State Central Authority and Daker

[2008] FamCA 1271

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & DAKER [2008] FamCA 1271

FAMILY LAW – CHILD ABDUCTION – Hague abduction matter – reg 16(3)(b) grave risk exception not made out – conditions to return – child returned to Israel

APPLICANT: State Central Authority

RESPONDENT: Ms Daker

FILE NUMBER: MLC 6698 of 2008

DATE DELIVERED: 15 DECEMBER 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: BENNETT J

HEARING DATE: 10 NOVEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS GREENHAM

SOLICITOR FOR THE APPLICANT: STATE CENTRAL AUTHORITY SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES

COUNSEL FOR THE RESPONDENT: MR DUFFY

SOLICITOR FOR THE RESPONDENT: POWELL BAYLISS LAWYERS

Orders

IT IS ORDERED:

1. That the child N born … April 2004 be returned to Israel pursuant to the Family Law (Child Abduction Convention) Regulations 1986.

2. That the State Central Authority and the respondent mother forthwith make such arrangements as are necessary for the child to return to Israel, in the company of the mother, within 30 days or such other date as the applicant State Central Authority may agree upon.

3. That the Registrar or Proper Officer of the Family Court of Australia (Melbourne Registry) hand over the passport of the child to the legal representative of the State Central Authority upon the presentation of these orders to facilitate his return to Israel in accordance with this Order.

4. That the applicant State Central Authority deliver the child’s passport to the mother within a reasonable time prior to the date on which it is arranged that the mother and child depart Australia for Israel.

5. That upon presentation of the child at Melbourne International Airport for departure to Israel in accordance with paragraph 2 of this Order, the Australian Federal Police are requested to delete the PASS Alerts currently in force in relation to the child and the mother and to permit their departure from Australia and for the avoidance of any doubt, any orders that exist at that time to prevent the departure of the said child from Australia be and are hereby discharged.

6. That these return orders are conditional upon the requesting parent, THE FATHER:-

   a)booking and paying for the air tickets for the mother and the child to return to Israel and providing a copy of the proposed itinerary to the State Central Authority for forwarding to the respondent mother not less than fourteen (14) days prior to the proposed date of travel;

   b)making available to the respondent mother $AU6,000.00; and

   c)providing the mother, via the State Central Authority, with a written undertaking that he will not take legal action in Israel in relation to care of the child until the mother has arrived in Israel and then only on not less than 30 days notice to the mother;

7. That in order to implement sub-paragraph 6(b) of this Order-:

   a)the respondent mother notify the State Central Authority within fourteen (14) days of the date of this Order of the account details of a relevant bank account in her name accessible in Israel into which the requesting parent can transfer the $AU6,000.00 referred to in paragraph 6(b);

   b)the State Central Authority provide the mother with any receipt from the relevant bank demonstrating the deposit of $AU6,000.00 into the nominated account of the respondent mother within seven (7) days of the date upon which the requesting parent receives notice of the respondent mother’s account details.

8. That the respondent mother not access the $AU6,000.00 deposited by the requesting parent until she returns to Israel with the child.

9. That liberty be reserved to the parties to apply in relation to implementation of this Order including but not limited to arrangements for the return flight to Israel and arrangements in the event that the respondent mother elects not to accompany the child.

10. That the applicant’s Form 2 filed 23 July 2008 and the mother’s answer thereto filed 8 September 2008 be otherwise dismissed.

11. That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Daker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6698 of 2008

STATE CENTRAL AUTHORITY 

Applicant

And

MS DAKER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the State Central Authority filed 23 July 2008 seeking the return to Israel of the child N born in April 2004 pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). The Regulations import into our domestic law the provisions of the Convention on the Civil Aspects of International Child Abduction which was concluded at The Hague on 25 October, 1980 (“the 1980 Convention”). The purpose of the Regulations, in the context of these proceedings, is to provide that children who are wrongfully removed to, or retained in, Australia are returned as quickly as possible to the Convention country in which they were habitually resident immediately prior to being removed or retained for the purpose of abiding such arrangements as can appropriately be made for them in their own country.

2. The respondent, MS DAKER, is the mother of the child.  The requesting parent, MR S, at whose behest the application is made, is the child’s father.

3. In 2007 the requesting parent agreed that the mother could take the child from Israel to Australia for a holiday and she did so.  Thereafter, however, the mother refused to return the child to Israel.  The mother disputes that she agreed to return to Israel on 29 December 2007 but, as I have extracted below, she deposes that on 29 December 2007 she informed the requesting parent that their relationship was over.  Since that time, she has taken no steps to return the child to Israel in spite of the requesting parent seeking that she do so.

4. The mother agrees, through her counsel, that the requesting parent has rights of custody in respect of the child by reason of the factual and legal circumstances set out in the request for return under the Convention. In short, it was conceded that the Regulations are appropriately engaged.

5. I am satisfied on the evidence and by the concessions made by each party that, on or about 29 December 2007, the respondent mother wrongfully retained the child in Australia and that she continues to do so.

6. Whilst the Convention, and the Regulations (which are the legal force of the Convention in Australia), mandate the speedy return of children to their place of habitual residence, there are some circumstances in which this court can decide that the children should not be returned. In the present case, the respondent mother contends that an exception to the mandatory return provided for in the Regulations applies. The mother’s case is that the return of the child to Israel would, within the meaning of Regulation 16(3)(b), expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation.

7. Initially, the respondent also contended that the requesting parent acquiesced to the respondent retaining the child in Australia but she no longer proceeds with that contention.

8. If I am satisfied that the exception under Regulation 16(3) applies then I have a discretion to refuse to return the child to Israel.

9. The mother’s position is that the discretion does arise and should be exercised to permit her to keep the child in Australia.  On the other hand, if she fails to make out the exception and the child is to be returned to Israel, the mother seeks various conditions to their return which, she says, are directed to the reasonable needs of herself and the child upon their arrival in Israel

10. The position of the applicant State Central Authority is that the exception does not apply and that the child should be sent back to Israel as soon as practicable.   In the alternative, if I find that the child’s circumstances fall within the reg16(3) exception, the  applicant says that the Court should still order the return of the child to Israel.  In either event, the applicant agrees that conditions can be imposed on the return of the child and asks me to have regard to the alternative set of conditions apparently agreed to by the requesting parent.

Evidence and findings of fact

1. The applicant relied on the following documents:-

   a)Form 2 Application filed 23 July 2008 which includes prescribed documents and the father’s request dated 12 June 2008 as transmitted to the Australian Central Authority by the Central Authority for the State of Israel;

   b)The affidavit of JONATHAN MAKARY sworn 12 September 2008 to which is annexed the responding declaration of the requesting parent made 11 September 2008;

   c)The affidavit of JONATHAN MAKARY sworn 24 September 2008 to which is annexed correspondence from the Ministry of Justice for the State of Israel and a further declaration of the requesting parent made 23 September 2008;

   d)The affidavit of JONATHAN MAKARY sworn 3 October 2008 to which is annexed a further declaration of the requesting parent made 2 October 2008;

   e)The affidavit of COLLEEN CAREY sworn 16 October 2008 to which is annexed the responding declaration of the requesting parent made 13 October 2008; and

   f)Photocopy facsimile declaration of the requesting parent made 9 November 2008.

