Kilah and Director-General, Department of Community Services (No. 2)
[2008] FamCAFC 122
•8 August 2008
FAMILY COURT OF AUSTRALIA
| KILAH & DIRECTOR-GENERAL, NSW DEPARTMENT OF COMMUNITY SERVICES (NO. 2) | [2008] FamCAFC 122 |
| FAMILY LAW - CHILD ABDUCTION – STAY – where the trial judge found that the parties’ four children were habitually resident in Israel at the time of their retention in Australia by the mother – where the trial judge found that the applicant’s retention of the children in Australia was wrongful – where the trial judge ordered the applicant to return with the children to Israel – where the decision of the trial judge was upheld by the Full Court – where special leave to appeal to the High Court has been sought by the applicant – where the applicant has applied to the Full Court for a stay of the orders requiring return – whether there is a substantial prospect that special leave to appeal will be granted – whether the respondent would suffer loss if the stay was granted – stay granted – conditions imposed |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) High Court of Australia Rules 2004 (Cth), r 41.02 |
| Jennings Construction Ltd & Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681 De L & Director General, NSW Department of Community Services and Anor (1996) 187 CLR 640 Bryant and Commonwealth Bank of Australia (1996) 134 ALR 460 Johnson & Rzetelski (1989) 64 ALJR 142 In re H (Minors) Abduction: Acquiescence) [1998] AC 72 Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321 |
| APPLICANT: | Mrs Kilah |
| RESPONDENT: | Director General, NSW Department of Community Services |
| FILE NUMBER: | SYC | 1848 | of | 2007 |
| APPEAL NUMBER: | EA | 115 | of | 2007 |
| DATE DELIVERED: | 8 August 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane (by video link to Sydney) |
| JUDGMENT OF: | Bryant CJ, Finn and Thackray JJ |
| HEARING DATE: | 7 August 2008 |
| LOWER COURT JURISDICTION: | Full Court of the Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 June 2008 |
| LOWER COURT MNC: | [2008] FamCAFC 81 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Reynolds SC with Ms Hartstein |
| SOLICITOR FOR THE APPELLANT: | New South Wales Department of Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Hamilton |
| SOLICITOR FOR THE RESPONDENT: | Andrew Hamilton, Solicitor |
Orders
That the orders of the Full Court of the Family Court made on 4 July 2008 be stayed up to and including the disposition of the application for special leave to appeal to the High Court of Australia, filed on behalf of the applicant mother on 22 July 2008.
That the mother:
(a) by 4.00 pm on Monday 11 August 2008 file an undertaking in the form prescribed by the Family Law Rules 2004 (Cth) that in the event the father loses money as the result of the cancellation of any airfares purchased by him for the mother and children to return to Israel, the mother will reimburse the father for such loss, limited to the sum of $1500 United States dollars; and
(b) prosecute the application for special leave to appeal with all reasonable expedition.
That:
(a) the mother forthwith refund or cause her solicitors in Israel to refund to the father the sum of 8000 new Israeli shekels paid by him to the mother’s Israeli solicitors pursuant to orders made by the Full Court on 4 July 2008; and
(b) in the event that the application for special leave is refused or, if granted, the appeal is ultimately dismissed, the father repay the sum of 8000 new Israeli shekels to the account provided in the order at a time agreed or otherwise ordered.
That in the event that the mother fails to comply with these orders there be liberty to the parties to re-list the matter before the Full Court to apply to discharge the stay or otherwise apply in relation to the stay and these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kilah & Director-General, NSW Department of Community Services (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE (BY VIDEO LINK TO SYDNEY) |
Appeal Number: EA 115 of 2007
File Number: SYC 1848 of 2007
| Mrs Kilah |
Applicant
and
| Director General, NSW Department of Community Services |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 June 2008 the Full Court of the Family Court of Australia handed down a decision dismissing an appeal by the mother from orders made by Kay J on 29 August 2007 ordering the return to Israel of four children pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) which give effect to Australia’s obligations under the Hague Convention on Civil Aspects of International Child Abduction 1980 (“the Convention”).
