Secretary, Department of Families, Fairness and Housing & Fallah
[2023] FedCFamC1F 195
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Families, Fairness and Housing & Fallah [2023] FedCFamC1F 195
File number(s): MLC 4756 of 2022 Judgment of: WILLIAMS J Date of judgment: 28 March 2023 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where the respondent mother retained a young child in Australia – Habitual residence – Where the child was habitually resident in Israel immediately prior to the date of retention – Where all other jurisdictional facts were conceded – Where the jurisdictional facts are satisfied to establish the child was wrongfully retained in Australia – Regulatory exceptions – Consent and acquiescence – Grave risk and intolerable situation argument – Where the mother has not discharged her onus – Child to return to Israel – Return order made. Legislation: Evidence Act 1995 (Cth) ss 128, 140
Family Law Act1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16
Cases cited: Commonwealth Central Authority & Cotter [2016] FamCA 209
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401
Gsponer v Director–General of Community Services, Victoria (1989) FLC 92-001
HZ & State Central Authority [2006] FamCA 466
In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Police Commissioner of South Australia v Temple (1993) FLC 92-365
Re A & Anor (minors) (abduction: acquiescence) [1992] 1 All ER 92
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294
Re H (Minors) [1998] AC 72
Re K (Abduction): Consent [1997] 2 FLR 212
Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44
State Central Authority & Abdalle [2012] FamCA 1151
State Central Authority & Sigouris [2007] FamCA 250
State Central Authority & Te Mata [2016] FamCA 85
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Wenceslas & Director-General, Department of Community Services [2007] FamCA 398
Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147
Division: Division 1 First Instance Number of paragraphs: 300 Date of last submissions: 1 March 2023 Date of hearing: 3–4, 6–7, 11, 26–28 October, 23–24, 30 November, 14, 16, 19–20 December 2022, 3 February 2023 Place: Melbourne Counsel for the Applicant: Ms Harris Solicitor for the Applicant: Department of Families, Fairness and Housing, Legal Services Branch Counsel for the Respondent: Mr Heggie (3 October – 23 November 2022) Solicitor for the Respondent: Lander and Rogers
Litigant in person (from 24 November 2022)ORDERS
MLC 4756 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
Applicant
AND: MS FALLAH
Respondent
order made by:
WILLIAMS J
DATE OF ORDER:
28 march 2023
THE COURT ORDERS THAT:
1.The child, X born 2020 (“the child”), be returned to Israel pursuant to the Family Law (Child Abduction Convention) Regulations 1986 by the applicant State Central Authority or it’s nominee, noting that the requesting father has said he will travel to Australia to accompany the child to return to Israel.
2.The Australian Central Authority notify the Israeli Central Authority of the father and child’s date of departure.
3.Order 6 of the orders made 9 May 2022 is hereby discharged and the applicant State Central Authority or it’s nominee authorised in writing is permitted to collect the child’s passport.
4.Pending the child’s departure from Australia for return to Israel, the respondent mother continue to be restrained and an injunction issue restraining her from causing or permitting or suffering the child:
(a)to be removed from the Commonwealth of Australia and in this regard all officers of the Australian Federal Police be directed to enforce, if required, the provisions of such order;
(b)to apply for any further or other passport or passports for the child;
(c)to be removed from Victoria;
(d)to reside anywhere other than her present residential address or any other residence at which the applicant has agreed that the said child may reside.
5.Order 4 of these orders remain in force, until a letter from the applicant is received by the Australian Federal Police advising of the travel arrangements made for the child’s return to Israel AND IT IS REQUESTED that the Australian Federal Police remove the name of the child, X, born 2020 from the Airport Watch List upon presentation for boarding the nominated flight to Israel on the date nominated for the said travel.
6.A sealed copy of these orders be provided forthwith to the Marshal of the Federal Circuit and Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
7.The Marshal of the Federal Circuit and Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to these orders.
8.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
9.Otherwise, the Application of the Secretary, Department of Families, Fairness and Housing be and is hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Department of Families, Fairness and Housing & Fallah has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
INTRODUCTION
This is an application by the Secretary, Department of Families, Fairness and Housing (“the State Central Authority”) filed on 6 May 2022 seeking the return to Israel of the child, X born 2020, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Fallah, is the mother of the child. The requesting parent, Mr B who lives in Israel, is the father of the child.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal/retention of a child from his/her country of habitual residence. Both Australia and Israel are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant 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, institution or other body 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
(e)at the time of the child’s removal or retention, the person, institution or other body:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(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; or
(c) each of the following applies:
(i) the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
Note 1:In considering whether the matter mentioned in paragraph (3)(b) is established:
(a)the court may have regard to any risk that the return of the child under the Convention would result in the child being subject to, or exposed to, family violence; and
(b)the court may have regard to the extent to which the child could be protected from any such risk if the child was returned under the Convention; and
(c)the court may have regard to the matters mentioned in paragraphs (a) and (b) of this note regardless of whether the court is satisfied that family violence has occurred, will occur or is likely to occur.
Note 2:For the definition of family violence, see section 4AB of the Act.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
(6)If:
(a)the court is considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b); and
(b)a party to the proceedings, or an independent children’s lawyer who represents the interests of the child in the proceedings, raises in the proceedings any condition that could, for the purpose of reducing a risk mentioned in paragraph (3)(b), be included under paragraph 15(1)(c):
(i)in a return order for the child; or
(ii)in any other order that the court proposes to make under paragraph 15(1)(b) in relation to a return order;
the court must consider whether it would be appropriate to include the condition.
(7)In considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b), the court may have regard to any other measures that would be reasonably likely to reduce the risk mentioned in paragraph (3)(b).
(8)Subregulations (6) and (7) do not limit the matters to which the court may have regard in considering whether to refuse to make an order under subregulation (1) or (2) on the basis of the matter mentioned in paragraph (3)(b).
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully removed/retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
In this case, counsel for the State Central Authority cross-examined the mother, the maternal grandmother, Ms C (friend of the mother) and Dr D, clinical and forensic psychologist. Counsel for the mother cross-examined the requesting father and his mother.
The State Central Authority asserts that the child has been wrongfully retained in Australia subsequent to her removal from Israel, in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child’s retention;
(b)the child is under the age of 16;
(c)the child was habitually resident in Israel as at the date of retention;
(d)the requesting parent, the father, has rights of custody in relation to the child, which he was exercising immediately prior to the child’s retention; and
(e)the mother of the child was in breach of the father’s rights of custody.
The mother conceded:
(a)the application for a return order was filed within 12 months of the day that it is alleged that the child was wrongfully retained (reg 16(1)(b));
(b)the child is under 16 years of age (reg 16(1A)(a));
(c)the father had rights of custody in respect of the child in Israel on the date on which it is alleged that she was wrongfully retained in Australia (reg 16(1A)(c)); and
(d)the father was exercising the rights of custody at the time of retention (reg 16(1A)(e)).
The mother opposes the application for return and asserts the child was not wrongfully removed to or retained in Australia, because the child was not habitually resident in Israel immediately before the removal of the child or the alleged retention date (reg 16(1A)(b)).
The mother also relies on regulatory exceptions to return, namely:
(a)the father consented to the child’s removal and retention in Australia (reg 16(3)(a)(ii));
(b)subsequent to the alleged retention date, the father acquiesced to the child remaining in Australia (reg 16(3)(a)(ii)); and
(c)there is a grave risk that returning the child to Israel would expose her to physical or psychological harm or otherwise place her in an intolerable situation (reg 16(3)(b)).
Once the jurisdictional facts are met, regs 16(1)(b) and 16(2)(b) draw a distinction between applications filed within one year after a child’s removal or retention, and applications filed more than one year after the day on which a child was first removed to or retained in Australia. In cases where an application is filed more than one year after the wrongful retention, a person opposing a return of a child is afforded an opportunity to persuade the court “that the child has settled in his or her new environment”. This is not such a case.
If one or more of the regulatory exceptions is sustained, the court retains a discretion to refuse the return of the child. As to the factors informing the exercise of that discretion: see HZ & State Central Authority [2006] FamCA 466.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”), is the balance of probabilities.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401. In this case, whether the child was habitually resident in Israel at the relevant dates.
The respondent mother bears the onus of proof to establish the regulatory exceptions to return. They are that the father consented to the child’s retention in Australia or that he acquiesced to the child remaining in Australia and returning to Israel would expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation.
Preliminary Matters
The hearing was conducted as a hybrid trial, with all persons except witnesses who gave evidence electronically, physically attending in-person.
I wish to express my appreciation to both counsel for the professional and courteous manner in which the proceedings were conducted and for the mother’s counsel and lawyers acting on her behalf on a pro bono basis, until they sought leave to withdraw from acting on her behalf.