2. The numerous annexures to the affidavits of Mr Makary and Ms Carey are admissible pursuant to the evidentiary provisions of the Regulations which provide inter alia that the application, documents attached to or given in support of the application or request are admissible as evidence of the facts stated in that application, request or document (Regulation 29(2)).

3. The respondent relied on the following documents:-

   a)The Form 2A Response filed 8 September 2008 which includes a declaration by the respondent;

   b)The affidavit of the respondent mother affirmed 24 September 2008;

   c)The affidavit of the respondent mother affirmed 6 October 2008; and

   d)The financial statement of the respondent mother affirmed 14 October 2008.

4. Additionally, there were exhibits tendered during the trial.

5. The requesting parent is in Israel.  The mother is in Melbourne and she attended Court for the hearing.  The matter proceeded on submissions.  There was no application or indication that it should proceed otherwise.  No cross examination was sought.

6. Whilst dealing with the matter summarily, the Court is aware of the particular limitations placed upon the parties in Convention proceedings of this nature.  Parties must often adduce evidence through governmental and official channels, in a different language from their own and from a legal system structured and/or resourced differently from that which they might be familiar, and within in a short time frame.  As with many cases brought under the Convention, the evidence in this case is not comprehensive. 

7. Where I can or am required to make findings of fact, I make them on a balance of probabilities.

8. Where I have made or go on to make statements of fact, they constitute findings of fact.

Background

1. The requesting parent was born in Europe, is 27 years old and a citizen of Israel.  He is in full time employment in the natural resource sector.  The requesting parent has refused to complete a financial statement so I have no comprehensive details of his financial situation.

2. The respondent mother was born in Europe, will soon be 27 years old and is an Israeli citizen.  She deposes to her occupation being a qualified professional, now engaged as a full time parent, but having worked in Israel in the past in administration.

3. The parents met, in Israel, in August 2000 and soon commenced a relationship.  They lived variously in rented accommodation or with the requesting parent’s family.  They have never married.

4. N was born in April, 2004 in Israel, and is an Israeli citizen.  The family last lived together, in Israel, in Tel Aviv.

5. With the agreement of the requesting parent, the mother and the child travelled to Australia to visit the mother’s parents on 26 November 2007.  Her return flight was booked, by the requesting parent after their departure, for 29 December 2007.  The mother deposes[1]:-

   [1] Mother’s Form 2A filed 8 September 2008, paragraphs 8 and 9

   8.I hereby declare that in 2006 I applied for a visa to visit my mother and I was denied and in 2007 I got the visa in November and we bought the tickets to depart Israel on the 26^th November, 2007 and I arrived in Australia on the 27^th November, 2007.

   9.I hereby declare that I informed [the father] that I could only get a ticket for 3 months.  We agreed that I and my son would travel to Australia and then we would find an alternative ticket date for me to come back.  No specific date was agreed upon.  Once I arrived in Australia several weeks later [the father] advised that he decided that he wanted me back with my son.  He told me he changed the date of my ticket to 29 December 2007.  At which point I informed him that I am leaving him and I no longer wish to be with him.

6. The mother asserts that, since these proceedings were instituted, the requesting parent agreed that the child could remain in Australia but that he has since reneged.  As indicated, the mother does not pursue the issue of acquiescence in the context of an exception to mandatory return.  However, counsel appearing on her behalf did make an oral application for an order that the mother be given leave to apply to discharge any return order in the event that the parents do subsequently agree that the child can continue to live in Australia. In discussion, it was agreed that such as order is not necessary in light of reg 19A and the application was not pressed.

7. Relevantly, reg 19A provides:-

   Discharge of return order

   (1)   If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.

   (2)   The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:

   (a)    all the parties consent to the return order being discharged; or

   (b)    since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or

   (c)    exceptional circumstances exist that justify the return order being discharged; or

   (d)    the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

The grave risk exception

1. Regulation 16(3)(b) provides that a court may refuse to return a child to its home country if a person opposing return (in this case the mother) establishes that 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.  Practically, it mirrors the provisions of Article 13(b) of the Convention which provides:-

   Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return 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.

2. Prima facie, the respondent mother bears the onus of proving, on a balance of probabilities, that the return of the child to Israel pursuant to the Regulations will expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation. It is acknowledged that where the alleged risk or attending harm is of such a nature that the applicant Central Authority or other appropriate authorities would have better access than the respondent to relevant information, that the onus can shift. However, this is not such a case.

3. The proper interpretation of Regulation 16(3) has been settled by the majority judgment of the High Court in the cases of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401 where Gaudron, Gummow and Hayne JJ said:

   “[40]    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.

   ‘Narrow construction’?

   [41]     In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a ‘strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed’. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. 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 or in 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.”

1. The respondent mother alleges various matters in her affidavit evidence and, in this respect, I adopt the summary helpfully compiled by Counsel for the State Central Authority[2] and confirmed as accurate and comprehensive by Counsel for the respondent.  The mother’s allegations are as follows:-

   [2]  Exhibit “SCA1”, Outline of Submissions on Behalf of the State Central Authority (Applicant) dated 10 November 2008

   a)The relationship between the requesting parent and the respondent mother included lots of tension, verbal, physical and mental abuse which sometimes occurred in front of the child[3]

   [3] Form 2A declaration of respondent mother sworn 2 September 2008, paragraph 3

   b)The father was cruel, heartless, nasty, and ruthless, calling her names such as “slut, bitch” and telling her she was worthless.  She never complained because she was afraid for her safety and the wellbeing of the child[4].

   [4] Form 2A declaration of respondent mother sworn 2 September 2008, paragraph 4

   c)She felt like a prisoner because the requesting parent monitored what she ate, where she went and with whom she associated[5].

   [5] Form 2A declaration of respondent mother sworn 2 September 2008, paragraph 5

   d)On many occasions she was the victim of physical abuse. On two occasions the father dragged her by her hair from the kitchen to the living room.  Once he choked her in the kitchen in front of the child who was crying for his father to stop.  Once he broke a hairbrush on her shoulder because she spoke to his boss’ wife.  On several occasions he slapped her in the face because she tried to express her opinion[6].

   [6] Form 2A declaration of respondent mother sworn 2 September 2008, paragraph 7

   e)When he was drafted into the army a psychiatrist declared that he was mentally unstable which diagnosis resulted in the requesting parent being excused from national service[7].

   [7] Form 2A declaration of respondent mother sworn 2 September 2008, paragraph 9

   f)She believes that if her son went to Israel she would never see him again[8].

   [8] Form 2A declaration of respondent mother sworn 2 September 2008, paragraph 11

   g)He lives with a prostitute who is under house arrest for assault offences[9].

   [9] Affidavit of the respondent mother sworn 24 September 2008, paragraph 5

   h)The maternal grandmother owns and operates an illegal brothel in Tel Aviv[10].

   [10] Affidavit of the respondent mother sworn 24 September 2008, paragraph 6

   i)There is a long history of control and intimidation.  The requesting parent regularly accused the respondent mother of being “nothing and worthless”[11].

