Secretary, Department of Families, Fairness and Housing & Shiloh - [2023] FedCFamC1F 348

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Secretary, Department of Families, Fairness and Housing & Shiloh [2023] FedCFamC1F 348

File number(s): MLC 608 of 2023

Judgment of: WILLIAMS J

Date of judgment: 9 May 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 the jurisdictional facts are satisfied to establish the child was wrongfully retained in Australia – Regulatory exceptions – Grave risk and intolerable situation argument – Child to return to Israel – Return order made.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act1975 (Cth) ss 4(1), 111B

Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16(1), 16(1)(b), 16(1A), 16(1A)(a), 16(1A)(b), 16(1A)(c), 16(1A)(e), 16(2)(b), 16(2)(c), 16(3)(b), 16(6)(b), 25A(1)(c)

Cases cited:
Adlin v NT Central Authority (No 3) [2021] FamCAFC 70

Commonwealth Central Authority & Cotter [2016] FamCA 209

De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640

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

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

Handbury & State Central Authority and Anor [2020] FamCAFC 5

HZ & State Central Authority [2006] FamCA 466

In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1

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

Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145

Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44

State Central Authority & Sigouris [2007] FamCA 250

Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

Woodhead v Woodhead (1998) FLC 92-813

Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147

Division: Division 1 First Instance

Number of paragraphs: 158

Date of hearing: 30–31 March 2023

Place: Melbourne

Counsel for the Applicant: Ms Raccanello

Solicitor for the Applicant: Department of Families, Fairness and Housing

Counsel for the Respondent: Dr Ingleby

Solicitor for the Respondent: Brendan Rothschild Legal Group
ORDERS

MLC 608 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING

Applicant

AND:
MS SHILOH

Respondent

order made by:

WILLIAMS J

DATE OF ORDER:

9 May 2023

THE COURT ORDERS THAT:
1.The child, X born 2021 (“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 business class return flights to Israel previously booked for the mother and child remain available;
2.The return of the child to Israel is conditional upon the requesting father , Mr B of C Street, City D, Israel, doing all acts and things necessary to forthwith pay to the mother the sum of NIS5,000 (approximately AUD2,100) towards establishment costs for the mother and the child;
AND IT IS NOTED:
The requesting father will pay the following for a period of three months after the child’s return to Israel:
(i)a monthly amount of NIS5,000 (approximately AUD2,100) to the mother, towards accommodation and living costs for the mother and child;
(ii)private health insurance at no less than the current level of cover for the mother and child;
(iii)the cost of the mother’s current mobile phone plan.

3.The Australian Central Authority notify the Israeli Central Authority of the respondent mother and child’s date of departure.
4.Order 4 of the orders made 25 JANUARY 2023 is hereby discharged and the applicant State Central Authority or it’s nominee authorised in writing is permitted to collect the child’s passport.
5.Pending the child’s departure from Australia for return to Israel, the respondent mother continue to be restrained and an injunction issued 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.

6.Order 5 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 2021 from the Airport Watch List upon presentation for boarding the nominated flight to Israel on the date nominated for the said travel.
7.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.
8.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.
9.Liberty is reserved to the parties to apply urgently in relation to the implementation of these orders.
10.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 & Shiloh 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 Secretary, Department of Families, Fairness and Housing (“the State Central Authority”) filed on 24 January 2023 seeking the return to Israel of the child, X born 2021, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Shiloh, 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) (the Act), to make such provision as is necessary or convenient to enable the performance of the obligations of Australia under the Hague Convention on the Civil Aspects of International Child Abduction, which is generally referred to as the Hague Convention (“the 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 his/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 to 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 and counsel for the mother cross-examined the requesting father.
The State Central Authority asserts that the child has been wrongfully retained from Israel, in accordance with regs 16(1) and 16(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 a regulatory exception to return, namely 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, reg 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” (reg 16(2)(c)). This is not such a case.
Onus of proof
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), 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 (“DP”). In this case, whether the child was habitually resident in Israel at the relevant dates.
The mother bears the onus of proof to establish the regulatory exceptions to return. That is, returning to Israel would expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation (reg 16(3)(b)).
Preliminary Matters
The hearing was conducted as a hybrid trial, with all persons physically attending in-person, except the requesting father who gave evidence electronically from Israel.
I wish to express my appreciation to both counsel for the professional and courteous manner in which the proceedings were conducted.
Evidence and Documents relied upon by the parties
The State Central Authority relied upon the following documents:
(a)Form 2 Application filed 24 January 2023;
(b)Affidavit of the requesting father filed 21 March 2023;
(c)Affidavit of Ms E, dated 14 March 2023:
(d)Affidavit of Ms E, dated 21 January 2023
(e)Outline of Case document filed 24 March 2023;
(f)Documents tendered by counsel, including documents produced pursuant to subpoena.
The respondent relied upon the following documents:
(a)Form 2A Response filed 13 March 2023;
(b)Affidavit of the mother filed 13 March 2023;
(c)Affidavit of Dr F affirmed 29 March 2023;
(d)Outline of Case document filed 27 March 2023;
(e)Documents tendered by counsel, including documents produced pursuant to subpoena.
Counsel for the respondent tendered the following document during trial:

Exhibit Number Description

R-1 Court Book (Pages 1-29)
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. He did not appear to embellish his answers to improve the applicant’s case and made appropriate concessions. I accept him as a truthful witness.

