Gershon and Gershon

[2019] FamCA 682

FAMILY COURT OF AUSTRALIA

GERSHON & GERSHON [2019] FamCA 682

FAMILY LAW – CHILDREN – INTERNATIONAL TRAVEL – Where the father makes an application to take the subject child overseas to Israel – Where the father lives in Israel with the parties’ eldest child – Where the mother opposes the application – Where the mother contends the father may not return the child – Where the mother has the primary care of the parties’ middle child, who has significant intellectual disabilities – Where the mother contends that she needs respite from this care – Where the mother would consent to the father taking both children to Israel – Where the middle child is not in a position to travel extensively – Where it is in the best interests to allow overseas travel for the subject child as proposed by the father – Orders made.

Hague Convention on the Civil Aspects of International Child Abduction.
APPLICANT:	Mr Gershon

RESPONDENT: Ms Gershon

FILE NUMBER: SYC 6868 of 2018

DATE DELIVERED: 23 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 23 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Blank

SOLICITOR FOR THE RESPONDENT: UX Law Pty Ltd

Orders

IT IS ORDEREDBY CONSENT

1. That the children X born … 2006 and Y born … 2010 be removed from the Airport Family Watchlist, and that the Australian Federal Police give effect to this order by removing the names of the said children from the Airport Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia immediately.

2. That should the mother wish to take the children overseas, the following provisions apply:

   2.1The period that the mother wishes to travel with the children shall occur during the children’s school holiday periods;

   2.2The mother shall provide the father no later than 21 days’ notice prior to the date of travel with particulars of the trip including dates of travel, destinations, accommodation arrangements, contact details for the children whiles overseas, and copies of all bookings made for flights and accommodation; and

   2.3That the mother be restrained from taking the children to any countries which are not signatories to and have in force with Australia, the Hague Convention on the Civil Aspects of International Child Abduction.

IT IS ORDERED

1. That the father be permitted to travel with the child Y to Israel on flights leaving Australia between 26 September 2019 and 30 September 2019.

2. That the father return Y to the mother at Brisbane or the Gold Coast Airport on 12 October 2019.

3. That the mother provide the father with Y’s Australian and Israeli passports when the father collects the children on 24 September 2019.

4. That the father provide the mother with Y’s flight details as soon as flights have been booked.

5. That the father return Y’s passports to the mother when Y is returned to her care.

6. That pursuant to Sections 65DA(2) and 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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 Gershon & Gershon 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 SYDNEY

FILE NUMBER: SYC 6868 of 2018

Mr Gershon

Applicant

And

Ms Gershon

Respondent

REASONS FOR JUDGMENT

1. Mr Gershon (“the father”) and Ms Gershon (“the mother”) are the parents of three children: Z who was born in 2003, X who was born in 2006 and Y who was born in 2010.

2. Between 2008 and 2017, the family lived in Israel. Y was born in Israel. In 2017 the family moved to Australia and the relationship between the parents broke down. They separated in June 2017, the children remaining in the care of the mother.

3. In December 2017, the father and Z returned to Israel where they have since lived. Although the mother asserts that she did not consent to Z living in Israel, there is no evidence that she made any attempt to stop her doing so and when, in March 2019, Z returned to Australia to spend time with her mother and siblings, she returned to Israel without objection from the mother.

4. On 24 January 2019, consent orders were made in parenting proceedings. Those orders included a provision that Z live with the father in Israel and spend time with the mother in accordance with her wishes. The orders provided a notation that the father consented to the jurisdiction of the Family Court of Australia in relation to parenting issues and that he discontinue proceedings which he had instituted in Israel.

5. Relevantly, in relation to the matter now before the Court, the following matters were noted:

   (d)For the purpose of any proceedings concerning either of the children, in any jurisdiction, the parties agreed:

   i.The habitual place of residence of the children and the mother is Australia;

   ii.The father and the mother have and are exercising rights of custody in Australia and will be continuing to do so pursuant to Australian law, notwithstanding the children’s travel in accordance with these orders.

6. The application now before the Court is the father’s application to take Y to Israel for a period of up to 16 days which encompasses the Jewish high holidays of Rosh Hoshanah, the Fast of Gedaliah and Yom Kippur.