   [11] Affidavit of the respondent mother sworn 24 September 2008, paragraph 8

   j)The father suffers from a mental illness.  He habitually consumed large amounts of alcohol and 1-2 gm marijuana per week and would have irregular mood swings of violence and aggression.  He is unconcerned whether or not the child is present when he is violent.  Neither the child nor the mother is safe with the father and the risk of harm to the mother and the child is ever present.  The father uses violence to control the mother and child[12].

   [12] Affidavit of the respondent mother sworn 24 September 2008, paragraph 9

   k)The father would often physically assault the mother in front of the child and would only stop when the child pleaded for him to stop[13].

   [13] Affidavit of the respondent mother sworn 24 September 2008, paragraph 11

   l)The father slapped the mother in the face in late 2003[14].

   [14] Affidavit of the respondent mother sworn 24 September 2008, paragraph 12 

   m)In August 2004 the father dragged the mother by her hair into the living room, pushed her against the wall and pulled her hair and only stopped when the child began crying.  The father became violent if she spoke back to him with or without alcohol[15].

   [15] Affidavit of the respondent mother sworn 24 September 2008, paragraph 13

   n)In early 2006, the requesting parent choked the respondent mother for no apparent reason and only stopped on pleas from [the child][16].

   [16] Affidavit of the respondent mother sworn 24 September 2008, paragraph 14

   o)The requesting parent has previously assaulted the respondent mother with a hairbrush, hitting her with such force that he broke the brush.  The child witnessed this and begged his father to stop[17].

   [17] Affidavit of the respondent mother sworn 24 September 2008, paragraph 15 

   p)In April 2007 there were a number of incidents where the father physically assaulted her. The requesting parent was unreasonably aggrieved at an innocent conversation between the respondent mother and the wife of the requesting parent’s employer.  He grabbed the mother by the hair and hit her with a long plastic brush across the head and neck.  He eventually broke the brush and left her bruised on the floor. He did not stop even though the child saw what was happening[18].

   [18] Affidavit of the respondent mother sworn 24 September 2008, paragraph 17

   q)The mother has stated “I believe I could not go back even if my son was ordered to return because of my fear of the father and his family[19] as a consequence of her unsuccessful attempt to remain in Australia.”  However, at trial, she abandoned this position and said that, if the child is ordered to be returned, she will accompany him.

   [19] Affidavit of the respondent mother sworn 24 September 2008, paragraph 19 

   r)That the mother is “deeply concerned for my son’s welfare if he does return to Israel.  He is totally dependant on me to the point where I cannot leave him with the paternal grandmother if I am not home.  Also I believe that if my son is returned to Israel the father will have the paternal grandmother caring for the child or her staff from the brothel.  [The child] would in effect be left to fend for himself in a hostile environment where his mother would be the subject of daily abuse.  He would not be able to cope and the risk of permanent psychological harm to him is high”.[20]

   [20] Affidavit of the respondent mother sworn 24 September 2008, paragraph 20

2. The requesting parent directly contradicts, on oath, the respondent mother’s allegations. The requesting parent deposes that:-

   a.All claims raised by the mother regarding his abuse of her and or physical/mental violence against her are false and have “no entity”.[21]

   [21] Affidavit of the Father, sworn 11 September 2008, paragraph 2

   b.There were no tensions and/or problems in the marriage.[22]

   [22] Affidavit of the Father, sworn 11 September 2008, paragraph 3

   c.He has never attacked the mother, threatened her or prevented her from going out, or stopped her from having friends.[23]

   [23] Affidavit of the Father, sworn 11 September 2008, paragraph 4

   d.There were never any police complaints against him for violence of any kind, including threats, and he has never been questioned by the police for suspicion of violence.[24]

   [24] Affidavit of the Father, sworn 11 September 2008, paragraph 5

   e.Likewise, there has not been any appeal to social services or any other treatment system.[25]

   [25] Affidavit of the Father, sworn 11 September 2008, paragraph 6

   f.He has never attacked the mother, especially not in the presence of his son as claimed.[26]

   [26] Affidavit of the Father, sworn 11 September 2008, paragraph 8

   g.The allegation that his mother is running a brothel is “an untruth” and has no relation to reality.[27]  His mother works in a cleaning company and has been there for three years.  She has no connection to any dubious/immoral or illegal business.[28]  She owned a food store before that.[29]

   [27] Declaration of father sworn 23 September 2008, paragraph 2, Exhibit ‘JM2’ to Affidavit of J Makary sworn 24 September 2008,

   [28] Declaration of father sworn 23 September 2008, paragraph 3, Exhibit ‘JM2’, Affidavit of J Makary sworn 24 September 2008, ,

   [29] Declaration of father sworn 23 September 2008, paragraph 4, Exhibit ‘JM2’, Affidavit J Makary sworn 24 September 2008,

   h.He maintains that he lives alone and has no girlfriend. The allegation that he is living in a brothel and has a female partner who is under house arrest is a lie.[30]

   [30] Declaration of father sworn 23 September 2008, paragraph 5, Exhibit ‘JM2’, Affidavit of J Makary sworn 24 September 2008,

   i.He claims that he had mental health issues to the army to avoid being drafted for conscience reasons.[31]  He is not suffering from any mental illness or disorder.[32]

   [31] Declaration of father sworn 23 September 2008, paragraph 6, Exhibit ‘JM2’, Affidavit of J Makary sworn 24 September 2008,

   [32] Declaration of father sworn 23 September 2008, paragraph 7, Exhibit ‘JM2’, Affidavit of J Makary sworn 24 September 2008,

   j.He is “a settled guy” who is working in a leading company for [natural resources].[33]

   [33] Declaration of father sworn 23 September 2008, paragraph 7, Exhibit ‘JM2’, Affidavit J Makary sworn 24 September 2008,

   k.The arguments are false and are raised to harm his dignity and reputation and for the purpose of keeping his son away from him.[34]

   [34] Declaration of father sworn 23 September 2008, paragraph 8, Exhibit ‘JM2’, Affidavit of J Makary sworn 24 September 2008,

   l.If the child returns to Israel he will be living with the father in Tel Aviv and will go back to kindergarten.[35]

   [35] Declaration of father sworn 23 September 2008, paragraph 11, Exhibit ‘JM2’, Affidavit of J Makary sworn 24 September 2008,

3. It is submitted by the applicant State Central Authority that, given the seriousness of the allegations about domestic violence, there must be clear and cogent evidence that such a risk exists before the Court can properly make a finding that the return to Israel will expose the child to a grave risk of the harm as contemplated in the regulations.  I accept that submission.