On 4 July 2008 the Full Court made machinery orders for the return of the children to Israel, including that they be returned no earlier than 15 August 2008 and no later than 30 September 2008. The father ultimately arranged for tickets for the children to return on 2 September 2008.
The applicant mother has now filed an application in the High Court of Australia seeking special leave to appeal and filed an application on 1 August 2008 to the Full Court seeking that the orders of the Full Court made on 4 July 2008, which reactivated the return of the children to Israel, be stayed up to and including the disposition of the application for special leave to appeal to the High Court, filed on 22 July 2008.
An affidavit filed by the mother does no more than annexe a copy of the application for special leave to appeal.
The orders made by the Full Court imposed conditions on the return consistent with those imposed by the trial judge. The conditions included that the father:
deposit the sum of NIS 8,000 Shekels in the bank account of the mother by 1 August 2008 provided that the mother has notified the State Central Authority on or before 11 July 2008 of:
(a) the name and address of the bank
(b) the name under which her bank account is operated
(c) the branch and account numbers
and
provide a written undertaking to the mother via the State Central Authority by 1 August 2008 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
(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.
Legal principles applicable to a stay application
The decision to grant or not grant a stay to preserve the subject matter of litigation pending an appeal is an exercise of a discretionary power. The principles governing the exercise of the discretion are set out by the High Court in Jennings Construction Ltd & Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681; De L & Director General, NSW Department of Community Services and Anor (1996) 187 CLR 640 and Bryant and Commonwealth Bank of Australia (1996) 134 ALR 460. In Jennings Construction Ltd & Burgundy Royale Investments Pty Ltd (No. 1) (supra) Brennan J (as he then was) said the following at paragraph 7:
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider - first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
In De L & Director General, NSW Department of Community Services and Anor (supra), a case involving an application for a stay of an order of the Full Court of the Family Court in a Hague Convention matter, Gummow J cited with approval the relevant principles identified by Brennan J in Jennings Construction Ltd & Burgundy Royale Investments Pty Ltd (No. 1) (supra).
In considering the prospects of success in gaining special leave in Bryant and Commonwealth Bank of Australia (supra) Kirby J said at paragraph 12:
In an application for a stay, adjunct to an application for special leave to appeal, it is necessary to consider the applicant's prospects of success in gaining special leave. But that consideration will not pre-empt the separate determination of that issue which is left to the Court, differently constituted, usually with a fuller understanding of the issues involved and with the benefit (typically) of more detailed written, and (usually) more focussed oral, submissions. A decision on a stay application should not become an occasion for a detailed analysis of the issues that will arise in the special leave application and, if granted special leave, the appeal. Necessarily, the evaluation of the prospects of success will involve a judicial impression. But it is one that does not pre-determine, one way or the other, the substantive application.
The trial judge’s reasons for judgment
The case presented to the trial judge was an application by the Central Authority, in this case the Director-General of the NSW Department of Community Services, for the return of four children to Israel pursuant to the Regulations. The case was not one of a wrongful removal but rather of a wrongful retention, the mother and children having come to Australia for an initial period of three months with the consent of the father.
Under the rubric of the necessity to determine whether at the time of wrongful retention the children were habitually resident in Israel or Australia, the trial judge was required to consider the events surrounding the circumstances in which the mother and children came to Australia. In short, the mother asserted 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 them in Australia. The father asserted 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. This proved to be the crucial issue before the trial judge.
His Honour made very relevant findings set out at paragraph 20 of the judgment of the Full Court, as follows:
· 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 (paragraph 21).
· 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 (paragraph 24).
· 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 (paragraph 25).
· 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 (paragraph 25).
The Full Court went on to state in paragraph 21:
Applying the facts to the law, his Honour found that there was nothing wrongful in the mother’s initial removal of the children from Israel or her initial retention of the children in Australia. He then found that, notwithstanding that the father consented to the children being retained in Australia, once the father subsequently withdrew his consent, 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.
