State Central Authority and Hotzner (No 2) - [2010] FamCA 1041

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & HOTZNER (NO 2)

[2010] FamCA 1041

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Wrongful retention from Israel – Ultra orthodox Jewish community – 15 year old child with ADD – Whether the oldest child objected to return within the purposes of regulation 16(3)(c) – Whether the children would be placed at grave risk of physical or psychological harm or otherwise be placed in an intolerable situation – Separation of younger siblings from older sibling would constitute grave risk of harm – Exercise of resultant discretion not to return children to Israel – Application for return refused.

Convention on Civil Aspects of International Child Abduction

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

United Nations Convention on the Rights of the Child

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

Gamble & Director General, Department of Community Services [2006] FamCA 1401

H v H (Abduction: Acquiescence) [1996] 2 FLR 570

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

Re D (a Child) (Abduction: Custody Rights) [2006] UKHL 51

Re H & Others (Minors) (Abduction: Acquiescence) [1997] 2 All ER 225

Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 All ER 1

Re S (a Minor) (Abduction: Custody Rights) [1993] Fam 242

Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192

TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515

W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211

APPLICANT:

State Central Authority

RESPONDENT:

Ms Hotzner

INDEPENDENT CHILDREN’S LAWYER:

Ms M Lonergan

FILE NUMBER:

MLC

4388

2010

DATE DELIVERED:

16 November 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5, 6 and 13 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A Barbayannis

SOLICITOR FOR THE APPLICANT:

Department of Human Services

COUNSEL FOR THE RESPONDENT:

Mr A Strum

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED:

That the application of the State Central Authority filed on 13 May 2010 be and is hereby dismissed.
That any of the passports of the children D born … March 1995, O born … April 2000 and Z born … June 2004 currently held for safekeeping in this Registry of the Court be returned to the mother Ms Hotzner.
That paragraphs 5, 7, 8, 9, 11 and 14 of the Order made on 14 May 2010 be and are hereby discharged.
IT IS REQUESTED that the Australia Federal Police remove the names of the children D born … March 1995, O born … April 2000 and Z born … June 2004 from the Airport Watch List at all points of international arrivals and departures in Australia.
Any application initiated by the father in relation to the children (or any of them) may be listed before me for directions at the earliest available date.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Hotzner (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4388 of 2010

STATE CENTRAL AUTHORITY

Applicant

And

MS HOTZNER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT (REVISED)*

This is an application by the State Central Authority (“SCA”) seeking the return to Israel of three children pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Hotzner, is the mother of the children. The requesting parent, at whose behest the application is made, is Mr Hotzner.
The children are living with the mother in rental accommodation in Melbourne. They are:
a)D, born in Melbourne in March 1995. He is 15 years of age. Prior to his arrival in Australia, he was a student at Yeshiva A in Israel. He is presently in Year 8 at T Jewish School in Melbourne.
b)O, born in Israel in April 2000. He is 10 years of age. Prior to his arrival in Australia, he was a student at N School in Israel. He is presently in Year 5 at T Jewish School.
c)Z, born in Israel in June 2004. She is 6 years of age. She is in Preparatory Grade at L Jewish School in Melbourne.
At the earliest point in proceedings an independent children’s lawyer (“ICL”) was appointed for the children. I ascertained subsequently that no party wished to be heard in opposition to the request. Section 68L(3) of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings of this nature a request for appointment of an ICL should be made “only if the court considers there are exceptional circumstances that justify [the Court] doing so”. The Court is also required to specify the circumstances relied upon.
Given the time constraints imposed on wrongful retention/removal matters under the Regulations, if an ICL is going to be necessary, the request needs to be made at the earliest possible opportunity. Delay is an important factor in Convention cases. However, proceedings are not prolonged by the appointment of a representative for the children’s interests so much as by one party raising the need for such representation late in the day, and thereby requiring a postponement of the trial.[1]
[1]Re D (a Child)(Abduction: Custody Rights) [2006] UKHL 51, [61] (Baroness Hale of Richmond).
The Full Court in Gamble & Director General, Department of Community Services[2] indicated that a case involving the exception under reg 16(3)(c), objection to return, may be an appropriate case to fit within the exceptional circumstances requirement of s 68L(3).[3]
[2] [2006] FamCA 1401.
[3] Ibid [20].
The appointment of an ICL is also consistent with Article 12 of the United Nations Convention on the Rights of the Child to which Australia is a party. Article 12 provides:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
I was satisfied that there are aspects of this case which, when viewed cumulatively, are out of the ordinary and justified the appointment of an ICL. The aspects included that D is 15 years old and now less than 6 months away from the time at which the Regulations will cease to apply to him at all. In my view, that necessitates that the mother’s case be prosecuted with the input of representation which is separate from the mother. It was also alleged that D’s return to Israel and, in particular, to the educational arrangements which existed prior to him coming to Australia, would expose him to a grave risk of psychological harm or place him in an intolerable situation. It was further alleged that it would be intolerable for the younger children to be separated from the mother and/or their older brother in the event that D is permitted to stay in Australia and the younger ones are required to return.
In due course, Victoria Legal Aid appointed Ms Mary Lonegan as the ICL.
The role of the ICL is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what they believe to be the children’s best interests.[4] The ICL is not a legal representative retained by the children and she cannot be bound by instructions from the children or any of them.[5] The ICL is required to deal impartially with the parties. Significantly for this case, the legislation requires the ICL to put any views expressed by the children before the Court, analyse documents, expert evidence and reports and distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The ICL is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings[6] and to facilitate an agreed resolution of matters in issue to the extent that it is in the best interests of the children to do so.[7]
[4] Family Law Act 1975 (Cth) s 68LA(2).
[5] Ibid s 68LA(4).
[6] Ibid s 68LA(5)(d).
[7] Ibid s 68LA(5)(e).

Family details and wrongful retention

The mother was born in South Africa and is 37 years of age. She presently lives in Melbourne where she is employed on a part-time basis. The application states that the mother is of Israeli and Australian nationality and there was no evidence to the contrary.
The requesting father was born in Australia and is 41 years of age. He lives in Israel. For the past 22 years the father has been engaged in full-time religious studies. The application states that he is of Australian nationality and there was no evidence to the contrary. The mother’s uncontradicted evidence is that the father has resisted acquiring Israeli citizenship.
The parents were married in 1994. Unbeknownst to the father, in June 2009 the mother commenced proceedings for divorce and maintenance in the Rabbinical Court of Jerusalem, Israel. Then, with the consent of the father, the mother and children left Israel for Australia on 12 July 2009. The father had agreed to the children being brought here for a four week holiday. The mother and children travelled on return airline tickets which nominated 26 August 2009 as the return leg.
The mother and children did not return to Israel, and have remained in Australia since that time.
It appears from the application that the father, mother and two youngest children have Australian passports. D has an Israeli passport. His Australian passport has expired.
Finally, the family belongs to the Haredi, ultra orthodox, Jewish community. That was their way of life in Israel and has remained so since the arrival of the mother and the children in Australia on 12 July 2009.

Applications

By application filed 13 May 2010, the SCA seeks orders for the return of the children to Israel, their place of habitual residence prior to their retention in Australia, pursuant to the Regulations.
It is conceded by the mother that the Regulations are engaged by virtue of the following:
a)The children are under the age of 16 years;[8]
b)The children were habitually resident in Israel immediately prior to the alleged wrongful retention of the children in Australia;[9]
c)The father had rights of custody in relation to the children under the law of Israel;[10]
d)The retention of the children in Australia is contrary to the father’s rights of custody;[11]
e)At the time of the wrongful retention the father was exercising his rights of custody or would have exercised them had the children not been retained in Australia.[12]
[8] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1A)(a).
[9] Ibid reg 16(1A)(b).
[10] Ibid reg 16(1A)(c).
[11] Ibid reg 16(1A)(d).
[12] Ibid reg 16(1A)(e).
By answer and cross-application filed 28 June 2010, the mother seeks the dismissal of the SCA’s application on the grounds that one or more of the following exceptions to mandatory return apply:
a)The father subsequently acquiesced to the retention of the children in Australia;[13]
b)D objects to being returned to Israel and his objection (in the particular circumstances of this case) shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and he has attained an age, and a degree of maturity, at which it is appropriate to take account of his views;[14]
c)There is a grave risk that the return of the children (or any of them) to Israel would expose them (or any of them) to psychological harm or otherwise place them (or any of them) in an intolerable situation;[15]
And that it is appropriate for the Court, in the exercise of its discretion under reg 16(3), to refuse to make an order for the return of the children (or some of them) to Israel.
[13] Within the meaning of reg 16(3)(a)(ii) of the Regulations.
[14] Within the meaning of reg 16(3)(c) of the Regulations.
[15] Within the meaning of reg 16(3)(b) of the Regulations.
Further, in the event the Court makes an order for the return of the children to Israel, the mother seeks that the Court impose certain conditions precedent to the return, which include:
a)The father provide economy airline tickets for the return journey for the children and the mother;
b)The father provide and facilitate the mother and children having sole occupation of, and pre-pay four months rent for, the former family home which is an apartment, or provide alternative and comparable accommodation for four months or pay her $11,000 by way of rental expenses for four months;
c)The father provide various basic household chattels, including a refrigerator, and shoes and clothing for herself and the children;
d)The father obtain orders in Israel to the effect that, pending a final hearing by a court of competent jurisdiction in Israel, the children reside with the mother and the father not remove any of the children from her care;
e)The father discontinue and undertake not to initiate or to reinitiate any complaints and charges in criminal or religious courts against the mother arsing out of her retention of the children in Australia;
f)The father sign all documents and things to renew D’s Australian passport.
And that, if within 60 days or by 30 November 2010, the father has not complied with the conditions, the order for the return of the children to Israel lapse.[16]
[16] Exhibit “M2”.
Unless the respondent mother can establish that one or more of the relevant exceptions apply, the Court is mandated to return the children to Israel.