The mother’s Counsel and lawyer withdrew from the proceedings whilst the mother was under cross-examination. All cross-examination of the requesting parent and the other witness for the applicant was concluded.
In accordance with Re F: Litigants in Person Guidelines (2001) FLC 93-072, the mother was provided with procedural assistance and a copy of the relevant regulations. She was provided with a detailed explanation how to structure her final submissions and the opportunity to file written final submissions, rather than having to make oral submissions in the courtroom.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed 6 May 2022;
(b)Affidavits of the father filed 26 August 2022, 5 September 2022, 3 October 2022 and 7 October 2022;
(c)Affidavit of Ms E filed 26 August 2022;
(d)Affidavit of Dr F filed 10 October 2022;
(e)Outline of Case document filed 30 September 2022;
(f)Documents tendered by counsel, including documents produced pursuant to subpoenae.
The respondent mother relied upon the following documents:
(a)Form 2A Answer filed 8 July 2022;
(b)Affidavit of the mother filed 8 July 2022;
(c)Affidavit of Ms G filed 7 July 2022;
(d)Affidavit of Dr D filed 12 August 2022;
(e)Affidavit of Ms C filed 5 October 2022;
(f)Affidavit of Mr H filed 23 November 2022;
(g)Outline of Case document filed 2 October 2022;
(h)Documents tendered by counsel, including documents produced pursuant to subpoenae.
Both counsel tendered documents during the trial as follows:
Exhibit Number Description A-1 Photo of a broken TV A-2 Photo of a pushed over computer A-3 Affidavit of mother sworn 25 May 2022 in outgoing Hague proceedings A-4 Email from mother to AFP dated 15 February 2020 (Page 178 of DFAT Subpoena Document) A-5 Discharge summary of mother dated late 2022 A-6 Medical Certificate of the mother dated 30 November 2022 A-7 Mother’s Covid-19 PCR text message result – collection date 30 November 2022 A-8 Letter to the mother from the Attorney-General’s Department International Division dated 23 August 2022 A-9 Ambulance Victoria Subpoena Notes (Pages 1-6) case number 1115 – dated 15 December 2022 A-10 Text messages between Dr J and the mother between 15 to 27 June 2022 A-11 X’s discharge summary of K Medical Centre dated 15 December 2022 A-12 Statutory declaration dated 19 June 2019 completed by the maternal grandmother as a supporting witness in relation to the father’s visa application Pages 47–48 of the Department of Home Affairs file in relation to Mr B A-13 Three documents from the City L Rabbinical Court dated late 2022, first being Hebrew, second being a rough translation and third being certified translation A-14 Affidavit of maternal grandmother dated 14 June 2022 in support of outgoing Hague application A-15 Email chain of instruction from Lander and Rogers to Dr D A-16 Letter from Lander and Rogers to Dr D dated 22 July 2022 (Formal letter of instruction)
Exhibit Number Description R-1 Pages 6, 77, 208, 210 and 212 of M University Subpoena Documents R-2 Department of Home Affairs Subpoena Documents (X) – Pages 1, 24 and 61–74 R-3 Department of Home Affairs Subpoena Documents (Mr B) – Pages 7 and 39 R-4 DFAT Subpoena Documents – Pages 11, 16, 21, 27, 65, 118, 125, 133, 134, 149, 184–187 R-5 Smart Traveller Country Information (Israel) R-6 Israeli Outgoing Flight Declaration dated February 2021 Credit of Witnesses
The requesting father was cross examined by counsel for the mother. He gave evidence electronically, as he lives in Israel. He did not require the assistance of an interpreter and spoke English in an accomplished manner. As expected, there were some linguistic nuances which required explanation. The father impressed as a straightforward and truthful witness who gave direct and responsive answers, which were in some instances corroborated by contemporaneous medical documents of the mother and photographs he had taken after the mother attacked the family car in mid-2020. He did not attempt to embellish his answers to improve the applicant’s case and freely conceded matters potentially contrary to his interests. For example, he did not resile from the statements he had made to both his employer and the Department of Foreign Affairs during 2019, subsequent to the family’s arrival in Israel and plausibly explained the contradictions in his actions at that time.
I reject the mother’s submissions it is difficult to fully assess the demeanour of a witness via video link, in circumstances where the court has conducted electronic trials for the past three years or so and has had no difficulty in assessing witnesses.
The mother’s allegations that he failed to obtain police records because they were contrary to his case is misconceived. First, there was no evidence to demonstrate he had police records in his possession and failed to produce them, secondly, because he was a witness and not a party to the proceedings he was not obliged to do so and thirdly, he did make additional enquiries at the request of the court and the mother’s counsel to obtain medical documents. I accept him as a truthful witness.
The paternal grandmother swore an affidavit on 25 August 2022. She denied the mother’s allegation she had told her the father had taken her and the two older children’s passports. She also deposed to speaking to the mother in Hebrew, as she has a limited ability to speak and understand English. She was briefly cross-examined by counsel for the mother with the assistance of an interpreter. She also responded directly to questions and did not attempt to embellish her answers. She maintained her denial of the alleged conversation with the mother about the passports. The mother’s submission that the Court should find her an unreliable witness is inconsistent with my observations and the fact that her evidence remained unshaken by cross-examination. I accept her as a witness of truth and accept her evidence.
The mother’s evidence was highly problematic. She frequently did not directly answer questions asked of her, was combative and evasive. Much of her evidence during cross-examination was fanciful and she seriously attempted to defend her implausible evidence. An example of that was her evidence that the father’s aggressive behaviour towards her had caused her to miscarry a twin at 25 weeks, which she did not know about until after she had given birth to the child. She then attempted to change that evidence to the father’s attack having occurred when she was 12 weeks pregnant.
She admitted she had not told the truth in a Statutory Declaration made in support of the father’s immigration application and extraordinarily requested an s 128 certificate of her own volition. She was unable to provide plausible explanations for the inconsistency in her evidence in the two affidavits she had sworn in May 2022 in support of her outgoing Hague application for the return of the two older children to Australia and her affidavit of July 2022 sworn in these proceedings. She agreed she had lied to the Court on multiple occasions and to other authorities, including lying about when she had last contacted one of her witnesses and lying to DFAT in an email she sent on 15 February 2022. She also said she had lied to the Family Court at City L in early 2020 about her intention to remain in Israel and attempted to blame the father for that lie. There was no mention in either of her affidavits the father had exerted pressure on her to make those statements to the Israeli court. Counsel for the State Central Authority submitted, in her reply submissions, the mother’s self-confessed lies to the Israeli court are consistent with a pattern of behaviour whereby she will say whatever she needs to obtain the desired result. There is much force in that submission.
On 23 November 2022 when the trial resumed, she did not tell the whole truth about her attendance at the N Hospital in late 2022. She described the reason for her attendance on that day as a physical problem. When the discharge summary was called for and produced, the hospital records stated the mother had attended in the afternoon after having drunk a large amount of alcohol and taken medication, was vomiting and then passed out. She then attempted to dispute the hospital records about the timing of her medication consumption and alleged she had taken it during the course of the day. On that day during cross-examination, she fled from the witness box and screamed obscenities at the Court whilst standing at the door of the Court including screaming “fucking c---”. Her conduct was contemptuous of the Court and was the impetus for her counsel and practitioners to seek leave to withdraw from acting on her behalf, which was granted.
The trial resumed the following day, 24 November 2022. The mother did not attend court until late in the afternoon, when she and her mother appeared electronically.
The mother was notified by email the trial would resume on 30 November 2022 and she was expected to attend court on the adjourned date. On the morning of the hearing, the mother forwarded an email to the court advising both she and the child had a virus. She was requested to provide a full medical report, but instead produced a generic doctor’s report (Exhibit A-6) which stated:
This is to certify that on 30/11/2022 I examined [Ms Fallah] of [Suburb O], who in my opinion is/was suffering from a medical condition-possibly Covid-doing PCR test and is/was unfit for work on 30/11/2022
The mother underwent a PCR test for Covid-19 which was negative (Exhibit A-7). The trial was again adjourned to resume on 14 December 2022.
On that day, the mother emailed the Court she would not be able to attend the Court as she had gastro symptoms. She continued to be cross-examined via video link and the trial was adjourned to 16 December 2022.
On 15 December 2022, the mother sent emails to the Court and the State Central Authority stating she had been involved in a car crash earlier that day.
On the morning of 16 December 2022, the mother did not appear at Court and did not respond to a phone call. She emailed the Court in the afternoon that she had just been discharged from hospital.
On the morning of 19 December 2022, the mother arrived at Court late due to transport difficulties. On the final day of hearing, 3 February 2023, the mother again arrived late.
It is almost impossible to discern truth from fantasy in the mother’s evidence. She is a highly unreliable and manipulative witness. When asked how it would be possible to discern what was true and what was not, the mother said she believed when she lied, it was very obvious. My impression of her various untruths during the course of her evidence was that she was spontaneous and quick to provide answers which were obviously not true.