Curiously, the question of habitual residence, which is now the centrepiece of the application for special leave, was not raised by the mother but by Kay J, who noted 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. His Honour suggested that such an outcome may have been open on the facts asserted and that led the mother’s counsel to amend his Response to include as a ground for objection that “the children were not habitually resident in Israel at the date of the filing of the application”. His Honour then went on to consider that argument and rejected it, concluding at paragraph 38 of his reasons for judgment that:
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.
Thus, his Honour rejected the argument that the children were not habitually resident in Israel at the time of their wrongful retention, found that the father consented to the children leaving Israel and being retained in Australia but had then withdrawn that consent and in such circumstances the Court retained a discretion under the Regulations to refuse to make an order for the return of the children to Israel.
Kay J rejected the defence of ‘grave risk’ argued pursuant to reg 16(3)(b) of the Regulations. This argument was that the return of the children to Israel would expose them to physical harm on the basis that to order their return would be to effectively return them to a war zone.
His Honour considered the matters he should take into account in the exercise of his discretion and whether he could impose conditions on the return. Noting that he did not find the resolution of the case particularly easy as there were strong competing claims by both parents as to the outcomes they sought, his Honour noted that the practical effect of the mother living in Australia had been to deny the father a relationship with the children and the children a relationship with their father and did not exercise his discretion to refuse to make an order for the return of the children. His Honour ultimately made orders, subject to various conditions, that the children be returned to Israel.
The Full Court’s reasons for judgment
On appeal, the 16 grounds were conveniently grouped into four issues:
a)the habitual residence argument
b)the grave risk and intolerable situation arguments
c)errors in the exercise of discretion to refuse to order the children’s return to Israel
d)the adequacy of the conditions imposed.
The Full Court upheld the trial judge’s finding that the children were habitually resident in Israel at the time of their wrongful retention, upheld the trial judge’s rejection of the grave risk and intolerable situation arguments, could find no error by his Honour in the exercise of his discretion to refuse to order the children’s return to Israel and found no error in relation to the conditions imposed.
The stay application
Necessity to preserve the subject matter of the proceedings
The applicant submits that the stay is required to preserve the subject matter of the litigation, namely the continued residency of the children in Australia (pending the determination of her application for special leave to appeal). The applicant contends that to refuse a stay would render her right to seek special leave to appeal nugatory and it could unnecessarily, or unfairly, interfere with the existing arrangements for the care of the children.
The Central Authority submitted a stay is unnecessary to preserve the subject matter of the litigation because, if the four children and mother return to Israel, it cannot be said that the subject matter of the proceedings has been destroyed and there is no reason why they cannot return to Australia. If the mother obtains special leave, it is submitted, her appeal will not be rendered nugatory if a stay has not been granted. In the meantime, it is submitted, the children will be able to have the benefit of a relationship with both their mother and their father (which they are presently denied).
Shortly prior to the hearing in relation to the stay, the Central Authority filed an affidavit annexing various material but relevantly an undertaking by the father that:
a)if the stay was not granted and the children were returned to Israel, he would ensure the children were returned to Australia if the appeal was successful. He would not implement any proceedings to prevent their return in accordance with the High Court’s decision, and
b)in such circumstances he would pay for the airfares for the children and mother to return to Australia.
This proposal however is not without its problems. There is no obvious means of the father’s undertaking being enforced in Australia. There would need to be some kind of security put in place and probably the addition of some kind of mirroring orders registered in the Israeli courts to give efficacy to such a proposal. No submissions were directed as to how this might be achieved.