Proof and findings of fact

The relevant test for the Court’s assessment of evidence in this matter is found in s 140 of the Evidence Act 1995 (Cth). Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities.
Lord Nicholls discussed the standard of proof to a balance of probabilities in Re H & Others (Minors) (Sexual Abuse: Standard of Proof)[17] in the context of a wardship application. His Lordship relevantly stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.[18]
[17] [1996] 1 All ER 1.
[18] Ibid [72]–[74].
The applicant SCA has discharged the onus of proving that the Regulations apply to this case (see paragraph 18 above).
The mother bears the onus of proving the applicability of the exceptions upon which she relies.
In the context of the exercise of any discretion to refuse to return the children to Israel, which arises in the event that an exception to return is found to exist, the parties bear the onus of proof for the result for which they contend. The “best interests of the child” principles are applicable to the exercise of this discretion.
No application was made for cross-examination of any witness other than the family consultant.
In these reasons a statement of fact is a finding of fact.

Documents and conduct of the proceedings

The applicant SCA relied on the application filed 13 May 2010 which comprised the relevant details, an affidavit of the authorised person and the request from the Central Authority for the State of Israel to the Australian Central Authority. The latter document is not signed by the father although the various documents incorporated may have emanated from him. Those documents include the parents’ marriage certificate, the children’s birth certificates, proof of medical insurance cover, documents evidencing the children’s attendance at school, a judgment of the Jerusalem Rabbinical Court dated 2 November 2009, photographs and extracts of Israeli law. It was not suggested that the application was deficient by virtue of it not incorporating any document executed by the father.
Counsel for the applicant SCA prepared a helpful outline of argument,[19] which was relied upon and there were some exhibits.
[19] Exhibit “SCA1”.
The mother relied upon the following documents:
a)Her answer and cross-application affirmed 28 June 2010;
b)Her affidavit of evidence in chief affirmed 28 June 2010;
c)Affidavit of Dr U, paediatrician, affirmed 28 June 2010;
d)Affidavit of Rabbi R, principal of T Jewish School, affirmed 28 June 2010;
e)Affidavit of Edwin Freedman, attorney in Israel, affirmed 2 July 2010; and
f)Amended conditions sought by the mother, in the event of a return order being made.[20]
[20] Exhibit “M2”.
Mr Strum, counsel for the mother, prepared a comprehensive outline of argument[21] which he then spoke to at trial.
[21] Exhibit “M1”.
The ICL did not file any documents but did provide an outline of argument[22] which was helpful.
[22] Exhibit “ICL1”.
The matter was first before me on 14 May 2010 when orders were made ex parte securing the whereabouts of the children, requiring their passports to be surrendered and requesting the appointment of an ICL.
On 20 May 2010 the matter came before me again. Ms Lonegan had been appointed as ICL. The applicant could not prove service on the mother. Orders were made for substituted service and a request was made to the SCA, in its capacity as the child protection authority for this State, to conduct a home visit to assess the care arrangements for the children.
On 31 May 2010 Mr Strum of counsel appeared for the mother. Orders were made, inter alia, for the mother to file her response and evidence by 21 June 2010 and for the applicant SCA to file and serve any evidence in reply by not later than 16 July 2010. A report was ordered pursuant to reg 26(1) on the issues of D’s alleged objection to return to Israel and the physical or emotional harm to the two younger children of being separated from D or the mother and D. The mother indicated through her counsel that she wished to participate in the assessment process for the report but I postponed any such involvement until the father’s preparedness to participate could be ascertained. I made the following orders:
10.That until further order the family consultant not interview the mother unless the father is afforded an equivalent opportunity to be assessed and takes that opportunity.
11.That the applicant State Central Authority forthwith obtain instructions on the manner in which the father wishes to participate in the assessment by the family consultant, be that in person with him travelling to Australia, by telephone or video link (time zones permitting) and the applicant State Central Authority communicate that information to each other party to the proceedings and to my Associate, …, as soon as practicable.
12.That I reserve for further consideration the participation of the mother in the assessment for determination on 23 June 2010 at 9.00 am.

By correspondence dated 18 June 2010 the respondent mother sought an extension of time, to 28 June 2010, to file her evidence. That was agreed to by the other parties save that the lawyer for the applicant SCA advised that she had “obtained instructions that the Applicant father wishes to retain the right to consider whether he wishes to participate in mediation and/or the family assessment, after the mother’s defence of the Hague application is received.” No party took issue with that course. The hearing set down for 23 June 2010 was adjourned to 8 July 2010.
On 8 July 2010 the lawyer for the applicant SCA advised the Court that the father would not participate in the assessment for the regulation 26(1) report. The time in which any further evidence could be filed and served by the applicant was extended to 22 July 2010. It was further ordered that the family consultant was at liberty to interview the mother notwithstanding the lack of participation by the father but that completion of the report should be delayed until after any further evidence was filed by the applicant SCA or 22 July 2010, whichever first occurred. My reasons for decision are reported at [2010] FamCA 957 and I incorporate those reasons into these reasons. The Court was advised that the parents were undergoing negotiation or mediation but it was made clear that the hearing process would continue until or unless the pending application was withdrawn. The assessment interviews were to be conducted on 13 July 2010.
No evidence was filed by the SCA by 22 July 2010 or, for that matter, subsequently.
The regulation 26(1) report was released on 23 July 2010.
The trial commenced on 5 August 2010. Insofar as the mother sought parenting orders under Part VII of the Act, that part of the application was dismissed without consideration on the merits. The only witness required for cross-examination by any party was the family consultant, Ms L. Unfortunately, Ms L’s evidence could not be concluded within two hours on 6 August 2010 and the earliest date upon which she was again available was 13 August 2010 when she was cross-examined for a further two hours and the matter was otherwise concluded.
The application is brought pursuant to Division 2 Part XIIIAA of the Act so the principles for conducting child-related proceedings provided for in Division 12A Part VII do not apply to this case. This is significant insofar as evidence is concerned. The proceedings are adversarial.
By virtue of reg 29(2), the documents incorporated in the application of the SCA are “admissible as evidence of the facts stated”. There is a certain amount of narrative provided in the application. Relevantly to matters in issue, it is stated:
IV. Time, date, place and circumstances of the wrongful removal or retention. According to the father, on 12 July, 2009 the mother and 3 children flew to Australia with the father’s consent to visit the mother’s parents, for a limited period of time of four weeks. They travelled on round-trip airline tickets, although the father does not remember the exact return date. The mother and children did not return at the scheduled time, and the mother refused to answer the father as to when she would be returning. The father claims that he continued to demand that she and the children return, and also asked mutual acquaintances in Melbourne, Australia, to contact the mother and tell her that he is demanding that she and the children to return to Israel.
In June, 2009, prior to travelling to Australia, the mother had filed for divorce maintenance in the Jerusalem Rabbinical Court. On 2 November, 2009 that court ruled, inter alia, that the mother’s actions in not returning the children were wrongful and that she should return the children to Israel. According to the father, in December 2009 he contacted Rabbis in Australia who contacted the mother and tried to convince her to return with the children to Israel, however she refused. The Rabbis in Melbourne, Australia told the father that he should pursue the matter in the Jerusalem Rabbinical Court. On 23 February, 2010 the father filed a claim for custody in the Jerusalem Rabbinical Court, and on 17 March, 2010 he filed a revised claim for visitation and return of the children. The father claims that only in March, 2010 did he become aware of the existence of the Hague Convention on the Civil Aspects of International Child Abduction, and that he immediately thereafter applied to the Central Authority for Israel seeking its assistance.
The mother and children are in Australia to this day. The father has telephone contact with the children once a week.
…
VII. Other remarks According to the father, he has not acquiesced to the children being in Australia. He claims that since August 2009, when the mother did not return the children at the scheduled time, he has insisted on their return. He took all steps that he was aware of at the time in order to secure their return, including proceedings through the Rabbinical Court in Jerusalem and contacting a Rabbi in Australia who tried to persuade the mother to return the children. The father claims that he had no knowledge of the Hague Convention until March, 2010, and upon learning of the convention he immediately applied to the Central Authority in Israel. Therefore the father claims that he has not acquiesced to the children being in Australia and that the mother has known throughout that he is insisting on their return to Israel.
The statement contained in the request from Israel was signed by a Mr Yitzchak Blum who is Deputy Director of the Department of International Affairs on behalf of the Central Authority for the State of Israel. The content was summarised and repeated by the lawyer for the applicant SCA in the body of the application. However, the statement by Mr Blum (of which the above extract is part) constitutes all of the evidence in support of the application.
The mother filed extensive evidence to which I have referred in paragraph 31 of these reasons, being evidence by her in the Form 2A response (approx. 5 pages of narrative), her affidavit affirmed on 28 June 2010 (24 pages), the learning development evaluation of D conducted in Israel when he was in Grade 6 in October 2006 (14 pages), an affidavit from D’s treating general medical practitioner (23 pages), an affidavit by the principal of D’s current school (98 pages) and an affidavit by an expert on Israeli family law (11 pages). The conditions to return which were originally sought by the mother appeared in her response filed 28 June 2010. She amended those quite significantly on the second day of the hearing (6 August 2010), but a document to that effect was sent by the applicant for the attention of the requesting father in sufficient time for the father to respond when the hearing resumed on 13 August 2010.
All of the mother’s evidence, her response, the amended conditions she sought be imposed in the event of a return order being made and the regulation 26(1) report were received in sufficient time for the applicant SCA to obtain instructions from Israel. Certainly, there was no complaint or application for an adjournment to indicate otherwise. No evidence was obtained from the father and no further evidence was adduced from Israel. Except as is stated by Mr Blum, the evidence adduced by or on behalf of the mother is not contradicted. I will consider the conflicts which arise between Mr Blum’s statement and the evidence adduced by the mother. However, in the absence of conflict, I accept the evidence adduced by the mother unless it is inherently unreasonable.
By way of overview, this is not a case where there is much conflict in the evidence. Rather, whether the evidence upon which the mother relies is sufficient to engage one or more of the exceptions to mandatory return.