The mother’s evidence was at times problematic and she frequently did not directly answer questions. She did, however, make concessions about the untruthful nature of some of her evidence in her affidavits. Such an example was her concession that the father did not have an intention to live permanently in Australia and there was no joint intention to relocate to Australia, despite her affidavit being replete with such statements and the whole tenor of her case predicated on the supposed intention to permanently relocate to Australia. She also conceded her decision to remain in Israel in mid-2020 was not involuntary and that her decision as at late 2020 was also to remain in Israel. These concessions were completely at odds with the premise of the mother’s presence in Israel as involuntary. Her allegations about the father’s family violence and his inability to care for the child were exaggerated and she made concessions during cross examination about the allegations. She was unable to explain satisfactorily why the allegations escalated between December 2022 and March 2023. She also conceded the statements in her affidavit filed in the family law proceedings on 2 December 2022 about her employment in Australia were incorrect and at the time she swore the document she knew the contents were not true. My impression of the mother was that she sought to embellish reality to improve her case in this proceeding and that she was not a reliable witness. For these reasons, where there is a conflict between the evidence of the father and the mother I prefer the evidence of the father.
Background
The requesting father was born in Israel and is an Israeli citizen currently living in City D. His occupation is artist.
The respondent mother was born in Australia and is a dual citizen of Australia and Israel. She currently lives in Melbourne and is an artist and fitness instructor.
The parents met in City D in late 2019 after the mother immigrated to Israel in late 2020, following the breakdown of her marriage in Australia. They were introduced to each other by a relative of the mother, who had served in the armed forces with the father.
In early 2020 the father travelled to Australia for a visit and returned to Israel a month later. During his absence, the mother agreed to care for his pets.
In March 2020, the mother asked the father if she could move into his apartment in City D as she was not happy with her then accommodation. The father agreed and upon his return to Israel, the mother moved into his apartment. They commenced a romantic relationship a month later and thereafter continued to live in the father’s apartment.
The first Covid-19 lockdown in Israel commenced in late March 2020 and concluded on 24 April 2020. The mother asserted that thereafter the parties had a joint exit plan to relocate to Australia. The father denied any joint intention or plan to relocate to Australia.
In mid-2020, unbeknownst to the father, the mother contacted a travel agent in Australia and booked two one-way tickets for herself and a friend to travel to Australia on a flight scheduled to depart the following month. The flight was cancelled, as was a subsequent flight.
To avoid further lockdown in Israel, in late 2020 the parties travelled to Country H and Country G, prior to returning to Israel two months later. Whilst in Country H the mother discovered she was pregnant with the child.
In late 2020, the mother contacted an immigration agent in Australia with the ostensible aim to obtain a visa for the father to travel to Australia. She asserted the purpose of the visa was to enable the father to migrate to Australia. The father denied the purpose of a visa was to relocate to Australia, but rather was to enable ease of entry in and exit from Australia. He also denied the mother’s assertions that he was involved in the process, other than he attended one electronic meeting with the migration agent, when the mother did most of the talking.
In late 2020, the mother had various email exchanges with a travel agent about proposed flight options to Australia. The father was not aware of or included in the exchanges.
According to the mother she was desperate to travel to Australia to give birth to the child. The father agreed there were discussions about a visit to Australia, but never in the context of a relocation, as asserted by the mother.
In December 2020, the mother sent a message to her mother effectively advising that she would give birth in Israel.
The child was born in Israel in 2021. She is an Israeli citizen by birth. The mother subsequently obtained for the child Australian citizenship by descent.
The family continued to live in the father’s apartment in City D. The mother asserted the father was an incompetent and uninvolved parent, which he vehemently denied.
In late 2021, Australia lifted Covid-19 international travel restrictions and travellers into the country were no longer required to quarantine.
In early 2022, the maternal grandmother and her husband visited the family in City D and departed the following month.
The parents agreed the mother and child should visit Australia and in early 2022 return business class tickets were purchased for them, which were paid for by a family friend, who was the child’s godfather. The planned visit was in mid-2022 for six weeks.
In September 2022, the father agreed to postpone the return trip until November 2022.
On 26 October 2022, the mother informed the father she had decided to remain in Australia and she and the child would not be returning to City D as had been previously agreed. The father immediately informed her he would not agree to the child remaining in Australia.
According to the father, subsequent to the email of 26 October 2022 and his opposition to the child remaining in Australia, the mother continued to advise him she and the child would return to City D in November 2022 as previously arranged. On 3 November 2022 she advised the father she would return to Israel and sent him a copy of her flight ticket confirming departure as 16 November 2022. On 12 November 2022 the mother again advised the father she was returning to Israel with the child on 16 November 2022. On 16 November 2022, the scheduled departure date, the mother provided the father with a medical certificate advising the child was unable to travel due to illness.
On 21 November 2022, the mother advised the father of her proposed conditions to return, which were not acceptable to the father.
On 2 December 2022, the mother filed an application for parenting orders in Division 2 of this court, and on 27 December 2022 applied and obtained an ex parte intervention order against the father, notwithstanding he was living in City D.
On 8 December, the Central Authority for the State of Israel forwarded to the Central Authority for Australia a request for return of the child.
On 24 January 2023, the State Central Authority filed an application in this court and the trial commenced on 30 March 2023.
JURISDICTIONAL FACTS
Date of Retention
I will firstly turn to the date of retention, because 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)).
Counsel for the State Central Authority submitted the date of retention of the child was 26 October 2022, and that her retention was repudiatory. She relied upon the agreement between the parents for the child to return to Israel on 16 November 2022 and upon the mother’s letter to the father, which was forwarded on 26 October 2022 via WhatsApp and email. The relevant part of the letter is as follows:
This is a period of contemplation and reflection and with all things considered It’s (sic) with a heavy heart I write this letter to you explaining after being here in Melbourne that [X] and I will not be returning to Israel.
A copy of the letter is annexure 16 to the father’s affidavit affirmed 25 December 2022.
Repudiatory retention occurs when a retaining parent forms a subjective intention not to return the child to the state of habitual residence at the expiration of the period which was agreed between the parties as the date upon which the child would be returned: see In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1 and Handbury & State Central Authority and Anor [2020] FamCAFC 5.
I accept the mother’s letter of 26 October 2022 is evidence of the mother’s subjective intention not to return the child to Israel, and thereafter the father was of the view the child would not be returning to Israel as had previously been agreed. The mother did not dispute the asserted retention date and I therefore accept there was a repudiatory retention of the child in Australia on 26 October 2022. The mother’s focus during the trial was not whether the retention was repudiatory, but rather that the retention was not wrongful because the child was not habitually resident in Israel at the relevant date.
I now 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 (“In re R”), 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 Australian 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 (“Zotkiewicz”).
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”.
Zotkiewicz emphasised that the court is required to consider both parental intention and the degree of integration of the child, which occurs over an appreciable timeframe.
In this case, I must determine whether the child was habitually resident in Israel immediately before she was retained in Australia by her mother. In order to do so I am required to consider all the relevant circumstances including parental intention, the connection between the child and each state and the period of time spent in each state.
The mother submitted the child had no habitual residence at the relevant date because the mother’s presence in Israel was involuntary.
The State Central Authority relies on the following facts and circumstances, as deposed by the father, to establish the child was habitually resident in Israel at the relevant time.
The father was born in Israel, is an Israeli citizen and resides in City D, where his work is based, although he has an international client base. The mother was born in Australia, is a dual citizen of Australia and Israel and holds passports issued by both countries. She commenced living in City D in 2019 when she moved to Israel from Australia following the breakdown of her marriage. After her arrival in Israel, she underwent a process which provided her with various immigration benefits. The relevant documents are annexure 2 to the father’s affidavit affirmed 25 December 2022.
In late 2019 the parents were introduced to each other by a relative of the mother, who was a friend of the father. In early 2020 the father travelled to Australia just prior to the first Covid‑19 lockdown in Melbourne. During his absence the mother cared for his pets. He returned to Israel a month later, when the mother asked if she could move into his apartment in central City D.
The parents commenced a romantic relationship shortly after the mother moved into the father’s apartment. The child was born in Israel in 2021 and lived with her parents in the City D apartment until her departure to Australia in mid-2022.
The father’s evidence about intention was that he made it clear to the mother from the very beginning of their relationship that his life was in Israel and he had no intention of moving anywhere else. At 54 years of age, he had no intention of starting a new life in another country, particularly one so far away from his elderly mother who is unwell. He thought the mother accepted that without reservation and he and the mother began making plans for a shared life together in Israel, where the father has a supportive and close-knit family including brothers, sisters, nieces and nephews and a number of good friends who are like siblings to him.
The mother asserted that in early 2020 the father had agreed to an exit plan from Israel to move to Australia so that he could continue his work plans and the mother could go back to her family and life in Australia. In support of her assertions as to the father’s intention, the mother relied on emails between herself and her travel agent and a migration agent. The father denied any involvement or knowledge of the mother’s plans to travel to Melbourne in mid-2020 and indeed deposes he was unaware that a one-way flight had been booked at that time until he read it in the mother’s affidavit.