For the reasons referred to in the preceding paragraphs, where the mother’s evidence differs from other witnesses, and in particular the father, I prefer the evidence of the other witnesses.
The maternal grandmother swore an affidavit on 6 July 2022. She also swore an affidavit on 14 June 2022 in support of the mother’s outgoing Hague application 2022 (Exhibit A-14).
She was cross-examined by counsel for the State Central Authority. During cross-examination, it became abundantly clear she sought to unequivocally support her daughter. She was frequently non responsive and would not provide answers she perceived to be contrary to her daughter’s narrative. Much of her affidavit was based on what she had been told by her daughter and not her own observations. She was unable to explain why she had not included in her trial affidavit in this proceeding, many of the matters she had referred to in her earlier affidavit, which her daughter relied upon.
Some of her evidence contradicted the mother’s evidence. She said the alleged loss of the twin occurred around the third to fourth month of the pregnancy, whereas the mother initially said it occurred after the incident in mid-2020 when she was 25 weeks and five days pregnant, prior to changing her story that she miscarried around the three months of the pregnancy. She insisted the mother had been pregnant with twins and said her daughter had rung her after the birth and said there had been an empty sac and two placentas and the other baby had been reabsorbed into her system. That evidence was contrary to the mother’s claims she had lost a foetus through bleeding, resulting from the father’s actions and the mother saying that she had given birth to a dead baby. When confronted with the ultrasound reports, the grandmother attempted to explain that sometimes “babies can be directly in front of each other” which could affect the result. Unlike the mother, she acknowledged if the mother had been pregnant with twins, there could have been other factors which may have caused the loss of a foetus. She also attempted to modify her evidence and denied she had sought to imply (via paragraph 15(h) of her June affidavit) that the mother had lost the twin as a result of the father’s actions. I do not accept her denial as the relevant paragraph clearly links the alleged loss of the baby to the father’s actions at that time.
Her evidence about the aftermath of the mid-2020 incident differed from the mother’s. She said the mother had been taken to gaol with leg chains, when the mother made no reference to either leg chains or gaol and rather said the police had taken her to the hospital as she was bleeding. In her affidavit in support of the mother’s outgoing Hague application, she also referred to the mother being restrained in a hospital bed, which was not the mother’s evidence. The maternal grandmother did not recall that was her evidence in the affidavit, but conceded if she had deposed to that evidence, at that time, she believed it to be true
Ms C, the mother’s friend was cross-examined electronically. She was a straightforward and responsive witness. Understandably, she was attempting to support the mother’s version of events and agreed her view of the father was significantly based on what the mother had told her. Her evidence must be viewed in the prism of her desire to support her friend. Her evidence about the alleged loss of a twin baby differed from both the mother and the maternal grandmother. When asked by the mother in re-examination about the reason for the loss of a twin, her evidence was, if she remembered correctly, the mother was pushing a pram with P whilst she was heavily pregnant and it was so much physical effort, one thing led to another. Later in these reasons I refer to her evidence about the alleged statement of the father at the airport in mid-2021.
Dr D is a psychologist who prepared an assessment of the mother. She impressed as a highly professional expert witness who was prepared to make concessions when presented with additional evidence. I refer to her evidence later in these reasons.
Background
The father was born in Israel and is aged 32 years. He is an Israeli citizen and previously held a permanent residency visa for Australia. The mother was born in Australia and is aged 33 years. She is a dual citizen of Australia and Israel, having taken up Israeli citizenship in 2014.
There are three children of the marriage, P aged 7, Q aged 5 and X aged 2 and a half years. All three children hold Australian and Israeli citizenship and are registered as residents of Israel. P and Q were born in Australia but reside with their father in Israel, where they have lived since early 2019. X has lived with her mother in Australia since mid-2021 and is the subject of this proceeding.
The parties met in Country R in 2013 whilst both were on holidays. They commenced a relationship in mid-2014 when the mother travelled to Israel, where she remained until her return to Australia in 2015. The father also travelled to Australia and returned to Israel in 2015 because of his military service commitments and visa requirements. A few weeks prior to P’s birth, the father returned to Australia and according to him, intended to stay until the baby was a few months old. The father remained in Australia between late 2015 and early 2019, except for return trips to Israel. Their first child, P was born in Australia in 2015.
In 2016, the parents married in a civil ceremony in Australia and in 2017, in Israel they had a Jewish religious marriage ceremony.
In 2017, the mother was pregnant again with their second child, Q, who was born in Australia in 2017. In 2018, the family travelled to Israel for a visit, after which the father asserts the parents started to plan to return to live in Israel.
In 2019, the parents and children returned to Israel. The mother asserts the return was temporary and she did not intend to live in Israel permanently. The father contents it was the intention of both parents to return to live permanently in Israel.
Subsequent to the family’s return to Israel, the father obtained employment, and entered into a 12 month lease for an apartment in City T, close to the paternal grandparents.
The father asserts the parental relationship began to deteriorate towards the end of 2019 and that he was subjected to angry outbursts and violence perpetrated by the mother. The mother asserts she was subjected to systematic family violence and coercive and controlling conduct and that she was kept in Israel against her will.
In 2020, the mother discovered she was pregnant with the subject child of this proceeding and asserts she wanted to return to Australia to give birth.
The mother alleges the father pushed her whilst sitting on a couch in early 2020, which resulted in her miscarrying one of the twin babies she was allegedly carrying. The father was required to vacate the family home for a short time and he obtained “No Exit” orders for the two children and the mother, preventing them from leaving Israel.
On 15 February 2020, the mother sent an email to the Australian Federal Police (Exhibit A-4) stating she had travelled to Israel with the children under the impression her children would have a better life there, the father had taken the passports and obtained No Exit Orders, she had no access to medical services and her son had seizures.
In early 2020, the mother had an ultrasound at the City L Medical Centre, which is Annexure ‘MB-19’ to the father’s affidavit of 2 October 2022, which states there is one amniotic sac and one foetus in the sac at 12 weeks and six days gestation.
In early 2020, the parents attended the City L Family Court and obtained, by consent, a discharge of the No Exit Order referable to the mother.
In early 2020, the father extended the lease on the family apartment for a further 12 months.
In mid-2020, the parties travelled home from the mother’s hairdresser’s appointment, a two hour trip from their home. The father asserts that the mother attacked him in the middle of the trip trying to get him off the road, broke a mirror on the car, and scratched the dashboard. This occurred whilst the children were sitting in the back seat of the car. The mother asserts the father was the perpetrator and during this visit, she noticed vaginal bleeding. Upon their return home, the mother attacked the family car, which resulted in the police attending, arresting the mother and an order being made for her to stay away from the house for a two week period. The mother initially asserted the father’s actions during this incident caused her to miscarry one of the twin babies she said she was carrying.
After her arrest, the mother insisted she was bleeding and the police took her to the local hospital where she underwent a second ultrasound. The ultrasound report is Annexure ‘MB‑23’ to the father’s affidavit of 2 October 2022 and states the mother was 25 weeks and six days pregnant and there was currently no obstetric bleeding.
The child, X was born in 2020. A copy of the discharge summary of the mother subsequent to the birth of the child is ‘MB-21’ of the father’s affidavit of 2 October 2022 which states there was one foetus delivered at full term, the commencement of birth was spontaneous and the placenta was described as “placenta complete”. There was no reference to a second placenta.
A few days after the child’s birth when the mother returned home, there were altercations which resulted in the father being removed from the home for a short period. The father asserts the mother was the aggressor and the mother asserts the father was the aggressor.
The mother booked tickets for herself and the children to fly to Australia in early 2021, the father says without his consent or knowledge, however because she had a medical procedure on that day she was unable to fly. According to the father, the No Exit Orders for the two older children remain in place.
The father said he suggested the mother visit Australia to see the maternal grandmother for a circuit breaker to improve her mental health, however he did not consent to the two older children accompanying the mother.
In mid-2021, the mother and the child X flew to Australia with the two older children remaining in Israel with their father. The mother contends at the airport, immediately prior to her departure to Australia, the father promised to follow her to Australia with the two other children within the month. The father denies any such conversation occurred.
Between the date of the child’s arrival in Australia and 23 March 2022, the parents had a series of conversations and text message exchanges about the return of the mother and child to Israel. After a telephone conversation on 23 March 2022 during which the mother revealed a long relationship with another man, drug use in the presence of the child and saying she wanted to die, the father formed the view that the mother would not return the child to Israel.
On 17 April 2022, the father made an application for return of the child under the Hague Convention. Proceedings were instituted in this court on 6 May 2022 for the return of the child. On 25 May 2022, the mother swore an affidavit in support of the request for the return of the two older children to Australia, pursuant to the 1980 Hague Convention, with the Central Authority in Australia. That application has not progressed.