Acquiescence

Relevantly for this case, reg 16(3)(a)(ii) provides that the Court may refuse to make an order for the return of the children to Israel if the mother can establish that the father “consented or subsequently acquiesced” in the children being retained in Australia. Regulation 16(3)(a)(ii) imports into Australian law the provisions of Article 13 of the Convention on Civil Aspects of International Child Abduction (“the Convention”).
On behalf of the mother, it was submitted that after the removal of the children from Israel to Australia, the father subsequently acquiesced to the retention of the children in Australia by reason of any or all of the following matters:
a)The father’s refusal or failure in or about mid/late July 2009 to sign the requisite form to authorise the renewal of D’s Australian passport (which expired on 4 August 2009) to enable him to leave Australia. The mother deposed that within one or two weeks of the arrival of her and the children in Australia, that is in late July 2009, she sent forms to the father to renew D’s Australian passport which was due to expire on 4 August 2009. She explained to the father that D, having entered Australia on his Australian passport, would need a current Australian passport in order to leave Australia. However, the father “refused to sign the renewal form and failed to return the form”.[23]
b)The only communication between the parents in relation to the return of the children to Israel was in a telephone conversation on or about 26 August 2009, when the father told the mother, “I expected you home by now” and he made no reference to proceedings and did not ask when the children would be returning.[24]
c)The father’s failure to make an application under the Convention until in or about April 2010, some eight months after he became aware of the mother’s retention of the children in Australia.
d)The untruth of the assertion in the SCA’s application that “in March 2010, the requesting father became aware that he could apply under the Hague Convention for the return of the children”.
e)At a Rabbinical Court hearing in Jerusalem on 2 November 2009, the mother’s advocate asked the father’s lawyer whether the father intended to apply for the return of the children to Israel under the Convention. The father’s lawyer advised that he intended to pursue proceedings in the Rabbinical Court instead.
f)The father’s:
i)failure to provide any evidence whatsoever in response to the mother’s evidence and/or in opposition to her answer and cross-application, the exceptions for which she contends apply and the conditions sought therein; and
ii)refusal to participate in the family report writing process.
[23] Mother’s affidavit affirmed 28 June 2010 [56].
[24] Ibid [58].
The ICL does not support the mother’s case in relation to acquiescence. The applicant SCA opposes it.
The respondent mother has the burden of proving that the father acquiesced in her retention of the children in Australia. The evidence in relation to acquiescence needs to be unambiguous and cogent if the Court is to accept it to the requisite standard of proof.
As to what constitutes acquiescence, in Re H & Others (Minors) (Abduction: Acquiescence)[25] Lord Browne-Wilkinson very helpfully summarised the position:
[I]n my view the applicable principles are as follows. (1) For the purposes of article 13 of the Convention, the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind. As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819, 838: "the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact." (2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. (3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. (4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.[26]
[25] [1997] 2 All ER 225.
[26] Ibid 237.
I adopt the above passage as a correct analysis of the law in relation to acquiescence and apply it to the facts of this case.
In applying the law to the facts of this case, I do not regard the father’s failure to return the passport renewal form to amount to acquiescence. It does not, in my view, amount to an agreement to retain the children in Australia. I accept that the mother sent the form and that she provided an explanation of the need for the renewal but there is no evidence that the father turned his mind to the situation or, in short, that he even opened his mail.
Nor am I able to infer from the father’s limited comments to the mother on 26 August 2009 that he was accepting of the mother’s retention of D, O and Z in Australia. The mother concedes that the father was probably unaware of the proceedings which she had instituted in the Rabbinical Court in Jerusalem for divorce. There is nothing in the mother’s evidence to suggest that the father knew, at that stage, that she did not intend to return the children to Israel. It is artificial to seek to infer, as the mother does, acquiescence on the part of the father to a course of conduct (i.e. the mother’s retention of the children in Australia) when the mother had not expressed her intentions in that regard to the father or otherwise told him that she would not return the children to Israel.
I agree that the father did not file his request with the Central Authority for the State of Israel for some months after he knew that the children were being retained by the mother. The request in support of the application clearly states that the father did not know about his rights until March 2010. However, the mother contends that the father knew of his rights under the Convention and elected not to use them, much earlier than that and as early as 2 November 2009. The mother’s evidence is that she instituted proceedings for divorce in the Rabbinical Court prior to her leaving Israel but “asked that the claim not be served on the father (a process which takes approximately four weeks) until after the children and I had left Israel”. The mother did not have a lawyer but was assisted by Mr Y, “a non-legally trained advocate” who she found “difficult to instruct” due to his limited English and her limited Hebrew. The mother sought an adjournment of the first hearing of her application on 10 September 2009. However, the matter appears to have proceeded in her absence with Mr Y present. The mother deposes that “I have not had any conversations with the Father regarding any court proceedings or the return of the children to Israel”.[27] This is notwithstanding that he speaks with the children each Friday night.
[27] Mother’s affidavit affirmed 28 June 2010 [43].
On 10 September 2009, the Rabbinical Court ordered of its own motion that the father not be permitted to leave Israel. On 2 November 2009, Mr Y was instructed by the mother to seek to have that order lifted so that the father could come to Australia if he wished to do so. The mother deposes:
Mr [Y] advised me, inter alia, that in response to an enquiry by him at court in November 2009 as to whether the Father intended to bring an application for return of the children under the Hague Convention, he was advised by the Father’s lawyer that the Father intended to pursue matters through the Rabbinical Court instead.[28]
[28] Ibid [46].
The mother relies on the above conversation as proof that the father knew about his rights under the Convention and, furthermore, that he elected not to avail himself of them.
Counsel for the mother sought to rely on s 66A of the Evidence Act 1995 (Cth) as the means of admitting the hearsay remarks of Mr Y. Section 66A provides that the hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about a person’s health, feelings, sensations, knowledge or state of mind. In discussion with counsel, I expressed doubt as to the interpretation of the uniform evidence law adopted by counsel for the mother. For instance, Mr Strum’s construction of “knowledge or state of mind” included matters of belief, learning and intention. It seems extremely wide and would, if accepted, circumvent the hearsay rule in very many circumstances. I invited submissions from counsel for the applicant SCA and the ICL on 5 and 13 August 2010 as to the construction of s 66A but none were forthcoming.
Having now had an opportunity to refer not only to s 66A but to the structure (chapters, parts and divisions) of the Evidence Act, it is clear that s 66A cannot be interpreted as counsel for the mother submitted it should be.
Section 66A appears in Chapter 3, Part 3.2 Division 2 of the Evidence Act. Section 62 restricts the admission of hearsay, such as provided for by s 66A, to first hand hearsay. The statement sought to be relied upon by counsel for the respondent is second hand or third hand hearsay[29] and is accordingly not admissible pursuant to the exception provided for in s 66A. Counsel for the mother did not submit that Mr Y’s statement was admissible in any other way. The statement is inadmissible.
[29] The father told his lawyer (1^st step), the father’s lawyer told Mr Y (2 step) and Mr Y told the mother (3 step).
I cannot be satisfied on the evidence that the father was aware of his rights under the Convention prior to March 2010, much less that he abandoned those rights.
Looking at other events, by September 2009, the father was aggrieved by the mother’s refusal to return the children. The mother deposes that the father “attended the [divorce] hearing and asserted to the Court, inter alia, that I was refusing to return the children to Israel until he gave me a Get (Jewish bill of divorce).”[30] The mother’s evidence also discloses that, in November 2009, the father had contacted the principal of the boys’ school in Melbourne, Rabbi R. The father requested that D and O be excluded from the school as a means of persuading or motivating the mother to return the children to Israel. The father also asked Rabbi R to request that the mother return the children.[31]
[30] Mother’s affidavit affirmed 28 June 2010 [43].
[31] Affidavit of Rabbi R affirmed 28 June 2010 [23]–[28].
Rabbi R further deposes that, when he was visiting Israel for the Bar Mitzvah of two of his grandsons:
the father served me with a summons to attend the commercial division of the Rabbinical Court on 3 March 2010 to answer a charge of aiding and abetting the abduction of his children in Australia and sought that the Rabbinical Court issue a travel ban to prevent me leaving Israel unless I agreed to expel his children from the school and return them to Israel.[32]
[32] Ibid [30].
Notwithstanding that the parents have not spoken to one another about the mother’s retention of the children in Australia, I am satisfied that the father has been endeavouring to secure the return of the children by other, albeit indirect, means.
I have also considered the father’s lack of personal involvement in the request that gives rise to the application before the Court. It is unusual that he did not sign even one part of the request form as English is his first language. However, this may have been a requirement of the Central Authority in Israel so I have no regard to it.

There are the following omissions:
a)the failure or refusal to provide any evidence in response to the mother’s case even after asking for time to consider the mother’s evidence;
b)the failure or refusal to participate in the assessment process for the regulation 26(1) report;
c)the lack of response to the amended conditions which the mother seeks be imposed as conditions precedent to any return.
The father did not take any of the above opportunities to advance the case for the return of the children to Israel. However, it would be inappropriate for me to assume something untoward about the father’s position or to penalise the applicant for the father’s lack of participation. I will assume that there was no evidence upon which the applicant could rely which would have assisted its case or the father’s request for the children to be returned to Israel.
In summary, the father’s conduct does not convince me that he has gone along with the children remaining in Australia or that he has acted in such a way as to lead the mother to believe on reasonable grounds that he will not insist on the return of the children to Israel.
The evidence relied upon by the mother does not persuade me that the father acquiesced to the retention of the children in Australia with the consequence that her case under reg 3(a)(ii) fails.