The mother agreed she did not leave Israel in early 2020, but rather agreed to care for the father’s pets, when she was aware his family and/or friends could have done so.
In support of her assertion about the father’s intention, the mother relied upon a letter dated 2 February 2023 from Mr J, a senior migration agent, which is annexed to her affidavit. The letter is hearsay. The father was cross examined about his electronic meeting with Mr J, which Mr J said occurred a couple of weeks after the mother contacted him by email on 12 October 2020. The father denied being involved in any discussions for the family to migrate to Australia. He did not speak much during the discussion and it was mainly the mother who engaged with Mr J. His recollection was limited to discussions about obtaining a Visa to enable him to easily travel to Australia, he had not seen the emails between the mother and Mr J until these proceedings and he was shocked all of that had occurred behind his back. When criticised for failing to respond in his affidavit to Mr J’s letter, his evidence was he was not aware of the emails or conversations between the mother and the migration agent and in any event, the discussions were in 2020 prior to the mother’s pregnancy. He thought the discussion was about renewing his Visa to visit Australia, not about any permanent relocation.
On the second day of the trial after conclusion of the father’s cross examination, counsel for the mother sought leave to rely on an affidavit of Mr J filed 30 March 2023. In that affidavit Mr J deposed to 5 to 6 conversations with the father and the mother whilst they were on holiday in Country H that related to the process of the father obtaining a partner Visa for Australia. The affidavit contradicted the statement in the letter that Mr J had one online meeting with both the mother and the father.
Counsel for the applicant opposed the mother relying on the affidavit as it was unduly prejudicial to the applicant and it was impermissible to seek to rely on an affidavit on the second day of trial. The new alleged particulars contained in the affidavit were not put to the father during cross examination and nor had he had an opportunity to respond.
Counsel for the mother conceded he had never been involved in a trial where the respondent sought to recall a witness, as opposed to a party, after the conclusion of cross examination.
I agreed with the submissions of counsel for the applicant did not permit the mother to rely on the affidavit. The prejudice to the applicant outweighed the benefit of permitting the mother to rely on the affidavit. It was well within the capacity of the mother to obtain an affidavit from Mr J within the timeframe specified by the procedural orders, particularly because Mr J’s letter annexed to the mother’s affidavit is dated 2 February 2023. In any event the affidavit is of little assistance as the deponent does not particularise the alleged conversations with the father nor does he depose to enquiries about the father’s partner Visa in the context of the father’s intention to permanently move to Australia, as opposed to ease of entry into Australia.
The mother was also cross examined about her knowledge of the father’s intention to remain in Israel and the characterisation of the planned trips to Australia.
At paragraph 183 of the mother’s trial affidavit she deposes moving to Australia was his idea, he agreed to the plan. During cross examination the mother initially said it was both of their ideas.
The mother relied upon an affidavit of Dr F, psychologist sworn 29 March 2023. Dr F consulted with the mother on 4 occasions; 15 November 2022, 8 and 16 December 2022 and 10 February 2023. For reasons which were unexplained, Dr F annexed transcripts of various text messages between the mother and the maternal grandmother, the mother and her friends Ms K and Ms L and some messages between her mother and her friends. The messages commenced in June 2020 and were headed Family Violence [Mr B] (sic).
The mother was cross examined about messages between herself and Ms L on 21 November 2020. Late November 2020 corresponds with the timeframe referred to in Mr J’s letter, about 5 weeks after the mother contacted him by email on 12 October 2020.
The relevant message between the mother and Ms L is as follows:
[Ms Shiloh]: “Ruining [Mr B’s] (sic) dream to be together to have the baby in Israel and not in Australia. He doesn’t know the reason why I don’t want to marry him. it’s (sic) because my intuition says we will not be able to make our lifestyles work together as he won’t want to live in Australia and I want to set up a carrier (sic) and life in Australia.
Actually, my biggest anxiety is this: I have the baby in Australia bring [Mr B] with me for the birth and months to follow and then I tell him only in Australia I don’t want to live in Israel then his friends and family don’t see the baby at all. And he has a huge […] family full of friends in [City D], I mean full and what will I do then so I travel back with him and the baby for a few months? What happens if by then I don’t want to be with him anymore and I don’t want to travel back I feel so guilty.
[Mr B], He told me “This is all new to him. He would of never of had the baby with me if he knew I wanted to live in Australia” (sic).
The mother’s evidence in cross examination about the joint plan to move to Australia was evasive. Her explanation about her evidence that there was a joint exit plan in early 2020 could not be reconciled with her text message to Ms L in November 2020. She said there was a joint intention to live in Australia between April and November 2020, but was unable to particularise how, why and when the father changed his mind or when he advised her of the alleged change of mind, which she clearly knew in November 2020 when she discussed it with Ms L. She eventually conceded the father never indicated to her at any time in the relationship that he would live in Australia.
I accept the father’s evidence and find there was no joint exit plan and that his intention at all times was to remain in Israel as a family. I do so because of the plausibility of his evidence, the mother’s concessions and evidence during cross examination which was inconsistent with her affidavit evidence and the contemporaneous document, whereby she acknowledges the father would not live in Australia.
As to the mother’s intention and settled purpose, counsel for the mother submitted the mother was not in Israel voluntarily and had she been able to leave, she would have done so. Her physical presence in Israel was not voluntarily adopted by her, was not for settled purposes and was not part of the regular order of her life. She remained in Israel because of Covid-19 and her communication with travel agents demonstrated she was attempting to leave the country, but was unable to do so.
