ARGENTINA – ALTHEIM v ALTHEIM – 2001 (Return ordered) ALTHEIM v ALTHEIM. The father took his son to Argentina. The mother files for his return under the Convention. The court found that the habitual residence was Israel and ordered the return. Concerned that conditions might get worse in Israel, the court postponed the return for two months. Note by Wm. M. Hilton: Pursuant to the letter of 15 Mar 2002 from the State of Israel, Ministry of Justice, to Edwin Freedman, Attorney, the minor child was given over to the custody of the mother on 05 Dec 2001 and returned to Israel.
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Altheim and Altheim (Argentina 2001)15 International Abduction [Argentina 2001]
(2001) (Return ordered) ALTHEIM v ALTHEIM. The father took his son to Argentina. The mother files for his return under the Convention. The court found that the habitual residence was Israel and ordered the return. Concerned that conditions might get worse in Israel, the court postponed the return for two months.Note by Wm. M. Hilton: Pursuant to the letter of 15 Mar 2002 from the State of Israel, Ministry of Justice, to Edwin Freedman, Attorney, the minor child was given over to the custody of the mother on 05 Dec 2001 and returned to Israel.
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AISEMBERG DE ALTHEIM ANDREA F.
and
ALTHEIM FLAVIO DAVID
RE: RESTITUTION OF SON
Buenos Aires, October 5, 2001 -GZ
COURT FILES AND WHEREAS:
001 I. On page
120, the plaintiff has requested that the matter be declared
a question in Law. The under signed bore this in mind when
conducting the interview with the child.
002 It would seem that both parties have established
their claims based on the “Covenant on Civil Aspects of
International Abduction of Minors” adopted on October 25,
1980 at the 14 Conference held in The Hague on the subject
of International Private Law, which the Republic of
Argentina has embraced by sanctioning Law 23.857, (currently
falling under the category of constitutional, as set forth
in Art 75, clause 72 of our Constitution), as has the State
of Israel. This is how it has been expressly petitioned in
the hearing, which appears on page 10.
003 In light of the fact that an interview was earned out
with the child (pages 123/125), I consider that the
documentation accompanying the present writ is sufficient to
warrant a ruling. given that fundamental alterations to
procedures of this nature are not in order, and should be
acted upon with the expediency stipulated by the Convention.
004 ConsequentLy, I hereby declare that this matter
should be considered a question of law and shall now rule on
the facts raised in the documents submitted.
005 II. On page 64, the legal representative of Andrea
Fernanda Aisemberg de Altheim has solicited the
international restitution of her son, Sebastian Altheim, on
the grounds that she claims that he is being held illegally
by the father of the same, Flavio David Altheim.
006 The Plaintiff states that the parties, both of
Argentinean nationality, contracted marriage in this City on
December 17, 1992, and Sebastian was born of this union on
December 4, 1994, facts which have been ascertained through
the certificates appearing on pages 24/26. Furthermore, in
1997, the entire family group took up residence in Israel,
where they proceeded to live their social and business
lives.
007 She affirms that the child has lived a satisfactory
and happy life in that country, having adopted Israeli
customs, traditions, habits and behaviour. He attends
school, he has his maternal grandparents and friends close
to him and most of his affections are in Israel.
008 The Plaintiff reports that, in December of the year
2000, Mr. Altheim returned to Argentina. Previously, on
August 1, 2001 authorization had been granted for the minor
son to allow him to enter and leave that country until
reaching the age of majority. She manifests that said
authorization did not, in any manner whatsoever, imply that
he had been granted permission to relocate to any country
other than that of Sebastian’s habitual residence, which is
Israel.
009 The Plaintiff states that both parties initiated
divorce proceedings in that country in March of the year
2001, and on June 12 of the current year, the Rabbinical
Tribunal for Jerusalem’s jurisdiction, who intervened in the
divorce, granted custody of the minor (Zwi, in the Hebrew
language) to his mother.
010 She claims that on the 10th day of that same month,
Mr. Altheim picked up his son from school, picked up all of
the clothing and documentation belonging to the child, and
took him via Madrid, to Argentina, entirely without the
knowledge of the mother and without the consent of the same,
having acted in an illegal manner.
011 The Plaintiff points out that in the hearing that was
held on May 5, 2001 before the Rabbinical Tribunal
authorities, both parties had undertaken before the Court
not to take the child out of the country. For this reason,
the husband was to hand the minor’s passport over to the
Tribunal, which he did, but he only handed over the Israeli
passport and not the Argentinean one. He used the latter to
take his son out of Israel.