Other relevant background

Leaving to one side the evidence discussed in relation to alleged acquiescence on the part of the father, the mother has adduced a significant body of evidence, from herself and various professional witnesses, which is not contradicted by the applicant. I have already indicated that on the whole I do not regard the mother’s evidence as being inherently unlikely and that I accept it. The issue is whether it is sufficient to attract the exceptions for which she contends.
All of the following facts are from evidence relied upon by the mother.
The mother moved to Melbourne with her parents and two siblings in 1986 when she was about 14 years of age. She holds Australian, Israeli and South African citizenships. She is primarily engaged in home duties and the care of the children. She is employed as a childcare assistant on a part-time basis although she has no formal qualifications.
The father is an Australian citizen. For about the last 22 years, the father has been engaged in full-time study at a Kollel (a seminary for Talmudic study for adult Jewish men) in Israel and has not engaged in any paid employment during any of that time. He attends synagogue each morning from 6:30 am until 8:00 am and studies at the Kollel from 8:30 am until 7:00 pm from Sunday to Thursday. On Saturdays (Jewish Sabbath) and for all religious Jewish festivals he attends synagogue for part of the day and otherwise sleeps. He is not active in the home or in the care of the children.
Both parents were brought up in Melbourne in traditional but not particularly religiously observant Jewish families. The father attended a secular secondary school and the mother attended a Jewish school and a state high school. They both became significantly more religious in their late teens and became part of the Haredi (ultra orthodox Jewish) community. In about 1988 the father travelled to Israel to study at a Kollel. In about September 1992 (the year after she completed her secondary school education at a state high school) the mother travelled to Israel to study at a seminary for orthodox Jewish women (similar to a Kollel).
In late 1993 the parents were introduced by a Rebbetzin (wife of a Rabbi and female religious guide and mentor) by way of a Shidduch (a match-making system for introducing orthodox singles for the sole purpose of marriage). After a brief courtship of approximately eight arranged meetings over a nine week period, they were married in Melbourne in 1994 and then returned to Jerusalem.
At the time of the marriage, the mother had completed about six months of her studies and the father had been studying at his Kollel for a number of years.
Prior to the marriage and as part of pre-nuptial negotiations which are common in the Haredi community, the father promised that his parents would provide the couple with financial support for the first five years of the marriage and that they would do so by selling one of their properties and giving the proceeds to the mother and father to enable them to purchase their own home. The mother alleges that her father would not allow the wedding to proceed unless the father also agreed that the parties would return to Melbourne to live permanently within two to five years and that the father would obtain paid employment within five years.
A few days before the wedding, the father managed to convince the mother to abandon any financial arrangements as part of their Ketubah (Jewish marriage contract).
Prior to the marriage, the father told the mother he had a special “goal” or “purpose” in life which he would only tell her once they married. Upon marriage, he informed the mother that he believed he had “supernatural” powers which he said would be lost if he left Israel permanently. He directed the mother not to discuss the matter with anyone.
The mother alleges that throughout the marriage, she was subjected to ongoing verbal and emotional abuse by the father. She says that she and the children lived in fear of the father’s outbursts and, when the father was at home, they would effectively “walk on eggshells” around him so as not to risk upsetting him. It is alleged that during the last few years of the marriage, the father’s behaviour became increasingly erratic and unpredictable. He rarely interacted with any of the children or spent time with them and the children were reluctant to do so.
The marriage was not happy even in the early stages. The father became increasingly controlling of the mother. For example, she specifically alleges that:
a)The father dictated when she was allowed to eat, drink and to go to bed, who she could be friends with and what books she was allowed to read (mostly religious texts, limited fiction and no psychology or self-help books).
b)The father would regularly refuse the mother’s requests, such as for an ice-cream when she was pregnant. He would then laugh at her.
c)The father refused to allow the family to have a computer which meant that they could not communicate with family via email and Skype or enable the children to use educational programs. While using the internet is not permitted in the Haredi community, there is no such limitation on using a computer for these other purposes.
d)The father would frequently accuse the mother of embarrassing him in public, for example by offering a taxi driver some change for their fare after the father had said he did not have any, and at the Sabbath or festive table. The father would threaten the mother by saying words to the effect of, “people who hurt, end up getting hurt”.
e)The father would accuse the mother of not being a “giving person”, of speaking to him disrespectfully and of not honouring him as her husband. He would frequently lecture her about her behaviour and correct her speech and sentence structure.
f)The mother had to seek the father’s approval before making any purchases, even before purchasing standard household items such as soap.
g)If the mother asked the father a question or sought to discuss matters regarding the marriage or the children, the father would accuse her of criticising him, being controlling and of not being a proper wife. If she asked him a simple question, such as why there was no electricity in the apartment that day, he would become enraged.
For two years following the marriage, the couple received financial support in the sum of AUD$250 per month from the father’s parents. They did not receive any funds to purchase a residence. The only other financial support they received at the time was a stipend of approximately 800 New Israeli shekels (“NIS”) per month (approximately AUD$240) from the father’s Kollel and minimal government benefits for D of approximately 100 NIS (approximately AUD$30) per month. As the father was in charge of their finances, the mother was uncertain of the exact amounts but she recalls that it was insufficient to support themselves, let alone a newborn baby.
As a full-time religious student (non-Israeli citizen), the only income the father received throughout the marriage was stipends of between 800 and 1,400 NIS per month from the Kollel at which he studies. In 2009 the government benefits that they received for the children totalled approximately 320 NIS (approximately AUD$95) per month. These benefits were entirely offset by the amount they were required to pay to the government for national health insurance, which provides very basic medical cover.
Throughout the marriage the father refused to become an Israeli citizen. Earlier in the marriage, his decision was based on his desire to avoid army service (which members of the Haredi community generally avoid by undertaking religious studies in a Kollel on a full-time basis). As an Israeli citizen, the father’s stipend would double to approximately 2,000 NIS per month (approximately AUD$600) and he would be able to obtain paid employment. Instead the father continues to renew his student visa every few years. In the year prior to separation the mother said that she asked him (again) to become an Israeli citizen and he said words to the effect of, “I am saving my rights [as an Israeli citizen] for my new wife.”
After the mother had discontinued her religious studies, a neighbour asked her to care for her young child one day. She started “babysitting” at the family apartment and through word of mouth, she started to care for an increasing number of pre-school aged children from families within the community. For approximately 14 years, the mother conducted an informal and unregistered (and accordingly, illegal) childcare facility from their two bedroom rented apartment in Israel. Between 8:30 am and 1:30 pm from Sunday to Friday inclusive each week she cared for up to 18 toddlers (aged from 18 to 24 months). The mother earned approximately 10,000 NIS each month (approximately AUD$3,000), all of which she says she gave to the father who, as the male head of the family, was in charge of the finances.
Although as an Israeli citizen the mother was permitted to work in Israeli, her lack of qualifications and limited knowledge of Hebrew prevented her from doing so. Despite the fact that she did not have a permit to conduct a childcare facility in the family apartment, the father would continually complain that the mother was not earning enough money to support the family. The father consistently refused to do anything to improve the family’s financial circumstances, stating his belief that money would somehow “turn up” when it was required.
In addition to childcare work, the mother was solely responsible for the care of the family including raising the children, cooking, cleaning, washing and shopping. The father was absent for most of the day and when he was at home, he did not provide any assistance with the children or the housework. However, it is recognised by the mother that housework is considered in the Haredi community to be the sole responsibility of the wife and mother so this was normative behaviour.
The mother says that, as with other Haredi families, the father took charge of the sons’ education. As a result, throughout most of their marriage, aside from obtaining information about potential schools and Yeshivot (religious secondary schools), the father refused to allow the mother to be involved in their sons’ education. The father insisted on taking them to school (even though the mother did not seek or require his assistance) and refused to allow the mother to communicate with their teachers. As a result, when the mother and children arrived in Australia and D’s detailed educational assessments were undertaken by T School, the mother says she was unaware of the extent of D’s learning difficulties.
In the last three years of the marriage, the father refused to allow the mother to visit her family in Melbourne, or would initially agree and then withdraw his consent at the last minute. For example, he refused to allow her to attend her grandmother’s 80^th birthday celebrations in August 2007 and her mother’s 60^th birthday celebrations in November 2008. Between about 2007 and 2008 he took the children’s and the mother’s Australian and Israeli passports and left them in the care of an unidentified third party.
In the first half of 2009, the father travelled to Melbourne on three occasions (to spend time with his father before he died and to attend his funeral). The father refused to stay in Melbourne until the children and the mother arrived to visit the mother’s family in July 2009 and was insistent that she continue working until July 2009.
The mother’s evidence is that throughout the marriage their financial circumstances were extremely difficult. The mother refers to D’s first pair of shoes being purchased from an opportunity (thrift) shop and the family’s utilities being frequently disconnected as they could not afford to pay accounts as the fell due. On one occasion, a friend’s parents paid the family’s outstanding gas bill as a “gift” to the mother so the gas company would reconnect the service. About once a year the mother’s uncle in England would send her gifts of up to £1,000 which she gave directly to the father. Although the mother had not sought charity, in approximately 1998 boxes of food started to appear on their doorstep which the mother concludes were sent by a Haredi community organisation. Over a period of approximately six months, the family received approximately four or five boxes.
When the mother was pregnant with their third child, Z, she returned to therapy (at the behest of the father). The mother said that at this time she realised that it was the father who had “issues” and that his behaviour was at times delusional. However the father refused to attend a therapist.
In the last few years of the marriage, the mother arranged for a financial advisor from a Haredi community organisation, which assists families in crisis, to visit them at their home to discuss their finances, but to no avail.
The mother’s evidence is that as a last resort the couple went to marriage counselling. Over a two to three month period, the mother attended approximately two or three sessions and the father attended weekly. At the end of the period, the therapist advised the mother that the father’s behaviour was not going to change and she had to choose whether to continue to live as (in the therapist’s words) “an emotionally battered wife” or divorce him. The therapist said to the father that unless he wanted a divorce, he should hand over control of their finances to the mother for six months and if she did a better job, then she should remain in charge, as this would help to reduce some of the tension in their marriage. The father agreed. In order to repay the various personal loans the father had accumulated, including a loan of approximately 3,000 NIS for D’s bar mitzvah (which the mother says she only discovered on the day she assumed responsibility for the finances and which was repayable that day) as well as a debt of 5,000 NIS (approximately AUD$1,500) to the bank, the mother borrowed approximately $10,000 from her brother in Melbourne and sought the assistance of the father’s mother to pay household bills totalling between $500 and $8,000. This was the first time that the mother had sought any assistance from her family. The father agreed to the mother managing the finances into the future and that remained the situation until the mother and children departed Israel in July 2009.
In 2008, the mother informed Rabbi W of their precarious financial circumstances. Rabbi W advised the father that he needed to do something to support his family (such as become an Israeli citizen and obtain paid employment). The father was angry that the mother had confided in Rabbi W and told the mother that the reason he could not obtain work was because she did not provide him with sufficient emotional support. The mother deposes that thereafter the father became increasingly remote and effectively shut himself off from the family.
After the father arrived home from his Kollel at approximately 7:00 pm most nights, he ate dinner and either went to bed at 7:30 pm or read in the bedroom. Before entering the bedroom, the mother was required to knock on the door and seek the father’s permission to enter. The father’s interactions with the children were generally limited to admonishing them for being noisy or giving them extensive lectures on aspects of the Torah (the five books of the bible) which he said would “save their souls”. On the rare occasions when he played with the children he would behave like an over-excited child. Even on the Sabbath, he went to synagogue by himself or read in his room. The boys refused to go to synagogue with the father as they were embarrassed by the unusual and extroverted manner in which he prayed.
Although the mother’s earnings were insufficient to meet all of the family’s expenses, including rent of approximately 4,000 NIS (approximately AUD$1,200) per month, utilities, food, school fees, clothing, etc, the father refused to allow the mother to use his stipend (which he retained). The mother alleges that due to the stress of trying to feed the family and the lack of available food for her (after feeding the children and the father), she lost approximately 8 kg in weight within two months. The mother went to see Rabbi K and explained their financial difficulties. He arranged for the family to receive a box of meat and chicken (for free) every fortnight. The mother’s Rebbetzin in Israel, Mrs B, would also give the mother money to buy groceries. The mother says that she did not seek the assistance of her family in Melbourne as she was too embarrassed to disclose the extent of her marital and financial difficulties.
The mother says that the only way she was able to emotionally survive the 16 years of marriage to the father in Israel was by effectively “blocking out” and trying to ignore the father’s controlling and at time hostile, verbally aggressive and passive aggressive behaviour. She focused her energies on caring for the children, struggling to earn an income to support the family and single-handedly looking after their household.
The mother’s evidence is that the move has also strengthened the children’s relationship with one another. In particular, Z and O now look up to D as their role model. Due to D’s behaviour in Israel, this was not always the case.
The mother deposes that when D was approximately three years old he was diagnosed with attention deficit disorder (ADD). Prescription medication was trialled but discontinued after a brief period as it was not effective and made him lethargic. Save for a brief period after the mother and children arrived in Melbourne in mid 2009, D has taken Ritalin or Concerta on a daily basis since about early 2006. If D does not take his medication he becomes hyperactive and is unable to control his behaviour or focus his attention on his studies.
The mother said that as a result of D’s ADD and issues relating to his hearing as a baby and toddler (he did not speak until he was approximately 3½ years old), he was hyperactive, prone to tantrums and other outbursts of bad behaviour and was unable to concentrate for more than short periods at school and at home. He struggled throughout primary school and was well behind his peers in all areas of the curriculum, including Hebrew and mathematics.
In October 2006, when D was in Year 6, a Learning Development Evaluation was undertaken. The evaluation found, inter alia, that D has “an overall low cognitive function” and that “his function is adversely impacted by his reduced audio memory function as well as the influence of his language difficulties”.

