Sunday, 31 May 2009

High Court: Habitual place of residence

A 5 member of the High Court (French CJ, Gummow, Hayne, Heydon, Kiefel JJ) in LK v Director-General DOCS has unanimously upheld the mother's appeal from the the Full Court of the Family Court, which in turn upheld the decision of the trial judge, Kay J, for the mother to cause the children to return to Israel. The court ultimately dismissed the Central Authority's application for the children to return to Israel.

The facts


The 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. 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 Australia. 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?

Result

The High Court held:




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.




The High Court then outlined some aspects of how the Hague Convention impacts in cases of this kind:


The Convention on the Civil Aspects of International Child Abduction ("the Abduction Convention") was signed at The Hague on 25 October 1980. The Abduction Convention entered into force for Australia on 1 January 1987 and for Israel on 1 December 1991. Section 111B(1) of the Family Law Act 1975 (Cth)[4] ("the Act") provides for regulations making "such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to
obtain for Australia any advantage or benefit" under the Abduction Convention.


The Regulations (made in accordance with s 111B(1) of the Act[5]) provide (reg 1A(2)) that they
are to be construed having regard to the principles and objects mentioned in the preamble to and Art 1 of the Abduction Convention and recognising:
"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".


Regulation 14 provides for the making of applications to a "court"[6] for any of several forms of order
including[7] an order for the return of a child
under the Abduction
Convention "[i]f a child is removed from a convention
country to, or
retained in, Australia". Application for an order of that kind
may be made
by "the responsible Central Authority".

Regulation 16(1) provides
that if an application is made
under reg 14(1) for an order for the
return of a child, the application is
made within one year of the child's
removal or retention, and the applicant
satisfies the court that "the
child's removal or retention was wrongful under
subregulation (1A) [of
reg 16], ... the court must, subject to
subregulation (3), make the
order" (emphasis added). In this appeal, the chief
focus of attention is
upon the third of those conditions: that the child's
removal or retention
was wrongful under reg 16(1A).

Regulation 16(1A)
provides:
"For
subregulation (1), a child's removal to, or retention
in, Australia is
wrongful if:(a) the child was under 16; and(b) the child
habitually resided in a
convention country immediately before the child's
removal to, or retention in,
Australia; and(c) the person, institution or
other body seeking the child's
return had rights of custody in relation to
the child under the law of the
country in which the child habitually resided
immediately before the child's
removal to, or retention in, Australia;
and(d) the child's removal to, or
retention in, Australia is in breach of
those rights of custody; and(e) at the
time of the child's removal or
retention, the person, institution or other
body:(i) was actually exercising
the rights of custody (either jointly or
alone); or(ii) would have exercised
those rights if the child had not been
removed or retained."

It will
be observed that the requirements of each of the five
paragraphs of
reg 16(1A) must be satisfied if it is to be shown that a
child's
removal to, or retention in, Australia is wrongful. The first two
requirements look to the age of the child (par (a)) and to whether the
child habitually resided in a convention country immediately before the
child's
removal to, or retention in, Australia (par (b)). The remaining
requirements hinge about the notion of "rights of custody in relation to the
child". The rights that are to be considered are rights "under the law of
the
country in which the child habitually resided immediately before the
child's
removal to, or retention in, Australia".

Although, as
indicated at the start of these reasons, it is the
application of the second
requirement of reg 16(1A) (habitual residence)
that is dispositive, it
is as well to say something more about the requirements
which refer to
"rights of custody". The provisions of reg 16(1A) about
"rights of
custody" are to be understood by reference to the terms of
reg 4:
"(1) For the purposes of these regulations, a person, an
institution or another body has rights of custody in relation to a child,
if:(a)
the child was habitually resident in Australia or in a convention
country
immediately before his or her removal or retention; and(b) rights of
custody in
relation to the child are attributed to the person, institution
or other body,
either jointly or alone, under a law in force in the
convention country in which
the child habitually resided immediately before
his or her removal or
retention.(2) For the purposes of
subregulation (1), rights of custody
include rights relating to the
care of the person of the child and, in
particular, the right to determine
the place of residence of the child.(3) For
the purposes of this regulation,
rights of custody may arise:(a) by operation of
law; or(b) by reason of a
judicial or administrative decision; or(c) by reason
of an agreement having
legal effect under a law in force in Australia or a
convention
country."

Argument of the present matter in the courts below proceeded
without the parties directing close attention to questions of breach of
rights
of custody. There was some evidence before the primary judge about
Israeli
statute law governing guardianship and custody of minor children.
The general
tenor of the statute – the Capacity and Guardianship Law 1962 –
is that parents
have joint custody of their minor children. Argument
proceeded, at least in this
Court, upon the assumption that, if Israeli law
were to be applied, the
retention of the children by one joint guardian (the
mother) against the
expressed wish of the other joint guardian (the father)
would be in breach of
the rights of custody of the
father.

Approaching the matter in that way makes some assumptions about
the content of Israeli law which it is neither necessary nor appropriate to
examine further. They need not be examined because questions of breach of
rights
of custody given by Israeli law would arise only if the children
habitually
resided in Israel immediately before their removal to, or
retention in,
Australia. It is important to add, nonetheless, that if the
parties were right
to give Israeli law the operation that was assumed, their
approach to the
present matter properly reflected what was said by the
plurality in DP v
Commonwealth Central Authority[8]:

"Nothing in the definitions of 'removal' and
'retention' or of
'rights of custody' requires that, before removal or
retention, there shall have
been any judicial decision about rights of
custody and nothing in those
definitions requires that at some later time
there be any application to a court
to determine who shall have future
rights of custody in relation to the child.
All that the definitions require
is that by the law of the place of habitual
residence immediately before
removal or retention, the child's removal to
Australia or the child's
retention in Australia is in breach of the rights of
custody of some person,
institution or body. Often enough, that will be so
where, by operation of
the law of the place of habitual residence, both parents
have joint rights
of custody of children of their union. Sometimes, before any
application to
the courts in Australia, the parent who has not removed or
retained the
child will have approached the courts of the place of habitual
residence for
interim or permanent orders about custody of the child but that
will not
always be so."

Habitual residence


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"....


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....


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.

Purpose and intention
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.

A division of authority?
International treaties should be
interpreted uniformly by contracting states[39]. Although the questions in this
matter turn immediately
upon the proper construction and application of the Regulations,
the Regulations provide[40] that, 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....

The present case
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.

1 comment:

lilachrubin@gmail.com said...

and what is your opinion about this decsion?