7. Israel is a signatory to the Convention on the Civil Aspects of Child Abduction (“the Hague Convention”).

8. The mother opposes the father’s application. In her response she sought an order that the father be restrained from taking any child outside the Commonwealth of Australia.

9. In her case outline she gave two reasons for her opposition:

   ·    That the orders made in January 2019 required the father to spend time with both X and Y. The mother’s case is that she needs respite from caring for X and that the father should be maximising his time with both children.

   ·    That the father is a flight risk. The mother relies on the fact that Z is living with the father in Israel and that the father instituted, but discontinued, proceedings in Israel in relation to parenting.

10. Somewhat surprisingly, having regard to her case outline and the terms of her response, at the commencement of submissions, counsel for the mother told the Court that the mother had no objection to the father taking both X and Y to Israel. Her objection was confined to the father’s taking Y only. Thus I propose to deal with the mother’s objection as being based only on the father’s proposal to separate the children.

11. There is no dispute that X has complex disabilities. The mother deposed:

    [X] has grown and developed into an outgoing, adventurous 13-year-old teenager. Her communication skills have improved. Despite her significant special needs [X] very much enjoys having sleepovers and going away to new places.

    My experience with [X] is that her conditions improve when she is treated like other teenagers wherever possible. There is absolutely no requirement (medical or other) that [X] stay at the family home when she spends time with the father.

12. That evidence is somewhat at odds with the submission made by Counsel for the mother that:

    The January orders required the [father] to [spend time with] both children. This was to give the [mother] respite especially from the very high demands of attending to [X’s] needs. That is not to say that the [mother] is not being child focused. On the contrary, she wants to be the best parent she can be to [X] but needs some respite to achieve this.

13. In relation to X the father deposed:

    I do not propose that [X] undertake travel to Israel. This is because of her disabilities that are a significant limitation for her. The long flights to Israel of some 26 hours airborne are way too difficult for [X]. [The mother] and I have always been in agreement about this. When [the mother] has travelled to Australia yearly during our 10 years in Israel, she never took [X] with her, only Z and [Y], whilst I stayed back to care for [X].

14. The father deposed that X is medicated with a strict regime of Ritalin and medical cannabis. Without cannabis she becomes agitated and destructive. The father deposed that it is not legal to travel with cannabis and that it cannot be purchased in Israel. He deposed that the only way that X could make the trip to Israel was if she were sedated for the flight which would then cause her to be disoriented and distressed on arrival.

15. The mother’s evidence did not address X’s ability to travel to and from Israel.

16. I reject the submission on behalf of the mother that the orders made in January 2019 require the father to spend time with both of the children together at all times. If the orders were to contain such a provision, it would have been specifically stated.

17. Nor do I accept that, because, on the evidence currently available, X cannot travel, Y should not be able to.

18. Each of the children has different needs. Y’s interests cannot be subjugated to those of his sister unless that is demonstrably necessary.

19. There are benefits to Y of the proposed trip.

20. His sister Z lives in Israel and he will be able to spend time with her. Further his half-sister W (the father’s child of a previous relationship) lives in Israel as do his extended paternal family including aunts, uncles and cousins.

21. He will have the opportunity to experience again the Jewish culture and environment that he left when he was six years old and to hear and speak Hebrew again.

22. It is important that Y experiences the lifestyle, culture and traditions of his paternal family. 

23. He will see and become familiar with the home where his father and sister live which will make his electronic communication with them more meaningful when he is able to remember and envision the places they talk about.

24. X is 13 years old and Y is nine years old. It is inevitable that, as they grow up, their needs will be different from time to time and Y’s needs will develop differently from those of his sister.

25. I accept that X may be unhappy if Y goes to Israel and she does not, but I consider that the benefits to Y from the experience outweigh that consideration.

26. Neither party addressed the issue of the return of Y’s passport to the mother upon his return but, if the mother is to travel with the children she will need the passports so the orders will provide that the passports be returned to the mother.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees J delivered on 23 September 2019.

Associate:

Date: 23/09/2019