The mother deposes that there are significant differences between the educational systems available for children in the Haredi community in Israel and Melbourne. In Haredi schools in Israel, children substantially conclude their secular studies at the end of primary school (Year 7). After completing primary school, they attend Yeshiva (religious secondary school) from Sunday to Friday for up to 15 hours per day. In D’s case, from Monday to Thursday he left home at 6:30 am and returned home at 9:30 pm (1:00 pm on Friday, being Sabbath eve), travelling 40 minutes by bus between home and school. Between Sunday and Thursday, the school day commenced with morning prayers at 7:30 am and concluded after evening prayers (which commenced at 8:20 pm). Without government funded assistance there is limited learning support. Any additional support must be obtained from the private sector (at significant cost) outside of school hours.
The mother’s evidence is that before D completed primary school, she researched the various Yeshivot available within the Haredi community in Jerusalem to identify any which could provide D with the learning support he required. The mother located Yeshiva A, which is a 40 minute bus ride from the family apartment in Jerusalem. With the father’s approval, D was enrolled at the school. The school was academically less rigorous than other Haredi Yeshivot. However, D received limited special assistance and had significant difficulties with his studies.
In about November 2008, and without the father’s permission, the mother telephoned D’s teacher at his Yeshiva, and informed him of her concerns about D’s academic progress, learning issues, issues with attendance and truancy, increasingly delinquent behaviour and emotional wellbeing. Even though the Rabbi was aware that D often left the Yeshiva during the day (unnoticed and without permission) and that he had failed to return home on the school bus with his classmates in the evening on many occasions, he would not discuss D’s issues with the mother.
After D started at the Yeshiva, the mother said that she observed a significant deterioration in his behaviour. He became increasingly unhappy, resistant to authority and was clearly detached from his studies. D would frequently refuse to get out of bed in the morning to go to his Yeshiva and instead would lie listlessly on his bed or on the couch, or disappear from the apartment. When he did attend Yeshiva A, he would frequently leave during the day (which was relatively easy as roll calls were infrequent) and either hitch-hike home or go elsewhere with his friends.
D developed friendships with boys which the father and the mother did not approve of. He started smoking and engaged in various social activities with his friends which the father and the mother did not approve of and which are considered inappropriate within the Haredi community, including attending soccer games and using computers for unpermitted purposes. The father’s response was to ban D from bringing his friends home. Unfortunately, this resulted in D spending more time away from home, not informing his parents of his whereabouts and at times not returning home until 4:00 am. The mother said that her greatest concern was that D was joining in with the activities of the street gangs (known as “Shabbatniks”) in East Jerusalem. He threw rocks at Arabs (especially on the Sabbath) and on one occasion was almost arrested by the police.
The mother’s evidence is that D objects to being returned to Israel. She says that D’s strong and considered wish is to remain in Australia and to avail himself of the opportunities which will not be open to him in Israel. In comparison to his life in Israel, he is now settled in Melbourne, willingly attending school and focussing on his religious and secular studies for which he receives the special assistance he requires. He has established new friendships (within the Haredi community) and consequently he is no longer associating with street gangs or demonstrating anti-social behaviour. This in turn has led to a significant improvement in D’s relationships with O and Z, with whom he is now very close. D also enjoys the support of his extended family in Melbourne (which includes a number of adult male role models as well as his maternal and paternal grandmothers).
When the children and the mother arrived in Melbourne in mid June 2009, they stayed at the maternal grandparents’ residence for approximately nine months. In about March 2010, the children and the mother moved into her current residence in the south-eastern suburbs.
In late 2009 the mother obtained employment in a part-time role. The mother works from 8:30 am until 4:20 pm on Monday, Tuesday and Thursday and from 8:30 am until 2:45 pm on Friday. She earns approximately $790 per fortnight.
As the Child Support Agency does not have any reciprocal arrangements with the Israeli Government, the mother said she was relieved of her obligation to seek child support from the father (which the Child Support Agency cannot enforce). The mother is currently in receipt of Centrelink benefits of approximately $800 per fortnight. In addition, the mother receives financial assistance from her family and has the use of a car loaned to her by a member of the Jewish community. The children’s school fees are also met by their respective schools by way of donations from members of the Jewish community.
Although the mother is an Israeli citizen and lived in Israel for approximately 17 years, she lived in an English speaking community (of mostly American expatriates) and she spoke only English with the father and the children. The mother said that her knowledge of Hebrew is limited and she is unable to read, write or converse fluently. Accordingly, her ability to obtain paid employment outside of her English speaking Haredi community in Jerusalem is limited.
Since the mother arrived in Melbourne, she has spoken with the father by telephone on approximately three or four (brief) occasions. She deposes that she has not had any direct communications with the father since late August 2009.
Although the father is able to speak with the children at any time by calling D’s mobile telephone (a birthday present from the father’s mother in March 2009), the father only telephones them once a week, on a Friday afternoon, when he knows they will be at the maternal grandparents’ residence. The mother says that if someone other than one of the children or the maternal great-grandmother answers the telephone, the father terminates the call and keeps calling (and terminating the calls) until one of the children answers the telephone. For example, on Friday 25 June 2010, the father telephoned D’s mobile telephone at around 4:00 pm (shortly before the Sabbath). D was in the shower at the time and did not see the message until after the Sabbath ended (after sunset on Saturday night). It is difficult for the children to telephone the father as he is rarely at home, rarely answers his mobile telephone and does not return messages.
The mother’s evidence is that the children have adjusted to and settled into their new environment, home and respective schools. They have developed strong relationships with their grandparents (maternal and paternal) and extended family with whom they had previously had minimal contact.
The mother alleges that she is in contact with her mother-in-law, the paternal grandmother, who spends time with her grandchildren and communicates with them on a regular basis. This did not occur in Israel as the father had limited contact with his family in Melbourne as he disapproves of their less religiously observant lifestyle. Since the mother and children have been in Melbourne, the paternal grandmother has taken D and O to their first AFL game and taken Z to “Build-a-Bear” at Chadstone Shopping Centre. She has also bought Z a Barbie Doll. The mother said that the father would not have allowed the children to engage in these activities or to play with such toys in Israel which he considers to be a waste of time and immodest. On one occasion the mother and children stayed overnight with the paternal grandmother at her holiday house. The children have also enjoyed spending time with their paternal aunt and two first cousins, including a trip to Healesville Sanctuary. The father’s brother lives in the United States of America.
All of the above evidence provided by the mother informs an appreciation of the parental dispute and would be very relevant to the adjudication of parenting proceedings between the mother and the father, particularly proceedings where the best interests of the children are an important or paramount consideration. However, it is only paragraphs 101 to 109 which are relevant to the determination of the application now before this Court. The balance of the background is not, in my view, anything more than peripherally relevant to the issues that arise under the Regulations in relation to D’s objections and the gravity of any risk of harm to which the children will be exposed if they are returned to Israel.