Furthermore, on this issue, the mother’s counsel contended that as the Convention is really about the return of the children to the appropriate forum then once the children were returned there would be no extant controversy upon which the High Court could adjudicate and thus the point would be moot. In response to this submission, senior counsel for the Central Authority contended that the matter would not arise because there would be no opportunity to put further material before the High Court. However, the practical application of this would seem to suggest otherwise. For example, in Johnson & Rzetelski (1989) 64 ALJR 142 at 143, in dealing with a special leave application from the Full Court of the Family Court, the High Court said:
There are strong reasons why this Court should not embark upon the determination of questions which, in the light of what we now know, may prove to be academic or hypothetical...In view of what we have now been told, we cannot proceed in the confident expectation that the appellant did sustain a significant loss by reason of the respondent’s failure to comply with the order in the Family Court. (emphasis added)
In MW v Director-General of the Department of Community Services [2007] HCATrans 490 (31 August 2007) Gummow J asked on the special leave application whether a stay had been granted. We doubt that if the High Court were able to be informed that a stay had not been granted and the children had been returned, and were made aware of the undertakings by the husband, that they would refuse to entertain the application on the basis that there was no extant controversy but it remains a possibility, albeit a remote one. The stronger argument in our view is that the undertakings given by the father would be difficult to enforce and that to be certain that the subject matter of the litigation is preserved, a stay would be prudent.
Prospects of success on special leave
The next consideration is whether there is a substantial prospect that special leave will be granted. Special leave is sought only in relation to the habitual residence issue (and consequentially the Full Court’s refusal to admit further evidence relevant to this ground). It is thus not necessary for us to discuss any other grounds that were argued before the Full Court.
Before the Full Court (but not before the trial judge) the respondent mother submitted that the Full Court should follow the principles adopted by the New Zealand Court of Appeal in relation to habitual residence in application of the Convention and in particular the decisions of SK v KP [2005] 3 NZLR 590 and confirmed by all five judges of the New Zealand Court of Appeal in Punter v Secretary for Justice [2007] 1 NZLR 40. The mother submitted that these New Zealand principles required a broad factual inquiry of all factors relevant to determining the habitual residence of a child, of which the settled intention of the parents is an important but not necessarily decisive factor.
Specifically, counsel for the mother invited the Full Court to depart from Australian and English authority in favour of the New Zealand cases. A broad factual inquiry of all factors relevant to determining the habitual residence of children is not the central inquiry in the Australian and English cases and previous decisions of the Full Court in relation to habitual residence follow the English approach, in which a settled purpose is a necessary and integral part of a finding of habitual residence. Such cases include Cooper & Casey (1995) FLC 92-575; DW v Director-General, Department of Child Safety (2006) FLC 93-255; HBH & Director-General, Department of Child Safety (Qld) (2007) 36 Fam LR 333; Panayotides & Panayotides (1997) FLC 92-733; Re B (Minors) (Abduction) (No. 2) [1993] 1 FLR 993; Re J. (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562; State Central Authority v McCall (1995) FLC 92-552; Department of Health and Community Services v Casse (1995) FLC 92-629;
M & M (Abduction: England and Scotland) [1997] 2 FLR 263; Cameron & Cameron [1996] SC 17; and Dixon v Dixon 1990 SCLR 692.We should add for completeness that at paragraph 69 of the reasons for judgment of the Full Court, the Full Court noted that the mother submitted that his Honour’s failure to conduct a broad factual inquiry was an error and that there were a number of factors which his Honour should have taken into account. The Full Court noted at paragraph 70:
These were all matters that occurred prior to the mother leaving Israel and in our view take the matter no further. His Honour made findings about the basis upon which the mother came to Australia and those findings, which were not challenged, included the fact of purchase of return tickets. … Thus these facts raised by the mother, which all occurred prior to her departure, are neither consistent nor inconsistent with the settled intention or the acquisition of a new habitual residence asserted by the mother.
In relation to the further evidence sought to be introduced in support of this ground, the Full Court found “[m]ost of the above events occurred prior to August and some of them occurred prior to the father indicating to the mother that the marriage would not continue and are therefore neither consistent nor inconsistent with the children’s habitual residence remaining in Israel.”