4. An Australian case where the issue of domestic violence was directly raised as an exception to mandatory return is Murray v Director of Family Services ACT (1993) 16 Fam LR 982. It was submitted by the applicant, and I accept, that the relevant principles from that case for the purposes of this application are:

   a)Order for return to a particular country does not mean that the child must return to the care of the requesting parent against whom allegations of violence have been made;

   b)It is open to the respondent to return to another part of the country where the danger to her may be less and it is of course open to her to seek orders from the courts in the relevant country both for personal protection and interim and final custody immediately upon her arrival.  She may also seek leave from the overseas court to take the child to Australia.

   c)Where the overseas country has a system of family law and provides legal protection to persons in fear of violence which is similar to Australia, it would be presumptuous and offensive in the extreme for a court in this country to conclude that the wife and child are not capable of being protected or the relevant authorities would not enforce protection orders which are made by the courts.  Israel appears to have such a system (see exhibit 1 of affidavit of Jonathan Makary sworn 24 September 2008).  No evidence has been put forward by the mother to say that the system of protection in Israel is inadequate.

   d)The circumstances in which Regulation 16(3) comes into operation should be largely confined to situations where such protections are not available.  To do otherwise would be to act on untested evidence to thwart the principal purposes of the Hague Convention which are to discourage child abduction, and where such abduction has occurred, to return such children to their country of habitual residence so that the courts of that country can determine where or with whom their best interests lie. (per Nicholson CJ, Fogarty and Finn JJ at para 171 – 173 and see also Gsponer case [1988] 12 Fam LR 755 at p 768)

5. Furthermore, it is submitted by the applicant that the mother has failed to discharge the burden of establishing that there is a previous history of violence which could, in turn, support a finding that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.  Alternatively, the applicant State Central Authority submits that, if the respondent mother’s evidence is accepted as to the previous history of violence, the Court must then make a prediction, based on the evidence, of what may happen if the child is returned.  If the evidence of the mother is accepted then, it is argued, it seems that the mother is urging the Court to find that there is a risk that the child may witness the father assaulting and humiliating the mother or may be at some risk himself. 

6. There is no evidence that the child has been physically harmed.  The very harmful effects of domestic violence, including when experienced by children as observers, is accepted in this country.  In the present case, however, the mother alleges violence and the requesting parent denies the violence.  There is a direct conflict in the evidence.  Treatment of conflicting evidence was commented upon by Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F[36], at page 553 in the following terms:-

   [36] Re F (A Minor) (Child Abduction) [1992] 1 FLR

   “If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence?  It may turn out not to be crucial to the decision, thus not requiring a determination.  If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side.  That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent.  Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it.  If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case. 

7. It was submitted on behalf of the respondent mother that, as the father has admitted to acting deceptively[37] in order to avoid being drafted into the Israeli army, I ought not to believe or to accept any of his denials of domestic violence in this proceeding.  I am accepting of the proposition that the father’s admission that he falsely “claimed in front of the army authority that I can’t serve in the army because I’m mental patient” and that “this was claimed only for the purpose of avoiding joining military service …..”.may show a tendency in the father to tailor his story to meet his own ends.  However, it is not clear how proximate in time these apparently dishonest representations were made and I regard it as drawing too long a bow to disregard all of the father’s evidence in this proceeding merely on the basis of an admission that he made statements which he believed to be dishonest, to avoid military service, at some time in the past.  This issue may well be relevant in any proceedings between the mother and the requesting parent, in Israel. However, that is a controversy that should be determined in Israel, where both parties can be under equivalent scrutiny, have their evidence and competencies tested and the court will be more familiar than me with the law and values in relation to military service.

   [37] Requesting parent’s declaration  made 23 September 2008, paragraphs 6 and 7

8. Taking all of the evidence into account, I am unable to find that the evidence of the respondent mother in relation to domestic violence is more compelling than the denials of the requesting parent.

9. It is of course open to the respondent mother to seek orders from the courts in the relevant country both for personal protection and interim and final custody immediately upon her arrival.  She may also seek permission of the courts in Israel to relocate the child to Australia.

10. I accept the submission of the State Central Authority that I must weigh the conflicting evidence against the reality that, if ordered to return, the mother will not be required (under the terms of the return order), to return to the same house or even the same city as that occupied by the requesting parent.

11. The relevant passage from Murray’s case was cited with approval by the Full Court in Cooper v Casey 18 Fam LR 433 (per Nicholson CJ, with whom Kay and Graham JJ agreed at para 24 to 26) which was a case requiring the return of children to the United States in circumstances where the primary caregiver was asserting serious acts of violence, of both a physical and psychological nature, perpetrated by the husband upon her. (See also State Central Authority v LJK (2004) 33 Fam LR 307, per Morgan J)

12. There have been a number of international cases, referred to by the applicant State Central Authority, where courts have found the exception under reg 16(3)(b) or its equivalent to be made out based on allegations of significant domestic violence and declined to return children. (see Re F (minor: abduction: rights of custody abroad) (1995) 3 All ER 641; Pollastro v Pollastro (1999) 171 DLR (4^th); Walsh v Walsh 221 F.3d 204 (US case).

13. The cases referred to by the State Central Authority were comprehensively discussed by Kay J in the matter of State Central Authority and M [2003] FamCA 1128 in which, ultimately, children were not returned to England, a Convention country on the basis that to do so would have exposed the children to a grave risk of harm within the meaning of Regulation 16(3)(b). Kay J described the distinguishing features of M’s case as follows:-

    42.I feel it is safe to make findings that there has been a significant amount of violence between the parties.  It is probable - but I make no ultimate finding - that much of that has been instigated by the father. 

    43.It is also safe to make a finding that the parties are unable to extract themselves totally from their relationship one with the other.  The truth is far more complicated than the mother's assertion that she tries to go into hiding but the father ferrets her out.  I think there is more likely to be significant substance in the father's assertions that the mother has been somewhat proactive in continuing their relationship over the years, understandably in circumstances where she has little extended support system available to her in a foreign environment. 

    44.It is clear that the existence of court orders and criminal sanctions has not abated the degree of violence.  It is clear, notwithstanding the many promises given to the courts that a lesson has been learned, that the problem has not gone away.  What flows from that is it is unlikely to go away.  Whether that is because it is entirely brought about by the father's behaviour or by this strange magnetic relationship that the parties seem to have is not abundantly clear.  It is clear that many of the factual circumstances of this case present themselves in little glimpses in each of the cases that I have referred to. 

    45.The violence in this case does not raise itself to anything like the levels involved in either Walsh and Pollastro.  The intensity of the threats does not reach the level of the behaviour in either Re F or Pollastro.  But the common sub-theme exists of an ongoing and chronic situation where the children find themselves living in fear and constantly living on the move without any form of security. 

    46.Although I found it a difficult case to come to grips with in light of the very strong underlying message within the Convention, ultimately I am satisfied of the existence of a grave risk of harm in this case.  It arises as a result of the history of the relationship as I have described it and the common substratum of facts that emerges from each side’s story.  There have been years of sporadic violence in the presence of the children.  It has necessitated constant court proceedings, and regular invocation of criminal sanctions.  The problem persisted until the mother left England.  I am confident a return to England would most likely lead to a continuation of the problems that have dogged these children for all of their lives in England.

    47.It is beyond argument the exposure of the children to violence between their parents cannot be seen in the children’s best interests.  I feel the discomfort that Butler-Sloss LJ felt in her decisions in Re F and in the South African case in light of the strong underlying currents of the Convention and the need to overcome the scourge of wrongful removal.  But the High Court has reminded us on several occasions that the Convention is to be read as a whole.  It is a Convention with exceptions.

