was temporary.

The Court held:

Firstly, temporariness is a qualitative concept. Even if that abstract notion was determinative of whether the children were, in mid-2007, habitually resident in Bulgaria, the decision of whether the residence was temporary or not would have been one for the Judge, not one determined by what a party swore about it.
Secondly, in our view, upon which we will shortly expand, [the trial judge] correctly identified the question she had to answer, which was not whether the parents and children were in Bulgaria temporarily, but whether the parties (and children) were living in Bulgaria “voluntarily and for settled purposes”. We think it at least arguable that in rejecting any claim that the family’s residence in Bulgaria was “merely temporary” her Honour was saying no more than that it was “settled”.

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