The trial of the father’s application for return commenced on 3 October 2022.
JURISDICTIONAL FACTS
I will firstly turn to the child’s habitual residence.
Habitual Residence (reg 16(1A)(b))
Relevant legal principles
The question of whether a person is habitually resident in a particular country is a question of fact, not an artificial legal construct, and requires an evaluation of all relevant circumstances.
The law in relation to habitual residence in Australia is well settled. The seminal authority is the High Court decision of LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”). French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:
23.… First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
…
25.… it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities". Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
…
27.When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.
28.… examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
…
34.… when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
35.It follows … that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.
…
45.Moreover, the approach described in [Punter] accords with the general tenor of decisions in the United States of America. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned. When it is also observed, however, that the resolution of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective" (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed.
There is a divergence in judicial authority in the United Kingdom and Australia, about whether one parent can unilaterally change the habitual residence of a child, noting the statements in LK (supra) at [34].
In In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76, the Supreme Court in the United Kingdom, made clear that there was no “rule” that one parent cannot unilaterally change the habitual residence of the child. The decision also confirmed that habitual residence is a “question of fact” and requires an evaluation of “all relevant circumstances”.
In Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44, McClelland DCJ, noted the broader approach of the United Kingdom Supreme Court in In Re R, in contrast to the approach of the High Court of Australia in LK, where it was said at [34] “it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence”. His Honour concluded that if the approach adopted in In re R is to be applied in Australia, it should be done at the appellate level.
Another divergence of approach between the Supreme Court of the United Kingdom and Australian authority, is the length of time ordinarily required to establish habitual residence. In In Re R, the Supreme Court held that there was no requirement that a child should have been resident in a country for a particular period of time. That position is in contrast to the Australia position, namely, in order to find someone is habitually resident in a place they must generally have lived there for an appreciable period: Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147.
In Zotkiewicz at [82]–[83], the Full Court of the Family Court stated the task of a judge was twofold:
82.In our view, the observations made by Beaumont and McEleavy sit very comfortably with what the High Court has said most recently in LK. Accordingly, we consider the task of the Judge was twofold. The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled. The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.
83.In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising “that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”.
The relevant date to determine the child’s habitual residence is immediately before the child’s removal to or retention in Australia (reg 16(1A)(b)).
In this case the mother contends the child’s habitual residence at the time she travelled to Australia in 2021 was Australia. Although not expressly stated, I can infer from her submissions she also contends the child’s habitual residence immediately before the date of retention and subsequently, was and remains Australia.
The State Central Authority submits the child’s habitual residence was Israel, both immediately before her removal to Australia in 2021 and as at the date of retention, 23 March 2022. The latter date is the date on which I accept the father considered the child would not be returned to Israel. In my discussion of the regulatory exception of consent, including whether the father consented to the child permanently remaining in Australia, or whether the consent was for a temporary stay, I refer in greater detail to the conversations and text messages between the parents between mid-2021 and March 2022 which led the father to form the view the child would not be returned to Israel, as he had intended. I will therefore adopt 23 March 2022 as the date of retention of the child in Australia, for the purposes of determination of her habitual residence.
The State Central Authority relies on the following facts and circumstances, as deposed to by the father, to establish the child was habitually resident in Israel at the relevant times.
The child was born in Israel in 2020 and lived there continually until her departure to Australia in mid-2021, has two older siblings, P born 2015 and Q born 2017, both of whom have resided in Israel since 2019 and continue to reside there with the father.
The parents had resided together in Israel from late 2014 to early 2015. They had tickets to return to Israel in early 2015, however the mother remained in Australia as she discovered she was pregnant with P and wanted to remain in Australia to give birth. The mother and P remained in Australia and Q was born in Australia in 2017. The father continued to reside in Israel, visiting the mother and children in Australia when his military service permitted until such time as he completed his military service. He then commenced to reside in Australia with the mother and children. The parents made several return trips to Israel with the children and in 2018, according to the father, commenced planning to return with the children to Israel.
In 2019, the parents and the two older siblings, P then aged three years and Q then aged one year returned to Israel. From the father’s perspective, that return was to live in Israel permanently however the mother disputes she ever had any intention to live there permanently, she was deceived by the father and forced to live in Israel.
Upon the family’s arrival in Israel, the father obtained permanent employment, entered into a 12 month lease on the property for the family to live in, the two older children were enrolled in educational institutions, the father took out medical insurance for the family, the parents and older children received certificates of residency for Israel, the parents obtained Israeli citizenship for all three children, who were registered as residents of Israel and each of the parents had a right to Israeli citizenship.
All members of the family flew to Israel without a return ticket to Australia, whilst in Israel, the parents made application for apartments under first homeowners grant scheme, the parents returned to Israel in 2019 as returning residents and each parent signed the documents for the relevant Israeli Ministry stating the intention to remain in the country on a permanent basis.
In early 2020, the father obtained a No Exit Order from the Family Court in City L, which prevented the two older children and mother traveling outside Israel. Two weeks later, the parents consented to and obtained a discharge of the No Exit Order pertaining to the mother. At the hearing, the mother told the court her life was in Israel and the children would be registered for kindergarten next year. At paragraph 162 of these reasons, I refer to the mother’s evidence about the veracity of that statement to the Israeli Court.
Both parents have immediate family residing in Israel, with the father’s family providing support for him, the mother and the children when they resided in Israel. The maternal grandfather resides in Israel, although the mother has little or no contact with him. The older two children continue to attend educational institutions in Israel and participate in the community with extended family. Both children predominantly speak Hebrew.
In mid-2021, the child travel to Australia on a visitor’s visa and the mother advised friends on her Facebook post that she was intending to visit Australia.
In early 2022, the father commenced divorce proceedings in the rabbinical court (Beit Din) and the mother initially submitted to the jurisdiction of the court, prior to withdrawing her consent on 30 June 2022. The father also commenced proceedings in the civil courts in Israel seeking sole custody for all three children. The mother engaged a lawyer to represent her in those proceedings.
The mother contends there are a myriad of factors relevant to the determination of the child’s place of habitual residence. These factors include, but are not limited to, settled purpose, actual and intended length of stay, and the purpose of the stay, the strength of ties to the place of residence, the degree of assimilation and the circumstances in which the previous place of habitual residence was abandoned.
Although the child was born in Israel and at the time of her departure from Israel and arrival in Australia in 2021, she had only ever lived in Israel, the mother submits the child’s place of birth must not and cannot determine her place of habitual residence, particularly having regard to the circumstances of this case and the particular facts leading to the mother’s own presence in Israel.
The mother further submitted that as the child was under one year old at the date of her departure from Israel, the Court should place significant weight on parental intention and settled purpose when determining the child’s place of residence.
Central to the mother’s contentions about parental intention and the child’s habitual residence, was that she travelled to Israel with the father and the children in 2019 under false pretences, which was to enable the father and the children to spend time with the paternal great-grandmother who was terminally ill. At no time did she intend to permanently reside in Israel.
The mother’s evidence was the father told her in 2019 he wanted to visit Israel so that he and the two older children could spend time with his grandmother who was sick at the time. According to the mother, she was told it was unclear how long the paternal great-grandmother had to left to live so the father was unsure about a return date to Melbourne. The father apparently reassured her the family would spend no more than a few months in Israel and that she and the children could return at any time to Melbourne. In her submissions, the mother contended the father’s expressed intention was for a temporary visit to Israel, which is contrary to the father’s evidence during cross-examination. During the discussions about the plans to visit the paternal great-grandmother, the mother contends the father told her about a government scheme in Israel to enable the couple to buy an investment property. As referred to below, the father was cross-examined about the scheme.
The mother submitted one way flights to Israel were booked because the family did not know precisely when they would be returning to Australia.
There were no preparations for a permanent move to Israel and according to the mother, the visit was intended to be temporary because each of the parents packed one suitcase and one for the children with the bulk of clothes toys and personal belongings remaining in Melbourne. The parent’s furniture and laptops remained in Melbourne as did work equipment. The family pet was not rehomed and there were no enquiries made to take him to Israel. The parents and the children remained enrolled in Medicare, the mother continued to use an Australian mobile plan, the utilities, home Internet and phone landline at their home in Suburb O, which were in the maternal grandmother’s name, were not cancelled, both parents kept Australian bank accounts open and the mother maintained an Australian driver’s licence whilst in Israel. She contended there was no collective desire to live in Israel nor discussions about doing so.
