Babkin and Babkin

[2019] FamCA 867

FAMILY COURT OF AUSTRALIA

BABKIN & BABKIN [2019] FamCA 867

FAMILY LAW – CHILDREN – Parenting – application in a case where father seeks discharge of the Independent Children’s Lawyer and adjournment of the final hearing – application in a case dismissed – prior Hague Convention proceedings in Israel – mother and Independent Children’s Lawyer seek to proceed on an undefended basis – final orders made by consent of the mother and Independent Children’s Lawyer – sole parental responsibility – children live with the mother – father in Israel – children to spend supervised time with the father in Australia.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 62G, 68B, 121

APPLICANT: Ms Babkin

RESPONDENT: Mr Babkin

INDEPENDENT CHILDREN’S LAWYER: Robert Halliday and Associates

FILE NUMBER: MLC 6766 of 2011

DATE DELIVERED: 6 December 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 18 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Charak

SOLICITOR FOR THE APPLICANT: Tisher Liner FC Law

COUNSEL FOR THE RESPONDENT: Mr Gordon-Manley

SOLICITOR FOR THE RESPONDENT: Efron and Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Metaxas

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday and Associates

Orders Made 18 November 2019

1. The application in a case filed by the Respondent father on 14 November 2019 is dismissed.

IT IS ORDERED, BY CONSENT OF THE APPLICANT AND INDEPENDENT CHILDREN’S LAWYER AND UNDEFENDED BY THE FATHER, THAT:

1. All previous parenting orders be discharged, except for paragraphs 12 and 13 of the orders made in the Family Court of Australia at Melbourne on 10 April 2018, and paragraph 8(b) of the orders made on 23 March 2018 (being the Airport Watch List Order) which shall remain in effect.

2. There is leave to the Applicant mother to rely upon her affidavit of evidence in chief filed 11 October 2019.

3. The mother have sole parental responsibility for X born … 2004 and Y born … 2008 (‘the children’.)

4. The children live with the mother.

5. The children spend time and communicate with the father as follows:-

   (a)       when the father is in Australia, the children spend a period of no more than two hours on no more than two occasions per week with the father with such time to be supervised by a professional supervisor as agreed between the parents in writing and failing agreement an employee of the Family Contact Service, and the father be responsible for all costs associated with the professional supervision service;

   (b)       at times to be agreed between the parents in writing and failing agreement, on each Tuesday between 6.00pm and 7.30pm (Melbourne time) and each Friday (one hour before Sabbath candle-lighting time in Melbourne) by Skype/Facetime/telephone or similar for no longer than 30 minutes on loud speaker and the mother be at liberty to terminate the call at her reasonable discretion;

   (c)       at such other times as agreed between the parents in writing and taking into account any recommendations of the children’s counsellor(s) if any such counsellor(s) is involved with the children or either of them and the children’s wishes and stage of development.

6. X may elect not to spend time or communicate with the father pursuant to paragraph 5 of these orders, in accordance with her wishes.

7. The father be permitted to send letters, cards and gifts to the children, via registered post, to a post office box address nominated by the mother within 14 days of the date of these orders, and the mother be at liberty to inspect all letters, cards and gifts sent to the children from the father for the purpose of ensuring the contents of the letters, cards and gifts are child-focused, and the mother shall not unreasonably withhold any letters, cards and gifts that are child-focused from the children and shall provide the letters, cards and gifts that are child-focused to the children forthwith upon receipt of them.

8. The mother inform the father in writing within 7 days of any major long-term decision she makes in relation to the children, including:-

   (a)       the children’s education (both current and future);

   (b)       the children’s religious and cultural upbringing;

   (c)       the children’s health (including notice of all immunisations administered to the children); and

   (d)       any changes to the children’s residential address.

9. The mother authorise the father to contact all of the children’s health and education professionals and obtain, at his own expense, copies of all reports, documents, notices, photographs and other information usually provided to parents.

10. Each parent shall notify the other of any significant illness or medical condition suffered by the child/ren as soon as practicable in the case of an emergency and further shall provide to the other parent all the relevant particulars of the treatment received by the child/ren together with the name and address of the treatment provider.

11. Each parent keep the other informed of their current residential address, email and contact telephone number and advise the other of any changes to these details in writing within 24 hours of the change.

12. Each parent be restrained by injunction from:-

    (a)       denigrating, belittling, rebuking, harassing, abusing or otherwise insulting the other party or any member of their family or any person they are in a relationship with, in the presence or within the hearing of the children or either of them and allowing or permitting any other person to do so;

    (b)       exposing the children or either of them to family violence;

    (c)       discussing the parenting dispute or adult views in the presence or hearing of the children or either of them.

13. The father by himself, his servants and agents, be hereby restrained by injunction under s 68B of the Family Law Act 1975 (Cth) (‘the Act’) from:-

    (a)       entering or remaining within 500 metres of the mother and children’s place of residence, the children’s school or any place where the children are known to be attending, including for religious observance or at extra-curricular or out of school activities, unless with the mother’s prior written consent;

    (b)       removing or attempting to remove or causing or permitting the removal of the children or either of them from the Commonwealth of Australia;

    (c)       obtaining any passport (in any jurisdiction) for the children or either of them and it is requested that the Australian Passport Office give effect to this order (in so far as the father is restrained from obtaining Australian passports for the children) by making the names of the children subject to Child Alerts, with the Child Alerts to remain in force throughout the Commonwealth of Australia until the children achieve the age of 18 years or until the Court orders the Child Alerts to cease.

14. The father be restrained from:-

    (a)       publishing, transmitting or disseminating any information relating to the parties, the children or any aspect of the parties’ family law matter, including but not limited to providing information to the media or posting information online including on Facebook or any website or blog;

    (b)       causing, permitting or allowing (to the extent he is able to do so) any other person to do any act or thing which he is restrained from doing under this order.

15. The father immediately remove or cause to be removed (to the extent that he is able to do so) any information relating to the parties, the children or any aspect of the parties’ family law matter that has been disseminated in the media, including on Facebook, YouTube, Change.org and any other website or blog.

16. The children’s passports be held by the mother in her possession.

17. The names of the children remain on the Airport Watch List currently in force at all points of arrival and departure by sea or by air in the Commonwealth of Australia.

18. Within 7 days of any written request by the mother, the father do all things and sign all documents necessary to facilitate either of the children being issued an Australian passport, or having the passport of either of the children renewed and if the father does not comply with the mother’s request within 7 days, the mother be permitted to obtain or renew passports for the children without the father’s consent and:-

    (a) an Australian passport be issued pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth); and

    (b) the children be permitted to travel internationally pursuant to s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth).

19. In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these orders, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to s 106A of the Act to execute all such documents in the name of the party in default and be empowered to do all such acts and things necessary to give validity and operation to these orders.

20. Pursuant to r 19.50 of the Family Law Rules 2004 (Cth), this matter reasonably required the attendance of counsel.

THE COURT ORDERS THAT:

1. Otherwise, all extant applications are dismissed save for the question of costs as sought by the Applicant and the Independent Children’s Lawyer which shall hereafter be determined by the Court. The Applicant and Independent Children’s Lawyer file and serve submissions as to costs within 21 days hereof and the Court shall make a determination as to such costs claimed on the papers.

THE COURT DIRECTS THAT:

(22)    The Minute of Consent Orders signed by the parties and marked ‘Exhibit A’ remain upon the Court file.

AND THE COURT NOTES THAT:

A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

B.The mother be at liberty to apply to have the name of either or both children removed from the Airport Watch List then in force at all points of arrival and departure by sea or by air in the Commonwealth of Australia, if required

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Babkin & Babkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6766 of 2011

Ms Babkin

Applicant

And

Mr Babkin

Respondent

REASONS FOR JUDGMENT

Preliminary – Application in a Case

1. In these proceedings, the Applicant mother (‘the mother’) relies upon an Amended Initiating Application, together with her affidavit of evidence in chief, both filed on 11 October 2019. The mother also relies upon, as does the Independent Children’s Lawyer, the family report prepared by family consultant Ms J, dated 9 April 2018. 

2. On 5 September 2019, these proceedings were set down for a final hearing on 18 November 2019, with an estimated hearing time of three days.  Orders made that day included that the mother file and serve any affidavits of evidence in chief within 30 days of 5 September 2019, that is by 5 October 2019.  The mother filed her affidavit of evidence in chief on 11 October 2019, being some six days late. The mother deposed to the circumstances surrounding the filing of her affidavit in paragraph 158 of that affidavit. She stated:-

   Pursuant to the Orders made on 5 September 2019 I was due to file and serve my Trial material on Monday, 7 October 2018.  On Friday, 4 October 2019, I caused my solicitors to write to Mr Babkin and the Independent Children’s Lawyer proposing an extension of four business days for the filing of my material (with a corresponding extension to apply to Mr Babkin’s filing deadline) in circumstances where there had been three Jewish holidays in the past week, which have resulted in my being unable to access technology or contact my solicitors to provide instructions.

3. To the extent that leave was necessary to be granted to the mother to rely on her affidavit of evidence in chief filed 11 October 2019, such leave was granted by the Court. 

4. The 5 September 2019 orders also provided for the Respondent father (‘the father’) to file and serve his affidavit of evidence in chief within 30 days of service upon him of the mother’s affidavit. Service of the mother’s affidavit of evidence in chief was effected upon the father on 11 October 2019. No affidavit of evidence in chief has been filed or served by the father in the proceedings. Instead, at 8.30am on the morning of the trial date of 18 November 2019, the father served upon the Independent Children’s Lawyer an Application in a Case, together with a supporting affidavit, both of which were filed on 14 November 2019 in the afternoon. Those documents were provided to the mother by email on that day, but not served upon the Independent Children’s Lawyer.  The orders sought in the Application in a Case, were, relevantly, as follows:-

   1.  Pursuant to r. 8.02 of the Family Law Rules 2004 (Cth), that ROBERT HALLIDAY be removed from his position as Independent Children’s Lawyer for the children X born … 2004 and Y born … 2008.

   2. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), the children X and Y be separately represented AND IT IS REQUESTED that Victoria Legal Aid make arrangements as soon as practicable to secure that independent representation of the said children’s interests.

   …

   5. The parties to the proceedings have leave to attend upon a family consultant in person, by telephone, or by video link at the Melbourne Registry of the Court at such a time to be advised for the purposes of either a Children’s and Parents Issues Assessment pursuant to s 11F of the Family Law Act 1975 (Cth) or a full Family Report pursuant to s 62G(2) of the Family Law Act 1975 (Cth), and such assessment once completed be released to the parties and the Independent Children’s Lawyer.

   …

   7. That the hearing date of 18 November 2019 be vacated and a new hearing date set for 25 February 2020.

   8. The children X and Y stay with the Applicant father MR BABKIN from 15 December 2019 to 5 January 2019 so they may travel to Sydney to see their paternal grandparents.

   …

5. The basis on which the father sought dismissal of Mr Halliday as the Independent Children’s Lawyer was, as submitted to the Court by his pro bono counsel, threefold:-

   a)incompetence;

   b)acting contrary to the children’s best interests; and

   c)a lack of professional objectivity.

6. It was further submitted by the father’s counsel that the father sought Victoria Legal Aid be requested to fund a further and other Independent Children’s Lawyer, as the father had no capacity to make any financial contribution to ensure the presence of an Independent Children’s Lawyer in the proceedings. Likewise, the father sought a further report from a family consultant in the Melbourne registry of the Court on the basis that he had no financial capacity to make any contribution to the obtaining of any family report. The new suggested hearing date of 25 February 2020, was simply a date proposed by the firm of solicitors of the pro bono counsel. That firm thought it a suitable date. The father otherwise sought to take the parties two children to Sydney, for three weeks duration, to visit the paternal grandparents. That application, in the historical context of this proceeding, had no evidentiary support including in the affidavit material filed by the father.

7. There is no evidence before the Court that Mr Halliday has been incompetent. Rather, there is much to the contrary. Mr Halliday has filed an Outline of Case document setting out all the material that needs to be contained in a document of that type, and setting out further the s 60CC of the Family Law Act 1975 (Cth) (‘the Act’) considerations in some detail. The orders sought by the Independent Children’s Lawyer were stated by the Independent Children’s Lawyer, for the benefit of both parties, prior to the commencement of the final hearing. Whilst the father described those orders as being “a verbatim position of the Mother”[1] that was not the case. Following the Court’s determination as to the Application in a Case, its determination being to dismiss that application, counsel for the Independent Children’s Lawyer and counsel for the mother had the matter stood down to engage in discussions of some duration, which culminated in them seeking orders by consent, as between themselves and on an undefended basis, in respect of the father, in the afternoon.

   [1] Affidavit of Mr Babkin affirmed 13 November 2019, [13].

8. The father complained that Mr Halliday failed to respond to his formal request of 11 October 2019 that the Independent Children’s Lawyer seek an updated family report. Evidence tendered in the proceedings by the Independent Children’s Lawyer, indicated the father’s complaint was a misleading description of what had occurred. 

9. What did occur was that, by correspondence of 11 October 2019 to the Independent Children’s Lawyer and the solicitor acting for the mother, the father indicated that he thought it “completely appropriate that a fresh Family report is undertaken together with meeting the children to assess the situation given the length of time that has passed (some 18 months) and the lack of professional supervision since then.”[2]

   [2] Exhibit ‘ICL 1’.

10. By email correspondence of that same day, four minutes after receipt of the father’s correspondence, the Independent Children’s Lawyer responded, by addressing correspondence to both the father and solicitor for the mother, requesting of the solicitor for the mother to “please provide your client’s instructions in relation to the proposal raised by Mr Babkin in the above email (sent at 4.21pm on 11 October 2019) that the parents and children attend upon a Family Consultant for the preparation of an Updated Family Report in relation to this matter, prior to the matter proceeding to Trial.”[3]  By correspondence of 14 October 2019, the solicitor for the mother indicated, relevantly, as follows:-

    With respect to Mr Babkin’s proposal that a further Family Report be obtained, we note as follows:-

    1.  Our client is not in a position to fund a private Family Report and we have not made enquiries with respect to the availability of private report writers in the result. In our experience, even if Mr Babkin were open to meeting the cost of a private report, it is unlikely that the parties would be in a position to meet with the report writer (particularly given Mr Babkin is, to the best of our knowledge, still in Israel) and for the report to be prepared sufficiently in advance of the Final Hearing which is due to commence on 18 November 2019. 

    2. At the Case Management Hearing on 5 September 2019 (which we acknowledge Mr Babkin did not attend in person or by telephone), Counsel for the Independent Children’s Lawyer sought an order for the preparation of a fresh Family Report pursuant to section 11F of the Family Law Act 1975. Her Honour gave clear indications that, in circumstances where the matter had been in the list of cases awaiting allocation of a Trial date with priority for a very long period of time, Her Honour would not make such an order. We note that our client was not opposed to a further section 11F report being prepared.[4]

    [3] Exhibit ‘ICL 1’.

    [4] Ibid.

11. The father also made complaint of the conduct of the Independent Children’s Lawyer in his failure to, as alleged by the father, address the father’s concerns or the prejudice to the best interests of the children caused by the children living with the mother. The father, in paragraph 10 of his affidavit filed 14 November 2019, stated that he had asked the Independent Children’s Lawyer “to advocate on behalf of the Children” by, as set out in his affidavit, putting before the Court matters which the father believed were necessary to be so put. Inferentially, he thought this had not occurred. Indeed, he went further stating in paragraph 13, subparagraph (h) of his affidavit:-

    On 7th November 2019, the Mothers legal representation filed a Notice of Ceasing to Act, and I believe that the ICL intends to run the matter on behalf of the mother.

1. There is no evidence before the Court that the Independent Children’s Lawyer ran the proceedings on behalf of the mother. Rather, as the Independent Children’s Lawyer made clear to the father, in correspondence to him of 3 September 2019, at 6.55pm (such correspondence being copied to the solicitor for the mother and tendered in evidence by the Independent Children’s Lawyer) that the Independent Children’s Lawyer professionally set himself apart from the parties. In that correspondence he said:-

   As the ICL I am the independent legal representative for the children.  I do not undertake work on behalf of either of the parents.  Accordingly I request that you desist from seeking that I “tender/submit” documents to the Court on your behalf. [5]

   [5] Exhibit ‘ICL 1’.

2. Earlier in the above referred to correspondence, the Independent Children’s Lawyer had assisted the father, in describing to him that a case management hearing was primarily procedural in nature. The Independent Children’s Lawyer said, relevantly to the father, with such correspondence copied in to the solicitor for the mother:-

   If you want the Court to consider the letter and supporting documents provided to me then you may need to seek legal advice as to the correct way to evidence same.

   The Court may give Trial Directions on 5 September 2019 involving the filing of affidavit material in which case you will have the opportunity to provide your evidence to the Court.[6]

   [6] Ibid.

3. A further complaint made by the father of the Independent Children’s Lawyer, which is also rejected by the Court, was that Mr Halliday did not meet the children before he filed his Outline of Case document on 4 November 2019.  There was no obligation on Mr Halliday to meet with the children. In the event that he did so, there was no time at which the Independent Children’s Lawyer was required to meet with the children. Mr Halliday did in fact meet with the children and on 10 November 2019. Following his meeting with the children, the Independent Children’s Lawyer did not seek to alter, in any way, the parenting orders as sought by him and foreshadowed to each of the parties. Nor did he seek to prepare any addendum to his Outline of Case document or rely on any other material by way of subpoenaed material, a report and/or affidavits in the proceedings. He was content with the materials relied upon by him to support the orders which he sought – orders he independently determined were in the best interests of the children.

4. The serving of the Independent Children’s Lawyer with the Application in a Case and affidavit material on the morning of the first day of the final hearing did not afford to the Independent Children’s Lawyer any procedural fairness. Dismissal of the application was sought, by both the Independent Children’s Lawyer and by the mother, although neither objected to the Court considering the application. In those circumstances the Court allowed the father to proceed on his Application in a Case and to tender the annexures to his affidavit filed 14 November 2019, save that ‘Annexure G’ was struck out and did not form part of the evidence. That document was a letter, dated 12 November 2019, to the Court, from the parties’ eldest daughter, Ms Z, together with correspondence “To Whom it May Concern” of 7 November 2019 from Mr C.

5. Counsel for the Independent Children’s Lawyer described the bringing of the interim application by the father as an “abuse of process.”  The Court concurs in that view in particular because:-

   a)   the Independent Children’s Lawyer acted, throughout the proceedings, with great professionalism and expertise. He kept to the forefront of his endeavours the placing before the Court of material that went to establishing, on a proper evidentiary basis, what the best interests of the children were and what orders would promote those best interests. The Independent Children’s Lawyer acted impartially and civilly in his dealing with each of the parties. There was no basis to remove Mr Halliday from his role as the Independent Children’s Lawyer;

   b) the parties earlier obtained a s 62G of the Act family report as funded by the Court. In the intervening period, the father has resided in Israel and continues to do so. The children reside in Australia. The father does not propose that he come to Australia to resume residency in this country. The situation has not changed in any significant way since completion of the last family report. The Court has no current ability to provide to the parties a further family report in a short period of time. No application was made by the father to the Court in a timely way in the course of the proceedings. The matter had progressed to trial and the mother and Independent Children’s Lawyer had prepared the necessary material as ordered by the Court and engaged counsel to appear. They had expended considerable funds. The father had not filed any affidavit material as ordered. The Application in a Case, filed by the father in those circumstances, the Court concludes, was a delaying tactic of the father in particular where these proceedings have been on foot for a year and seven months; and

   c)   given the history of this matter (hereafter expanded upon) the father seeking to spend three weeks unsupervised with the parties’ two children who have expressed a wish to not see him at all (X) and to see him but in a safe and supervised setting (Y) without a trial proceeding was an  application without any proper basis. It had no prospect of success, as is discussed in the reasons which follow.

6. Early in the proceeding, the father’s counsel submitted to the Court that the father would appeal any orders made by the Court. That submission was made in circumstances where counsel for the father admitted that he had not read the affidavit evidence of the mother. Had he done so, he might have been assisted in his taking of instructions from and provision of advice to his client and of course in the ultimate submissions which he made. Additionally, he was aware that no affidavit of evidence in chief had been filed by the father and that as a consequence the mother and Independent Children’s Lawyer were seeking that the matter proceed on an undefended basis.

7. The father failed to appear at trial and/or to participate in any way in the proceedings. His pro bono counsel had been excused from further attendance, his appearance being limited to the hearing of the Application in a Case. The Court granted the application of the Independent Children’s Lawyer and the mother to proceed on an undefended basis and allowed them the time sought (by them) to negotiate with each other in an endeavour to place consent orders before the Court. It is those orders which the Court made on 18 November 2019.

Background

1. The father was born in 1970.  He is now aged 49 years.  To the best of the mother’s knowledge, he continues to be self-employed in a business known as D Company.  The father has re-partnered and he and his current wife have five young children. The father relocated to Israel in or about August 2016 and he continues to live permanently in Israel.

2. The mother was born in 1975 and she is now aged 44 years.  She works on a casual basis approximately three days a week and for another three days a week she works in her current partner’s business to support herself and two of the three children of her relationship with the father, those children being X born in 2004 who is now aged 15 years and Y born in 2008 who is now aged 11 years (‘the children’).

3. The parties commenced their relationship in September 1998.  Their now-adult daughter, Ms Z was born in 1999.  Their daughter X was born in 2004.  The parties married in Israel in 2005 and had a civil ceremony in Australia in late 2005.  Their son Y was born in 2008. The parties separated on a final basis in August 2010.  They were divorced in 2011.

4. On 8 November 2011 the mother filed an Initiating Application in the (as it then was) Federal Magistrates Court at Melbourne. Final orders were made by consent on 30 January 2013 and those orders provided, essentially, that the parties had equal shared parental responsibility of the children and that the children lived in a week about arrangement between them. The mother deposed to those proceedings, occurring between 2011 and 2013, being stressful and costly. She claimed she was bullied and harassed by the father and felt compelled to enter into final orders in the terms largely sought by him.

5. The care arrangements for X and Y pursuant to the final orders remained in place between early 2013 and around August 2016.  At that time the father travelled to Israel to take up, what he told the mother, was a six month employment contract.

6. Between 2013 and 2016 X and Y were involved in early learning and school at E School. Both children were in good health, were progressing well and meeting all of their developmental milestones. The children were actively involved in the school and the Jewish community and participated in extra-curricular activities such as dancing and soccer.

7. In about mid-2016 the father sought the mother’s permission to take the children with him to Israel for a holiday whilst he worked in Israel. The parties attended upon a solicitor to have a written agreement drawn with respect to the children’s travel.  The parties entered into a written agreement dated 6 July 2016, which specified that the children would accompany the father to Israel for a period of six to twelve months. The agreement expressly provided that the mother did not consent to the children relocating to Israel.  The agreement allowed the father to take the children to Israel – Y until 17 January 2017, and X until June/July 2017.

8. The father arranged return flights for the children to travel to Israel on 10 August 2016.  Contemporaneously, he also booked tickets for the parties’ elder daughter, Ms Z, and the mother to travel to Israel in or about January 2017 in order to collect Y and return to Australia on 17 January 2017.  The father showed the mother copies of such tickets and receipts for same. Ms Z had remained at home with her mother as she was entering her Victorian Certificate of Education year in 2017.

9. The parties agreed that Y would recommence his studies in Melbourne at the commencement of the 2017 school year and X would return to school in Melbourne following the 2017 mid-year holidays.

10. Whilst the mother initially had regular FaceTime and telephone contact with the children this time was subsequently reduced by the unilateral actions of the father and by January 2017 it had stopped altogether.

11. On 9 December 2016, the father informed the mother via text message that the return tickets which he had shown her were cancelled and that Y would not be returning to Australia on 17 January 2017 as planned. Indeed, neither child would be returning to Australia. Upon making inquiries with the travel agent with whom the father had originally booked the tickets, the mother became aware that the tickets had been cancelled by the father on or about 30 August 2016, just days after the father and children had arrived in Israel.

12. In January 2017, the mother contacted the Australian Central Authority to seek the Authority’s assistance in relation to having X and Y returned to Australia. The Australian Central Authority (Legal Assistance Branch of the Attorney General’s Department) advised the mother that proceedings could not be issued for approximately twelve months, being the period during which the parties had “agreed” that the children, or one them, would stay with the father in Israel. This was an extremely distressing time for the mother, who otherwise continued to plead with the father to return the children to her care.

13. On or about 15 January 2017 the mother received a text message from X in which X wrote:-

    Mummy, I really want to come home please pick me up there (sic) crazy.  save me!!! I miss you so much please do anything to get me and Y out of here to see you and Z.

14. On 24 April 2017, the mother filed an urgent application in the Family Court of Australia in Melbourne seeking the discharge of the orders made on 30 January 2013 in the Federal Magistrates Court of Australia at Melbourne (as it then was), and for orders for her to have sole parental responsibility of each of the three children, Ms Z, X and Y.  She sought further that the children live with her and spend time with the father at times and upon such terms as agreed between the parties.  The interim orders sought by her included that the father do all acts and things necessary to facilitate the return of the children, X and Y, to the State of Victoria in the Commonwealth of Australia, including but not limited to directing and requesting and authorising his wife, Ms Q Babkin, to deliver the children to the airport in Israel. 

15. Additionally, in the above application, the mother sought an order that pending his return of the children to the Commonwealth of Australia, the father, when in the jurisdiction, be restrained from departing or attempting to depart the Commonwealth of Australia and requested the Australian Federal Police give effect to that order by registering the father’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the father’s name on such Watch List until further order.

16. On 24 April 2017, before the hearing date of the mother’s urgent application, the father was stopped at an airport whilst departing Australia for Israel pursuant to a departure prohibition order made in child support proceedings because of his arrears of unpaid child support. He made the necessary payment and was able to depart the Commonwealth of Australia.

The Hague Proceedings

1. On 6 September 2017 the father filed an application for parenting orders in Israel.  On 6 December 2017 the mother filed a notice of discontinuance of her proceedings in the Family Court of Australia, which she had initiated on 24 April 2017. She did so as almost 12 months had passed since her discovery of the father’s deceit and wrongful retention of the children in Israel such that in January 2018, proceedings were initiated by the Australian Central Authority on her behalf in Israel seeking the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction (1980) (‘the Hague proceedings’).

2. On 8 February 2018 the Family Court in Israel determined that the children should be returned to the care of the mother in Australia.

3. During the Hague proceedings, and as set out in paragraph 31 of the affidavit of evidence in chief of the mother, the father did not deny that he had retained the children in Israel without the mother’s consent. The father argued during the Hague proceedings that whilst the mother had not provided her consent to the children’s relocation to Israel and that whilst he had kidnapped the children that:-

   1… the claim was filed one year after the date of the non-return, and therefore, in accordance with Section 12 of the Convention, the court is entitled to prevent the return “if it is proven that the child has already integrated into his new environment”.

   2… the two minors do not want to return to Australia and the exception set forth in Section 13 of the Convention applies, which gives the court discretion not to order a return in the case of, “the child object (sic) to his return and has reached the age and maturity in which it is appropriate to take into account his views.”[7]

   [7] Affidavit of Ms Babkin affirmed 11 October 2019, [32].

4. The father was unsuccessful on both grounds as argued by him.

5. During the Hague proceedings Judge F invited the children to meet with him so that His Honour could ascertain their views and wishes with respect to their care arrangements. Y declined His Honour’s invitation. Judge F met with X. Both children were also interviewed by a Court appointed psychologist and a social worker.

6. The Court appointed psychologist noted that X appeared “lifeless and even a depressive”[8] and she recommended that X receive treatment. X declined to meet with her mother on the first Court arranged occasion with the psychologist. On the second occasion she did so but was “furious” with her mother and expressed the view that she wanted to remain in Israel. The mother was very concerned that X felt abandoned by her. The mother doubted that either of the children were aware of her efforts to have both children returned to her care and to Australia and to act protectively, in their best interests. The mother was correct in that assessment.

   [8] Affidavit of Ms Babkin (n 7), [35].

7. The Court appointed psychologist, in respect of the views expressed by X, stated:-

   -    “Her will is not independent because of extremism and because one hears the voice of the father speaking from her throat”;

   -    “These are not the statements of a child”.

   -    “The extreme and dichotomous speech includes that she sat opposite the mother and told her in a way that lacks compassion and is characteristic of children who show signs of refusal and extreme alienation;

   -    “everything that happened caused extremes and gave us a difficult picture of alienation”;

   -    “the inability to say a good word about the (mother) is worrying;

   -    “X was unable to formulate her own independent will, separate from the (father’s) will”.[9]

   [9] Ibid, [37].

8. In relation to Y, it was recorded by the Court appointed psychologist that he lacked the requisite emotional maturity to make an informed decision, that he “is confused in his world of integration” and “is emotionally restless in general”.[10] The Court appointed psychologist said of Y he was “one moment saying that he wants to stay here (in Israel) and at the second moment he did not want to part with the mother”.[11]

   [10] Ibid, [38].

   [11] Ibid.

9. The father exercised and exhausted his appeal rights. In March 2018, the District Court of Israel dismissed the father’s appeal and ordered that he pay the mother’s costs in the sum of 5,000 New Israel Shekels ($2,100 AUD). In his decision, Judge G of the District Court sitting as the Court of Civil Appeals considered the appeal, “an attempt to mislead the Court”; that the father, “was not in a hurry to file an appeal”; “the application was filed in a casual way without bringing all the facts…and without any affidavit attached to it”. His Honour found that the appeal was an attempt by the (father) to delay the execution of the judgment improperly after so many days…” [12]

   [12] Affidavit of Ms Babkin (n 7), [39].

10. The Australian Central Authority waited to hear the outcome of the father’s appeal before booking flights for the mother’s travel to Israel. The mother travelled from Melbourne to Israel in March 2018. The mother was due to collect the children with a Court appointed social worker on 18 March 2018.  The father was present at his home with his wife, the children and several other people not known to the mother. The father refused to hand the children over to the mother and the police were called and attended at the home. The mother remained sitting in a car outside the father’s home for more than five hours.  The mother was informed that the father suggested the matter be returned to the Family Court of Israel for further hearing before Judge F. The father informed the Family Court of Israel that he would not hand the children over to the mother. Judge F of the Family Court of Israel ordered that as a result of the father’s breach of the orders he be immediately arrested and held in custody pending the children’s transition to the mother’s care.  The father’s arrest was filmed by one of his friends and posted and shared online.  The children were told by the father and/or their step-mother that the father being placed in jail had occurred because their mother had “bribed” the Judge. The mother and children returned to Melbourne on 22 March 2018. The children had spent nearly 19 months in Israel, 18 months without the care and support of their mother. Y returned to his previous school and school community and X commenced at H School.

1. The return of the children to the mother’s care was extremely stressful for the mother and the children.  As a consequence, upon their return to Australia, the mother immediately sought to obtain appropriate counselling and support for the children to ensure that they were supported in their reintegration to their lives in Australia.

Australian proceedings

1. On 23 March 2018 the mother filed an Initiating Application and affidavit in the Court, which commenced these proceedings. The father was present in Australia.

2. Interim orders were made by the Court on 23 March 2018, which were, relevantly, as follows:-

   …

   2. Until 10 April 2018 or until further order, the Final Orders made in the (then) Federal Magistrates Court of Australia at Melbourne on 30 January 2013 (in proceedings number MLC6766/2011) (“the Final Orders”) be and are hereby suspended.

   3. Until further order, the children X born … 2004 and Y born … 2008 (“the children”) live with the Mother.

   4. Pending the preparation of a s11F Family Report:

   (a) the children not spend any time or communicate with the Father save as provided in Order 12 & 13; and

   (b) the question of the father’s time with the children (supervised or otherwise) thereafter, if any, otherwise be reserved.

   5. The parties to the proceedings attend upon a family consultant at the Melbourne Registry of the Family Court of Australia at such a time to be advised for the purposes of either a Children’s and Parents Issues Assessment Pursuant to s 11F of the Family Law Act 1975 (Cth) or a full Family Report pursuant to s 62G(2) of the Family Law Act 1975 (Cth), and such assessment once completed be released to the parties and the Independent Children’s Lawyer.

   …

   8. Until 10 April or until further order, the Father by himself, his servants and agents, be hereby restrained by injunction under section 68B of the Family Law Act 1975 (Cth) (“the Act”) from:-

   (a) entering or remaining within 500 metres of the Applicant and children’s place of residence, the children’s school or any place where the children are known to be attending including for religious observance or at extra-curricular or out of school activities, unless with the Applicant’s prior written consent;

   (b) removing or attempting to remove of causing or permitting the removal of the children, X born … 2004 and Y born … 2008 (“the children”) or either of them from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the names of the children on the Watch List in force at all points of arrival and departure by sea or by air in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders their removal;

   (c) obtaining any passport (in any jurisdiction) for the children or either of them and it is requested that the Australian Passport Office give effect to this Order (in so far as the Father is restrained from obtaining Australia passports for the children) by making the names of the children subject to Child Alerts with the Child Alerts to remain in force throughout the Commonwealth of Australia until the children achieve the age of 18 years or until the Court orders the Child Alerts to cease.

   9. Until further order, the children’s passports be held by in the possession of the mother’s lawyer, Tish Liner FC Law.

   10. Until further order, the Father be restrained from:-

   (a) publishing, transmitting or disseminating any information relating to the parties, the children or any aspect of the parties’ family law matter, including but not limited to providing information to the media or posting information online including on Facebook or any website or blog; and

   (b) causing, permitting or allowing (to the extent that he is able to do so) any other person to do any act or thing which he is restrained from doing under this Order.

   11. Until further order, the parents be restrained from:

   (a) harassing, denigrating or abusing each other, in the presence or within the hearing of the children and allowing or permitting any other person to do so; and

   (b) being affected by illicit drugs and/or excessive use of alcohol (in excess of 0.05 BAC) whilst the children spend time or have telephone contact with them respectively (with a denial by each party of the need for such order)

   12. Pending the adjourned date, the father communicate by telephone with the children, by initiating a call to the mother’s mobile phone on loud speaker on each Friday (one hour before candle lighting time) and on each Tuesday at 6pm for no more than 15 minutes on each occasion and the mother be at liberty to terminate the call at her reasonable discretion.

   13. Save that in respect of the forthcoming weekend, the father’s time be as follows:

   a. With Y as per above; and

   b. With X:

   i. This evening by Whatsapp voice message to the mother’s telephone for the purpose of blessing the child; and

   ii. On Saturday 24 March 2108 one hour after the conclusion of the Sabbath, for a period of ten minutes.

   14. Pursuant to s 68L(2) the Family Law Act 1975 the children X born … 2004 and Y born … 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid make arrangements as soon as practicable to secure that independent representation of the said children's interests.

   …

   NOTATION:

   A. The parties agree to the children being re-enrolled at E School, commencing in Term 2, 2018 and the Father consents to the Mother re-enrolling or causing the children to be re-enrolled at the said school.

   B. …

3. The father has breached and continues to breach order 10 of the orders made 23 March 2018 and s 121 of the Act since the children have returned to Australia. Those breaches involving the public dissemination of information are as set out in paragraphs 53 to 55 of the affidavit of evidence in chief of the mother. They are accepted by the Court.

4. On 9 April 2018 the father filed a Response and affidavit of evidence. In his Response the father sought final orders that the children live with him and that otherwise he be excused from further particularising any further orders sought by him until the release of the family report.

5. On the date that the father filed his Response, family consultant Ms J’s s 62G of the Act family report dated 9 April 2018 was released to the parties. In her preparation of that report, the family consultant interviewed individually and in person the mother, the father, and each of the children and made observations of the father with Y and the mother with X and Y.

6. On 10 April 2018 further interim orders (by consent) were made by the Court.  They were, relevantly, as follows:-

   1. That until further order, the Final Orders made in the (then) Federal Magistrates’ Court of Australia at Melbourne on 30 January 2013 (in proceeding no. MLC6766/2011) remain suspended.

   2. That until further order, paragraphs 3, 8, 9, 10, 11 and 12 of the Orders made by this Honourable Court on 23 March 2018 remain in full force and effect.

   3. That the child Y, born … 2008, spend supervised time with the Husband at Family Law Parenting Centre, as follows:

   (a) for up to two (2) periods of two (2) hours on two (2) separate days if practicable, prior to 16 April 2018; and

   (b) for two (2) further occasions on the same terms between 30 May and 6 June 2018 during out of school hours.

   4. That the Husband and the Wife forthwith attend an intake appointment and sign all such documents as may be required to facilitate Y’s supervised time with the Husband pursuant to paragraph 3 hereof and the Husband meet all costs which may be payable to Family Law Parenting Centre.

   5. That until not earlier than 9 July 2018, the Husband not spend any time with the child X, born … 2004 and, thereafter, the Husband spend such supervised time as may be agreed between the parties or ordered by the Court.

   6. That the Wife be at liberty to facilitate the children’s attendance at confidential counselling with Ms K at the L Centre or such other counsellor as may be recommended by the Independent Children’s Lawyer, at the Husband’s expense.

   7. That the Husband and the Wife each attend upon Ms M at the L Centre or such other counsellor as may be recommended by the Independent Children’s Lawyer, for the purpose of reportable counselling and parent education in accordance with the recommendation of the Family Consultant, with the Husband at liberty to attend by telephone or video call in the event he is outside of the Commonwealth of Australia.

   8. That the parties be at liberty to provide to L Centre and the counsellors referred to in paragraphs 6 and 7 hereof, a copy of the Family Report dated 9 April 2018.

   ...

7. On 16 April 2018 the father, who had been present in Australia since 23 March 2018, returned to Israel. He had spent 24 days in Australia. In interview with the family consultant, Ms J, and as reported by her in her family report dated 9 April 2018, the father:-

   … reported that he would be seeking that the children lived primarily with him and that he was granted permission to relocate with them to Israel.[13]

   [13] Family Report dated 9 April 2018, [12].

8. The father spent time with Y on two occasions at the L Centre pursuant to subparagraph (3)(a) of the interim orders dated 10 April 2018, prior to the father’s return to Israel.

9. The father otherwise did not seek to spend time with the children following his return to Israel on 16 April 2018, including pursuant to subparagraph (3)(b) of the interim orders dated 10 April 2018, which provided for supervised time between the father and the children “…for two (2) further occasions … between 30 May and 6 June 2018 during after school hours.” His Application in a Case filed 14 November 2019 was the first occasion in which he sought to spend time with the children in over one year and approximately seven months.

10. Pursuant to paragraph 12 of the interim orders made 23 March 2018 the father was permitted to have telephone contact with the children each Tuesday and Friday. Y has continued to speak with his father and those telephone conversations are ongoing and mostly enjoyed by Y. Whilst the mother has consistently encouraged X and Y to speak respectfully to their father, and to engage with him in conversation, including answering his questions, which are often related to the mother’s activities and parenting capacities, X has found the calls significantly distressing, and conveyed to her mother that she did not wish to speak with her father when he rang. Those calls from her father have now ceased altogether. X has her own mobile telephone and is at liberty to speak with her father at any time should she wish to do so. She currently does not.

11. Since returning to Australia, X has repeatedly told her mother that she does not wish to maintain a relationship with her father. She has not spent any time with him since these proceedings commenced in March 2018.

12. With the mother’s encouragement, the children continue to be in regular contact with their extended paternal family, participating in telephone calls with the paternal grandparents on an average of around once or twice per month.  Additionally, the paternal grandparents are free to speak to X by telephone by calling her mobile. The paternal grandparents and the paternal aunt live in Sydney. X first travelled to Sydney for her birthday in 2019. The purpose of the trip was to visit her grandparents.  Both children then travelled to Sydney in July 2019 to celebrate the renewal of their paternal grandparents’ wedding vows.  It was very difficult, as deposed to by the mother in paragraph 118 of her affidavit, for the mother to allow the children to travel to Sydney.  As set out in paragraph 117 of her affidavit, the mother had the paternal grandmother and paternal aunt agree in writing via text message that on both occasions that the children travelled to Sydney, the father would not be in attendance. The mother also sought written confirmation of all flight information.  Despite these difficulties, the mother is firmly of the view that the children deserve to maintain a relationship with their father’s extended family and hence she encourages same. Y was particularly anxious about travelling to Sydney in July 2019, expressing to his mother that he was worried he was not going to return home to Melbourne. Initially, Y expressed to his mother that he only wished to go to Sydney for the day.  She explained to him it was a lot of travelling in a single day for a ten year old, and he ultimately agreed to stay overnight.

Family Report

1. The children reported to Ms J that they did not wish to spend time with their father in the future. They both reported the reason for their views was that their father had lied to them about their mother’s love for them, and her intentions to travel to Israel to collect them. Both children wish to live primarily in Australia with their mother.

2. There is no co-parenting communication between the parties as is acknowledged by both. The father described such communication to the family consultant as “non-existent”.[14]

   [14] Family Report (n 13), [48].

3. Ms J was of the opinion that it is likely to be of benefit to the children if authority to make the majority of decisions for them resides with the parent who is providing their primary care. [15] She noted that the:-

   …alleged patterns of coercive and controlling behaviour from Mr Babkin may have continued to the current time despite the large geographical distance between the parents. [16]

   [15] Family Report (n 13), [98].

   [16] Ibid.

4. The mother reported to the family consultant that both during the parents’ relationship and post separation the father behaved in a domineering and controlling manner, and behaved with family violence toward her. She claimed this was physical violence, which included one occasion in 2001 when the father hit her in the face and broke her tooth and another occasion in 2011 when the father pushed her, causing her to fall backwards and hit her head on the ground; verbal violence; and ongoing and daily psychological and emotional abuse. The mother further reported that “the children were exposed to the family violence between the parents and that Mr Babkin was verbally violent and psychologically abusive towards the children”.[17] These allegations were raised by the family consultant with the father who “deflected the discussion onto other topics”.[18]

   [17] Ibid, [14].

   [18] Ibid, [15].

5. The children told their mother that after she did not travel to Israel in January 2017, their father and step-mother lied to them by informing them that their mother was unwilling to travel to Israel and had other commitments that she prioritised over the children. They were left with the belief that their mother did not love them. This belief – that they were abandoned by their mother – was highly destructive of their emotional well-being. At interview with the family consultant, X “repeatedly reported concern that her father had “betrayed” her”.[19]

   [19] Ibid, [19].

6. The children’s sense of betrayal was heightened by their experience of life in Israel. In January 2017, not only were the children not expressing a view that they wished to remain in Israel, but Y was counting down the days until the mother collected him and X had contacted her mother by text message as referred to in paragraph 31 of these reasons. Ms J observed:-

   …there were a number of indications at interview to suggest that the children have experienced trauma as a result of their experiences in Israel, and continue to experience significant levels of distress, distrust and confusion over how they can rebuild their relationships with their father.  It is likely to be helpful for all members of the family to be involved in counselling, even if Mr Babkin can only participate in the intake and feedback phases of the children’s counselling by telephone.  It is also likely to be helpful if the counsellor/s have experience in family law matters and issues associated with parental alienation and estrangement.[20]

   [20] Family Report (n 13), [100].

7. X presented to the family consultant as “an articulate, intelligent and sensitive young woman” who reported feeling “hurt and betrayed about how her father had led her to believe that her mother did not love her”.[21] She did not wish to be observed by the family consultant in the company of her father.

   [21] Ibid, [59].

8. X described her time living in Israel with her father and step-mother as follows:-

   55. X reported the she found living in Israel with her father demanding as Mr Babkin preferred to follow an orthodox religous lifestyle. X described herself as a caring and thoughtful daughter and said she made every effort to obey her father’ directions. She reported that Mr Babkin and her stepmother had significant expectations about the housework and childcare she was to perform. Although the family has a nanny to assist the stepmother care for her five young children, X was expected to engage in useful activities at all times and when not occupied by childcare and housework was expected to complete homework or read books. Relaxing alone in her bedroom, having private telephone conversations or watching movies was not encouraged. If the children were not obedient, Mr Babkin and X’s stepmother often became very angry. They also used silence to demonstrate their displeasure with X’s behaviour. X reported that she found this isolating and distressing. She also said her father demanded that the children call their stepmother “Ima” which is Hebrew for ‘mother’.

   56. X said that perhaps the one area in which she was resistant to her fathers’ expectations was in her dress; Mr Babkin preferred X to wear longer sleeves and longer hemlines on her skirts. To illustrate the strictness of her father’s expectations, X said that on one occasion she was cleaning the oven at 10.30 at night, but was tired and wished to go to bed. Mr Babkin insisted that she stay up until she completed cleaning the oven. When she protested, her father and stepmother teased her and called her ‘Cinderella’.

   57.  X explained that these expectations set her apart from her peers. She made excuses not to bring friends home in order to avoid the conflict in the expectations of her friends compared to those of her parents. If she wanted to attend social activities, Mr Babkin demanded several days’ notice, which was sometimes not possible. Mr Babkin would often leave granting permission until the last moment and as a result, X found it difficult to arrange activities with her friends. X’s accounts have the impression that she was becoming increasingly socially isolated. Since relocating to Australia, X has been able to maintain contact with her Israeli friends through Instagram and Snapchat. However, she did not demonstrate enthusiasm about maintaining contact with her friends in Israel and appeared more excited about her ability to reconnect with friends at her old school in Melbourne.

9. Y reported to the family consultant that he did not wish to spend time with his father in the future and that he was “very upset that his father has lied to him about why his mother did not collect him in January 2017”.[22] He nevertheless agreed to participate in an observation session with his father during which the family consultant observed him to clearly “[love] his father very much”[23] and the father to be likewise demonstrative in his love for his child. The family consultant noted that the absence of this loving relationship between the father and Y in the form of an inability to spend regular time together in the future would likely cause Y to “suffer psychological and emotional harm.”[24]

   [22] Family Report (n 10), [65].

   [23] Ibid, [69].

   [24] Ibid, [76].

10. The family consultant’s observations of the mother and children suggested that the children have a “positive and affectionate” relationship with their mother who adopts a more permissive parenting style than that of the father, his being an authoritarian parenting style consistent with X’s accounts at interview.

11. The family consultant observed the father to have “limited capacity to identify and prioritise the needs of the children”.[25]  She noted:-

    …Mr Babkin appeared to provide ‘strategic’ answers at interview and frequently simply denied or deflected allegations. However, this behaviour raises concerns that Mr Babkin may pose a risk of psychological and emotional harm to the children through the limited ability or willingness to identify and prioritise their need for security and safety in their mother’s care [because] of his desire that they live primarily with him in Israel, by whatever means.[26]

    [25] Ibid, [40].

    [26] Ibid, [97].

Conclusion

1. The mother sought an order for sole parental responsibility for the children. In the circumstances of this case the presumption as set out in s 61DA of the Act is rebutted and the Court makes orders as sought by the mother and the Independent Children’s Lawyer.

2. The children have a meaningful relationship with their mother which is essential to their well-being. She is their primary carer. She is present and all-encompassing in their lives. The mother, in the face of the father’s failure to do so, has provided for all of the children’s needs – physical, emotional, intellectual and financial. She has been assisted financially by her long-term partner Mr P who provides financial support to supplement the mother’s modest income.

3. In April 2019, the mother and children moved into rental accommodation with Mr P. They live in a six bedroom home and the children each have their own room. Mr P has four children from a previous relationship and his two youngest children, both aged 17 years, live with them on a week about basis. The children get along well with Mr P and are happy and settled in these living arrangements.

4. The father has not participated in decisions about long-term issues in respect of the children for almost two years. The father has chosen to live in Israel and one of the consequences of that is that he can spend little or no face-to-face time with the children. He has spent almost no time with them. The children remain at risk of him seeking to remove them from the jurisdiction. He does not contribute to their support and is unlikely to do so. The mother was unable to continue to pay for counselling fees for the children, fees which the father was to pay but failed to, and as a result the children’s counselling sessions were not able to be continued.

5. The father’s controlling and abusive behaviours have been detrimental to the children’s welfare.  The facts of this case are such that no other orders other than those sought by the mother and the Independent Children’s Lawyer and made by the Court could be in the children’s best interests. The father’s action, in his detention of the children in Israel with the intention of limiting, before eradicating, the children’s relationship with their mother was catastrophic to the promotion of their best interests. He lied to them about their mother’s love for them and her intentions to travel to Israel to collect them. The mother did everything within her power to secure the return of the children to her, and to Australia, and suffered great loss and emotional distress, as did the children, by virtue of the father’s unilateral and deceitful actions.

6. X has no meaningful relationship with her father. She does not wish to pursue such relationship currently, and the father has made no effort to spend time with X. Y has very limited contact with his father. The mother encourages and facilitates this contact.

7. There continues to be a need to protect the children from the psychological harm their father has subjected them to. The children shall live with their mother in Australia. This accords with their expressed wishes.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 6 December 2019.

Associate: 

Date:  6 December 2019