Offspring Brought to Australia by One Parent
Marriages involving people from different countries and the subsequent birth of offspring often leads to irreconcilable disputes between the husband wife in the event of divorce about where the children should live.
The family in LK v Dir-General, Dept of Community Services  HCA 9 (11.3.09) was one such example. Here the husband (an Israeli) and wife (an Australian) had 4 children born in Israel. Each of the children were entitled to Australian citizenship by descent.
The husband and wife were having marital difficulties and the husband wanted to separate. The wife then came to Australia with the children. She refused to send the children back to Israel some months later when it was clear that the husband wanted a divorce.
The husband then invoked the Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”) which was signed at The Hague on 25.10.80 (hence it is also known as ‘The Hague’ Convention). That Convention was made part of the Australian law via Regulations made under the Family Law Act the objects 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 16(1A) provides:
“…, 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.”
Here is how the High Court saw the facts:
47. 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.
48. 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.
49. 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.
So at the time of the retention of the children in Australia, the children habitually resided in Australia. Therefore all issues of care of the children should be determined in Australia by the Family Court of Australia.
The case highlights that the tug of war over children can get complicated. Anyone contemplating taking children into Australia from another country and vice versa without the full agreement of the other parent should get specialist family law advice.