French CJ, Gummow J, Hayne J, Heydon J & Keifel J
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.
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.
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?
question of habitual residence is the dispositive issue in this appeal from
orders of the Full Court of the Family Court of Australia.
By those orders, the Full Court (Bryant CJ, Coleman and Thackray JJ)
dismissed the mother's appeal against orders
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 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 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) ("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) 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" for any of several forms of order including (reg 14(1)(a)) 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".
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:
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:
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 (2001) 206 CLR 401 at 412 :
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..
The courts below
the primary judge ( FamCA 1099 at )
and the Full Court ((2008) 39 Fam LR 431 at 439 , 452 , 459 
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 ( FamCA
1099 at )
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 ((2008) 39 Fam LR 431 at 452 )
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.
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
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.
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 (2008) 82 ALJR 629 at 639-640 -
; 244 ALR 205 at 216-218
that the requirements of the Regulations (reg 15)
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 (ALJR at 639 ; ALR at 217),
"prompt decision making ... is one thing, and a peremptory decision
upon a patently imperfect record would be another".
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":  FamCA 1099 at .
This finding was accepted ((2008) 39 Fam LR 431 at 450 )
in the Full Court of the Family Court and was not challenged in this Court.
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 (ibid at 454 )
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 (at 452 )
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.
for the mother submitted in the Full Court that the Family Court should
depart from earlier decisions in Australia
and the United Kingdom
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.
The approach adopted in Australia and the United Kingdom was identified
((2008) 39 Fam LR 431 at 454 )
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.
Full Court concluded ((2008) 39 Fam LR 431 at 454 )
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.
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.
Although the concept of habitual residence was used in a Hague Convention
(on civil procedure) as long ago as 1896,
and has since been frequently used in other Hague Conventions,
none of those instruments has sought to define the term. Rather, as one
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
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).
approach the term only from a standpoint which describes it as presenting a
question of fact has evident limitations.
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.
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.
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
It was said
in the nineteenth century that the notion that lies at the root of the
English concept of domicile is that of permanent home.
But it was soon recognised
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.
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.
may well be said of the term "habitual residence", as it was of
the expression "domicile",
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
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.
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 (reg 1A(2)(b))
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
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.
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.
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.
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 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.
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.
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
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?
treaties should be interpreted uniformly by contracting states.
Although the questions in this matter turn immediately upon the proper
construction and application of the Regulations,
the Regulations provide
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 (reg 2(1B)). 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
Full Court concluded
in the present matter that its own previous decisions, and decisions in the
United Kingdom, had held that "a settled purpose is a necessary and
integral part of a finding of habitual residence": (2008) 39 Fam LR 431
at 454 . What is meant by
Use of the expression "settled purpose" in this context is often traced to the statement in the reasons of Lord Scarman in R v Barnet London Borough Council; Ex parte Shah  2 AC 309 at 342:
I agree with Lord Denning MR that in their natural and ordinary meaning the words ['ordinarily resident'] mean 'that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration'. The significance of the adverb 'habitually' is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case [Inland Revenue Commissioners v Lysaght  AC 234 at 243], namely residence adopted voluntarily and for settled purposes..
Two points may be made at once. First, both Shah's Case and the case to which Lord Scarman referred (Lysaght's Case) were decided in contexts very different from the present. Shah's Case concerned the making of educational grants to students "ordinarily resident" in the United Kingdom. Lysaght's Case was a decision about the liability to pay income tax by a person "ordinarily resident" in the United Kingdom. Secondly, the reference to "settled purposes" in neither case was amplified. But in Shah's Case  2 AC 309, in the course of considering other cases in which the expression ordinary residence had been examined, Lord Scarman pointed out (at 343)) that it would be erroneous to hold that demonstration of an intention to live in a place permanently or indefinitely was necessary to show ordinary residence. Such a conclusion would be erroneous, Lord Scarman held (ibid at 343), because it would import into the law, from the old law of domicile, those questions of subjective intention which the use of the concept of ordinary residence was intended to exorcise.
will be observed that reference was made in Shah's Case to residence
"adopted voluntarily and for settled purposes" (emphasis
added). Subsequent decisions, both in Australia and in the United Kingdom,
have often referred to "settled purpose" or "settled
intention". So, in In re J (A Minor) (Abduction)
 2 AC 562,
Lord Brandon of Oakbrook, having first noted,
ibid at 578,
that the term "habitually resident" is nowhere defined, is not to
be treated as a term of art, and presents "a question of fact to be
decided by reference to all the circumstances of any particular
case" (emphasis added), expressed the opinion (ibid at 578)
"that there is a significant difference between a person ceasing to be
habitually resident in country A, and his subsequently becoming habitually
resident in country B". Leaving a country with a "settled
intention not to return to it but to take up long-term residence"
elsewhere was identified as sufficient to terminate habitual residence in
the first country, whereas "[a]n appreciable period of time and a
settled intention will be necessary to enable" a person to become
habitually resident in the second country,
ibid at 578-579.
