LK v Director-General, Department of Community Services [2009] HCA 9

HIGH COURT OF AUSTRALIA

FRENCH CJ

GUMMOW, HAYNE, HEYDON AND KIEFEL JJ

LK APPELLANT

AND

DIRECTOR-GENERAL, DEPARTMENT OF

COMMUNITY SERVICES RESPONDENT

LK v Director-General, Department of Community Services

[2009] HCA 9

11 March 2009

S524/2008

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Family Court made on 24 June 2008 and 4 July 2008 and in their place order that:

(a) the appeal to the Full Court be allowed; and

(b) the orders of Kay J made on 29 August 2007 be set aside and in their place it be ordered that the application of the Director-General, Department of Community Services made on 15 March 2007 be dismissed.

On appeal from the Family Court of Australia

Representation

P G Maiden SC with D L Ward for the appellant (instructed by the Legal Aid Commission of NSW)

B W Walker SC with V A Hartstein for the respondent (instructed by the Department of Community Services Legal Services Branch)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

LK v Director-General, Department of Community Services

Family Law – Children – Family Law (Child Abduction Convention) Regulations – Whether children habitually resident in convention country immediately before retention in Australia – Relevance of past and present intentions of each parent – Relevance of habitual residence of each parent – Weighting of relevant criteria – Appropriate time for determining habitual residence.

Family Law – Children – Family Law (Child Abduction Convention) Regulations – Meaning of "habitually resident" – "habitual residence" distinct from connecting factors of domicile or nationality – Whether intention decisive of habitual residence or whether consideration of wide variety of circumstances permitted – Relevance of a finding of "settled purpose" – Meaning of "settled purpose" – Whether parent ceased habitual residence in Israel without making a final decision not to return there.