CASO

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Nombre del caso

L.K. v. Director-General Department of Community Services [2009] HCA 9, (2009) 253 ALR 202

Referencia INCADAT

HC/E/AU 1012

Tribunal

País

Australia

Instancia

última instancia

Estados involucrados

Estado requirente

Israel

Estado requerido

Australia

Fallo

Fecha

11 March 2009

Estado

Definitiva

Fundamentos

Residencia habitual - art. 3

Fallo

Apelación concedida, solicitud desestimada

Artículo(s) del Convenio considerados

3

Artículo(s) del Convenio invocados en la decisión

3

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

Publicado en

-

INCADAT comentario

Objetivos y ámbito de aplicación del Convenio

Residencia habitual
Residencia habitual
¿Puede dejarse a un menor sin residencia habitual?
¿Puede un menor tener más de una residencia habitual?
Mudanza o instalación en el extranjero
Instalación en el extranjero por tiempo indefinido
Instalación en el extranjero por un tiempo limitado

SUMARIO

Sumario disponible en EN | FR

Facts

The application related to four boys who were aged 10, 7, 5 and 3 years at the time of the appellate hearing. Until May 2006 they had spent their entire lives in Israel with their married parents. The mother was Australian and she had relocated to Israel for the purposes of her marriage.

In 2005 the parents' marriage encountered difficulties and in September 2005 the father moved out of the family home. On 16 May 2006 the mother and children left Israel to travel to Australia. The father took them to the airport and a return to Israel was booked for 27 August 2006. The children commenced school in Sydney on 30 May 2006.

There was disagreement between the parents as to the terms and conditions under which the mother left Israel with the children. The mother asserted she left on an understanding that if the father advised her that the marriage was over, she would not be returning and would settle permanently with the children in Australia. The father asserted that the mother had left for a fixed period only and that he never consented to the children remaining away from Israel on any permanent basis.

In June 2006 the parents raised the possibility of divorce and the mother alleged that the father had stated that she and the children could remain in Australia. She stated to him at that time that she needed to remain in Australia for the remainder of the calendar year to consider their situation.

The mother duly did not return with the children on 27 August 2006. The father then attempted to secure a return by agreement and when that was not successful he subsequently invoked his rights under the Convention. On 29 August 2007 the Family Court of Australia ordered the return of the children, subject to undertakings: [2007] FAMCA 1099.

The Full Court of the Family Court of Australia dismissed the mother's appeal and ordered the return of the children; the retention was wrongful for the children had neither lost their Israeli habitual residence at the relevant date nor acquired a habitual residence in Australia.

There was, moreover, no grave risk of harm and whilst the father had at one stage consented to the relocation the trial judge had correctly exercised his discretion to make a return order. The mother appealed to the High Court.

Ruling

Appeal allowed and application dismissed; the retention was not wrongful as the children had lost their Israeli habitual residence by the relevant date.

Grounds

Habitual Residence - Art. 3


The High Court noted that in the first appeal: Kilah v. Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT Reference: HC/E/AU 995], the Full Court of the Family Court of Australia had held that the "settled intention" or "settled purpose" of the mother was a necessary and integral part of determining the children's habitual residence.

The High Court ruled that the Full Court had erred in treating the absence of a settled purpose of abandoning the Israeli habitual residence as being the determining factor.

In reaching this position the High Court reviewed the evolution of habitual residence, as well as case law and doctrine surrounding the connecting factor. The High Court accepted that there were limitations in simply approaching the term as a question of fact. It held that the criteria to be engaged in giving the term meaning were to be found in the "ordinary meaning of the composite term". It would be wrong to devise further definition.

The High Court conceded that, although unlikely, there could be situations where a person had more than one habitual residence. It was clear however, that a person could have no habitual residence at a given moment in time, having abandoned one without having acquired a replacement.

In considering a child's habitual residence regard had to be paid to the context in which the inquiry was being made. In this, the Hague Convention was seeking to facilitate the resolution of disputes between parents relating to a child's care, welfare and development in one forum (the place of habitual residence) rather than any other.

It would usually be very important to examine where the person or persons who were caring for the child had their habitual residence. The younger the child the less sensible it would be 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 was immediately dependent for care and housing. However, this should not be elevated to a rule of dependency such as exists in respect of common law domicile.