The father was cross-examined about his knowledge of the mother’s desire to travel to Australia in mid-2020. He agreed he was aware a month earlier that she wanted to travel to Australia but was unable to do so because of Covid-19. He maintained that the mother wanted to visit her mum and that she had a phase that she wanted to have the baby in Australia with the support of her mother, which made a lot of sense to him. He agreed that he had told her in 2020 that he would go to Australia for the birth of the child, if that eventuated. He said the mother could have gone to Australia for the birth of the baby had she wanted, but she did not do so because she did not want to quarantine. He also agreed that by late 2020 there were discussions about whether the mother would go to Australia before or after the baby was born, but insisted it was always in the context of the mother visiting Australia and not relocating.
The mother was cross examined about her intention to remain in Israel. On 6 March 2023 the mother filed an affidavit of Ms M, but did not seek to rely on it at trial, although she was cross examined about the affidavit. Ms M described herself as having known the mother since birth, having a very special relationship with her and that the mother was like a daughter to her.
The mother agreed the statements in paragraph 3 of Ms M’s affidavit were correct, namely the mother had informed her she was going to move to Israel in mid-2019 and that was the start of a new journey for the mother, including visiting her roots, being able to travel to Europe for music and to study.
Despite agreeing with that paragraph, the mother said she was stuck in Israel involuntarily.
The mother agreed she did not leave Israel in early 2020, but rather agreed to care for the father’s pets, when she was aware his family and/or friends could have done so.
On 14 July 2020 the mother sent a text to her mother (annexure 2 to her affidavit) expressing her lack of confidence about leaving Israel and being unsure that if she left, whether she would want to come back (to Israel). Counsel for the applicant put to her she would not have sent her mother such an ambiguous text if she had wanted to leave the country. The mother agreed that as an Australian citizen she was aware she could go back to Australia, but once in Australia Covid-19 restrictions would prevent a return to Israel. She agreed with counsel that she voluntarily remained in Israel at that time.
On 3 December 2020 the maternal grandmother and the mother’s friend Ms K exchanged a text message, which is annexed to the affidavit of Dr F. The relevant text message is as follows:
Hey [Ms K] she wouldn’t let me book the flight she said they talked a lot last night and she now thinking of having the baby there. Totally devastated haven’t stop crying.
The mother agreed she told her mother not to book a flight to have the baby in Australia and she would have the baby in Israel, and that was her decision as at 3 December 2020. She also agreed that she did not want to go to Australia because she did not want to quarantine, but she disagreed that she had set up her life in Israel, despite having established a business before and after the birth of the child in contrast to being unemployed in Australia.
The mother also conceded her trip to Australia in mid-2022 was a holiday visit. She had told Dr F it was for a six week visit and she had agreed with the father it was a short term visit and she was not travelling to Australia to fulfil any long term plans to relocate to Australia.
International travel to and from Australia resumed in late 2021 and the maternal grandmother and her husband visited the mother and her family in City D in early 2022. When raised with counsel for the mother, he could not articulate why the mother’s presence in Israel after late 2021 should be characterised as involuntary when she could have left the country after that time, had she wished to do so, particularly as she agreed her planned trip in mid-2022 was for a visit and not to relocate to Australia. I am able to infer from the characterisation of the trip to Australia as a holiday visit that the mother clearly intended to return to Israel at the conclusion of the holiday.
I accept and find the mother voluntarily travelled to Israel in 2019 to begin a new life and took with her possessions. I rely on the affidavit of Ms M and the mother’s own evidence in this regard including her undergoing the immigration process.
As to her intention subsequently, I find that as at early 2020 she voluntarily agreed to care for the father’s pets in City D, when it was clearly open to her not to have done so and instead return to Australia. Whilst I accept she may not have wished to undertake quarantine upon return to Australia that was an available option, subject to flight availability. I also accept she made various attempts in June, July, November and December 2020 to book flights to return to Australia, but that was thwarted by Covid-19 travel restrictions.
Both parents agree in late 2020 they travelled to Country H and Country G until their return to Israel two months later, with the intent to avoid Covid-19 lockdown in Israel. They discovered the mother’s pregnancy whilst in Country H. The mother did not assert she was coerced to return to Israel in late 2020. By December 2020 the mother had clearly decided to remain in Israel and give birth to the child, as demonstrated by her text message to her mother.
I also accept the father’s uncontradicted evidence that in early 2022 the mother booked business class return flights to visit Australia with the child in mid-2022.
Counsel for the mother sought to construe the nature of the mother’s presence in Israel as forced and involuntary and that it would be inappropriate to rely on any settled intention to reside there. He sought to rely on various authorities in the context of ordinarily resident, because the definitional section of s 4(1) of the Act includes habitually resident. He referred to the decision of Woodhead v Woodhead (1998) FLC 92-813, where the party seeking to assert ordinary residence failed because he was serving a 10 year in gaol sentence in Australia, having been extradited from Papua and New Guinea.