The father was cross-examined about the family’s preparations prior to leaving Australia for Israel. He readily conceded he had not told DFAT in his application for permanent residency in Australia, he intended to permanently relocate the family to Israel. His reason for travel to Israel was because of his grandmother’s illness. The father’s explanation was that if he had told DFAT he was leaving the country permanently he would not have been eligible for permanent residency which may have been problematic in the future. The mother and two older children were Australian citizens and there was no impediment to them returning to Australia in the future if the family wanted to visit or return to Australia. If on the other hand, he did not obtain permanent residency he would be faced with migration problems in the future and the time he would be permitted to spend in Australia would be limited. I accept his evidence in this regard.
The father agreed the family had taken the two safest children’s car seats to Israel, although they had not shipped their old furniture, because it was not cost effective to do so. He also paid for the mother’s computer to be shipped to Israel, which cost around $500, because of what was on it. He agreed there had not been any enquiries about taking the family pet with them.
He was cross-examined about his email correspondence with his employer in Australia (Exhibit R-1), where it is apparent the father did not resign until late 2019 and his contradictory statements in his application for Australian permanent residency status. The gravemente of this evidence was he needed a backup plan to be able to financially support the family, if he was unable to find employment in Israel and required permanent residency status if the family needed to visit or return to Australia, otherwise he would have to rely on a tourist visa, despite the rest of the family holding Australian citizenship. He gave spontaneous evidence about the mother’s dissatisfaction with the area in which they lived in Melbourne as it was not Jewish. It was very important for the couple to have the children enrolled in Jewish schools and to identify as Israelis and the parents had never planned to stay in Australia permanently. According to him, the time in Australia enabled the family to accumulate some money for a move to Israel as it was not financially viable for them to move to a Jewish area in Melbourne which would enable the children to obtain a Jewish education. A move to Israel would resolve the parent’s desire for the children to receive a proper Jewish education. The family’s sole plan in early 2019 was to move to Israel to build a new life, which had been a subject of discussion since the end of 2018. Despite the desire to move to Israel, because of the children and financial obligations to support the family, there was a backup plan in place if the father was unable to obtain employment in Israel. When asked why there was no mention of that in his affidavit material, the father’s response was he did not think it was relevant because he quickly obtained employment in Israel and did not need to act on the backup plan. He did not receive any income from his Australian employer whilst he was in Israel except for about $200.
The mother accompanied him to buy furniture, in mid-2019 she applied for P to be enrolled in a kindergarten, which the mother denied in her written submissions, and the family obtained rental accommodation. In early 2019, the father bought a new car for $45,000, which he would not have done if the family had no permanent intention of remaining in Israel. The mother’s claim he had enticed her to remain in Israel by suggesting they purchase an investment property was incorrect, as the government ballot they entered into was to assist first home buyers to get into the property market and was not for investment properties. The mother attempted to adduce evidence in her submissions via a link to a newspaper article about the scheme, which was rightly objected to by the State Central Authority.
The father did not agree that shortly after the family arrived in Israel, the mother wanted to return to Australia. He said he found a job around early 2019 and the mother found a place to live and the family bought furniture. The family did not have tickets to return to Australia. Before, what he described as the “blowout” argument in early 2020 which resulted in the father being excluded from the home for a short period, the mother wanted to move to Israel to build a life. Those discussions commenced at the end of 2018, when the mother told him she wanted to travel to Australia. After the arguments in early 2020, the mother told him she would take the children to Australia and he wouldn’t see them, as well as claiming she wanted only to visit. It was difficult to assess what her real intention was.
The father’s evidence that he always intended the family move to Israel in 2019 to be permanent was plausible and spontaneous. He made appropriate concessions about his continuing employment and statements in his application for permanent residency. I accept his evidence of intention to permanently live in Israel, both at mid-2021 and early 2022 and subsequently, as is demonstrated by him remaining living in Israel with the two older children.
In the context of the child’s habitual residence as at mid-2021 and 23 March 2022, I therefore find the father’s intention was the child was habitually resident in Israel.
I am satisfied the mother originally intended to return to live in Israel with the father and the two children in early 2019, but thereafter did not embrace living in Israel, particularly after early 2020, when she discovered she was pregnant with the child and did not want to give birth in Israel. It is unclear whether her intention thereafter was to visit Australia or she genuinely wanted to return to Australia to live. Her actions and intentions seemed to vary from time to time and were to some extent, ambiguous. The mother did not adduce any evidence to demonstrate that in mid-2021 she had packed all her belongings and was returning with the child to Australia permanently. It would be difficult to find that was her intention at the time particularly as the child travelled to Australia on a six month visitor visa and there is ample evidence referred to in subsequent paragraphs that the mother lead the father to believe she would return to Israel in the period following her arrival in Australia.
As to the child’s visa, in her written submissions the mother contended the child travelled on a visitor’s visa “for simplicity[’s] sake and due to time constraints”. That was not before the Court and was not put to the father in cross-examination. There was no evidence before the Court to support the mother’s statements in her submissions that the father signed an Australian visa application for the child and an “Entry exemption” which stated the purpose of travel “was to come home and on a permanent basis”. The existence of such an entry exemption signed by the father was not put to him. The duration of the visa speaks for itself. The mother also submitted in her final submissions that she and the father went to the Australian embassy in City S and obtained emergency passports for all three children, which were valid for a year. She submits the father would never have spent the money on emergency passports, if he didn’t intend the children to fly and would have “instead requested standard passports”. That proposition was not put to the father during cross-examination.
Objectively, it would be difficult to accept the mother’s intention in mid-2021 was to permanently move to Australia with the child when she well knew the two older children were subject to No Exit Orders and it was blatantly obvious the father would never consent to the removal of the older children from Israel. Despite the mother’s submissions that the father had expressly told her repeatedly he would relocate with the two children to Australia, I do not accept her evidence, as she was not a truthful witness.
Despite her insistence the father had agreed to follow her to Australia with the two older children, cross-examination of the mother revealed she had contacted International Social Services (“ISS”) upon her arrival in Australia with the aim of filing a Hague application seeking the return of the two older children to Australia. Contacting the Australian authorities shortly after her arrival in Australia is inconsistent with her evidence the father had consented to relocating the family to Australia.
The mother admitted she was aware of the 1980 Convention prior to her departure for Australia. The chronology between those initial enquiries and the mother’s eventual outgoing application made in May 2022, after she had been served with the father’s application, is unclear. The mother initiated an application and swore an affidavit in support (Exhibit A-3). As at the conclusion of the trial, the application had not been accepted by the Central Authority. On 23 August 2022, the mother received a letter from the Central Authority (Exhibit A-8) advising the department was considering the refusal of her application and providing her with an opportunity to consider the concerns about the application. The concerns include the lack of evidence provided by the mother to establish the children’s habitual residence as Australia, as at the date of retention and failure to assert and support with evidence, a clear wrongful date of retention.
It is possible the mother travelled to Australia with the younger child, armed with knowledge about the 1980 Convention, with a plan to file a Hague application seeking the return of the two older children to Australia, and thus achieve her aim to return to Australia. Her evidence, which I do not accept, that the father agreed to follow her to Australia with the two older children a month later, would provide her with an alleged date of repudiatory retention. Because of the mother’s lack of candour as a witness, it is impossible to discern what her intentions were in mid-2021. I can only conclude her intentions were ambiguous.
The second part of the test is to determine whether the period of time spent in Israel was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Israel was such to justify a finding that she was habitually resident in that country.
Prior to her travel to Australia in 2021, the child had lived in Israel for her whole life, which is more than the six months referred to in Zotkiewicz at [80]–[81]. She lived in an intact family unit in Israel and was cared for by both parents, although the mother assumed the role of primary career and the father was the family breadwinner. She lived with both her siblings and forged bonds with them commensurate with her age and development. She was integrated into life in Israel to the extent possible for a child of her age, and in the context of the then Covid‑19 restrictions. The father was and remains employed in Israel, obtained medical insurance for the whole family in Israel, the parents and older children received a certificate of residency for Israel and the parents obtained Israeli citizenship for the two older children and then subsequently for the child. When the mother attended the local Israeli court in early 2020 to obtain a discharge of the No Exit Order for herself, she did not, or subsequently take any steps, to discharge the No Exit Order for the two older children. To the contrary, she told the Israeli court she considered Israel the family home.
The mother’s retention of the child occurred in March 2022, in circumstances where she had previously led the father to believe she would return to Israel with the child. At the time of the retention the child was nearly a year older than at the time of her removal.
During her time in Australia, between the date of her arrival and her retention, the child continued to live in Australia with her mother and spent considerable time with the maternal grandmother. The mother submitted the child had spent limited time within the Israeli community between her birth in 2020 and her departure from Israel in 2021, due to her young age, Covid-19 restrictions, the war and conflict between Israel and Hamas and the father’s controlling behaviour.
My findings as to the father’s conduct during the family’s residence in Israel, which is discussed below, does not align with or support the mother’s allegations of coercive control which, she alleges, but fails to articulate precisely how, would limit the child’s integration into Israeli life. The mother’s minimal evidence about the conflict with Hamas, which is referred to below does not persuade me that issue has any bearing whatsoever on the child’s integration in Israel during the first months of her life.
The mother contends the child did not attend any school, kindergarten or childcare in Israel, has limited comprehension of Hebrew, watched television in English and listened to Australian children’s music. In Australia, the child attends childcare and extracurricular activities, has friends with whom she has playdates, spends time with her grandmother, communicates in English, has a close relationship with her mother and the family pet, has been vaccinated in accordance with the Australian vaccine recommendations, is on a waitlist for a Jewish school, is an Australian citizen and has a strong connection to Australia.
The mother’s submissions about the child’s lack of connection to life in Israel are not convincing at all. The child was born in the midst of the Covid-19 epidemic and it is not surprising she did not attend day-care, particularly when her mother was primarily engaged in care of all three children. The child would not have any appreciable language skills at under a year old and could not possibly discern whether her television “viewing” or listening to songs, was in English or Hebrew.
As to the first part of the twofold test in Zotkiewicz, I accept the father’s submissions of his intention as to the child’s habitual residence at the relevant times and have found the mother’s intention as at early 2019 was to live permanently in Israel, but that became more ambiguous after early 2020.
As to the second part of the test, on balancing the child’s respective connection to Israel for the first months of her life with her connection to Australia for the period between her arrival in Australia and her retention here in March 2022, as articulated by the mother, I consider the child’s connection to her family life, including her connection to the father and her two siblings who remain living in Israel and since 2019, have been habitually resident in Israel, persuades me the child was habitually resident in Israel at the relevant times. There is a sufficient degree of connection between the child and Israel because of the factors relied upon by the father, which in my view are more significant than the factors relied upon by the mother to dispute the child’s connection with Israel and to rely on the child’s connection with Australia.
After considering the evidence and submissions of both parties, I consider the child’s habitual residence at immediately before her departure from Israel and her retention in Australia was Israel and I so find.
Have the jurisdictional facts been satisfied
Consequential upon my finding that the child was habitually resident in Israel immediately prior to both her travel to Australia in 2021 and her retention in Australia in March 2022, her retention was in breach of the father’s rights of custody, I am satisfied that all the jurisdictional requirements of reg 16(1A) have been satisfied.
REGULATORY EXCEPTIONS TO RETURN
Having determined that the child was habitually resident in Israel and that her presence in Australia as at the date of retention, was in breach of the requesting father’s rights of custody (which was conceded), I will now address the exceptions to return raised by the mother. I will firstly address consent and acquiescence (reg 16(3)(a)(ii)).
Consent and Acquiescence (reg 16(3)(a)(ii))
Relevant legal principles
The respondent mother has the burden of proving on the balance of probabilities that the father has consented and or acquiesced to the child’s removal or retention in Australia.
The tests regarding consent and acquiescence are essentially the same, although acquiescence occurs subsequent to retention.
In Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, Holman J stated:
On the facts of a particular case, a court may consider that evidence of consent needs to be cogent before it can overcome the degree of improbability of consent having been given on those particular facts. But in the end there is only one question, namely has consent been established? And only one standard, namely the balance of probabilities.
In State Central Authority & Handbury [2019] FamCA 668 (“State Central Authority & Handbury”) at [240], Bennett J said:
The evidence of consent or acquiescence may be by words or inferred by conduct however, the consent (and it is submitted the same applies to acquiescence) must be real and unequivocal and can only be made out by clear and cogent evidence.
Whether or not a wronged parent has acquiesced in the removal or retention of a child, depends upon their actual state of mind, which is a question of fact to be determined in all the circumstances of the case and where the burden of proof falls on the “abducting parent”: State Central Authority & Handbury, Bennett J at [242], adopting Lord Browne-Wilkinson in Re H (Minors) [1998] AC 72 at [90].
In Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 (“Wenceslas”), the Full Court of the Family Court at [257]–[263] reviewed the United Kingdom authorities as to whether or not consent can be inferred from conduct. At [262], the Court referred to the statements of Hale J as she then was, in Re K (Abduction): Consent [1997] 2 FLR 212. At 217-8, Her Honour said:
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove the child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
At [264] of Wenceslas, May and Thackeray JJ said as follows:
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to the children. As presently advised…we are of the view that consent can be can inferred from conduct; however, we are also the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence.
The Full Court in Wenceslas considered the distinct and differing concepts of consent and acquiescence. Consent has to arise before the act of removal or retention, acquiescence can only arise after such an act.
In Wenceslas, at [252]–[257] the Full Court analysed the authorities and adopted the approach that acquiescence may be passive, by conduct, as well as active by words. Acquiescence may be inferred by the Court from a course of conduct by the party seeking to rely upon the convention or the regulations, without any words expressed to the other party such as might otherwise be thought to be involved.
In Police Commissioner of South Australia v Temple (1993) FLC 92-365 at 79,828, Murray J referred to (and agreed with) the principles enunciated by their Lordships in Re A & Anor (minors) (abduction: acquiescence) [1992] 1 All ER 92 and paraphrased them as follows:
1.In determining whether a parent could be said to have acquiesced in the unlawful removal or retention of a child by the other parent within art. 13 of the convention each case has to be considered on its own special facts.
2.Acquiescence can be either:
(a)(i) active acceptance signified either by express words of consent, in which case there has to be clear and unequivocal words or
(ii) by conduct and the other party has to believe that there has been an acceptance, or
(iii) conduct inconsistent with an intention by the aggrieved parent to insist on legal rights and consistent only with an acceptance of the status quo, or
(b)passive acquiescence inferred from silence and inactivity for a sufficient period in circumstances where different conduct is to be expected on the part of the aggrieved parent”.
3.A parent cannot be said to have acquiesced in the unlawful removal or retention of a child within art.13 unless
(a)he is aware of the other parent’s act of removing or retaining the child,
(b)is aware that the removal or retention was unlawful and
(c)is aware, at least in general terms, of his rights against the other parent, although it is not necessary that he should know the full or precise nature of his legal rights under the convention.
4.Since acquiescence is not a continuing state of mind, an acceptance of the unlawful removal or retention cannot be withdrawn once known to the other party, although an attempt to do so soon after the acceptance is notified to the other party will be relevant to the exercise of discretion to return the child”.
Delay and failure to act may also be relevant. Bennett J in State Central Authority & Te Mata [2016] FamCA 85 at [54]–[55] said as follows:
54.Absence of court action does not necessarily amount to acquiescence, however, a delay, particularly unexplained delay in taking action has been found to be an indication of acquiescence. Lord Justice Butler-Sloss in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, CA concluded that “acquiescence is a combination of a sufficient period of time coupled with inactivity by the parent without the child, to demonstrate an implied acceptance of the changed position”. In an earlier case, Master of the Rolls, Lord Denning in Re P (GE) (An Infant) [1965] Ch 568 [at 585] said:
Quite generally, I do not think a child's ordinary residence can be changed by one parent without the consent of the other. It will not be changed until the parent who is left at home, childless, acquiesces in the change, or delays so long in bringing proceedings that he or she must be taken to acquiesce. Six months' delay would, I should have thought, go far to show acquiescence. Even 3 months might in some circumstances. But not less.
55.Delay in taking action is further supported in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 (“W & W”), where Waite J held that a father’s inactivity for some 10 months after learning of his wife’s decision not to return amounted to acquiescence. Acquiescence due to inaction was also found in Re D (Abduction: Acquiescence) [1999] 1 FLR 36 where a mother took no legal advice for almost a year and was only prompted to do so when she learnt that the father had been imprisoned.
Prior to the mother’s counsel seeking leave to withdraw from acting on her behalf, there was discussion between counsel about the appropriateness of referring to such an order as an intervention order. The mother’s evidence was there were three such instances when the father was required to vacate the family home and the father’s evidence was there was one instance when the mother was required to vacate the family home.
Additionally, in Gsponer v Director–General of Community Services, Victoria (1989) FLC 92-001, the Full Court of the Family Court stated Australian courts should be reluctant to find there would be a grave risk of harm to a child if it were returned to a convention country, at least where it is reasonable to expect that the prospect of harm could be prevented by appropriate judicial remedies in the requesting state. The Full Court said at 77,160:
There is no reason why this court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed the entry by Australia into this convention with the other countries may justify the assumption that the Australian government is satisfied to that effect.
The High Court of Australia said in De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640 said at 658:
The Regulations reflect the objects of the Convention to settle issues of jurisdiction between the Contracting States by favouring the forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting State has faith in the domestic law of the other contracting states to deal in a proper fashion with matters relating to the custody of children under the age of 16.
