Federal Court (Full Court). Did Lee seek to render the subjective intentions of a child’s parents determinative in relation to the ordinary residence of their child? If not, can it nevertheless be said that the focus in relation to the “ordinary residence” of minors is on the intentions of the parents, and that a reason for this surely was that “a child of tender years has no control over where he or she lives”?
Some of the questions to the Full Court of the Federal Court (FCA) were as follows:
Question 1: Is the definition of “ordinarily resident”, found in the first sentence of s 3 of the Australian Citizenship Act 2007 (Cth), exhaustive of the circumstances in which a person may be taken to be “ordinarily resident” in a country, except for the second sentence?
Question 2: Are the eight propositions given by the primary concerning the meaning and application of the definition of “ordinarily resident” correct?
Question 3: Did Lee seek to render the subjective intentions of a child’s parents determinative in relation to the ordinary residence of their child?
Question 4: If the answer to Question 3 is 'no', can it nevertheless be said that the focus in relation to the “ordinary residence” of minors is on the intentions of the parents, and that a reason for this surely was that “a child of tender years has no control over where he or she lives”?
Question 5: Did the primary judge err in taking into account the intentions of the parents?
Question 6: Was the primary judge allowed to take into account the parents' intentions as important for determining the location of the child's home?
Question 7: Can it be said that "the acceptance by the primary judge that during his first five years Master Sidhu’s primary “connection” was to India is not necessarily determinative that he was not ordinarily resident in Australia during his first 10 years"?
Question 8: Can it be said that the child's "absence for five years cannot, of itself, fall within s 3(a) of the definition of “ordinarily resident” because he cannot be said to have left Australia for a “special” or “temporary purpose”"?
Question 9: Can it be said that it is not only the duration of the child's absence from Australia but also the purpose of the absence that was of significance?
The FCAFC answered those questions as follows: