Director-General, Department of Community Services and Kilah (No. 3)

[2007] FamCA 1099

FAMILY COURT OF AUSTRALIA

Director-General, Department of Community Services & Kilah (No. 3) [2007] FamCA 1099

CHILD ABDUCTION – Hague Convention

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention Regulations) 1989 (Cth)

Cooper v  Casey (1995) FLC 92-575; (1995) 18 Fam LR 433
Dixon  v  Dixon (1990) SCLR 692
DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services  (2001) FLC 93-081; (2001) 27 Fam LR 569
Genish-Grant v Director-General Department of Community Services (2002) FLC 93-111; (2002) 29 Fam LR 51
McDonald and Director-General, Department Of Community Services NSW (2006) FLC 93-297; (2006) 36 Fam LR 468
Panayotides v Panayotides (1997) FLC 92-733; (1996) 21 Fam LR 446
Re B (Minors)( Abduction)( No 2) (1993) 1 FLR 993
Re K (Abduction: Consent) [1997] 2 FLR 212
Re S (a child) [2002] EWCA Civ 908
State Central Authority and B [2002] FamCA 804
Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264; (2006) 35 Fam LR 489

APPLICANT: Director-General, Department of Community Services

RESPONDENT: Ms Kilah

FILE NUMBER: SYC 1848 of 2007

DATE DELIVERED: 29 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Sydney

JUDGMENT OF: Kay J

HEARING DATE: Friday 17 August and
20 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hartstein

SOLICITOR FOR THE APPLICANT: Legal Services Unit, Department of Community Services

COUNSEL FOR THE RESPONDENT: Mr Jeffries

SOLICITOR FOR THE RESPONDENT: Slade Manwaring Solicitors

ORDERS

1. That the State Central Authority and the father of the children make such arrangements as are necessary for the children YSZ born May 1988, YN born July 2000, YB born July 2002 and CM born February 2005 to return to Israel in the company of their mother Ms Kilah by mid October 2007 or other date agreed upon between the mother and the State Central Authority. 

2. That the Registrar of the Family Court of Australia (Sydney registry) hand over the passports of the above children and their mother to the legal representative of the State Central Authority upon the presentation of these orders to facilitate their return to Israel in accordance with order (1) hereof.

3. That upon the presentation of the children at Sydney International Airport for departure to Israel in accordance with order (1) the Australian Federal Police are requested to delete the Pass Alerts currently in force in relation to the children and their mother and permit their departure from Australia, and for the avoidance of any doubt, any orders that exist at that time to prevent the departure of the said children from Australia are hereby discharged.

4. That these return orders are conditional upon the father:

   i.booking and paying for the air tickets of the mother and the four children to return to Israel and providing a copy of the proposed travel itinerary to the State Central Authority for forwarding to the respondent mother; 

   ii.at least fourteen days prior to the proposed return date providing evidence of the former matrimonial home or equivalent accommodation both in size and location being available for the exclusive use of the mother and the children;

   iii.depositing the sum of NIS 8,000 Shekels in the bank account of the mother;

   iv.providing to the mother via the State Central Authority a written undertaking that:

   (a)he will not take any legal action in Israel to prevent the children from living with their mother until any proceedings in Israel have been concluded and unless the mother has had an opportunity to be heard in an Israeli court;

   (b)he will ensure that the mother, upon her arrival in Israel, has the use of a motor vehicle suitable for the transport of herself and the children;  and

   (c) he will be responsible for the rental for the apartment to be occupied by the mother and the children for the first month after their return to Israel and thereafter be responsible for meeting one half of the rental payments until some other agreement is reached between the parties or there is an order of an Israeli court to the contrary. 

5. That if any of the conditions for the return have not been met by 31 December, 2007 then the order for the return is to lapse. 

6. That the orders made by Judicial Registrar Loughnan on 28 March, 2007 be discharged. 

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Kay delivered this day will for all publication and reporting purposes be referred to as Director-General, Department of Community Services & Kilah.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 1848 of 2007

Director-General, Department of Community Services

Applicant

And

Ms Kilah

Respondent

REASONS FOR JUDGMENT

1.   This is an application brought by the Director-General of Department of Community Services as the State Central Authority seeking a return to Israel of four children:

YSZ born May 1988,
YN born July 2000,
YB born July 2002 and
CM born February 2005.   

pursuant to the provisions of the Family Law (Child Abduction Convention Regulations) 1989.

2.   The respondent to the application is the children’s mother.   Both of the parents are in their late 30s. 

3.   According to the mother the parents met in Israel in late 1995 when the mother, an Australian citizen, went there for a holiday.   After she returned briefly to Australia in April 1996 she determined to live in Israel.  She and the boys’ father Mr Kilah were married in June 1997 in Israel. 

4.   By mid 2005 there was serious turmoil in the marriage and in September 2005 the father left the matrimonial home.  

5.   On 16 May 2006 the mother and the children left Israel to travel to Australia.  The father took them to the airport.  The mother was in possession of return tickets booked to return to Israel on 27 August 2006.  

6.   There is a disagreement between the father and the mother as to the terms and conditions upon which the mother left Israel with the children.  The mother asserts that she left on an understanding that if the father advised her that the marriage was over she would not be returning with the children and would settle permanently with the children in Australia.  The father asserts that the mother left for a fixed period only and that he never consented to the children remaining away from Israel on any permanent basis. 

7.   The mother deposed that at the airport she told the father:

If in three months, you decide not to give this marriage a second chance, then I am not coming back.  I will be staying and raising the Boys in Australia with my Mum and Dad.   

She said that the father replied:

I understand.  Look after the Boys for me ...  

She said further: 

I will ...  Please think about this carefully.  I am not coming back if there is nothing for us to come back to. 

The father responded by hugging her and whispering:

I know that.  I am going to think this through over the next few months.  I hope that you are happy in Australia. 

8.   The mother said that on 11 June 2006 the father telephoned her and said that he wanted a divorce.  When she responded:

What?  You don’t want us back? 

The father responded:

No. I don’t.  

She then said:

… I won’t come back with the boys in August.  I need to stay here for at least the rest of the year.  I will reconsider our situation after that.  I can’t believe that you have done this …  

9.   He is said to have replied:

You have to believe it ...  I don’t love you anymore.  I’m sorry.  Stay in Australia.  Do what you need to do.  That is fine with me.

10. The father’s version of the conversation in June 2006 was that the mother demanded that she wanted a decision from him as to the future of the marriage.  He said:

There is nothing to decide.  I want to divorce.  

The mother’s reaction was to shout at him:

If you have decided to leave, then you have decided to leave the boys as well and you will never see them again.

11. On 24 July 2006 the father wrote to the mother.  Amongst the matters discussed in the letter he said:

… I knew you needed that trip in order to gain strength and to realize the new reality, just like me.  I just didn’t think there was any chance that you would not come back with the children at all …  

I do not wish to live with you, but I really want to find a solution to live with the children, even if it is only for a part of the week.

I repeat my words – I have not separated from the kids, I have separated from you.

I have not given up a live [sic] with our children but I have given up the life with you.

Any attempt and though [sic] of yours to tie our breakup to the hurtfulness of the kids – hurts you, hurts me, and mainly hurts the kids …

I want you to return to Israel with them because this is where they were born and this is where they belong …

All that I believe is that it is preferable for children to grow up in two separate homes in which they get attention, love and peace rather than living in one home with parents who are unhappy with one another.  They will be fine, because we will give them everything we have planned to give them.  Just each one of us separately.

12. The mother expressed her position in a letter she wrote to the father on 24 October 2006.  In that letter she said:

I feel at the moment that I have absolutely nothing to come back to …  I really don’t know how we will survive and I feel like I have the right to a new start.  I should not have to give up everything again and to come back to the same hardship, stress, no money, no supportive partner and no extended family…

So for now, I find the option of coming back to nothing but pain and hardship in Israel a very difficult option.  Having said that there are two things that have not changed in my opinion.  The one is that yes, I did always want to live in Israel and raise my children there.  But now that I realise how hard it was and how much we suffered that is not a price I want to pay again.  The other thing and just as much if not more important, is my belief that the children should grow up closer to their father.  Again, not at any cost.  I would not want to bring them back to a situation that was damaging and abusive and unhealthy for everyone.  I want to believe that it will not be like this, but for now the fear that I felt for my own and their emotional safety and future is still too strong.  It is all I think of when I think of coming back. 

I could not support them or be there for them or protect them when I was caught up in the hurt of your leaving.  Now I can… 

She went on to say:

If and when I decide to come back, I want it to be all agreed and signed before I arrive and obviously I need you to assure me that you will be supporting our children financially,  I will not talk in hints.  By that I mean around 8,000 shekels a month.  I see no other way of us being able to survive there. 

13. On 2 January 2007 the father wrote to the mother’s father seeking to enlist his assistant in persuading the mother to return with the children to Israel.  He mentioned that he had learnt of the existence of the Hague Convention and that he had filled out some forms that he proposed to provide to the relevant authorities in Israel seeking a return of the children. 

14. In his response by email on 29 January 2007 the mother’s father, Mr DM, was critical that the mother was being accused of “kidnapping” the children seeing that the father had given them permission to be taken to Australia.   He went on to say:

I must also point out that [the mother] has not, on any occasion, said to us (nor to you, I believe) that she does not intend to return to Israel with the children.  In fact, she has indicated on many occasions that ultimately she will return to Israel with the children to live.  It is only a question for her to determine when it will be the right time for her to return.   

He then mentioned that the father had been welcome to come to Australia during the summer holidays and stay at his home and spend time with the boys but the father had not availed himself of that opportunity.

15. On 31 January 2007 the State Central Authority for New South Wales received a request from the Ministry of Justice of the State of Israel seeking an order that the children be returned to Israel in accordance with the provisions of the Hague Convention. 

16. The operation of the 1980 Convention on the Civil Aspects of International Child Abduction (known as the Hague Convention) is governed in Australia by section 111B of the Family Law Act1975 (Cth) and the regulations made pursuant to that section namely the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The Convention has been in force between Australia and Israel since 1 December 1991.

17. Regulation 14 in its present form relevantly provides:

(1)If a child is removed from a convention county to, or retained in, Australia:

(a)the responsible Central Authority may apply to the court … for …. :

(i)       a return order for the child; 

18. Regulation 16 relevantly provides:

(1)      If:

(a)an application for a return order for a child is made; and

(b)the application … is filed within one year after the child’s removal or retention; and

(c)the responsible Central Authority … satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);

the court must, subject to sub-regulation (3), make the order.

(1A) For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:

(a)      the child was under 16; and

(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

(c)the person … seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

…

(3)A court may refuse to make an order under sub-regulation (1) … if a person opposing return establishes that:

(a)      the person … seeking the child’s return:

…

(ii)      had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or

(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation…

19. The Regulations seem to contain contradictory requirements.  In order to establish jurisdiction the child’s removal or retention has to be wrongful in that it has to be in breach of rights of custody.  It could not be said to be in breach of rights of custody if it was in accordance with the consent or wishes of the person who was asserting the breach.  However sub-regulation 16(3)(ii) provides that if a consent to the removal or retention is established the court still retains the discretion to order the return of the child.  

20. What is asserted in the current proceedings is that the mother retained the children in Australia after the husband made it clear that he wanted them returned to Israel.  Essentially the mother’s case is that she left Israel to remain in Australia with the children with the consent of the father.  She asserts that when she left she made it clear to the father that if it became apparent that the father was not willing to reconcile with her then she would remain in Australia.  She asserts he agreed to that course.

21. Whilst the father asserts in his material that there was no such agreement, I am satisfied as best I can be on untested evidence that it is probable that the mother left in the circumstances that she described, namely having made it clear to the father that the proposed trip to Australia may well be a one way trip and she did so with the father’s full knowledge and consent.

22. In Panayotides v Panayotides (1997) FLC 92-733; (1996) 21 Fam LR 446 Fogarty and Baker JJ (with whom Finn J agreed) cited with approval the description by Jordan J at first instance of the process upon which the Court needs to embark in hearing these matters.  At FLC 83,897; Fam LR 474 the Full Court identified and approved of the following observations of Jordan J:

The first thing to observe is that there is much conflict in the evidence.  These are summary proceedings and issues must be determined on the papers.  This often presents the Court with difficulties.  It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.

23.  The evidence that supports my conclusion that the mother’s version of events is more probable than the father’s includes:

·The mother arranging in April 2006 for the children to become Australian citizens and the father then signing consent forms to enable the issuing of Australian passports for each child.  The children had previously travelled to Australia on Israeli passports.  These would provide only limited residence rights.  The obtaining of Australian passports is supportive of the mother’s case that the children may well remain permanently in Australia.

·The express and very detailed evidence of Ms TK who appears to owe no allegiance to either parent.

24. It is also clear from the evidence that at some point shortly after she came to Australia the father adopted the view that he wanted the children back in Israel and was no longer prepared to abide by any agreement he may have entered into for her to retain the children in Australia. 

25. I am prepared to find on the balance of probabilities that the mother retained the children in Australia initially with the consent of the father but that consent had been withdrawn no later than July 2006.  Since that time the father has consistently sought the return of the children to Israel firstly by lengthy negotiations and then by making a request under the Convention.  

26. I am satisfied that there was nothing wrongful in the mother’s initial removal of the children from Israel nor in terms of her initial retention of the children in Australia but I am also satisfied that notwithstanding that the father consented to the children being retained in Australia, once that consent was withdrawn, the court retained a discretion under the provisions of the Regulations to refuse to make an order for the return of the children to Israel.  This approach is consistent with the views expressed by Hale J (as she then was) in Re K (Abduction: Consent) [1997] 2 FLR 212.

GRAVE RISK

27. The sole basis upon which it was argued that there was a grave risk that the return of the children to Israel would expose them to physical harm was the reliance on the decision of the majority of the Full Court in Genish-Grant v Director-General Department of Community Services (2002) FLC 93-111; (2002) 29 Fam LR 51, a judgment delivered on 27 May 2002. In Genish-Grant (above) the Full Court (Finn and Barlow JJ (Holden J dissenting)) allowed an appeal against an order that had required the return of two children to Israel in accordance with the Regulations.  The sole ground upon which the appeal was allowed was the admission of fresh evidence before the Full Court of a then current Department of Foreign Affairs and Trade (“DFAT”) travel advice that said: “Australians should defer all travel to Israel … all population centres in Israel are at very high risk of terrorist attack at the present time …”. 

28. There was no suggestion by the majority in Genish-Grant (above) that absent the then current DFAT travel advice there was anything inherently inappropriate in returning the children to Israel. 

29. There were two ironies about the majority judgment in Genish-Grant (above) namely that by the time the judgment was delivered the travel advisory had changed and further on the same day that the judgment was published the English Court of Appeal in Re S (a child) [2002] EWCA Civ 908 reached a contrary conclusion about the return of a child to Israel.

30. Without commenting at all upon the propriety of the result in Genish-Grant (above) the circumstances that prevailed in 2002 when that appeal was heard no longer prevail. 

31. There are 5 levels of travel advice issued by the Australian Government.  Those levels are:

·Be alert to own security.

·Exercise caution.

·High degree of caution.

·Reconsider your need to travel.

·Do not travel.

32. The travel advice at the time Genish-Grant (above) was decided was the highest level possible.  The present travel advice about travel to Israel is to exercise a high degree of caution in Israel at this time.  Similar advice is proffered in relation to a number of Hague Convention countries including Brazil, Mexico, Panama, South Africa, Turkey and Venezuela.

33. The evidence received from the Ministry of Justice in the State of Israel in these proceedings includes the following passage:

Despite the threat of Palestinian violence, Israel is a vibrant and flourishing country, its economy is rapidly expanding and growing.  It continues to be visited by thousands of tourists.  Israeli citizens and residents continue to lead normal lives.  All Government offices and public systems continue to operate, as do the courts and social welfare services.  Airports are open, and both citizens and tourists can enter and exit the country freely.  There has been no evacuation of children or other citizens from the country.  On the contrary, there continues to be a steady stream of people immigrating to Israel from various countries, including over 216,000 in the last 6 years alone, amongst them several hundred from Australia. 

34. In my view there is no evidence to support the contention that there is a grave risk to the return of the children under the Regulations that would expose the children to physical harm. 

A CHANGE OF HABITUAL RESIDENCE

35. One of the essential ingredients of the Hague Convention and the Regulations made there under is the removal from or the retention away from the place of the child’s habitual residence.  Absent such a removal or retention the Convention has no application.  In the course of argument I suggested that on one interpretation of the facts, if the mother and the children left Israel with the father’s consent with the settled intention of abandoning their place of habitual residence in Israel, then the moment they left Israel the Convention no longer had any application.  My suggestion that such an outcome may have been open on the facts as they were being argued, led the mother’s counsel to amend his response to include as a ground for his objection that “the children were not habitually resident in Israel at the date of the filing of the application”.

36. The concept of an abandonment of habitual residence does not necessarily entail a requirement to establish a new habitual residence.  All that is required is that “if the child has left the contracting state with the consent of both parents whose intention when he left was that he should settle elsewhere, then it seems to us that he must be taken to abandon his habitual residence in the contracting state as soon as he leaves” (per the Lord President in Dixon v Dixon (1990) SCLR 692).

37. A passage by Waite J in Re B (Minors) (Abduction) (No 2) (1993) 1 FLR 993 was cited with approval by the Full Court in Cooper v  Casey (1995) FLC 92-575; (1995) 18 Fam LR 433 where Nicholson CJ said at FLC 81,695; Fam LR 435 – 436:

1.The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.

2.Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or of long duration.

All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

3.Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention …

38. After more careful reading of the evidence in this case I am not persuaded that the evidence would allow me to reach a conclusion that when the mother left Israel with the children she had no intention of returning so as to cause a loss of habitual residence to these children and to cut their ties with Israel.  She left subject to a condition subsequent that should she be told that the father no longer wished to resume cohabitation with her, she would remain in Australia.  Even then her writings indicate some degree of ambivalence about whether or not she has permanently cut her ties with the State of Israel.  Certainly, whilst it may well have been said in the heat of the moment that the father agreed to her and the children remaining in Australia, that situation was quickly reversed by the father’s letters and statements as early as June 2006 and I do not think that the evidence allows me to find any point in time where it could be said that the parents had reached a mutual understanding that Israel was no longer to be the home of these children.  Accordingly the amended ground in the response cannot be relied upon. 

DISCRETION TO RETURN

39. As I have already indicated once I have been satisfied that the father had consented to the child being retained in Australia regulation 16(3) enlivens a power to refuse to make a return order.  In Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264; (2006) 35 Fam LR 489 at paragraph 78 the Full Court endorsed the approach of the trial judge as the appropriate matters to be taken into account in the exercise of that discretion.  In that case Bennett J at first instance cited my unreported judgment in State Central Authority and B [2002] FamCA 804 delivered 24 September 2002, and said (citations omitted):

33.The existence of the Regulation 16(3) defence means that the Court may refuse to order the return of the child under the Convention.  This raises the question of the exercise of a discretion.  The Regulation offers no express terms as to how that discretion may be exercised.  Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in De L v Director-General, NSW Dept of Community Services (1996) 187 CLR 640; FLC 92-706; 20 Fam LR 390 at CLR 661; FLC 83,456; Fam LR 403:

if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the 'discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]' enable it to be said that a particular consideration is extraneous …. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.

In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10 ½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:

(a) the comparative suitability of the forum to determine the child's future in the substantive proceedings;

(b) the likely outcome (in whichever forum) of the substantive proceedings;

(c) the consequences of the acquiescence;

(d) the situation which would await the absconding parent and the child if compelled to return;

(e) the anticipated emotional effect upon the child of an immediate return (a factor which is to be treated as significant but not paramount); and

(f) the extent to which the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused.

40. Earlier in Re K (above) Hale J (as she then was) when speaking of the discretion whether or not to order the child’s immediate return to Texas said at 218 (emphasis added):

In exercising that discretion a variety of factors, which will depend, to some extent, upon the circumstances of the case, have to be weighed in the balance.  One of the factors is the most appropriate forum between these parents about the future of their daughter should be decided.  There is no doubt that their main connection is with Texas.  S’s main connection is with Texas.  That is where she was born.  It is where she has lived all her short life until October 1996.  It is where the home in which she lived is situated.  It is where her father and her father’s relatives, including the grandmother, who has played a large part in her care, are situated.  So, in terms of the closest connection it is obvious that Texas wins …

I am entitled to take into account the likely outcome of any such proceedings …  It may, therefore, be surmised that it is more likely than not that it would conclude that S should live with her mother.  Whether they would also conclude that she should have leave to come to this country again, I know not.  It is, perhaps, more difficult to predict the outcome of that sort of application.  That there would certainly be reasonable chance of its success were such an application to be made in the reverse situation in this country…

I take into account that the father has offered support, but that the financial situation is such that this is a very difficult matter for him and he is clearly very seriously troubled about the level of debt that there is in Texas.  One is bound to have reservations about how sustainable that offer would be …

The final thing that I have to weigh in the balance is the purpose of the Convention.  This is something that the courts attach the greatest possible importance.  We all want children to be returned as soon as possible to the place from which they have been wrongfully removed.  The reasons why the Conventions exist to secure this are partly that is bad for children to be uprooted from one jurisdiction to another and partly to fulfil the obvious proposition that if there is a dispute between parents as to the future of their child it is better dealt with in the courts of the country where the child has hitherto been habitually resident because that is where the best information lies.   