Finally, at paragraph 74, the Full Court said:
Despite the invitation from counsel for the appellant to depart from previous Australian and English authority, we do not need to resolve the apparently significant departure of the New Zealand courts from that authority. In his judgment in SK v KP (supra), Glazebrook J said the differences may in the end not be as great as they initially appear. In particular, even if we were to follow the New Zealand authorities, as invited, McGrath J, with whom Glazebrook J agreed, at paragraphs 20 and 21, said:
To my mind, in this context, a principle of particular importance is that the Court having jurisdiction should be slow to infer that there has been a loss of habitual residence arising from the prolonging of a child’s stay in a new state beyond original expectations without protest or countering action because of the desire to achieve a reconciliation or reach an agreement between parents on arrangements for custody. Otherwise there will be disincentives to parents consenting to children travelling to stay with family members in other states, and correlative incentives on parents to take precipitate action where stays are extended or sought to be extended in circumstances such as the present.
A relatively short period of extension in the course of attempted reconciliation, with a view to reaching agreement, in general should not change habitual residence as to allow it to do so would not serve the policies of the Convention.
On a full reading of those cases there is some doubt as to the extent to which the New Zealand authorities do depart from previous authorities in the manner submitted. However, in our view there is sufficient departure by the New Zealand Court of Appeal from previous English and Australian authorities on this issue to raise as a matter of public importance the issue of how, assuming such a departure, Australian courts, including the intermediate appeal court, are to determine the question of habitual residence and whether the English authorities as previously followed by the Full Court or the New Zealand authorities are to be preferred.
The Central Authority submitted that mere divergence of authority on this issue would not warrant the grant of special leave. They submitted there is no conflict within Australia which requires a decision of the High Court to resolve differences of opinion and the matter is not one of public importance, nor do the interests of justice require the High Court to rule on the issue. We do not agree with this submission. If there is a determination that the New Zealand authorities significantly depart from other English and Australian intermediate court authorities, there is in our view an important matter which the High Court would need to determine. Furthermore, the English and Australian authorities are not themselves so clear that it could be said that the High Court would not consider the matter worthy of some further clarity.
The subject matter of this application is the Hague Convention on the Civil Aspects of International Child Abduction. It is an international convention pursuant to which Australia has obligations. We agree with what was said by Lord Browne-Wilkinson in In re H (Minors) Abduction: Acquiescence [1998] AC 72 at 87 that international conventions cannot be construed differently in different jurisdictions and that “the Convention must have the same meaning and effect under the laws of all contracting states”. As May and Thackray JJ said in Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321 at paragraph 108 “that ideal is more easily stated than attained” but it is a worthy objective.
If the High Court were to find the New Zealand authorities were to be followed in preference to the earlier English authorities, there remains the question of whether or not a broad factual inquiry would assist the mother in this case. Senior counsel for the Central Authority submitted that the prospects of success of the special leave application were “slim indeed” and this was not an appropriate vehicle for consideration of the elements of habitual residence because the Full Court stated at paragraph 74 that it did not need to resolve the “apparently significant departure of the New Zealand courts from that authority.” However, the Full Court’s conclusion that the broad factual inquiry did not assist the mother was determined through the prism that settled purpose was an integral finding of habitual residence. Thus we are satisfied that there is a substantial prospect that special leave would be granted. A divergence of authority between English, Australian and New Zealand courts, and for that matter courts of other countries involving the Hague Convention, is a matter of public importance in our view and one upon which the High Court might reasonably be expected to rule.
Loss to the respondent
A number of conditions were imposed by Kay J. They included 8000 new Israeli shekels being deposited in the bank account of the mother and air fares being purchased for the children, as well as accommodation being made available in Israel. It appears from the material filed that the father has complied with the conditions and in particular has deposited the funds required into the mother’s account and purchased five tickets to Israel in accordance with the Full Court’s orders of 4 July 2008. The tickets are said to be refundable upon forfeiture of a fee of $300 USD per ticket if cancelled before 10 August 2008. If the cancellation takes place later it will be a greater loss. The evidence suggests the tickets cannot be transferred to other, later flights although there is some uncertainty about this.
Senior counsel for the Central Authority further submitted that the respondent has suffered expense and inconvenience in attempting to organise the return of the children to Israel. This is not particularised and we are not in any event satisfied there is any basis for an order or condition that would require an undertaking to generally recompense the father.