Counsel for the State Central Authority advised the Court in late 2022 orders were made in the Family Court in City L that the father have temporary custody of the two older children, as from May 2021. The mother agreed the orders were made and she was represented by Mr H, her Israeli lawyer. She professed not to know the orders were retrospective as from May 2021. Counsel for the State Central Authority also advised the court the Israeli family court proceedings included X, the child the subject of this application.
As there are concurrent proceedings in the Israeli family court and the mother is represented, the mother is well placed to obtain appropriate orders, if she considers it necessary.
For these reasons, I do not accept the mother’s submissions that family violence and coercive control is likely to continue to be perpetrated upon her, should she return to Israel and the impact of such family violence on the child would constitute a grave risk of harm.
Secondly, I will consider whether the impact of a return order on the mother’s mental health and ability to care for the child is a grave risk of harm to the child or would be an intolerable situation for the child.
Central to the mother’s submissions in this regard is the likelihood of the father further perpetrating abuse on the mother and requiring the mother to live in an abusive environment as well as the impact on her fragile mental health, which will in turn impact the child.
I refer to my findings about the mother’s allegations of family violence, and the capacity for the mother to avail herself of protective measures, to prevent her being subjected to family violence in the future, which I have been unable to conclude has previously occurred. The mother’s submissions seem to be predicated on a return order for the child requiring the mother, if she chooses also to return, to live in close proximity of the father. There is no such requirement and that issue is for ultimate determination by the courts of the requesting state.
In support of her asserted fragile mental health, the mother relies upon a report prepared by Dr D. Dr D swore an affidavit on 11 August 2022 which annexed a report prepared by her on 5 August 2022. Dr D is a Clinical and Forensic psychologist who prepared the report at the request of the mother’s former solicitors. Despite requests by the State Central Authority for production, the letter of instruction to Dr D was not produced by the mother. It was not until Dr D was in the witness box that the letter of instruction from the mother’s former lawyers was produced (Exhibit A-16).
Dr D is not the mother’s treating practitioner and was engaged for medico legal purposes. The mother was advised on numerous occasions that if she sought to rely on the evidence of Dr D she would need to make arrangements for her to be available to be cross-examined by counsel for the State Central Authority, and that cross-examination could occur electronically. She was also advised of the day on which it was anticipated Dr D would be required and if Dr D was not made available for cross-examination, then there would likely be submissions from Counsel for the State Central Authority as to the weight to be placed on the report.
The mother did not seek to adduce any evidence from health professionals who had treated her in either Israel or Australia and was vague about whether she had indeed obtained any treatment for her asserted problematic mental health. I refer to this below.
Dr D attended for cross-examination on the final hearing day. She was an impressive professional witness who gave thoughtful, considered and responsive answers and made appropriate concessions.
Dr D was cross-examined about the sources of information for her report. These included a three hour interview conducted on 28 July 2022, Personality Assessment Inventory and Traumatic Symptom Inventory, both of which were administered electronically to the mother, copies of orders, application, response and various affidavits filed in the proceedings as well as a phone consultation with a doctor at the mother’s GP clinic.
Dr D agreed the information she relied upon was directly from the mother or the mother’s self-assessments. She said the psychological tests which were administered electronically, had inbuilt validity scales to pick up inconsistencies, but validity scales are not to assess the factual basis of self-reporting and do not determine if someone is telling the truth. She attempted to contact Dr J to try and obtain corroborating information about the mother, but was unable to do so.
She agreed the information in paragraphs 5–12 of her report, under the heading Summary of Key Allegations was primarily obtained from the mother’s affidavit and that she drew the conclusion the mother knew she was pregnant with twins as at early 2020.
Dr D agreed the tenor of the mother’s affidavit was in stark contrast to the evidence of the two ultrasound reports of early and mid-2020 and the discharge summary after X’s birth. She did not know the mother’s evidence was she supposedly found out about the second placenta after X was delivered or that the mother sought to change her evidence during the trial about the date on which she supposedly lost the twin and the preceding events.
Dr D agreed with Counsel for the State Central Authority that the mother’s evidence during the trial and the medical reports were incongruent with the mother’s history provided to her and it did not entirely make sense.
She also agreed if the Court did find the mother had lied throughout her evidence, as a general statement that would undermine much of what the mother had said to her.
Dr D concluded she was not wedded to the conclusions in her report and her diagnosis was the other information presented to her during cross-examination may inform “how pathological is the disturbance”. Because there was so much information about the mother she was not privy to, Dr D said she would need to reassess the mother to accurately diagnose the mother, including consideration of whether the mother had personality issues which would be relevant to her overall diagnosis.
As a result of the cross-examination of Dr D and concessions ultimately made by her, I do not accept the mother is suffering from a PTSD trauma response, as previously diagnosed by Dr D. Because of the mother’s failure to be candid with Dr D, the inconsistencies in the mother’s evidence and my findings about the mother, it is impossible to make any findings about the actual state of the mother’s mental health.
During cross-examination, the mother claimed she had consulted a number of mental health practitioners including most recently, a psychologist and psychiatrist. When pressed, she admitted the psychologist she was referring to was her friend ‘Mr W’ who had accompanied her to K Medical Centre in late 2022, and who was described in the discharge summary (Exhibit A-5) as her “friend/partner” and a psychiatrist, who was also a friend. Neither had seen her in a professional capacity. She had also consulted Dr J, psychologist who worked at the Y Medical Centre, her GP clinic, but she had not continued her consultations because Dr J no longer worked at that clinic. Counsel for the State Central Authority made enquiries with the clinic in open court and was advised that Dr J was still employed by the clinic and worked Tuesdays and Wednesdays.
Despite Dr J’s continuing employment as a psychologist and the mother’s knowledge of how to contact her, the mother did not produce a report from her. Dr D said in her report that she had attempted to contact Dr J, but was not successful. Dr D did manage to speak to the mother’s GP, Dr Z at the Y Medical Centre, who told her she did not believe Ms Fallah presented with a major depressive disorder, however, acknowledged some depressive features.
The mother did not articulate in her evidence precisely how her mental health would impact her parenting capacity, nor specify any actual or potential concerns she had about her capacity to parent the child if a return order was made, nor outline the risks she asserted the child would face because of her mother’s compromised mental health.
When the mother’s attendance at the hospital was discovered during the trial and when she was finally located at the end of the day, both the mother and the maternal grandmother stressed the mother would always prioritise the welfare of the child, care for her appropriately and she would never be at risk in the care of her mother.
There was no evidence the mother has in the past has ever been so unwell that she would not be able to attend to the child’s care needs, nor any evidence that was likely to occur in the future, that the child was anything other than well cared for by the mother or that she had been or would be adversely affected by the mother’s mental health. For these reasons, I do not accept her submissions that her mental health will diminish her capacity to care for the child, if she returns to Israel.
Finally, I will address the mother’s evidence about the conflict between Israel and Hamas. The mother’s evidence in this regard was scant. She relied upon paragraph 52 of her trial affidavit and paragraph 24 of the affidavit of the maternal grandmother. She attempted to include further evidence in her final written submissions, which was not referred to during the trial, nor put to the father and is not admissible.
In her trial affidavit of July 2022, the mother deposed to her circumstances in Israel in mid‑2019. According to her, the conflict was so significant that air raid sirens regularly went off and therefore she and the children spent nearly all their time at home or at the bomb shelter with the paternal grandparents. She did not adduce any other evidence about the present circumstances in Israel, although the father was cross-examined about more relevant times. The mother was not cross-examined about that particular evidence. Even if I accept her unchallenged evidence in its entirety, that evidence does not provide evidence of the current circumstances.
The mother agreed she had voluntarily travelled to Israel in 2014 when there were hostilities between Israel and Palestine. She also returned to Israel with her then two children in 2019, although she maintains it was for a visit.
The maternal grandmother’s evidence at paragraph 24 of her July affidavit refers to what the mother told her about life in Israel and living with air raid sirens and running to bomb shelters. There is no temporal context to the assertions and that hearsay evidence is not independent or of any probative weight.
Counsel for the father cross-examined the father about the conflict in Israel and tendered as Exhibit R-5 a print out from the Australian Government Smartraveller website about travel to Israel and the Palestinian territories. The website was updated on 25 August 2022 and remained current as 2 October 2022. The current warning is to “exercise a high degree of caution in Israel and the Palestinian Territories overall due to civil unrest and the threat of terrorist attack, rocket fire and military confrontation”, with higher levels applying in some areas.
The father’s evidence was his town, City T, has a large population. He agreed his apartment building had a bomb shelter, as does every modern home built in Israel in the last 20 years. The father was shown a news article dated 26 August 2020 which referred to an explosive device narrowly missing a playground. He responded sometimes things like that happen in Israel, but it was nowhere near his town. The southern region referred to in the article is a big region, and the location referred to was not near his town. When asked about the frequency of explosive balloons in the area, he said the balloons very rarely happened anymore and were usually near the border areas. Nowadays, Israel has anti-missile system technology (iron dome), which has shut down these balloons. As to another article dated 5 September 2021, which referred to 20 fires in an area of Israel, the father’s evidence was the location was about 30 kilometres away from his town and was in the middle of an agricultural area.