However, I have to bear in mind in particular that the factor has a different weight in a case in which consent to the removal or retention has been established.  Indeed in cases of consent, all of those factors carry a rather different weight. But if it has been agreed between parents that the mother may bring her child to another country and, if she so chooses, remain here with the child, then frustrating those for the purposes of the conventions scarcely comes into question.  I do, however, take it into account because of the evidence of a very swift change of mind on the father’s part. 

41. In Re K (above) her Honour then determined on balance she would decline to order the return of the 4 month old child.

IMPOSING CONDITIONS

42. Regulation 15(1C) empowers the court to include in an order for return a condition that the court considers to be appropriate to give effect to the Convention.

43. Gaudron, Gummow and Hayne JJ said in DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) FLC 93-081; (2001) 27 Fam LR 569 at paragraph 40 when speaking of the prospect of imposing conditions on any return order once a discretionary defence is established:

… if, on the evidence, one of the … conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened.  There may be many matters that bear upon the exercise of that discretion.  In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established.  Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry.  If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.

44. In this case the mother asserts, basically for economic reasons, that she would find it difficult to return with the children to live in Israel.  She would also miss the support of her parents and the community she has settled into in Australia. 

45. It is common ground between the parents that the former matrimonial home has now been leased to a tenant to help meet the parents’ mortgage obligations.  There is some evidence that the home is leased until August 2008 but may be subject to having the lease terminated on 60 days notice. 

46. In her evidence the wife’s estimates that her living expenses in Israel are between NIS 12,000 – 14,000 per month (the exchange rate being approximately NIS 3.3 = $AUD1).  She said that she would be eligible to receive NIS 800 per month child allowance.  She said that she would not be able to obtain full time employment because of her requirements to care for the youngest child and the costs of any child care would exceed any income that she would make.   

47. She said that she could not afford a car to drive the boys around and that economic realities would see her living in a peripheral suburb on the outskirts of Jerusalem.  That would oblige her to drive through areas occupied by Palestinian Arabs where she asserts there is a high rate of crime and it is very dangerous. 

48. She compares the prospects of her return to Israel to the situation where she is living in Australia.  She has rented a home in the northern suburbs of Sydney.  The children are enrolled in Jewish day schools in receipt of discount fees being paid by her parents.  She is in receipt of funds from Centrelink as well as charitable assistance from the Jewish community.  She was working part time until she received the Hague Convention request and thereafter she became depressed and left her employment.   

49. She requests that if a return order is to be made it should be made subject to the following conditions:

·That the father meet the airfares for herself and the four children.  

·That the father agree not to remove the children from her care without an order of the Israeli courts first having been obtained after she arrives in Israel and on proper notice to her.

·That she be provided either with the former matrimonial home or a three bedroom furnished apartment in the area where the family previously lived at the expense of the father until a further order of an Israeli court.

·That she be provided with the ownership or use of a motor vehicle adequate for the needs of herself and the children.

·That she be provided with the sum of NIS 8,000 per month by way of maintenance and child support with an advance payment to cover the first 6 months of her period with the children in Israel.

50. In response and after obtaining instructions from the father via the Israeli Central Authority the applicant proposed as follows:

·That the father pay for the air tickets for the mother and four children.

·The father provide an apartment comparable to the former matrimonial home both in size and location furnished with the furniture that the parties owned before the mother left Israel.

·That the father provide proof of the apartment being available prior to the children’s departure from Australia.  That the father meet the rental payment for the first month and one half of the rental payment per month until the matter came before an Israeli court.  (It should be noted that the evidence is the current former matrimonial home is being rented at $US700 per month which is the equivalent of NIS 3,000).

·The father provide the mother with the family car which is presently unregistered and pending its re-registration to allow her to use his mother’s car for the first month. 

·The father provide NIS 4,000 prior to the departure of the mother and children from Australia and thereafter NIS 4,000 per month until the matter is determined by an Israeli court. 