Family Consultant’s Report

The Court’s consideration of the exceptions, being that D objects to return to Israel and that a return of all of any of the children to Israel would expose them to a grave risk of physical or emotional abuse or otherwise place them in an intolerable situation, is also informed by the regulation 26(1) report. The report writer, Ms L, was cross-examined at length. I found the report writer to be a sound witness and I place weight on her written and viva voce expert opinion.
Ms L gave evidence that she was a counsellor at an orthodox Jewish school over a 12 month period in 2005-2006, which has given her some understanding of the religious/cultural issues in this case. She stated that her experience included working with students who are struggling within the orthodox Jewish educational framework.
For the purposes of preparing the report, Ms L interviewed the mother and each of the children separately. Ms L observed the children together whilst they were in the childcare room throughout the day on which the interviews were conducted. She observed the mother with the children informally. Ms L had telephone consultations with the ICL and read the material on the Court file.
My Order of 31 May 2010 required that the family consultant consider the following issues:
a)What (if any) objections the oldest child D has to returning to Israel;
b)Whether any such objection of D shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
c)Whether D has attained an age and degree of maturity, at which it is appropriate to take account of his views;
d)The physical or emotional harm to O and Z generally upon return to Israel, including that consequent to being separated from:
iii)their older brother in the event that he is permitted to remain in Australia;
iv)their older brother and mother (in the event that the mother elects not to accompany the children back to Israel).
As the cross-examination of the family consultant makes clear, she also provided an opinion on the probability of D suffering emotional harm or otherwise being placed in an intolerable situation if he is required to return to Israel.
The mother presented to Ms L as a “gently spoken, articulate woman who overall was quite self-contained”, but became upset when discussing the possible return to Israel and the impact on the children.[33] The mother’s focus in her discussion with Ms L was on the risk to D’s emotional wellbeing. She told Ms L that in Israel D was often “on the street”, truanted from school, and was withdrawn or difficult at home.[34] The mother attributed D’s issues to his learning difficulties and diagnosis of ADD and the associated lack of support provided for him in the religious education system in Israel. In Australia, she sees D as “a whole new child” who is progressing rapidly at school and whose behaviour in the home has drastically improved.[35] The mother described the younger two children as also doing well in Australia.[36]
[33] Regulation 26(1) report dated 22 July 2010 [23].
[34] Ibid [24].
[35] Ibid [25].
[36] Ibid [27]-[28].
The mother’s attitude towards the father was that she would be supportive of the father coming to Australia to maintain a relationship with the children, but believes it is in the children’s interests to remain in Australia. She told Ms L that the father does not have a close relationship with the children as he spent large amounts of time out of the home or studying in his room.[37] In Ms L’s opinion, the children’s descriptions of their relationship with their father was consistent with the mother’s account.
[37] Ibid [29].
The mother told Ms L she did not know how she would cope with a return to Israel, citing an “emotional and psychological fear” of the father and a lack of family or other support in Israel. However, she stated that if the children were ordered to return she would go with them. She did not support a separation of the children and Ms L’s opinion was that the mother may have “significant difficulty in supporting the children through such a separation”.[38]
[38] Ibid [42].
Of her observations of the children, Ms L said that the children spent a lot of time together playing, particularly the two boys, although Z frequently sought her brothers out. D was described as occupying a “pseudo parenting role”, responding to the younger children’s needs and directing them as required. The younger children responded to D “in a manner which indicated they were familiar with looking to or being guided by [D] for direction”.[39]
[39] Ibid [8].
Z is described by Ms L as a “friendly and sweet natured girl of six years” with a good sense of humour, who engaged well with the interview whilst remaining somewhat reserved. The child’s understanding of the meeting with Ms L was “to ask if I want to go to Israel”, but she demonstrated little understanding of the dispute between the parents. Z stated that she likes living in Australia, in particular playing with her cousins. She was positive about all members of her family, and mentioned she enjoyed going to the beach with the father. Ms L noted that Z’s statements about Israel were conflicting, specifically:
On the one hand she stated that she misses Israel (and going to the beach there), but she also identified (via feeling face cards) that she would feel sad to go back to Israel because, she stated, “I don’t like it there.” [Z] did not answer when asked what it was that she did not like about Israel. [40]
[40] Ibid [11].
O is described by Ms L as the most laidback of all the children, engaging easily and openly with her. Ms L described a “sense of balance in [O]’s discussion of Australia and Israel”,[41] saying he misses Israel but would miss Australia if he were in Israel. O spoke of enjoying the accessibility of his neighbourhood friends in Israel, but in Australia enjoys being able to play sport at school and attend football matches.
[41] Ibid [17]-[19].
O told Ms L “I’d probably prefer to stay here.” He was unable to expand on this but stated “there are more things you can do [in Australia]”, such as bowling. O indicated that he would “feel bad” if D remained in Australia, and “even more bad” if D remained in Australia with the mother and only he and Z returned.[42]
[42] Ibid [20].
O spoke positively of all the members of the family, mentioning he likes speaking to his father by phone every week. He told Ms L that he did not see the father or participate in activities with him when they were in Israel because the father left the home at 6:30 am and did not return until 7:30 pm. He stated he does not normally do things with his mother because “she’s normally busy, working, family coming over”.[43]
[43] Ibid [21].
D presented as a “friendly, reserved yet mature 15 year old boy”. In the report, Ms L states that his reservedness appears to relate to “normal teenage awkwardness” and possibly a “lack of confidence in his English Language skills”.[44] Although D was cooperative, Ms L found it difficult to elicit detailed information from him. In cross-examination, the mother’s counsel put to Ms L that the cultural inappropriateness of speaking to an unknown member of the opposite sex may have contributed to D’s reservedness. Ms L’s professional opinion was that her position as a female was not a large factor in D’s presentation, and placed more emphasis on D’s developmental stage as a teenager. Ms L did concede that D’s lack of eye contact could be related to cultural considerations.
[44] Ibid [12].
Ms L was cross-examined about D’s language difficulties. Her professional understanding is that D has difficulties with expressive language (making himself understood) and receptive language (understanding language conveyed). He is at the lower end of normal cognitive function and his ability to use a broad range of words and language to express meaning is markedly restricted. As such, Ms L would expect that his ability to express himself to her would be more limited than that of a cross section of 15 year old boys.
Ms L found that, of the three children, D demonstrated the greatest understanding of the proceedings and potential outcomes. His understanding of the purpose of speaking to Ms L was to decide “where we live”. D identified differences between his life in Australia and Israel. The primary difference that he identified was that “it’s not as rough” in Australia. In Israel he got into fights and smoked cigarettes, whereas in Australia there are more activities for him and he has not been involved in fighting. D explained that “in Israel I’m very religious, if you do these things [such as going to the football] they think you’re not religious”.[45] When asked where he would like to live, he stated, “I want to stay here, I think it’s better for me. I don’t do all those stupid things… the kids here are nice”. Asked about further reasons for his preference, D spoke approvingly of being able to get a job in Australia and still be considered religious. [46]
[45] Ibid [14].
[46] Ibid [15].
D told Ms L that he missed his friends and father in Israel. D has told his father that he wants to stay in Australia, but his father has said that he believes it is better for all the children to return to Israel, and that he does not wish to come to Australia.[47]
[47] Ibid [16].
According to Ms L, D is of an age and degree of maturity at which it is appropriate to take account of his views. He was able to appreciate his current circumstances and future wellbeing, and presented to Ms L as a “mature young man who was well aware of the expectations of him within the Haredi community in which he lived in Israel”.[48]
[48] Ibid [38].
Ms L’s assessment of D’s objections was that he was “quite clear” in expressing a desire to remain in Australia. The report states that D “agreed that his primary concern about returning to Israel relates to his future rather than any immediate concerns”.[49] Ms L concluded however, that he did not present strong objections to return to Israel although there are “certainly aspects of life in Israel about which D finds difficult”.[50] In Ms L’s view, D’s desire to remain in Australia related mainly to what he views as the “immediate benefits”, in terms of the freedoms available to him in Australia, as well as future opportunities. D’s immediate concerns about returning to Israel related to his negative behaviour in Israel, which he believes would recommence if he were to return.[51] She stated that it was difficult to get a “true sense” from D about the impact of return, and acknowledged that his difficulties in communicating in English or general language difficulties may have contributed to this. However, she also acknowledged that it may “simply reflect a state of ambivalence about returning”, which is understandable given that he has identified that he misses his father and spending time with his friends in Israel.[52]
[49] Ibid [16].
[50] Ibid [35].
[51] Ibid [33]-[34].
[52] Ibid [36].

The mother relies on the statements of Mrs B, a Rebbetzin, whose personal contact with the parents (and subsequently the children) commenced in 1992 and who has had many years of teaching experience in Israel. Mrs B confirms in her letter annexed to the mother’s affidavit that:
a)D has spent many years struggling in school in Israel;
b)D’s former school in Israel was not equipped to address his particular educational needs;
c)there is no existing educational institution in the Haredi educational system in Israel that can provide D with an education on a sufficiently high level of religious observance while simultaneously addressing his scholastic challenges.[88]
[88] Mother’s affidavit affirmed 28 June 2010, annexure “3”.
Mrs B’s statements were not challenged. I accept them as correct but general evidence.
I conclude that D would be significantly disadvantaged by being returned to Israel. He would have to re-integrate into the education system there. I have regard to the fact that he has advanced academically whilst he has been in Australia. However, he is still significantly behind his peers and I am satisfied that if D returns to Israel he would again fall into the poor habits and undesirable associations described by the family consultant as “antisocial and self-defeating behaviours.”
I am not in any way critical of the Haredi education system in Israel. It appears however, that D requires more support and diversity than that system can reasonably offer him. Furthermore, the implications of D’s special needs not being met are dire in terms of his secondary and subsequent education, his ability to marry and take up a place in the Haredi community. I am satisfied on the evidence that D is not intellectually equipped to undertake religious studies and the schools that he is realistically eligible to attend in Israel do not offer a competitive range of secular subjects which would equip him for employment. Finally, he is not culturally or socially equipped to enter the Israeli Army.
D’s re-engagement with antisocial and self-defeating behaviours is well nigh inevitable if he returns to Israel. Furthermore, a young person who has no place in a community which is as highly structured as the Haredi community in Jerusalem, could not escape the adverse psychological effects which will flow from his failure to fit in. The intolerability is that, on the evidence, D will be precluded from fulfilling his true potential as a caring and competent contributor to society and as an individual who is capable of sustaining personal relationships within the society imbued with his religious beliefs.
There is also the risk of D coming to physical harm as a result of his antisocial behaviour in Israel.
I am satisfied that a return to Israel would expose D to a risk of psychological harm and/or place him in an intolerable situation. I am also satisfied that, quantifiably, that risk is grave.
The consequence of my finding that the exception under reg 16(3)(b) is made out is that the Court has discretion to decline to return D to Israel.
It was submitted on behalf of the mother that there is a grave risk that the return of O and Z to Israel without D would expose all of them to psychological harm or otherwise place them in an intolerable situation. Counsel for the mother relied on (inter alia) the following matters:
a)The family consultant observed that D took a caring approach to his younger siblings, which could be described as a pseudo-parenting role. He took responsibility for them, directed them when required and took note of and responded to their care and emotional needs. O and Z followed D’s directions without question, in a manner which indicated they were familiar with looking to or being guided by him for direction.[89]
[89] Regulation 26(1) report dated 22 July 2010 [8] and [40].
b)Notwithstanding D’s objection to returning to Israel and/or the grave risk that his return to Israel would expose him to psychological harm or otherwise place him in an intolerable situation, he would not countenance the possibility of being separated from his siblings if they were ordered to be returned to Israel.[90] It was submitted that this is indicative of a strong sibling relationship in which D is subjugating his needs to the needs of his siblings and mother. Alternatively, it is recognition of a strong bond which should not be disrupted.
[90] Ibid [16] and [43].
c)O was asked by the family consultant how he would feel if D were to remain in Australia, while he, Z and the mother returned to Israel. The family consultant reported that:
There was a sense of balance in [O]’s discussion of Australia and Israel. …
[O] understood that he was in Australia because his mother wanted to come for a holiday. He was unclear why they had stayed beyond their holiday. [O] was not sure why his father had not come to Australia but reported overhearing his father tell his mother that “being in Israel is better than being with you”. While discussing the options of returning to Israel, [O] frequently questioned the writer to ensure he understood under what circumstances this return may take place. For example, when asked how he would feel if the Court decided he was to return to Israel, [O] queried, “it depends, me by myself or the whole family?” [O] was unsure if he would want to return even if this was with his whole family. He stated simply “I don’t know”. When asked how he would feel if [D] were to remain in Australia, while he, [Z] and his mother returned to Israel, [O] stated he would “feel bad”. He explained “I wouldn’t have a brother” and with a laugh, “I’d miss the fights”. Regarding a third option, that [D] and his mother remained in Australia, while he and [Z] returned to Israel, [O] stated he would “feel even more bad, I’d prefer to live in the same house as my mum”.[91]
[91] Ibid [19]-[20].
d)The family consultant expressed the opinion that:
if [O] and [Z] were returned to Israel without [D], it would be anticipated that they would experience, at minimum, feelings of grief and loss as a result of this separation. … It is also possible that [O] and [Z] may experience feelings of guilt, if their perception of [D] remaining in Australia is that he has been left behind and isolated from the family unit. … A lengthy separation will have far reaching consequences to the sibling’s relationships, at least until such time that they are able to independently support their own relationships with one another.[92]
e)In relation to the mother, the family consultant reports that she “is not supportive of the children being separated, so that it may be anticipated that she may have significant difficulty in emotionally supporting the children through such a separation”.[93]
f)The family consultant concludes that:
A scenario that resulted in [O] and [Z] returning to Israel without their brother and mother is assessed as most likely to result in significant emotional harm.
…
[A]ny separation of the siblings would likely have immediate and longer-term emotional and psychological consequences not only to each of the children individually but more broadly to their sibling relationships. [94]
[92] Ibid [20].
[93] Ibid [42].
[94] Ibid [43] and [45].
The family consultant was cross-examined at length. Her expert opinion in this respect was not shaken. I accept her evidence. D’s position however, seems to be that if the return of O and Z to Israel were ordered, he would return with them. On that basis, the applicant SCA contends there is no realistic risk of the siblings being separated.
At trial, it was conceded by the mother that if any of the children were ordered to be returned to Israel, she would accompany them. Counsel for the mother also informed the Court that his client would ask D to reconsider his position about returning to Israel if he had the opportunity to remain here. That is, she would obtain counselling or other assistance for D so that he could make a decision based on his own best interests rather than intuitively follow his immediate family back to Jerusalem. There was no objection to the statement being made through counsel and not on oath.
I accept the mother’s expressed intentions as being accurate. I accept that she will return to Israel. I also accept that she will endeavour to prevail upon D to do what is best for his future. However, the possibility of D then changing his mind and remaining in Australia, presumably with the mother’s family, is too remote to form a basis upon which I could assume consequential risks arise in the context of reg 16(3)(b). However, because I am satisfied that the return of D to Israel would expose him to a grave risk of harm, it cannot follow that I would make orders that will thrust him in the way of that harm.
If the Court concludes that the discretion under reg 16(3) should be exercised in favour of refusing to return D to Israel, it follows that the availability of the exception under reg 16(3)(b), vis a vis O and Z, should be assessed on the basis that D will not be required to return. To do otherwise would disentitle D to the benefit of the exceptions to mandatory return, to an extent which renders the exceptions nugatory for him. Such an outcome is neither in the spirit of, or consistent with, the proper application of the Convention or the Regulations, pursuant to which it is implemented in Australia.
The reasons of Ward LJ in Re T (Abduction: Child’s Objections to Return)[95] helpfully set out a number of cases which deal with the separation of siblings. I have regard to those cases. I agree that it is not “easy to extract a great deal of certain principle” from them,[96] but that is understandable when it comes to the separation of siblings. The Convention is a treaty to select a forum for parenting disputes. Separating siblings, and the potential of one family conducting parenting proceedings in two jurisdictions, is evocative of a triumph of process over the purpose of the Convention, which includes the protection of children from abuse of process. In these cases, the judge’s reasoning will focus on a (usually older) sibling, in respect of whom evidence is led and an exception is made out. There is no entitlement for children to remain together and the test in respect of O and Z is no less stringent than it is to make out any other exception under reg 16(3). However, where, like here, O and Z have always lived with their older sibling, who is only 15 years old, it is fairly self evident that separating the younger children from their brother is going to cause them distress and trauma and be psychologically damaging to them in various ways in the short, medium and long term.
[95] [2000] 2 FLR 192.
[96] Ibid 217.
I am satisfied that in the event that the Court exercises its discretion not to order D to return to Israel, his younger siblings would fall within the exception provided for in reg 16(3)(b).

Conditions sought by the mother

In the event of a return order, the mother seeks the conditions precedent described earlier in these reasons at paragraph 20.
The conditions address the provision of financial support and necessities, the whereabouts of the children and the discontinuance of any complaints which would result in criminal or civil sanctions being imposed on the mother for the wrongful retention of the children. The conditions further seek that if the father fails to comply in 60 days or by 30 November (whichever is earlier) the return orders be discharged.
The applicant SCA could not say whether the father is agreeable to the conditions. I note that at page 15 of the application it is stated:
Should the mother refuse to return with the children, the father is prepared to travel to Australia to return the children.
The mother has said that she will accompany the children if they are compelled to return. It is likely to be cheaper for the mother and children to fly one way back to Israel than for the father to undertake a return journey and accompany the children back to Israel. However, I do not think that it is open to me to infer from the above statement that, if need be, the father would or could assume financial responsibility for the airfares for the children or the mother.
In the context of the alleged harm and intolerable situation, I have considered whether the conditions sought, if granted, would ameliorate the harm alleged by the mother and the ICL. I am satisfied that they would not.
I will now turn to the exercise of the discretion to refuse to make an order for the return of D, O and Z.

Discretion

The mother and the ICL submit that the matters referred to above (and below) warrant the exercise of the Court’s discretion under reg 16(3) to refuse to make an order for the return of D to Israel and, if they succeed, for a dismissal of the application in relation to O and Z as well.
The establishment of a reg 16(3) exception means that the Court may, in the exercise of its discretion, refuse to order the return of the child under the Convention. The Regulations offer 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 Department of Community Services:
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.[97]
[97] (1996) 187 CLR 640, 661.
In TB v JB (Abduction: Grave Risk of Harm)[98] Laws and Arden LJJ, Hale LJ 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 eldest child objected to return. Hale LJ accepted and applied a list of factors suggested by Waite J (as he then was) in W v W (Child Abduction: Acquiescence)[99] and later adopted by him in the Court of Appeal in H v H (Abduction: Acquiescence).[100] I will deal with each of those factors.

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

[98] [2001] 2 FLR 515.

[99] [1993] 2 FLR 211.

[100] [1996] 2 FLR 570, 574.

I accept the submission of the ICL that the best interests principle guides both the rabbinical and family courts in parenting matters in Israel.
It appears on the evidence that the mother may be restricted to the Rabbinical Court in the short term. Her evidence is that she acted on rabbinic advice or a rabbinic directive and issued proceedings in the Rabbinical Court rather than the parallel secular court. The expert evidence of Mr Edwin Freedman is that:
a)Matters that are ancillary to divorce are within the concurrent jurisdiction of both civil and religious courts. Thus, matters of division of assets, child custody and spousal and child maintenance can be adjudicated by either one of the separate legal systems. Jurisdiction is determined according to which is first in time. The party that files his or her petition first is the one who determines jurisdiction. Even a difference of 15 minutes in filing will determine which court has obtained jurisdiction.
b)Women generally have inferior status in the religious courts.
c)In the present case, the Rabbinical Court has obtained jurisdiction over the issue of custody and child support. Rabbinical courts generally award child and spousal support which is lower than the amount awarded in similar situations in the (secular) Family Court. If both parents agree, the file in the Rabbinical Court can be closed and a new claim can be filed in the Family Court regarding the same matters. [101]
[101] Affidavit of Edwin Freedman affirmed 27 June 2010.
It is significant that a transfer of the matter to the secular courts must be consensual. There is nothing to indicate that the father would be agreeable to a transfer. It follows that the case will be determined, at least as to parenting and financial relief matters, by the religious courts in Israel. Mr Freedman also opined that, even if the Rabbinical Court was seized of the parenting and financial relief maters, the issue of relocation (to Australia) could be filed and determined in the secular court.
The evidence of Mr Freedman was not contradicted. He was not required for cross-examination. I accept his evidence.
I have regard to the natural advantages accruing to a court in the place of habitual residence. However, having regard to Mr Freedman’s uncontradicted evidence, I find that the courts in Australia are a more suitable forum than the Israeli courts. My finding is based on the uncontradicted assertion that women are accorded inferior status in the religious courts in Israel and that periodic support is ordered at a lower level than secular courts, although it does not appear that the father has much capacity to pay support out of income in any event. I make this finding with some reluctance because, I suspect, I have not heard both sides. The applicant SCA had an adequate opportunity to obtain evidence on this issue but did not do so.