Counsel for the mother submitted because of the mother’s involuntary presence in Israel, the court find the child had no habitual residence and relied upon Adlin v NT Central Authority (No 3) [2021] FamCAFC 70 (“Adlin”). In Adlin the issue for determination was not whether a parent’s presence in a country was involuntary and the consequential ramifications on the children’s habitual residence, but rather whether two young children had lost their habitual residence in one country before acquiring any new place of habitual residence, in the context of the appellant pursuing that argument on appeal, when no such argument had been pleaded at first instance.
I accept the mother made attempts in June, July, November and December 2020 to secure flights to Australia, without the father’s knowledge or participation, which did not eventuate because of Covid-19 flight restrictions and her desire to avoid quarantine in Australia. The father’s evidence was that all discussions about the mother obtaining flights to Australia were about a visit and never about the family’s relocation. I prefer the father’s evidence to the mother’s.
The mother did not explain why she chose to remain in Israel subsequent to late 2021 when international travel to Australia without quarantine was possible. Despite the mother’s opportunities to leave Israel, she made numerous choices to remain in and return to Israel. Although I accept her happiness in the country may have waxed and waned from time to time and she may have had ambiguous intentions at some stages, she ultimately repeatedly decided to remain living with the father in City D.
Her choices commenced in early 2020 at the start of the Covid-19 pandemic, when she made a choice to remain in Israel and care for the father’s pets, rather than seeking to return to Australia. In mid-2020 she again voluntarily decided to remain in Israel. In late 2020 she and the father travelled to Country H and Country G for 3 months, when she again decided to return to Israel. In December 2020 she advised her mother, who wanted to book a return flight to Australia for her daughter, she had decided to remain in Israel to give birth to the child. As from late 2021 international travel to and from Australia reopened without the requirement to quarantine and there was no evidence the mother availed herself of the opportunity to return to Australia at that time. To the contrary, she remained in Israel, where her mother and stepfather visited in early 2022. Finally, in early 2022 she made another choice to return to and remain in Israel, when she booked return tickets for a six week holiday visit to Australia, which was extended by agreement, prior to changing her mind.
I do not accept the evidence supports any conclusion that the mother’s presence in Israel was involuntary or analogous to a person in prison. I find the mother voluntarily travelled to Israel in late 2019 with a view to migrate and remain there, apart from her trip to Europe in late 2020, until she flew to Australia in mid-2022.
Having regard to my findings that the mother was not involuntarily present in Israel, and that she may have had ambiguous intentions at some times, I find her settled intention generally between early 2020 and mid-2022 was to remain living in Israel, which she did. I find the father’s settled intention at all relevant times was also to remain living in Israel and as conceded by the mother, there was no joint intention to live in Australia.
I am mindful that parental intention is not determinative of habitual residence, however it is one of many factors to be considered and I am bound by the statements in LK, in particular at [34], pertaining to the habitual residence of young children.
I will now turn to the second part of the test, namely 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 Israel.
As to settled purpose and connection to Israel, the applicant relied on the following. The child is a dual Israeli and Australian citizen, holds a digital card issued by the City D Municipality to babies who are residents of the city, was approved to have a tree planted in City D in honour of her birth and had medical insurance under the family health insurance plan from the time of her birth. She lived with both her parents in the family apartment in City D from her birth until her departure for Australia in mid-2022 and to the extent possible for a child of her age, was integrated into the community of her parent’s family and friends.
The father considered himself a loving and attentive father who was inherently involved in the child’s care. The mother disputed the extent of the father’s involvement in the day to day care of the child, but did not dispute all three lived together as a family in the City D apartment. She sought to portray the father as disinterested and uninvolved in the child’s life. The father relied upon the annexures to his affidavit of 20 March 2023 which include an exchange of every day domestic text messages between the parents, photographs and videos of the father and the child and photographs of the interior of the family apartment. I accept the annexures demonstrate the father’s unremarkable involvement in family life.
The mother was cross-examined about her statements that the father never spent more than an hour a day with the child and that it was the norm for him to sleep until 10 or 11 AM each day.
She conceded the first statement was incorrect and that annexure 11 to her affidavit, a text message to her mother of 5 June 2022, demonstrated she had left the child with the father up to two hours unsupervised. She agreed the father participated in drawing and painting with the child, visited the park, cooked and prepared food and that paragraph 121 of her affidavit, where she deposed to the father’s minimal involvement with the child, was not correct.
The father’s evidence about the extent of his family and friends in City D and his desire to include them in the child’s life is corroborated to some extent by the mother’s message to her friend Ms L referred to earlier in these reasons.
Because of the mother’s admissions about her incorrect evidence and relying on the annexures to the father’s affidavit, I prefer and accept the father’s evidence about his involvement in parenting the child.
The child lived in Israel between her birth in May 2021 and her departure for Australia in August 2022 for fifteen months, her whole life, which is more than the six months referred to in Zotkiewicz at [80] – [81]. In the context of the child’s age and the date of retention, I consider that to be an appreciable period of time. She lived in an intact family unit in Israel and was cared for by both parents, although the mother was the primary carer and the father was the family breadwinner. She forged bonds with both her parents, 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 then Covid-19 restrictions and she is a citizen of both countries. The father was and remains living and working in Israel.