·The father provide an undertaking in writing that he will not take any legal action in Israel to prevent the children from living with their mother unless any proceedings in Israel have been concluded and unless the mother has had an opportunity to be heard in an Israeli court.

·The father have reasonable telephone contact with the children before they leave Australia and face to face contact with the children after their return to Israel.

51. I was advised by counsel for the mother that, subject to the determination of the quantum of the lump sum that should be available to the wife before she leaves for Israel and the determination of the amount that should be paid thereafter by the father by way of maintenance and child support, the conditions otherwise proposed by the father appear to be adequate.

OUTCOME

52. I do not find the resolution of this case particularly easy.  There are strong competing claims by both parents as to the outcome that they each seek. 

53. It is not clear that the circumstances surrounding the manner in which these children found themselves within Australia fit comfortably within the aims of the Convention.  Those aims as expressed in the preamble to the Convention and Article 1 of the Convention are to secure the prompt return of children wrongfully removed to, or retained in, any contracting State and to ensure the rights of custody and access under the law of one contracting State or effectively respective in other contracting States.  In the preamble to the Convention it is stated that the States signatory desire to protect children not from wrongful removals or retentions but from the harmful effect of such action. 

54. In their monograph entitled ‘The Hague Convention on International Child Abduction’, Paul Beaumont and Peter McLeavey identify at page 30 that the return of a child to his or her habitual residence under the Convention provides the opportunity for the child to resume a meaningful relationship with the dispossessed custodian and does not place that dispossessed custodian with geographical disadvantage in subsequent litigation.  The authors recognise the Convention was originally drafted where the envisaged abductor was not the primary caregiver of the children.  In its application most cases now involve an abducting mother as the primary caregiver and the left behind parent as the father.  The authors recognize at page 34 that if a return order is made the mother will not have an independent income and may not have the necessary resources to finance a lengthy legal battle. 

55. This is a case in which, in the turmoil of the breakdown of a marriage, the mother decided that life in Australia with four children would be easier for her and the four children than life in Israel.  The father at a time of high emotional turmoil appeared to agree.  He very quickly regretted that decision when it was put into practice and has consistently sought the return of the children ever since.  The practical effect of the mother living in Australia has been to deny both the father a relationship with his children and the children a relationship with their father. 

56. In ordinary circumstances it would seem to me that the dilemma posed by the competing claims of the parties, namely the father to be near his children and the mother to have the comfort and security of both the better resources available to her in Australia and the emotional support of her family of origin, are issues best determined by the court of the place where the parties decided to raise their family namely the court in Israel.  The view as to whether or not it is appropriate for the mother and children to reside in Australia on a long term basis, as it may well be, has to be weighed up against the effect that that would have on the opportunity for them to develop a meaningful relationship with their father and many other issues affecting the best interests of the children.  The courts in Israel are in my view best able to determine that issue given that that was, until recently, always the home of the children and the place where these parents envisaged raising their children from birth to adulthood. 

57. With no certain confidence that this is the right outcome, on balance, providing that reasonable financial arrangements can be made and within a reasonable time, it is my view that a return order should be made.  The return order is subject to the fulfilment of conditions precedent and if those conditions are not met then the return order should lapse.  The comments of the Full Court in McDonald and Director-General, Department Of Community Services NSW (2006) FLC 93-297; (2006) 36 Fam LR 468 at paragraph 29 about the need for conditions to be capable of being understood and met seem apposite here:

It seems to us that if conditions are to be imposed … then those conditions need to be clearly defined and be capable of being objectively measured as to whether or not the conditions have been fulfilled.  The conditions need to be met before the return can take place.  In the event that they are not met, the order needs to contain a mechanism that clearly recognises the return is no longer required to take place.  All this needs to be done within a tight timetable to meet the requirements of the Convention that is founded upon the concept that prompt return to the place of habitual residence is appropriate to protect a child from the harmful effects of its wrongful removal or retention.