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

I accept the submissions of the ICL that the mother is the primary carer of the children and that the children appear to have a more distant relationship with the father. There is some suggestion in the letters of the father attached to Rabbi R’s affidavit that the father may seek residence of the children. The father’s letters suggest a claim that the children are at risk in her care. I accept that it is, otherwise, difficult to predict the outcome of proceedings.
The father’s family of origin is in Melbourne and the father has travelled to Australia several times in the past. If the children remain in Australia the Court may well assume that the father can and will travel to see his children. In this way he will maintain a relationship with the children. I cannot be confident that he will relocate to Australia. I note O reported to the family consultant that he overheard his father say to his mother that, “being in Israel is better than being with you”.[102] On the other hand the Court might conclude on the evidence that a Jewish court would not allow the relocation of the mother back to Australia given her wrongful retention of the children. In this event the children will lose the significant relationships they have developed over the last year with their extended maternal and paternal family and the mother will lose the support she obtains from those connections.
[102] Regulation 26(1) report dated 23 July 2010, footnote at [20].
This is not a case where I can say with any confidence that the court in Israel would allow the mother to relocate with the children to Australia. I simply do not know what the outcome would be in Israel. On the evidence before me, as one sided as it is, a court in Australia may well permit the mother to relocate the children to Australia providing that there are arrangements, by way of access, for the children to maintain a meaningful relationship with the father and that the children’s cultural and religious needs are adequately met. Every case is determined on its merits and I would hope that the father would participate to a greater degree in parenting proceedings between the mother and himself than he has in this proceeding.

(c) The consequences of the acquiescence

I am not satisfied that there has been any acquiescence within the meaning of reg 16(3)(a)(ii). However in much more general terms, the children have been in Australia for nearly 18 months and all of the evidence points to them thriving here.

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

The ICL submitted that the mother’s evidence about the difficulties she will face on her return is unchallenged by the father and that, in these circumstances, the Court ought not be satisfied that the care arrangements for the children are safe, secure or in their best interests. The lack of evidence from the father as to any assistance he may be able to provide to the mother in terms of a home or other financial support is concerning. There is considerable doubt as to whether the mother could support herself and the children adequately, with or without any assistance by the father.
The mother adduced evidence that there is insufficient government welfare available to enable her to support the children and herself financially in Israel. The monthly child allowance received for all three children approximated 320 NIS (approximately AUD$95). Even on the evidence of Edwin Freedman, the mother would be entitled to a state subsidy of only 165 NIS per child per month, which totals 495 NIS (approximately AUD$144) per month, in addition to an annual school grant and a modest monthly rental subsidy.
The mother’s uncontradicted evidence is that the father is unemployed and is (and for the past 22 years has been) engaged solely in full-time religious studies at a Kollel. The only income he received throughout the marriage was a stipend from the Kollel of between 800–1400 NIS (approximately AUD$234-$409 at current values) per month. He refused to become an Israeli citizen, which would entitle him to a higher stipend from the Kollel, or engage in paid employment (even if only on a part-time basis).
There is also evidence that the parents’ financial circumstances in Israel were so dire that the mother resorted to conducting an unregistered childcare facility from their two bedroom apartment in Jerusalem, from which she earned approximately 10,000 NIS (approximately AUD$3,000) per month. The mother deposed that utilities were frequently disconnected, due to their inability to pay accounts. They received handouts of money and food. Towards the end of the marriage the mother lost approximately 8kg in weight, due to the stress of trying to feed the family and the lack of available food for her after feeding the husband and children.
The mother’s family has funded her representation in this proceeding. I was informed that they are of modest means and do not have the resources to fund the mother’s legal expenses in Israel or the family’s day to day living costs. No objection was taken to that statement being communicated without it having been affirmed.
The mother told the family report writer that she is unsure how she would cope if she were to return to Israel without family or other support available to her there. She referred to the security that has come from residing in Australia, including knowing she can provide enough food for the children.
The father’s attitude was not ascertainable through the applicant SCA. Counsel for the mother submitted that the father’s refusal to participate in the family report writing process cannot be allowed to work against the children or the mother. The family consultant refers to the restrictions on the reporting process by reason of the father’s refusal to engage in them. In particular, in relation to D, the family consultant opines that if his return to Israel were ordered, it would seem likely that the parents would need to explore alternative schooling options for him, so that he attends a school where the teaching style better suits his learning style and provides him with additional support. However, by reason of the father’s refusal to engage in the process, “it is unclear whether [the father] would be able to accept any perceived move by the children away from the more religious educational environment or whether this may result in difficulties in his own relationship with the children.”[103]
[103] Ibid [46].
The suggestion by the family consultant that the mother and children may be isolated from their previous community in Jerusalem has also gone unanswered. There was scope in this proceeding for the applicant SCA to obtain instructions from the father which could have ameliorated many uncertainties in this case. In every respect, the lawyers for the SCA appear to have acted diligently. I can only assume that there was no evidence available to the applicant SCA which would have assisted its case.

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

In my assessment of the applicability of the grave risk exception, I took into account that the harm or intolerable situation “must be more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to a jurisdiction of the court of habitual residence”.[104] However, having found that the exception applies variously to all three children, the Court is required to have regard to the effect of immediate return. Counsel for the ICL submits that all three children have expressed a desire to remain in Australia, and any return is contrary to their wish. This and the many uncertainties that face the children in the immediate aftermath of the return, such as where they will live, where they will go to school, how their mother will support them, their fear and anxiety about possible conflict between their parents, their possible isolation and ostracism from their community and their grief from the loss of significant relationships formed in Australia over the last 18 months, must lead the Court to the conclusion that the emotional effects will be significant and negative and possibly far reaching.[105] There is no evidence that the mother and children will be ostracised. The risk of isolation was raised by the family consultant. Otherwise I accept the submission of the ICL.
[104] Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, 1154 (Ward LJ).
[105] Summary of Argument on behalf of the ICL dated 4 August 2010, exhibit “ICL1”, under the heading “Should the court exercise its discretion and refuse return of the children” [7].
I acknowledge that any trauma for the children is brought about as a direct consequence of mother’s wrongful retention of them in Australia. However, the children have been in Australia for more than a year. I accept that they have established themselves quite well and, by all reports, are thriving. The father was always aware of the location of the children and has been in touch with them on a weekly basis by telephone. The ICL submits that the children have settled into stable and secure living arrangements and are immersed in their schools, extended families and community in Australia, such that a further disruption would be traumatic for them, especially if they are concerned about their return and the circumstances in which they would return. I accept that submission.
The children would be pleased to be reunited with the father but at the same instant they would be confronted, directly and indirectly through their mother, with many uncertainties which I am satisfied would impact upon them adversely on an emotion level.

(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

Leaving to one side the parts of the Convention which deal with rights of access, the philosophy of the Convention is to protect children from the harmful effects of wrongful removal or retention across international borders by depriving the abductor’s actions any practical or juridical consequences. It is not the philosophy of the Convention to capture all abductions. The concept of wrongfulness defines the children and the relationships which the Convention is intended to protect. For instance, the child must be habitually resident in another Convention country and the requesting parent must have been exercising rights of custody immediately before the wrongful retention or removal. Finally, the Court has discretion to not return the children, only if one or more of the exceptions to mandatory return applies. It is only in the exercise of that discretion that the best interests principles have any bearing.
The Convention, impliedly and expressly, embodies a range of aims and objectives, positive and negative, which seek to achieve a delicate balance between the competing interests of the child, the left behind parent and the abducting parent. Article 1 identifies the core aims, namely that the Convention seeks to secure the prompt return of children wrongfully removed to, or retained in, any Contracting State and to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States. The Preamble records that the interests of children are of paramount importance in matters relating to their custody and that signatory States join together in a desire to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.
Article 13, along with Articles 12(2) and 20, which contain the exceptions to the summary return mechanism, indicate that the Convention embodies an additional aim, namely that in certain defined circumstances regard may be paid to the specific situation, including the best interests, of the individual child or even abductor. Those exceptions are as much a part of the philosophy as the mechanism of summary return.
I also consider the extent to which the underlying philosophy of the Convention has been reflected in the time taken between the application being filed and determination. The consensual removal of the children from Israel occurred in June 2009. The children have been wrongfully retained since 26 July 2009 or thereabouts. It is not clear when any application was made by the father to the Central Authority for the State of Israel, but I can safely assume that it was after March 2010. The application by the Central Authority for the State of Israel to the Australian Central Authority was dated 28 April 2010. The application was filed in this Court on 13 May 2010. A report on the children’s objections was undertaken and released on 23 July 2010 and the matter proceeded before me on 5, 6 and 13 August 2010. Processes following on from a wrongful retention or removal are intended to be a hot pursuit remedy. One year had already elapsed before the final hearing commenced in spite of the matter being listed expediently. It is regrettable that my decision has been reserved for three months. That said, I do not consider that any harm has been done as a consequence of the reservation of the decision.

Conclusion

This is a blatant wrongful retention of children in Australia, necessarily in breach of the rights of custody of the father and the entitlement of the children to have disputes concerning their parenting dealt with by the competent authorities in the State of Israel. However, in the particular and unusual circumstances of this case I find that there are exceptions which apply to all three children which enliven the discretion of the Court to decline to return all three children to Israel. The applicability of the exceptions is in no way a criticism of the education system and competent authorities in Israel, but pertain to matters particular to D, including the inappropriateness of forcing him to return to an intolerable situation or his siblings being separated from him.
For the aforementioned reasons, I have decided to exercise the available discretion and will, accordingly, dismiss the application.
This is the final determination of this proceeding. However this proceeding is merely to select whether it is more appropriate for proceedings to be conducted in Israel or Australia having regard to the Regulations.
These proceedings do not determine parenting matters. At this time, there are no parenting orders in force or enforceable in Australia in relation to D, O or Z although, on the proper application of one of the parents, such orders can be made in relation to each child who has not attained the age of 18 years. Any application initiated by the father in relation to the children should be expedited through its preliminary stages. I will order that any such application may be listed before me for directions at the earliest available date if he, or those who advise him, wish for that to occur.
The passports which were surrendered to the Court by the mother will be returned to her and the prohibition on the children being removed from Australia will be removed.

I certify that the preceding two hundred and thirty seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 16 November 2010.

Associate:

Date: 16 November 2010

* Revisions consist of correction of footnote errors and correction of minor spelling and typographical errors. Revision as at 20 April 2011.