The mother did not comprehensively address the child’s circumstances in Australia, other than she lives close to her grandmother, is enrolled in child appropriate activities and enjoys spending time with extended family. Counsel for the mother did not make any submissions about the child’s connection to Australia or the length of her time in Australia. Indeed that would have been an extremely difficult task, given the date of retention was just over two months after her arrival in Australia when the child was around 15 months old.
After considering the evidence and submissions of both parties and all relevant factors, I consider the child’s habitual residence immediately prior to her retention in Australia on 26 October 2022 was Israel and I so find.
Have the jurisdictional facts been satisfied
I am satisfied that all the requirements of reg 16(1A) have been satisfied and I find the child’s retention in Australia was wrongful.
REGULATORY EXCEPTIONS TO RETURN
Having determined that the child was wrongfully retained in Australia, I will now address the exceptions to return raised by the mother. I will address the issue of exposure to grave risk of physical or psychological harm or placing the child in an intolerable situation.
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401 (“DP”) Gaudron, Gummow and Hayne JJ stated [39]:
39.… Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
41.… On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.”
42.Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43.Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44.These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45.That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
… Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Further at paragraph [132], his Honour Justice Kirby considered the language used in reg 16(3)(b) and said:
The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated. Similarly, the use of the word “otherwise” in reg 16(3)(b) indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”. Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”, will invite the application of the exception.
(Citations omitted).
Ryan and Aldridge JJ in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [58] referred to comments of Gaudron, Gummow and Hayne JJ, at paragraph [40] of DP:
So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that “there is a grave risk that [his or her] return … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at [1154], the Court of Appeal stated that:
…There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”
In State Central Authority & Sigouris [2007] FamCA 250, Bennett J said at [79]:
In order for the respondent mother to make out the exception under Regulation 16(3)(b) of the regulations (Article 13(b) of the Convention), it is necessary to establish at the risk of exposure to physical or psychological harm or the children being placed in an intolerable situation in the event of their return to Country H forthwith is not only very real but “grave”.
In Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65, Watts J at [90] made it clear that the regulations are to be interpreted according to Australian legal standards and the fact that in DP the High Court did not give a restrictive meaning to the defence of grave risk made clear that the words of reg 16(3)(b) are to be given their natural meaning and not a narrow construction.
The mother relies upon alleged family violence perpetrated by the father, intolerable living conditions in Israel and the risks, including terrorism, of day to day life in Israel.
The mother sought to paint a picture of the father as coercive, controlling and violent. Despite these alleged concerns, the mother agreed that in late 2022 she had offered the father unsupervised time with the child. She was also unable to reconcile her future proposals for the father to spend time with the child unsupervised, as set out in her WhatsApp messages of 3 and 6 November 2022, with her allegations in this proceeding and her proposed conditions to return which include stringent supervision of the father’s time with the child. The mother also agreed she had no concerns for the child with the father because if she had any such concerns, she would not have proposed unsupervised time in the relevant messages.
In a Notice of Risk filed by the mother on 2 December 2022 she alleged she had experienced family violence and was at risk of experiencing family violence. She did not state there were any such concerns for the child, although despite no supporting evidence she stated the child has suffered or is at risk of suffering serious psychological harm from experiencing family violence directly or indirectly.
During cross examination the mother agreed she described three alleged incidents of family violence in Part I of the Notice of Risk. These occurred on 16 April 2022 when she alleged the father would not get food for her after a fight, on 31 May 2022 when she alleged the father slammed the door in front of the child after a fight and on 5 June 2022 when she alleged the father threatened to take the child to a birthday party a couple of hours away, on a hot summer’s day, which was inconsistent with the child’s sleeping and feeding routine.
In these proceedings the mother’s allegations against the father significantly escalated from those described in the Notice of Risk filed in December 2022. The escalated allegations included an alleged threat by the father to get the Russian mafia to kill the mother and the child, which the mother deposed to occurred on 29 April 2022, many months prior to her filing a Notice of Risk. That allegation is not included in the Notice of Risk. The father denied any such threats. I accept his evidence in preference to that of the mother for the reasons referred to in my assessment of the parties as witnesses and because the father’s text message, where he allegedly referred to his conduct as a joke, was dated 20 April 2022, prior to the date of the threats alleged by the mother.
The mother agreed with counsel for the State Central Authority that there were no changes in her circumstances between late 2022 and early 2023, other than the father had initiated the return proceedings. In re-examination she attempted to explain the escalation in allegations because she was seeing a psychologist. I do not accept that explanation because of my assessment as to the mother’s propensity to embellish and recast past events, to advance her case.
The mother alleged the father was financially coercive and controlling because he had expressed concern about his diminished future income during Covid-19. She also alleged he had gas lit her on 20 March 2022, when she told him she wanted to separate and he expressed his incredulity by saying “are you serious” prior to walking away and failing to engage with the issue or concept. I do not accept either incident constituted family violence. Her interpretation is indicative of the mother’s propensity to embellish her case in this proceeding.
On 27 or 28 December 2022 the mother made an application for and obtained a family violence interim intervention order against the father, with herself and the child as the protected persons. A copy of the order is annexure 13 to her affidavit. She had filed parenting proceedings in Division 2 of this court shortly prior to obtaining the intervention order. An examination of the application shows the mother provided the father’s address as her address in Australia, when she well knew the father lived in City D in Israel. When asked how it was possible a court had made an intervention order against a person who resided outside of the country, she was unable to explain. I consider her actions in obtaining the intervention order to be disingenuous.
Her allegations of family violence were in stark contrast to the sentiments expressed in her letter to the father of 26 October 2022, where she described their relationship:
…. We chose each other to start a family out of pure love. You are special to me, always in my heart and my best friend. We went on a journey of trust and feel deep with love for creating [X]. I always wanted for you to start your fatherhood chapter with your soulmate and connect you’re your (sic) innate qualities of fatherhood. I saw that in you immediately and wanted to grow with you and grant us the opportunity to start our family. Let’s never forget that we always agreed that “It’s (sic) like someone upstairs planned this for us” and we said “Yes (sic) let’s, love, trust and try” I thank you for loving, protecting [X] and ongoing and cleaning your health up to be that father figure representing a healthy, calm and inspiring father for [X] (sic). The special thing is you are [X’s] (sic) father, there is no one like you and no one can replace that. She will learn from you and you will teach her things I can’t. I understand and appreciate that and want you to have that bond with her………
You are welcome to come to Melbourne to be with [X] for a few months, as we are family.
In her voicemail message to the father on 29 October 2022 the mother said:
So as I shut my eyes now, I feel that you have been an amazing partner, uhm to me (sic), there for me unconditionally; like a warrior, by my side.
As someone would be if they were deep in love with their partner,
cherishing every moment and as partners do sacrifice to grow.
to learn so much from themselves and from the one that they love uhm (sic).
The mother also agreed on 5 December 2020, in a message annexed to the affidavit of Dr F, she had described the father, prior to the child’s birth as an amazing father .She agreed she would not have made those comments on either 5 December 2020 or 26 October 2022, if that had not been correct.
The mother’s concessions in cross examination and her inconsistencies in her allegations of grave risk of harm, including but not limited to, the escalation in allegations between late 2022 and early 2023, her concession the father does not pose a risk to the child with unsupervised visits and the sentiments expressed in her email of 26 October 2022 and her voicemail of 29 October 2022 , do not persuade me that the mother has satisfied the high standard required to establish this regulatory exception and I have significant reservations about the veracity of her allegations of domestic violence. The evidence about these allegations was entirely unsatisfactory and embellished in an attempt to achieve her desired outcome in this proceeding.
Even if I had been so persuaded (which I am not) 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 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.
Because the mother has sought in her proposed conditions to return the parties forthwith commence a custody application in the Israeli court, including a family violence intervention order, I am entitled to infer allegations of domestic violence of the type alleged by the mother could be addressed in the Israeli court in due course and she is willing to commence an appropriate application.
As to intolerable living conditions upon a return to Israel, the mother agreed during cross examination, it was not correct that her living situation in Israel upon return would be intolerable, she had previously been able to secure employment in Israel and she had personal supports in Israel, including an Aunty and the relatives of her friend Ms K’s husband.
As to the risks posed by alleged terrorism, the mother’s evidence was scant. However, during cross examination in the context of her proposed conditions to return, the mother agreed with Counsel for the State Central Authority, she would not have proposed a return to Israel if she thought it was a risk.
There are obviously concerns arising from the Israel/Palestinian conflict which has been long-standing and ongoing. The mother voluntarily and of her own volition elected to live in Israel from 2019, where she remained until mid-2022, subject to travel to Country H and Country G. It is difficult to reconcile her choice to restart her life in Israel in 2019 with what she now asserts poses a grave risk of harm or intolerable situation.
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, as required by the regulations, arising from the conflict in Israel.
Conclusion as to grave risk and intolerable situation
Having regard to my findings about the factors which the mother asserts constitute a grave risk of the child’s exposure to physical or psychological harm or otherwise place the child in an intolerable situation, I do not find that either individual or collectively, the factors constitute the level of risk as required by DP, or indeed any risk and the mother’s reliance on this regulatory exception must fail.
Order to return
Because I have now determined the mother has not succeeded to the requisite standard of proof that any of the regulatory exceptions to return should apply, I do not need to consider the circumstances in which my discretion to return is enlivened. I will make an order for return of the child and will now consider proposed conditions to return.
Conditions to return – reg 16(6)(b)
Regulation 25A(1)(c) permits a court to include regulations, by orders, if it considers those conditions are appropriate to give effect to the Convention.
Both the applicant, via the father’s evidence and the mother addressed conditions for return.
The applicant’s proposal for financial support is set out in the father’s affidavit filed 21 March 2023 and includes an initial payment of NIS5,000 (approximately AUD2,100) towards establishment costs, NIS5,000 (approximately AUD2,100) per month for a period of three months to assist with accommodation and living costs , payment of the mother and child is private health insurance equivalent to the current level of cover for three months and the cost of the mother’s mobile phone plan for three months.
In his affidavit the father also proposes moderate and age-appropriate arrangements for the child to spend time with him.
The mother’s proposed conditions are set out in her Outline of Case document. In terms of financial support she proposes an initial payment of NIS75,000 (approximately AUD31,500) and monthly payments of NIS15,000 (approximately AUD6,300) per month with three months be paid in advance and no timeframe for conclusion of payments. She also proposes the parties forthwith commence an application in the Israeli courts within three months which should include a family violence intervention order with the father agreeing to conditions protecting the mother from the father and any time between the child and the father be professionally supervised. She additionally seeks for her living location to be safe and appropriate to commence her work, the mother have freedom of movement to visit her family in in Australia and the child be permitted to travel to Australia to maintain family relationships.
There was no evidence about the father’s financial position other than the father deposing to his income fluctuating subject to his work and the mother’s complaints about the father’s financial position and his reluctance to spend money for the benefit of the child and herself. In that context it would be impossible for me to make any order requiring the father to pay the amounts sought by the mother, as there is no evidence to support his capacity to do so.
I will therefore make orders in accordance with the father’s proposed conditions as set out in his affidavit. I am satisfied the proposed financial assistance will assist the mother to establish herself and find suitable accommodation for herself and the child.
Because of my findings about the improbability of the mother’s allegations of family violence levelled against the father I do not intend to make an order that the parties jointly make any application to an Israeli court. Both parties are at liberty to do so and if the mother wishes to expedite the Israeli court process and file an application in the timeframe proposed by her, I have every confidence she will do so.
I do not propose to make orders about the child’s time with her father as to do so would require the father to be joined as a party to this proceeding, and it is a matter for determination by the Israeli courts. If the father wishes to expedite any such application to the Israeli courts, I also have confidence he will do so.
For these reasons, I will make an order for the child to return to Israel.

