12 August 2008
A mother has appealed unsuccessfully against orders ordering the return of four children of the mother and father to Israel pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1996 (Cth) (the Regulations).
In May 2006 the mother and children left Israel to travel to Australia. Tickets were booked for the mother and children to return to Israel in August 2006, but the mother did not return with the children. The father attempted to secure the mother's and children's return by agreement and, when that was not successful, subsequently invoked his rights under the Regulations.
The members of the Full Court noted that there were 16 grounds of appeal but that the focus of the appeal was on the question of whether the children were habitually resident in Australia at the time of their retention by the mother. In considering the submissions of the mother, their Honours referred to and discussed a number of Australian, New Zealand and English authorities.
Their Honours concluded that the trial judge was correct in finding that the mother did not have a settled intention to abandon her Israeli habitual residence prior to August 2006 and that even after that date it appeared there were grounds upon which the mother was prepared to contemplate returning to Israel. Their Honours further concluded that the court should be slow to infer a change in habitual residence in the absence of shared parental attempts to bring it about, especially when consent has been given for a visit to another country for a limited period.
The full judgment of Kilah &Director-General, Department of Community Services(2008) FLC ¶93-373 is published in this update.