But for the reasons given by Lord Scarman in Shah's Case, it would be wrong to treat the references to settled purposes (or settled purpose or intention) as importing the old law of domicile by directing an inquiry in cases arising in connection with the Abduction Convention into whether the person whose place of residence is in issue is shown to intend to live there permanently or at least indefinitely. Rather, as Waite J rightly said in Re B (Minors) (Abduction) (No 2)  1 FLR 993 at 995, the effect of decisions in the United Kingdom about the Abduction Convention, particularly the decision of the House of Lords in Re J, is that:
Habitual residence is a term referring, when it is applied in the
context of married parents living together, to their abode in a particular
place or country which they have adopted voluntarily and for settled
purposes as part of the regular order of their life for the time being,
whether of short or of long duration.
was pointed out by the majority of the Full Court of the Family Court in DW
v Director-General, Department of Child Safety  FamCA 93; 
FLC ¶93-255 at 80,329-80,331 -
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)  2 FLR
In A v A  2 FLR 225, Rattee J said at 235
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  FamCA 2;  FLC ¶92-575 at
81,695 and Panayotides v Panayotides
 FLC ¶92-733 at 83,897.
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.
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.
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 ((2008) 39 Fam LR 431
at 444-445 -, 452-453
-, 454-455 -)
to SK v KP  3 NZLR 590
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  1 NZLR 40, the effect of the decision in SK was described (at 61 ) 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 to say in Punter (at 61-62 ):
Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para , the underlying reality of the connection between the child and the particular state.
As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified by Lord Brandon in Re J  2 AC 562 at 578, to decide the question of habitual residence "by reference to all the circumstances of any particular case" [emphasis added].
the approach described in Punter accords with the general tenor of
decisions in the United States of America.
It may be observed of those decisions that there is seen to have been a
division between the Circuit Courts of Appeals about the relevance of the
parents' subjective intentions for the child or children concerned.
When it is also observed, however, that the resolution
of the competing approaches has been to invite attention to whether presence
at a place has a "degree of settled purpose from the child's
(emphasis added), the difference in expression of the relevant
considerations may not be great. At all events, a thread common to the
leading decisions in the United States remains the need to look at all of
the circumstances of the case. And it is that approach, as described in Punter,
which should be followed.
How, then, should the present case have been decided?
The present case
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.
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
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.
Conclusion and orders
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 (reg 16(3)(a)(ii)).
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 ( FamCA 1099 at - ),
correctly, that the proceedings at first instance had not been dealt with
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
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.
was pointed out in MW (2008) 82 ALJR 629 at 650 -
; 244 ALR 205 at 231,
the matter of costs in this Court is controlled by the general provision of
of the Judiciary
(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
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.
 Australian Citizenship Act 1948 (Cth), s 10B.
 Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431.
 Director-General, Department of Community Services v Kilah (No 3)  FamCA 1099.
 As inserted by the Family Law Amendment Act 1983 (Cth) and amended by the Family Law Amendment Act 2000 (Cth).
 Reference is made in these reasons to the Regulations as they stood at the date of the initiating application in the Family Court.
 Defined by reg 2(1) as a court having jurisdiction under ss 39(5)(d), 39(5A)(a) or 39(6)(d) of the Act.
 State Central Authority v McCall  FamCA 156;  FLC ¶92-552; Cooper v Casey  FamCA 2;  FLC ¶92-575; Department of Health and Community Services v Casse  FamCA 71;  FLC ¶92-629; Panayotides v Panayotides  FLC ¶92-733; DW v Director-General, Department of Child Safety  FamCA 93;  FLC ¶93-255; HBH v Director-General, Department of Child Safety (Q)  FamCA 1053; (2006) 36 Fam LR 333.
 Dickson v Dickson  SCLR 692; In re J (A Minor) (Abduction: Custody Rights)  2 AC 562; Re B (Minors) (Abduction) (No 2)  1 FLR 993; Cameron v Cameron  ScotCS CSIH_3;  SC 17; M v M (Abduction: England and Scotland)  2 FLR 263.