58. Whilst the demands of the mother as to the amount of money to be made available to her are modest and reasonable, they need to be measured in light of the economic capacity of the father to meet them.  It is common ground from all of the material that this family was in dire economic circumstances living in Israel.  It appears from the material that many of the economic pressures that the parties were suffering from contributed to be breakdown of the marriage.  I have done my best to achieve a balance between these reasonable demands and the claims of the father to be unable to meet them.  The mother needs enough money to live on until she can approach an Israeli court for some urgent relief.  The father cannot reasonably expect her to return without that minimal requirement being met.  However, after meeting five airfares, providing NIS 8000 and the first month’s rent of an appropriate apartment, I do not think it would be reasonable to expect that he could immediately raise in advance the sum needed to support the mother and the children beyond that period.  The purpose of imposing the conditions is to ensure the safe return of the children.  The matter of ongoing support should be the concern of the Israeli courts.    

59. I propose to make the following orders :

1.That the State Central Authority and the father of the children make such arrangements as are necessary for the children YSZ born May 1988, YN born July 2000, YB born July 2002 and CM born February 2005 to return to Israel in the company of their mother Ms Kilah by mid October 2007 or other date agreed upon between the mother and the State Central Authority. 

2.That the Registrar of the Family Court of Australia (Sydney registry) hand over the passports of the above children and their mother to the legal representative of the State Central Authority upon the presentation of these orders to facilitate their return to Israel in accordance with order (1) hereof.

3.That upon the presentation of the children at Sydney International Airport for departure to Israel in accordance with order (1) the Australian Federal Police are requested to delete the Pass Alerts currently in force in relation to the children and their mother and permit their departure from Australia, and for the avoidance of any doubt, any orders that exist at that time to prevent the departure of the said children from Australia are hereby discharged.

4.That these return orders are conditional upon the father:

i.booking and paying for the air tickets of the mother and the four children to return to Israel and providing a copy of the proposed travel itinerary to the State Central Authority for forwarding to the respondent mother; 

ii.at least fourteen days prior to the proposed return date providing evidence of the former matrimonial home or equivalent accommodation both in size and location being available for the exclusive use of the mother and the children;

iii.depositing the sum of NIS 8,000 Shekels in the bank account of the mother;

iv.providing to the mother via the State Central Authority a written undertaking that :

(a)he will not take any legal action in Israel to prevent the children from living with their mother until any proceedings in Israel have been concluded and unless the mother has had an opportunity to be heard in an Israeli court;

(b)he will ensure that the mother, upon her arrival in Israel, has the use of a motor vehicle suitable for the transport of herself and the children;  and

(c)he will be responsible for the rental for the apartment to be occupied by the mother and the children for the first month after their return to Israel and thereafter be responsible for meeting one half of the rental payments until some other agreement is reached between the parties or there is an order of an Israeli court to the contrary. 

5.That if any of the conditions for the return have not been met by 31 December, 2007 then the order for the return is to lapse. 

6.That the orders made by Judicial Registrar Loughnan on 28 March, 2007 be discharged. 

POSTSCRIPT

60. I think it is appropriate that I make some observations about the history of delay in these proceedings.  It seems that the Israeli request was received in Australia by the Central Authority on 31 January 2007 but was not filed until 15 March 2007.  It may be that the Australian Central Authority required clarification of certain aspects of the request.  It is not apparent on the face of the application why there was such an extensive delay between receipt of the request and the filing of the application.

61. On its first return date on 28 March 2007 the Judicial Registrar ordered a welfare report and adjourned the hearing until 31 May 2007.  It is not apparent why a welfare report was deemed to be appropriate, but be that as it may it soon became apparent that the trial allocation on 31 May 2007 was as a reserve case that would not be reached.  The parties then organised for a certain date, namely 6 July 2007 when they were ready to proceed before Steele J. 

62. For reasons not agitated by either party, Steele J refused to hear the matter and adjourned it to another date and the earliest available date in the registry was originally late in September 2007.  When that was drawn to my attention in my role as Hague Liaison Judge I volunteered to hear the matter to expedite it.  

63. The spirit of the Convention is that the issue of the summary return of a child be promptly attended to.  Indeed regulation 15(4) provides that if an application made under the regulations is not determined within a period of 42 days commencing on the date on which the application is filed the responsible Central Authority may ask the Registrar of the court to state in writing the reason why the application has not been determined within that period.  At the time of writing this judgment not only had 42 days expired but more than 142 days had expired.  That is clearly an inappropriate timetable for a Hague Convention case to be determined in.  It is essential for the proper operation of the Convention that these applications be dealt with at a far less leisurely pace than was accorded to this application.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate: 

Date:  29 August 2007