HC/E/AU 1355
AUSTRALIA
Family Court of Australia
Appellate Court
Strickland, May & Aldridge JJ
FINLAND
AUSTRALIA
11 December 2015
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Habitual Residence - Art. 3
Appeal allowed, return ordered
Family Law Regulations 1986, Family Law Act 1975, Federal Proceedings Act 1981
Cooper v. Casey 1995 FLC 92-575 [INCADAT reference HC/E/AU 104], LK v. Director-General Dpt of Community Services 2009 237 CLR 582, Re B 1993 1 FLR 5848 (UK), Re F 1992 1 FLR 548 (UK) [INCADAT Reference HC/E/UKe 40], State Central Auhority v. Camden FLC 93-501(2012), Wolford v. Secretary, Attorney General’s Dpt FamCAF 197 (2014).
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3 children wrongfully retained at age 8, 10 and 12 - Married parents - Father national of Australia - Mother national of Finland and Australia - Family moved to Finland from Australia in June 2014 - Family returned to Australia for a temporary visit in March 2015 - Application for return filed with the first instance court in May 2015 - Return ordered - Main issues: Habitual residence - Where the parents have a common intention to settle in a given State for a year without any agreement as to where they would live thereafter, the children may be considered habitually resident there, depending on the facts of the case (including attendance and progression at school, engagement in extra-curricular activities, connections with friends and family, receipt of government benefits, the parents’ (search for) employment, participation in local health schemes) - The finding that a child has acquired habitual residence in a given State may more readily be made where the child has already lost habitual residence in the State in which he or she previously lived