There are two matters however that we consider should be required of the mother if a stay is to be granted. The first is to allow the father to recover the 8000 new Israeli shekels paid to the mother’s solicitor in Israel pending the application for special leave and, if successful, the appeal itself. In the event that special leave is not granted or it is granted and the appeal is ultimately unsuccessful and the children are required to return to Israel then we will provide for the father to repay that sum to the mother’s solicitor. As there will be some time elapsing prior to the special leave application being heard, and if special leave is granted, prior to the appeal being heard, we see no reason why the father should not have access to those funds in the interim.
The second matter relates to the loss which the father may occasion as a result of the requirement to cancel the tickets. The mother conceded that she waited until the father had fulfilled the conditions attached the orders of 4 July 2008 before applying for a stay and concedes that the father was not notified of the possibility she might seek a stay any time prior to the acquisition of tickets. The mother’s counsel submitted that because the father knew a special leave application had been filed, he should have known that a stay might be sought and that accordingly it would have been prudent to purchase flexible tickets. We do not accept that this was a reasonable assumption on the part of the mother. No doubt the father was acquiring the cheapest tickets he could and the mother did not notify him of the possibility of an application for a stay. It is likely there will be loss to the father, however in our view that loss can be compensated by requiring the mother to enter into an undertaking to reimburse the father for any loss occasioned by him in relation to the purchase of the air tickets to Israel. However, the father now has the opportunity to mitigate any further loss by cancelling the tickets expeditiously. The undertaking should be limited to the loss which he says has already been incurred of $1500 USD.
Balance of convenience
The Central Authority submits that one of the conspicuous features of this case is the failure of the mother to move with due speed in filing her application for special leave and in seeking a stay of the Full Court’s orders. Considerable correspondence was entered into between the mother’s representative and the respondent in relation to the arrangements for return and still no application for a stay was made during this period. The application for special leave to appeal was filed on 22 July 2008, the last day for filing the application under the
High Court of Australia Rules 2004(Cth). In the meantime, it was asserted arrangements had been made by the respondent and the father and consequential expense incurred.
We do not consider this a factor to be weighed against the mother in considering the balance of convenience. The mother filed her application within the time required under the High Court of Australia Rules 2004 (Cth)
(r 41.02), albeit at the last opportunity. The consequence of not having advised the father earlier that she intended to apply for a stay was that the father has incurred cost, but that can be dealt with in the manner we have suggested.
The other relevant matter in our view is the fact that the children will not return to Israel as envisaged and the father and children will continue to be separated. That is, in our view, a relevant consideration. However, we balance that against the disruption to the mother and children in returning to Israel if the High Court were to grant special leave and allow the appeal and the mother and children then returned to Australia. While on one hand this might enable a period of time to be spent with the children and their father, it would also have the inevitable effect of disrupting schooling and peer relationships and, on balance, while the reestablishment of a relationship with the father cannot be underestimated, we consider the balance of convenience supports the granting of a stay. We note also that the father has been able to purchase airfares and,
at least if reimbursed by the mother, may be in a position to visit the children in Australia pending the special leave application.
In addition, in coming to this conclusion, we take into account that this was not a case of wrongful removal but rather wrongful retention. The trial judge noted that he did not find the resolution easy and that it was a case in which the principles of the Convention did not necessarily fit well.
Conditions if stay granted
We have dealt with these matters in paragraphs 33 and 34 and otherwise to indicate we propose to impose some conditions. We need say no more on this issue.
Conclusion
For the reasons indicated, it is our view that it is appropriate that there should be a stay of the orders of the Full Court made on 4 July 2008
up to and including the disposition of the application for special leave to appeal.
We propose to order that the mother provide an undertaking in the form we discussed with her counsel. In the event that she fails to give that undertaking or fails to prosecute her application for special leave with reasonable expedition, there will be liberty to re-list the matter to apply to discharge the stay. We otherwise propose to give liberty to apply in relation to these orders.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 8 August 2008
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