I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 9 May 2023

File number(s):	MLC 608 of 2023
Judgment of:	WILLIAMS J
Date of judgment:	9 May 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 the jurisdictional facts are satisfied to establish the child was wrongfully retained in Australia – Regulatory exceptions – Grave risk and intolerable situation argument – Child to return to Israel – Return order made.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act1975 (Cth) ss 4(1), 111B Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 16(1), 16(1)(b), 16(1A), 16(1A)(a), 16(1A)(b), 16(1A)(c), 16(1A)(e), 16(2)(b), 16(2)(c), 16(3)(b), 16(6)(b), 25A(1)(c)
Cases cited:	Adlin v NT Central Authority (No 3) [2021] FamCAFC 70 Commonwealth Central Authority & Cotter [2016] FamCA 209 De L v Director General, NSW Department of Community Services & Anor (1996) 187 CLR 640 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 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 Handbury & State Central Authority and Anor [2020] FamCAFC 5 HZ & State Central Authority [2006] FamCA 466 In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1 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 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 Secretary, Department of Family and Community Services & Zadeh [2017] FamCA 44 State Central Authority & Sigouris [2007] FamCA 250 Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 Woodhead v Woodhead (1998) FLC 92-813 Zotkiewicz & Commissioner of Police (No.2) [2011] FamCAFC 147
Division:	Division 1 First Instance
Number of paragraphs:	158
Date of hearing:	30–31 March 2023
Place:	Melbourne
Counsel for the Applicant:	Ms Raccanello
Solicitor for the Applicant:	Department of Families, Fairness and Housing
Counsel for the Respondent:	Dr Ingleby
Solicitor for the Respondent:	Brendan Rothschild Legal Group

MLC 608 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	SECRETARY, DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING Applicant
AND:	MS SHILOH Respondent

order made by:	WILLIAMS J
DATE OF ORDER:	9 May 2023