The High Court held that the examination of a person's intentions would usually be relevant, and sometimes very important, to a consideration of where that person habitually resided. However, considerations relevant to deciding where a person was habitually resident were not necessarily confined to physical presence and intention, and intention was not to be given controlling weight.

It was further noted that intentions could be ambiguous. Consequently, in asking whether a person had abandoned residence in a place it was 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 was not necessarily inconsistent with (the children) ceasing to reside there habitually. In the case of children, attention could not be confined to the intentions of the parent who in fact had the day to day care. The High Court affirmed that there was not a closed set of criteria for ascertaining a person's habitual residence, or indeed a predetermined weighting between criteria.

Reviewing existing case law the High Court held that insofar as a settled intention was needed, it did not need to be a settled intention to take up "long term" residence, rather it sufficed that the purpose had a sufficient degree of continuity to be described as settled.

It further suggested that there was no disconformity between the approach of the New Zealand courts and the need, identified by Lord Brandon in Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT Reference: HC/E/UKe 2], to decide the question of habitual residence "by reference to all the circumstances of any particular case". The latter was also held to be a common thread in leading US decisions.

On the facts the Court held that the decisive factor was that when the children left Israel both parents agreed that unless there was a reconciliation, they would stay in Australia; the mother, both before and after departure, set about effecting that shared intention.

The possibility that the children might again take up habitual residence in Israel (if their parents were reconciled) did not prevent the loss of their habitual residence there meanwhile. The High Court held that it was not necessary to decide if the children had actually acquired a habitual residence in Australia.

INCADAT comment

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.

Can a Child be left without a Habitual Residence?

In early Convention case law there was a clear reluctance on the part of appellate courts to find that a child did not have a habitual residence.  This was because of the concern that such a conclusion would render the instrument inoperable, see:

United Kingdom - England & Wales
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548 [INCADAT cite: HC/E/UKe 40];

Australia
Cooper v. Casey (1995) FLC 92-575 [INCADAT cite: HC/E/AU 104].

However, in more recent years there has been a recognition that situations do exist where it is not possible to regard a child as being habitually resident anywhere:

Australia
D.W. & Director-General, Department of Child Safety [2006] FamCA 93, [INCADAT cite: HC/E/AU 870].

In this case the majority accepted that their decision could be said to deny the child of the benefit of the Convention. However, the majority argued that the interests of children generally could be adversely affected if courts were too willing to find that a parent who had attempted a reconciliation in a foreign country, was to be found, together with the child, to have become "habitually resident" in that foreign country.

United Kingdom - England & Wales
W. and B. v. H. (Child Abduction: Surrogacy) [2002] 1 FLR 1008 [INCADAT cite: HC/E/UKe 470];

United Kingdom - Scotland
Robertson v. Robertson 1998 SLT 468 [INCADAT cite: HC/E/UKs 194];

D. v. D. 2002 SC 33 [INCADAT cite: HC/E/UKs 351];

New Zealand
S.K. v. K.P. [2005] 3 NZLR 590, [INCADAT cite: HC/E/NZ 816];

United States of America
Delvoye v. Lee, 329 F.3d 330 (3rd Cir. 2003) [INCADAT cite: HC/E/USf 529];

Ferraris v. Alexander, 125 Cal. App. 4th 1417 (2005) [INCADAT cite: HC/E/US 797].

Can a Child have more than one Habitual Residence?

Academic commentators have long held that if the factual nature of the connecting factor is to be respected then situations may arise where an individual is habitually resident in more than one place at a particular time, see in particular:

Clive E. M. ‘The Concept of Habitual Residence' Juridical Review (1997), p. 137.

However, the Court of Appeal in England has accepted in the context of divorce jurisdiction that it is possible for an adult to be habitually resident in two places simultaneously, see:

Ikimi v. Ikimi [2001] EWCA Civ 873, [2002] Fam 72.

Courts in Convention proceedings have though held to the view that a child can only have one habitual residence, see for example:

Canada
SS-C c GC, Cour supérieure (Montréal), 15 août 2003, n° 500-04-033270-035, [INCADAT cite: HC/E/CA 916];

Wilson v. Huntley (2005) A.C.W.S.J. 7084; 138 A.C.W.S. (3d) 1107 [INCADAT cite: HC/E/CA 800];

United Kingdom - England & Wales
Re V. (Abduction: Habitual Residence) [1995] 2 FLR 992, [INCADAT cite: HC/E/UKe 45].