    48.This case, on balance, fits within one of the exceptions.  A return to England would place these children at grave risk of being once again exposed to the father’s persistent attitude of continuing to harass the mother and the mother’s persistent inability to end her relationship with him other than would be necessary to provide for ongoing contact between the children and the father.

1. It is significant that, in M’s case, the mother’s allegations were uncontroverted[38].  There was also evidence previously given by the requesting parent in proceedings in England in which he admitted to having perpetrated domestic violence and said that he had sufficient insight not to relapse but then did relapse.  Relevantly, Kay J concluded that the children were at risk from both parents and found “…the reality of life of these children in England, be it brought about by the mother’s behaviour or the father’s behaviour, is that the presence of the mother in the same country at the same time is likely inevitably to lead to further incidents of violence between them.[39]”.

   [38] For instance, at paragraphs 31and 51, [2003] FamCA 1128, Kay J where refers to evidence which could have been forthcoming from the requesting parent but was not.

   [39] SCA v M [2003] FamCA 1128 at paragraph 114

2. The present case is quite different from M’s case or the other authorities referred to above.

3. Here, there is a clear conflict in the evidence; the respondent bears the onus which in my view she has not discharged.  It is well understood that many victims of family violence do not seek assistance or pursue legal redress when subjected to intimate partner violence.  However, in my assessment, there is insufficient evidence in this case to support the mother’s allegations or the fear of harm sufficient to found the exception.

4. There was no evidence to suggest that were the mother to have accessed the legal or social support system in Israel, that she would not have been assisted by that system, nor that it was found to be deficient.

5. Neither the requesting parent nor the respondent mother has adduced evidence which compels me to reject the evidence of the other.  That is, in this proceeding I am not satisfied which version is correct or more correct than the other.  However, I am satisfied that there are issues which should be adumbrated in a Court of competent jurisdiction.

6. As there is no ground for rejecting the testimony of either party and where, as here, the respondent mother bears the onus of establishing the facts relevant to the exception, I find that the respondent mother has failed to discharge that onus. I am not satisfied that the exception under Regulation 16(3)(b) of the Regulations (Article 13(b) of the Convention) is made out.

Exercise of discretion against mandatory return

1. Because I have not accepted the mother’s case that there is a grave risk within the meaning of reg 16(3)(b), the child must be returned to Israel.

2. However, in the event that the respondent mother had made out the exception for which she contended (which she has not), the court would have a discretion to refuse to return the child to Israel. I will mention briefly how I would have dealt with the discretion had it arisen (which it has not).

3. The applicant State Central Authority contended that, if the discretion arose, I should not exercise it.  The respondent contended that I should exercise it and thereby allow the child to stay in Australia.  Based on the evidence before me, I would not exercise any discretion against the return of the child to Israel.

4. In the unreported decision of Kay J in State Central Authority and DB [2002] FamCA 804 delivered 24 September 2002, His Honour, in my view, correctly summarised the relevant law in relation to the exercise of the discretion to refuse an order for return as follows:-

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

   “if a child objects to being returned to the country of his or her habitual residence and has attained the age and degree of maturity spoken of in reg 16(3)(c), it remains for the judge hearing the application to exercise an independent discretion to determine whether or not an order should be made for the child's return. The Regulations are silent as to the matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous [ Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J]. That subject-matter is such that the welfare of the child is properly to be taken into consideration in exercising that discretion.”

   In TB v JB (formerly JH) [2000] EWCA Civ 337 Laws and Arden LJJ, Hale J dissenting, upheld an appeal from a decision of Singer J and ordered the return of children aged 14, 13 and 10½ to New Zealand in circumstances where the mother had brought the children to England seeking to escape from what she said was an abusive relationship with her second husband. It was clear that the eldest child did not wish to return to New Zealand. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence) [1996] 2 FLR 570 at 574 which were:

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

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

   (c)the consequences of the acquiescence;

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

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

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

   34.      Her Ladyship said:

   “56. As to (f), the policy of the Hague Convention undoubtedly weighs heavily in respect of the children's objections. In my view, expressed in Re HB (Abduction: Children's Objections) [1997] 1 FLR 392, it weighs particularly heavily in those cases where children come to visit a parent living here and wish to remain: unless their objections are very cogent indeed, they should return to their primary carer for the dispute about a change in primary care to be settled in their home country. It weighs rather less heavily when the children wish to remain with their primary carer, particularly where, as here, the child has had no contact with the other parent for such a long time. … “

5. In the recent decision of HZ v State Central Authority [2006] FamCA 466, the Full Court comprising Kay, Coleman and Warnick JJ endorsed the above passage by Kay J in State Central Authority and DB as being appropriate approach to be taken on the issue of the exercise of discretion to refuse to return a child to its country of habitual residence.  In HZ v State Central Authority the Full Court were considering an appeal from my decision to return children then aged 8, 5 and 3 years to Greece after they had been consensually removed about a year earlier but then wrongfully retained.  Their Honours observed:-

   “Her Honour identified the features that were appropriate to the exercise of discretion in this case, namely that the purpose and underlying philosophy of the Hague Convention would be at risk of frustration if a return order were to be refused, because her Honour identified the retention as “the most ‘blatant kind’”…Given that these were children who were born in Greece and had spent effectively the entirety of their life in Greece until the mother unilaterally determined to retain them in Australia, Greece was clearly the appropriate forum for issues relating to the welfare of these children to be determined. In those circumstances it was appropriate for her Honour to place significant weight on the first of the objects referred to in Article 1 of the Convention namely the prompt return of the children who had been wrongfully retained in Australia.”

6. In HZ v State Central Authority the respondent mother had alleged that the father had perpetrated acts of violence and verbal and emotional abuse against her.  She maintained that he had restricted her freedoms, that she would have little support or financial assistance in Greece and that the father had threatened her with harm upon her return, thus constituting a grave risk of psychological and physical harm or an intolerable situation for the child.  At first instance in that trial, I was satisfied that there was sufficient evidence to ground the allegation of violence.  The Full Court upheld that finding that the exceptions to the mandatory return of the child to Greece were not made out.  Further, the Full Court affirmed that had the exceptions been made out, it would have been inappropriate to exercise the resultant discretion to allow the children to remain in Australia. 

7. In this case, neither party addressed the relevant considerations with much vigour but I will do the best I can on the evidence before me. 

8. Comparative suitability of the forum to determine the child’s future in the substantive proceedings:  The mother and her family reside in Australia.  No doubt has been raised as to the efficacy of the Israeli legal system.  Even if the mother sought to adduce evidence from witnesses in Australia (which she did not do for this application), I have not received any evidence to the effect that Israel has less capacity than our court in Australia to obtain evidence by way of video link or on commission for the purpose of cross examination.  On the other hand, the balance of witnesses relevant to the allegations of the respondent mother are in Israel, that is the father, his mother, his girlfriend, if his denials of her existence are false.  That number is likely to be expanded rather than contracted.  Taking the availability of witnesses into account, I am satisfied on balance that Israel is the more suitable forum to determine the child’s future than is Australia. 

