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Four Israeli children to stay in Australia

Four Israeli children to stay in Australia

The High Court of Australia has allowed an appeal by a mother against orders which provided that the four children of the marriage return to Israel pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The primary focus of the appeal was whether the children were habitually resident in Israel.

The mother and father, who married and lived in Israel with the children, separated in 2005. The children had been born in Israel but were entitled to Australian citizenship by descent from their mother. Following separation, the children continued to live with the mother in the matrimonial home. In May 2006, the mother and children travelled from Israel to Australia. They held return tickets to Israel for August 2006.

Before the mother and children left Israel, the father knew and accepted that they intended to travel to Australia and that the mother would return if the parties reconciled. Prior to leaving Israel and immediately after arriving in Australia, the mother took steps for her and the children to establish a home in Australia. Just over two months after the mother and children arrived in Australia, the father told the mother that he wanted the children to return to Israel and that he wanted a divorce.

The members of the High Court of Australia found the Full Court of the Family Court of Australia erred in treating the absence of a settled purpose of abandoning habitual residence in Israel as determining the issue about the habitual residence of the children. Their Honours found that in circumstances where the parents intentions at the time of departure from Israel were expressed conditionally 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. The decisive factor was that the children left Israel with both parents agreeing that unless there was a reconciliation, they would stay in Australia, and their mother, both before and after departure, set about effecting that shared intention.

The judgment of LK v Director-General, Department of Community Services(2009) FLC 93-397 is reported in this update of Australian Family Law and Practice.

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