Again, in her final written submissions the mother attempted to lead further evidence about the conflict and asserted danger of life in Israel. Those statements are not evidence before the Court during the trial, and are not admissible.
There are obviously concerns arising from the Israel/Palestinian conflict, which has been longstanding and ongoing. The mother voluntarily lived in Israel in 2014 for an extended period and since that time has returned for holidays or to live, including for another extended period. Since mid-2021, nearly two years ago, her two older children have remained without her in a country she now asserts poses a grave risk of harm or intolerable situation. It is difficult to reconcile her current assertions with her past actions.
In Commonwealth Central Authority & Cotter [2016] FamCA 209, Bennett J considered grave risk and intolerable situation in relation to crime and security in a city in Argentina. At [235], her Honour said:
I accept that life in Rosario may not be as safe for the child as life in Melbourne, Australia. However, that can be said of very many locations. Violence is travelling around the globe and variously emanates from sources internal and external to the countries concerned. However, the grave risk of harm upon which the father relies does not equate to what is required to enliven reg 16(3)(b). If it did, very many return cases before this court would attract the grave risk of harm exception. The test is not whether life in Rosario carries with it more risks than life in Melbourne. It is whether the return of the child to Argentina, and to her home in Rosario, exposes her to a grave risk of harm or otherwise places her in an intolerable situation. I am not convinced that it will.
I agree with and adopt her Honour’s comments as applicable to the current situation. I am not persuaded the return of the child to Israel would expose her to grave risk of harm arising from the conflict in Israel.
Intolerable situation
I will now consider the matter which the mother assert gives rise to an intolerable situation.
In State Central Authority & Abdalle [2012] FamCA 1151, Bennett J at [97] referred to the comments of Thorpe LJ in Re C (Abduction: Grave Risk of Physical or Psychological Harm [1999] 2 FLR 478. The facts of that case involved the separation of a six-year-old boy from his 14-year-old sister, who had a different father and was not the subject of the return application, and possibly his mother, if the child were ordered to be returned to Cyprus from where he had been wrongfully removed. Thorpe LJ said that, in many cases a balanced consideration of an assertion that returning a child would expose the child to grave psychological harm, leads to the conclusion that the party opposing return is in reality relying on their own wrongdoing in order to build the statutory defence. In order to test the validity of an Art 13(b) defence, Thorpe LJ stated that a trial judge must consider what were the “intolerable features of the child’s family life immediately prior to the wrongful abduction?” If these “intolerable features” are only “scant” or non-existent, then it is difficult to hypothesise the circumstances in which the Article 13(b) defence would be upheld. Thorpe LJ said:
In my opinion Art 13(b) is given its proper construction is ordinarily confined to meet the case where the mother’s motivation for flight is to remove the child from a family situation that is damaging the child’s development.
There was no acceptable evidence of the intolerable features of the child’s family life immediately prior to the retention which would satisfy the court that return would be intolerable. To suggest life was intolerable for the child prior to retention, is inconsistent with the mother leaving the two older children in Israel with their father when she left the country in mid-2021.
The mother submits that a return order in relation to the child would have the effect of either separating the child from her primary attachment figure, the mother, or if the mother were to travel to Israel with the child, diminishing the mother’s capacity to care and provide for the child due to her mental health and the likelihood that further abuse would be perpetrated on her by the father. Both scenarios would place the child in an intolerable situation. She did not directly address the intolerable features of the child’s life in Israel prior to the wrongful retention and effectively sought to rely on her own wrongdoing to build the statutory defence.
On the very last day of the hearing the mother was asked whether if a return order for the child were made, whether she would return with the child to Israel all would remain in Australia. Regrettably, the mother’s position was that she would not return to Israel under any circumstances. Most regrettably, her position in her final written submissions remained the same.
I accept if the mother chooses not to travel to Israel, the child will be separated from her mother and primary care giver, which would cause distress to both mother and child. If a return order is made and if the mother chooses not to accompany the child, then the child will be separated from her mother, her primary carer. She will of course be returned to the country where her father and two siblings reside and probably will be reunited with her family members. If the child remains in Australia, she will be with her mother, but will be separated from her father and her two other siblings. As identified by Dr D, both scenarios are problematic for this child.
As to the effect on the mother and her capacity to care for the child, I refer to my discussion about Dr D’s evidence earlier in these reasons.
In her final submissions, the mother refers to her being pregnant. There was no evidence of the mother’s pregnancy adduced during the trial.
Conclusion as to grave risk and intolerable situation
The mother bears the burden of satisfying the court about the grave risk of harm the child will face upon her return to Israel.
The court acknowledges an order to return the child to Israel may have some impact on the mother’s mental health. She will no doubt be deeply disappointed, and distressed. However, the onus is on the mother to adduce clear and cogent evidence that there is a grave risk the child would be exposed to physical or psychological harm or otherwise place the child in an intolerable situation.
The evidence relied upon by the mother does not enable me to make a finding that the level of the predicted risk to the child has reached a degree of seriousness that it can be categorised as grave nor that the situation upon her return would be intolerable.
In State Central Authority & Del Rosario [2019] FamCA 607 at [19(b)], Bennett J said:
It is settled that the assessment of grave risk of harm must be exposure to harm as a consequence of return and not exposure to harm which might emerge some later time if, after return, an unsatisfactory situation is allowed to persist without alteration, per Lord Prosser in McCarthy v McCarthy (1994) SLT 743, 747.
It is not apparent whether the mother’s mental health, even if it eventually degenerated to the extent where the impact on the child would be intolerable, or would do so immediately upon return of the child to Israel. If the mother’s health did decline to such an extent, it would likely be over a protracted period and the mother impresses me sufficiently resourceful to obtain appropriate supports in Israel if this occurred.
The mother was represented in the Israeli legal proceedings concerning the two older children. She is evidently able to access the family law system in Israel and is more than capable of obtaining orders in the Israeli court for the parenting arrangements of the subject child, to address her perceived vulnerabilities.
As to the situation in Israel, for the reasons previously referred to, I am unable to conclude the concerns arising from the conflict in Israel satisfy, on the balance of probabilities, the extent of risk required for this regulatory exception and the mother must fail in this regard.
Taking into consideration all relevant matters, I find the factors which the mother asserts create a grave risk of exposure to physical or psychological harm or otherwise place the child in an intolerable situation, do not individually or collectively constitute such a grave risk, particularly where there are protective measures which could be put in place to ameliorate the asserted risks.
The mother has not satisfied the threshold test of “grave risk” or “intolerable situation”, and this regulatory exception must fail. Thus, there is no need to consider the circumstances in which my discretion to return is enlivened.
Conditions to return – reg 16(6)(b)
When legally represented, the court raised with the mother’s counsel on at least two occasions that it was appropriate for the mother to turn her mind to conditions for return of the child, in the event a return order was made and for discussions to commence between counsels. At the time the mother’s counsel sought leave to withdraw from the proceedings I was not advised of any conditions to return sought by the mother. On the second last day of evidence, the mother was asked by me to prepare a list of conditions to return which would a “soft landing” in Israel, in the event a return order was made, which could be included in her final submissions.
On the final day of the trial, I again raised the issue of possible conditions to return, if a return order were made. I am satisfied the mother was accorded more than adequate procedural fairness about potential conditions to return.
In her final written submissions, the mother sought orders that if an order is made returning the child to Israel, that the father and the two older children travel to Australia for a month in order for the child to establish a connection with them. She also sought orders to ensure the children are to spend a significant amount of time in Australia and redevelop/maintain a meaningful connection and relationship with their mother, the child and future sibling.
The orders sought by the mother are outside the jurisdiction of this Court. I have no power to make orders for the father and the two older children to travel to Australia nor for future time between all siblings and both parents. Once a return order is made, the Israeli court is the appropriate forum to determine the future parenting arrangements for the three children.
I appreciate there will be difficulties and hardships for the mother if she returns to Israel, and I am sympathetic to the difficulty of this particular case where siblings have been separated for almost two years.
Although the mother submits she will not return to Israel under any circumstances, I do not consider her submission as sincere. It is difficult to accept the mother would voluntarily remain in Australia whilst all three of her children are in Israel, because she prefers to remain in Australia. I am hopeful she will reconsider her position and ameliorate difficulties which the child would face if she were to return without her mother.
I intend to make orders for the return of the child. It is most unfortunate the mother has chosen not to propose conditions to return, which would have greatly assisted her daughter.
I certify that the preceding three hundred (300) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 28 March 2023
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