9. The likely outcome of the substantive proceedings:  This is not easy to answer and neither counsel before me attempted to do so.  I am confident that an outcome in either jurisdiction will follow on an examination of relevant evidence which I am obviously not in a position to assess at this stage.  In Australia the paramount consideration is the best interests of the children.  There was no evidence that Israel was not a jurisdiction which is also child focussed .

10. I am unable to predict the outcome of proceedings in either jurisdiction without knowing what course the mother may adopt once returned to Israel, what evidence is to be adduced, how it can be tested. 

11. Consequences of acquiescence:  I am not satisfied that there has been any acquiescence on the part of the requesting parent.

12. The situation awaiting the respondent mother and child if they return:  There is no suggestion of any criminal charges or civil penalties which would await the respondent parent in the event of her return. 

13. I am satisfied that, once returned to Israel the child will be cared for by the respondent mother with a real and viable option to spend time with the requesting parent and his extended family, subject to any proceedings which determine questions of safety and harm to herself and the child..

14. The anticipated emotional effect upon the child of an immediate return:  I accept that it will be a big upheaval for the mother and, through her, unsettling for the child to go back to Israel.  He is likely to be sad and upset, as any 5 year old would be, when he farewells his family members in Australia.  However, as the High Court observed in DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services at paragraph 45 extracted above:-

    “[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.”

15. I take into account that the respondent mother will have access to the judicial system in Israel.

16. The extent to which the purpose and underlying philosophy of the Hague Convention would be frustrated if a return order were refused:  The child welfare issues raised in this case are matters which, in my view, are best dealt with by the courts in Israel.  It is not contended that the respondent will be unable to participate meaningfully in proceedings in Israel about with whom and where the child should reside. 

17. I also consider the extent to which the underlying philosophy of the Convention which is to expeditiously resolve these matters without delay.  The mother departed Israel with the child in November 2007.  The child has been wrongfully retained since December 29, 2007 when on any version of events; the mother advised the father she was leaving him.  The requesting parent made the request on 12 June 2008.  The relevant application was filed, in Australia, on 23 July 2008.  The matter then proceeded before me on 10 November, 2008.

18. Whilst the time lines in this case are not ideal, I am satisfied that the delay, itself, has not thwarted the purpose of the Convention.  This has not ceased to be a case which should be examined by a court of competent jurisdiction in Israel as soon as possible.  This is not a case which should, because of the effluxion of time, rest with the respondent’s unilateral and wrongful retention of the child in Australia.

Conditions sought by the mother

1. The respondent seeks that I make the return of the child to Israel subject to various conditions which she specifies although not always with precision.

2. The power for me to consider and, if appropriate, make conditions is found in reg 15 which  provides:-

   (1)   If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:

   (a)    make an order of a kind mentioned in that regulation; and

   (b)    make any other order that the court considers to be appropriate to give effect to the Convention; and

   (c)   include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention

3. The respondent’s relevant evidence appears in her affidavit affirmed 6 October 2008. She deposed:-

   17That I would be significantly disadvantaged financially, economically and socially in providing for myself and in Israel if I had to return to there compared to the advantages of the stable, safe and settled life we enjoy in Australia.  We have been living in Australia for almost a year and I have a supportive and settled life with school, friends and family.  My sister and I have been looking for a suitable home in Melbourne in which to live so that we no longer have to stay at my mother’s house.  My sister is married and she and her husband have a two and a half year old son with whom  [N] plays every day and has lived with since arriving in Australia in November 2007.  They are very close.

   18In Israel I would be dependent on welfare payments and what ever the father can pay for the support of.  I have no family support or friends I could rely on for support in Israel.  I would not be able to work in Israel while I am responsible for the care of [the child].

   19That I estimate that my living expenses in Israel would be between 6,000-8,000NIS per month (the exchange rate being approximately 3.3 NIS = AUD1), and that I would be eligible to receive 1,200 NIS per month child allowance.

   20That for me to find affordable accommodation in Israel means I would have to look in marginal areas on the city fringes in areas of mixed Israeli and Palestinian populations where violence and the threat of violence in the streets is real.

   21That I have no savings or assets of any kind with which to re-establish, support myself and care for [the child] if I am compelled to return to Israel with .[40]

   [40] Mother’s affidavit affirmed 6 October 2008

4. The conditions sought by the respondent mother are to be found in paragraph 22 of the mother’s affidavit affirmed on 6 October 2008.  The response of the applicant State Central Authority is to be found in its outline of submissions[41].

   [41]  Exhibit “SCA1”

5. First, the mother seeks that father be responsible for the costs of the air transport of the mother and child from Australia to Israel.  The position of the applicant State Central Authority is that the father be responsible for the costs of air transport of the mother and child from Australia.

6. Second the mother seeks that she be provided with a properly roadworthy safe and fully registered motor vehicle appropriate for the transport of herself and the child immediately upon her arrival in Israel with the child and that the mother thereafter retain the use of that vehicle exclusively.  The applicant opposes any such condition and submits that such a condition is not appropriate to give effect to the Convention.  It is submitted that, “[t]he mother does not have a drivers’ licence and can take public transport.”  At the hearing, the court was informed that, prior to leaving Israel, the mother did not own a car, did not drive the family car or have a licence to do so.  She currently has no licence to drive a car in Israel.

7. Third, the mother seeks that she and the child be provided with an apartment suitable for the accommodation of the mother and the child and of a size similar to where the mother and child previously lived in an equivalent area but not the same as where the father lives, to be approved by the mother, and sufficiently distant to discourage uninvited contact from the father, and furnished with the furniture owned by the mother and father before the mother and child left Israel.  The applicant’s position is that the father has offered that the mother and child live with him, however, it acknowledges that the mother cannot be forced to do so.  The father has said he is able to pay $500-00 (which he clarified as being dollars not shekels) for her to rent an apartment in Tel Aviv for one month.  In his latest affidavit he has agreed to pay the first months’ rent and half of the monthly rent thereafter until an Israeli court orders otherwise.  There is no evidence as to the time by which an Israeli court is likely to be seized of the matter.

8. Fourth, the mother seeks that she be provided with the sum of 1,200NIS per month to be deposited into a bank account in her name only, by way of maintenance and child support, with an advance payment to cover the first six months of her period with the child in Israel.  The applicant’s position is that the father has agreed to pay 1200NIS per month for the maintenance of the child, although, he says he cannot afford to pay six months in advance.  A financial statement was requested from the father.  The applicant State Central Authority was told that the court would not accept evidence as to his inability to pay without a financial statement but one was not provided.

9. Fifth the mother seeks that father give his written agreement to take no action to remove the child from the care of the mother and to make no application to any court in Israel to remove the child from the care of the mother without first providing the mother with not less than thirty (30) days notice in writing of any such application, and any such notice not to issue until after the arrival of the mother in Israel.  The position of the State Central Authority is that the father has said that he is willing to wait until the mother returns to Israel before initiating a custody application and will give 30 days’ notice.  Nevertheless, the applicant submits that the wording of any such condition  should be more akin to the wording used by Kay J in the case of Director General, Department of Community Services & Kilah (No 3)[2007] FamCA 1099 which was to require that the requesting parent provide a written undertaking that “he will not take any legal action in Israel to prevent the children from living with their mother until any proceedings in Israel have been concluded and unless the mother has had an opportunity to be heard in an Israeli court.”

1. Sixth and lastly, the mother seeks that the father do all acts and things necessary to obtain an interim personal protection order without admission in favour of the wife and child from the relevant Court in Tel Aviv.  The applicant informed me that the father has agreed to a restraining order provided the mother also has one against her.  The applicant’s position is that the court may or may not see the need for such as order as a condition of return in the circumstances of the case. I take that as being that no submission is made against the condition sought by the mother.

2. Frequently, in cases such as the present case, conditions are considered in the context of the reg 16(3)(b) exception to mandatory return as a means of ameliorating the apprehended risk of harm.  In this case, the mother seeks the imposition of conditions under reg 15(1) independently of the reg 16(3)(b) exception.  Accordingly it is not necessary for me to direct the conditions to an amelioration of alleged risk of harm.  I need only be satisfied that the conditions are “appropriate to give effect to the Convention.”

3. A number of English cases have considered the extent of conditions which can be ordered or undertakings received prior to the return of children to a contracting state.

4. In Re H (Abduction: Grave Risk) [2003] 2 FLR, Dame Butler-Sloss P, with whom Mummery LJ and May LJ agreed, considered the period for which it was necessary to delay the return of children (10 and 7 years) to Belgium “to protect the immediate welfare of the children” in the context of Article 13(b) grave risk of harm exception. Butler-Sloss P noted:-

   [35]Lord Donaldson of Lymington MR in C v C (Abduction: Rights of Custody) [1989] 1WLR 654, sub nom Re C (A Minor) (Abduction) [1989] 1 FLR 403 said at 664 and 413 respectively:

   ‘…in a situation in which it is necessary to consider operating the machinery of the Convention, some psychological harm to the child is inherent, whether the child is or is not returned.  This is, I think, recognised by the words ‘or otherwise place the child in an intolerable situation’ which cast considerable light on the severe degree of psychological harm which the Convention has in mind.  It will be the concern of the court of the State to which the child is to be returned to minimise or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this country should assume that this will be done.  Save in an exceptional case, our concern, ie the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child.’ 

   [36]     With Lord Donaldson of Lymington MR’s words in mind, I turn to consider what, in my view, should be done to smooth the return of these children to the country of habitual residence and to ensure the best arrangements until such time as the Belgian court, the SAJ or the SPJ take over the management of these children and deal with their future welfare.[42]

5. In Re P, Dame Butler-Sloss P found that it would be unacceptable to return the children to the situation which pertained when they left Belgium almost a year previously.  Certain issues would have to be resolved as conditions precedent to the children being returned.  These included setting aside an order which gave the requesting parent sole parental rights, arranging housing and social welfare or income support for the mother or children in Belgium, establishing some understanding as to the contact between the requesting parent and the children on return, and ensuring that arrangements were in place enabling the Belgium court or authorities to take over the control of the children’s future as soon as possible following their return[43].  The Court of Appeal allowed the appeal and remitted the matter to the High Court “for a directions hearing to put into place the mechanics of the return.”

   [43]  Re H(Abduction:Grave Risk) [2003] 2 FLR, paragraph 37

6. In the matter of Re W (Abduction: Domestic Violence) [2004] 2 FLR 499 Baron J considered the return of a 10 year old child to South Africa. The evidence of the respondent mother was that during the parents’ relationship the requesting parent had twice unilaterally removed a child from her care and then she had married the father principally to be able to see the child again. The taking mother claimed that her life had become increasingly intolerable in that, as the headnote recites, “…she had been subjected to regular abuse, including violence, threats with a firearm and demeaning sexual practices. There were photographs showing extensive bruising to the wife, which were supported by contemporaneous medical records. The mother also accused the father of using his wealth and connections to manipulate the due process of law by influencing potential witnesses and even lawyers. There was evidence that on at least two occasions a lawyer who had at first been working for the mother had later acted on the father’s behalf. There was also evidence that the father had sent the mother an email with an attachment designed to allow the sender to receive all emails sent to the recipient computer, undetected, which would have given him access to privileged information.”[44]

   [44] [2004] FLR RE W (Abduction: Domestic Violence) [2004] EWHC 1247 (Fam)

7. Baron J found that the mother’s case did not meet the Article 13(b) threshold.  However Baron J informed counsel that there were “a raft of protective measures” or “basic measures which [he] considered were important prerequisites” to any return.  His Honour asked the parties to consider the imposition of numerous conditions with which, in the end, the father largely agreed.  The conditions are far reaching and required the father to have entered against himself various orders and injunctions for the personal protection of the mother in the Republic of South Africa, that he undertake not to instigate or support or pursue any punishment of the mother, that he would not seek to retain a lawyer to whom the mother had previously given instructions, that he provide a litigation fund of 300,000 South African Rand in addition to 200,000SAR towards the maintenance of the mother and child for the first six months and a written irrevocable undertaking to the High Court of Justice of England and Wales and to the High Court of South Africa “that he will not seek in any way to have the [500,000SAR] … returned to him prior to the conclusion of proceedings” and, finally, travel expenses.

8. I accept the concept of easing the returning mother and child back into the country in which they were both habitually resident prior to the wrongful retention.  The abduction provisions in the 1980 Convention are a means to an end, not an end in themselves.  It is obviously for the benefit of the child that the transition between countries should be as smooth and as comfortable as the circumstances of the case allow.  However, any attempt by this Court to regulate the conduct or circumstances of the parents once the child has left Australia needs to operate only until a court of competent jurisdiction in the other state can be seized on the matter and must, I think, not impinge on the powers of that court to make relevant orders on the proper and timely applications that could, and should be made by the parties. In my view, the conditions which can be properly imposed on return orders made under the 1980 Convention, should be marked as much by appropriate restraint and respect for the operation of law in the requesting state as they are for the reasonable needs of the returning party and child in the immediate to short term.

9. In the absence of evidence sufficient to make out the exception to mandatory return, the mother has, nonetheless, provided the court with some evidence of violence on the part of the father toward her.  The father contested those allegations and the issue was not tested any further before me.  This is material likely to be brought before an Israeli court when the matter is litigated there.  No doubt, an Israeli court will also have before it evidence relevant to determining the long term best interests of the child. Notwithstanding the findings of this court, it is prudent to attach some conditions which provide some protection and comfort for the child and herself when they return to Israel.

10. There is no dispute about airfares.  The matters in issue are periodic support including the cost of rental accommodation and transport, the notice to which the mother is entitled in relation to proceedings instituted in Israel and a personal protection order.

11. I am satisfied that the mother’s claim for a motor vehicle is not reasonable in the circumstances of this case.  The fact that she did not drive a car in Israel when she lived there is not determinative but, to my mind, it weighs against the provision of a car being an immediate need particularly having regard to the requirement for her to first obtain a licence.  That the mother seeks to have exclusive use of the vehicle on an indefinite basis is also inappropriate. I will not make a condition in these terms but, in refusing to do so, I note that the mother and child will return without any independent means of transport and will be reliant on public transport and its associated costs (of which there is no evidence).