 SK v KP  3 NZLR 590; Punter v Secretary for Justice  1 NZLR 40.
 The history of the Hague Conference is traced in North, "Hague Conventions and the Reform of English Conflict of Laws", (1981) 6 Dalhousie Law Journal 417 at 419-421.
 See art 15 of the Convention relative to Civil Procedure (1896), 88 British and Foreign State Papers 555 at 558. (This Convention was done in French and used the expression "résidence habituelle".)
 See, for example, Convention Relating to the Settlement of the Conflicts Between the Law of Nationality and the Law of Domicile (1955) (a Convention done in the French language using the expression "réside habituellement"); Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (1961); Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions (1965); Convention on the Recognition of Divorces and Legal Separations (1970); Convention Concerning the International Administration of the Estates of Deceased Persons (1973); Convention on the Law Applicable to Maintenance Obligations (1973); Convention on the Law Applicable to Matrimonial Property Regimes (1978); Convention on the Law Applicable to Agency (1978); Convention on International Access to Justice (1980); and Convention on the Law Applicable to Succession to the Estates of Deceased Persons (1989). See also Cavers, "'Habitual Residence': A Useful Concept?", (1972) 21 American University Law Review 475 at 477-479 ("Cavers").
 McClean, Recognition of Family Judgments in the Commonwealth, (1983) at 28 [1.38].
 Pérez-Vera, "Explanatory Report", in Permanent Bureau of the Hague Conference on Private International Law (ed), Actes et documents de la Quatorzième session 6 au 25 octobre 1980, (1982), vol 3, 426 at 445 .
 Cavers at 487-491.
 Scoles, Hay, Borchers and Symeonides, Conflict of Laws, 4th ed (2004) at 247 § 4.14 ("Scoles, Hay, Borchers and Symeonides").
 Dicey, Morris and Collins, The Conflict of Laws, 14th ed (2006), vol 1 at 123 [6-004] ("Dicey, Morris and Collins").
 Whicker v Hume  EngR 991; (1858) 7 HLC 124 at 160 [11 ER 50 at 64]. See also In re Craignish  3 Ch 180 at 192; Winans v Attorney-General  AC 287 at 288.
 Bell v Kennedy (1868) LR 1 Sc & Div 307 at 320.
 Dicey, Morris and Collins at 122-164. See now the Domicile Acts of the Commonwealth and of each State, each of which came into force on 1 July 1982. Those Acts made a number of alterations to the law of domicile. They abolished the rule of dependent domicile of a married woman and the rule of revival of domicile of origin. They also provided (see, for example, Domicile Act 1982 (Cth), s 9(1)) that where, at any time, a child has his or her principal home with one of his or her parents and the parents are living separately or the child does not have another living parent, the domicile of the child is the domicile of the parent with whom the child has his or her principal home.
 Whicker v Hume  EngR 991; (1858) 7 HLC 124 at 160 [11 ER 50 at 64].
 Scoles, Hay, Borchers and Symeonides at 247 § 4.14.
 Povey v Qantas Airways Ltd (2005) 223 CLR 189 at 202 .
 See also DW  FamCA 93;  FLC ¶93-255 at 80,331 , 80,334 .
 See, for example, Feder v Evans-Feder  USCA3 892; 63 F 3d 217 at 224 (3rd Cir 1995); Mozes v Mozes  USCA9 16; 239 F 3d 1067 at 1081 (9th Cir 2001); Karkkainen v Kovalchuk  USCA3 81; 445 F 3d 280 at 295 (3rd Cir 2006); cf Robert v Tesson 507 F 3d 981 at 992-993 (6th Cir 2007).
 See Robert v Tesson 507 F 3d 981 at 989-990 (6th Cir 2007).
 Robert v Tesson 507 F 3d 981 at 992-993 (6th Cir 2007).
 Feder  USCA3 892; 63 F 3d 217 at 224 (3rd Cir 1995); Karkkainen  USCA3 81; 445 F 3d 280 at 292 (3rd Cir 2006); Robert v Tesson 507 F 3d 981 at 992-993 (6th Cir 2007).
P G Maiden SC with D L Ward (instructed by the Legal Aid Commission of NSW) for the appellant.
B W Walker SC with V A Hartstein (instructed by the Department of Community Services Legal Services Branch) for the respondent.
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