In this case where the children's lives alternated between Greece and England the court held that their habitual residence also alternated.  The court ruled out their having concurrent habitual residences in both Greece and England.

United Kingdom - Northern Ireland
Re C.L. (A Minor); J.S. v. C.L., transcript, 25 August 1998, High Court of Northern Ireland, [INCADAT cite: HC/E/UKn 390];

United States of America
Friedrich v. Friedrich, 983 F.2d 1396, (6th Cir. 1993), [INCADAT cite: HC/E/USf 142].

Relocations

Where there is clear evidence of an intention to commence a new life in another State then the existing habitual residence will be lost and a new one acquired.

In common law jurisdictions it is accepted that acquisition may be able to occur within a short period of time, see:

Canada
DeHaan v. Gracia [2004] AJ No.94 (QL), [2004] ABQD 4, [INCADAT cite: HC/E/CA 576];

United Kingdom - England & Wales
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT cite: HC/E/UKe 2];

Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548, [INCADAT cite: HC/E/UKe 40].

In civil law jurisdictions it has been held that a new habitual residence may be acquired immediately, see:

Switzerland
Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P.367/2005 /ast, [INCADAT cite : HC/E/CH 841].

Conditional Relocations 

Where parental agreement as regards relocation is conditional on a future event, should an existing habitual residence be lost immediately upon leaving that country? 

Australia
The Full Court of the Family Court of Australia answered this question in the negative and further held that loss may not even follow from the fulfilment of the condition if the parent who aspires to relocate does not clearly commit to the relocation at that time, see:

Kilah & Director-General, Department of Community Services [2008] FamCAFC 81, [INCADAT cite: HC/E/AU 995].

However, this ruling was overturned on appeal by the High Court of Australia, which held that an existing habitual residence would be lost if the purpose had a sufficient degree of continuity to be described as settled.  There did not need to be a settled intention to take up ‘long term' residence:

L.K. v. Director-General Department of Community Services [2009] HCA 9, (2009) 253 ALR 202, [INCADAT cite: HC/E/AU 1012].

Open-Ended Moves

Where a move is open ended, or potentially open ended, the habitual residence at the time of the move may also be lost and a new one acquired relatively quickly, see:

United Kingdom - England and Wales (Non-Convention case)
Al Habtoor v. Fotheringham [2001] EWCA Civ 186, [INCADAT cite: HC/E/UKe 875];

New Zealand
Callaghan v. Thomas [2001] NZFLR 1105 [INCADAT cite: HC/E/NZ 413];

United Kingdom - Scotland
Cameron v. Cameron 1996 SC 17, 1996 SLT 306, 1996 SCLR 25 [INCADAT cite: HC/E/UKs 71];

Moran v. Moran 1997 SLT 541 [INCADAT cite: HC/E/UKs 74];

United States of America
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].

Time Limited Moves

Where a move abroad is time limited, even if it is for an extended period of time, there has been acceptance in certain Contracting States that the existing habitual residence can be maintained throughout, see:

Denmark
Ø.L.K., 5. April 2002, 16. afdeling, B-409-02 [INCADAT cite: HC/E/DK 520];

United Kingdom - England & Wales
Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294; [2000] 3 FCR 412 [INCADAT cite: HC/E/UKe 478];

United States of America
Morris v. Morris, 55 F. Supp. 2d 1156 (D. Colo., Aug. 30, 1999) [INCADAT cite: HC/E/USf 306];

Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT cite: HC/E/USf 301].

However, where a move was to endure for two years the United States Court of Appeals for the Third Circuit found that a change of habitual residence occurred shortly after the move, see:

Whiting v. Krassner 391 F.3d 540 (3rd Cir. 2004) [INCADAT cite: HC/E/US 778].

In an English first instance decision it was held that a child had acquired a habitual residence in Germany after five months even though the family had only moved there for a six month secondment, see:

Re R. (Abduction: Habitual Residence) [2003] EWHC 1968 [INCADAT cite: HC/E/UKe 580].

The Court of Appeal of China (Hong Kong SAR) found that a 21 month move led to a change in habitual residence:

B.L.W. v. B.W.L. [2007] 2 HKLRD 193, [INCADAT cite: HC/E/HK 975].