12. Notwithstanding the father’s offer, I am not satisfied that the mother and the child can co-habit with the father in Tel Aviv.  I do propose to give effect to the mother’s intention to establish a separate residence with the child in Israel.  The mother proposes that she be provided with $3,000 AUD per month for accommodation and expenses in Israel.  As far as accommodation is concerned, the father’s proposal which provides for an allowance of $500 for the mother to assist her to rent an apartment in Tel Aviv, and an agreement to pay the first months’ rent and half of the monthly rent thereafter until an Israeli court orders otherwise.  In my assessment the requesting parent’s proposal is too open ended.  It does not provide the mother with the wherewithal to accommodate herself and the child immediately upon her arrival in Israel, whilst she locates appropriate semi-permanent housing, and then to establish that rental accommodation by way of paying a bond and some rent in advance.  I am satisfied that it is consistent with, and necessary to give effect to, the Convention, to see that the child and mother are adequately housed immediately upon arrival and then for approximately 2 months thereafter, by which time I expect that the courts of competent jurisdiction in Israel will be seized of the matter.  It is only an expectancy on my part because no evidence was adduced as to the workings of the Israeli judicial system.

13. The mother seeks about 7200NIS by way of periodic support.  The mother therefore seeks about $2,000 by way maintenance for the child for the first six months.  The requesting parent says that he will pay the amount periodically because “he cannot afford to pay six months in advance”.

14. I have difficulty in accepting a bald assertion as to what the requesting parent is able to pay.  If the requesting parent, through the State Central Authority, sought to convince me that the support for which the mother contends is unaffordable, the completion and submission of relevant information in the form of a financial statement would have been an ideal means by which to do so. On 6 October 2008 I ordered the applicant State Central Authority to file and serve any financial statement of the requesting parent upon which it proposed to rely.  That was communicated to the Israeli Central Authority[45]. No financial statement was forthcoming and, at the hearing. I was informed that the requesting parent had declined to provide one.

    [45] Affidavit of Colleen Carey, solicitor, sworn 16 October 2008, paragraph 6

15. The father, through the applicant, has not explained how any financial conditions sought by the mother are beyond his means.  There was no evidence which provided information about income or capital at the disposal of the father.  Had he done so, I could likely have discerned what was affordable for him and what was not.  In the circumstances, I will not impose conditions that are unreasonable (like provision of a car on an indefinite basis) but neither will I be unduly cautious about what the requesting parent says he cannot afford.

16. I have already referred to my concerns about formulating conditions that will not impinge on the jurisdiction of the courts in the jurisdiction to which the child will return.  Additionally, if conditions are warranted, it is important that the conditions be formulated so as not to create more problems than they seek to address.  I recognise that the mother and child should be accommodated.  However to make a condition in the terms sought by the mother would likely lead to difficulties in compliance and, I am confident, a much delayed return whilst the parents argue, via Central Authorities, on whether the accommodation secured is possessed of all of the features which the mother describes.

17. Rather than the piecemeal approach taken by the mother, I prefer to impose a condition whereby the requesting parent is to pay an amount of money to the mother which can later be taken into account, and adjusted against, by the courts in Israel, if those courts see fit to do so.  This will be a lump sum in addition to the cost of the airfares which will be paid by the father.  It is not intended to remove the requesting parent’s liability to pay any statutory liability for child support.  If it transpires that the amount is more than the reasonable requirements of the mother and child, then it will be open to the court in Israel to make an adjustment in that regard.  My intention is to replace the child in the contracting state, in the care of his mother without undue hardship to either of them.  That corresponds with what I “consider to be appropriate to give effect to the Convention” within the meaning of reg 15(1)(b).

18. I also wish to avoid injustice to the requesting parent.  It is not my intention to sabotage the return by imposing a pre-condition that he cannot meet.  However, as indicated, the father was requested, through the State Central Authority, to provide evidence of his financial situation and has failed to do so.

19. In addition to the airfares which are to be paid by the requesting parent, the mother seeks $3,000 per month by way of rent and periodic support on an ongoing basis.  The father offers considerably less but envisages paying for six months or so.  Doing the best I can, I am satisfied that an amount of $6,000 should be paid by the requesting parent as a pre-condition to the child’s return to Israel.  This lump sum payment will allow the mother to use the funds at her discretion and obviate any need for enforcement which could be difficult if the parents are not resident in the country where the orders were made.  Unreasonable use by the mother of the funds may be adjusted in proceedings in Israel by courts which are better placed to assess the capacity of the requesting parent to pay, the mother’s reasonable requirements and her capacity to support herself and to contribute to the support of the child.

20. It is my intention that the monies be paid prior to the mother and child departing Australia but that the funds not be accessible until the mother and the child have entered Israel. Various mechanisms occur to me such as requiring the mother to nominate an account in Israel into which the funds can be paid but I do not know if the funds would be inaccessible to the mother in Australia.  In any event, I did not provide the parties with a specific opportunity to be heard in this regard so I will do so.

21. The requesting parent is prepared to hold in abeyance any proceedings in Israel about care of the child.  He deposes:

    I hereby declare that I’m ready to wait until [the mother] returns to Israel before I initiate a custody application in a Isareli court if that application will be admitted at all.  I’m ready to give [the mother] an opportunity to be informed 30 days prior to admitting such application, so she can receive a written copy and response to it.[46].

    [46] Declaration of requesting parent made 9 November 2008, paragraph 6

22. In the circumstances, I will not accede to the position of the State Central Authority to adopt the wording in another case, referred to above, which also imports different obligations.

23. Finally, the mother seeks that an interim personal protection order be entered for her benefit against the father prior to her return to Israel.  The father says he would agree to mutual orders[47].  Where the applicant was then unable to point to any evidence in the matter which supported the need for an order by the father against the mother, that position does not cast the father in a good light.  It is not a tit for tat exercise.

    [47]  Declaration of requesting parent made 13 October 2008, paragraph 11

24. At a preliminary mention of the matter I raised with the practitioners for the parties whether it would be possible to obtain various orders in Israel in advance of the child’s return.  They agreed that I could liaise with a judge in Israel to make that enquiry.  The enquiry and reply were circulated by correspondence[48] prior to the final hearing. Insofar as it is relevant, the reply was “[t]he order of protection may be problematic since one of the prerequisites is that a threatening act occurred shortly before filing.  I don’t know if such an act could have occurred outside the country but if it’s a mirror order of an Australian order, I believe it would be ratified.”

    [48] Exhibit “C1”

25. Because there is doubt as to whether there would be sufficient grounds for an order to be made, I will not make the entry of such an order a pre-condition to the mother’s return.

Determination

1. I will accede to the application of the State Central Authority and order that the child be returned to Israel pursuant to the Regulations.

2. Unless there is agreement between the parties, I will hear from counsel as to the form of the orders whereby the child is to be returned to Israel in the company of the respondent mother.  I will also hear from the parties as to how the $6,000 is to be paid by the father so that it can be accessed by the mother immediately upon her return to Israel but not before unless the applicant State central Authority or the father otherwise agree.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date: 15 December 2008