012 The Plaintiff filed a written petition, as suggested
by the central authority of Israel, to the central authority
of Argentina, requesting the application of Law 3.657, for
the purpose of bringing about the return of the minor.
013 Other considerations have been cited and she has
requested that Art 13 and 20 of the above mentioned law not
be applied. She has offered evidence and establishes her
right on Art. 3 and related provisions of Law 23 [illegible]
45, and articles 3, 4, 5, 7, 11, 12, 23 and related
provisions of Law 23. [illegible] and petitions the
restitution of her son within the shortest possible period
of time, including legal costs.
014 On page 97, further documented evidence has been
provided.
015 III. On page 109, the Defendant FIavio David Altheim
responds to the claims, recognizing the legal obligations
cited, and denies them, claiming that the facts and rights
invoked by the Plaintiff have been distorted.
016 He states that the entire family group was born in
Argentina.
017 That in 1987, the Defendant left for the Stale of
Israel, where he remained for more than three years. In
that country, in 1989, he met Andrea, and when they decided
to get married, they did so in the Republic of Argentina,
where their son was also born.
018 He affirms that, in 1997, his ex-wife convinced him
to try their luck in a foreign country, proposing the State
of Israel, where the parents of the Plaintiff lived.
019 He maintains that it was never the couple’s intention
to remain definitively in that country, and that, when they
left Argentina heading to Israel, he did so, not by personal
choice, but because Andrea succeeded in convincing him to
support her project.
020 He claims that, in fact, after the assassination of
the Israeli Prime Minister, Yitzjak Rabin, in 1995, an event
which shocked the entire world, a progressive deterioration
of the socio-economic situation of that country commenced;
021 That Israeli politics, with regard to thy issue of
Palestine began to employ a “hard line” approach, that is,
that the channels of diplomatic negotiation disappeared and
the use of military force was fostered.
021 He claims that therein lies the key to the issue of
the duties involved in paternal rights, which entail, among
other things, looking out for the safety of one’s son.
022 He decided them it was advisable for Sebastian – and
for all involved – to desist the project of living together
abroad and to return to Argentina.
023 He states, lastly, that in May of the year 2001, due
to the political-military situation in Israel, be agreed
with his wife that, should it get worse, be would take it
upon himself to move Sebastian to this country. They also
agreed that their son should keep his Argentinean passport
as well as the travel permission form signed expressly by
her. On May 9, both parties even visited the Argentine
Consulate in Israel to renew the child’s passport.
024 And, that on May 10, he accompanied his wife to an
appointment with a psychoanalyst, due to the fact that she
had been very disturbed. On May 11, he returned to
Argentina.
025 On May 24, he became aware that Andrea and Sebastian
bad been very disturbed by the violent events in Israel.
026 On June 8, he traveled to that country, and having
witnessed the state of anxiety in which be found Sebastian,
he immediately took him to Argentina.
027 The Defendant declares that he lives in this city
with his son and that the Plaintiff is entirely aware of
this fact, the Plaintiff has been, in communication with the
child.
028 He claims that his wife changed her mind, and that
she now invokes an alleged judicial ruling dated June 12,
2001 in which she has apparently been granted temporary
custodial rights of the minor.
029 He does not accept this ruling, claiming that it was
issued after his return to Argentina, and therefore he has
not had the right to act in his defence.
030 He points out that the Plaintiff filed for divorce in
May of 2001. In response to which the Defendant conceded,
but no definitive judgment has been rendered yet nor has the
custody of Sebastian been resolved.
031 The Defendant dec]ares that he never acted in an
illicit manner, and he vigorously opposes the restitution of
the minor, citing the provisions of Art. 13, clause b of Law
23.857, on the grounds that this would be putting the
child’s psychological and physical state at serious risk, at
least until such time as the high-risk conditions that
currently prevail in Israel significantly improve, alleging
that this country currently finds itself in art effective
and real state of war.
032 He concludes that the minor has not been separated
from his known environment because he was born here and also
has friends here, he speaks Spanish fluently and regularly
attends the “Escucla Sol” – He therefore requests that the
restitution petition be denied and that a visitation
schedule be established in favour of the Plaintiff.
033 IV. In light of the documentatIon that has been
attached hereto on pages 23, 31/37, 90/92 and 94/97, the
present duly complies with the provisions of Art. 6, 24 and
26 of The Hague Convention of 1980.
034 Art. [illegible] clause a) pertaining to the above
was established for the purpose of “guaranteeing the
immediate restitution of minors that have been relocated or
displaced in an unlawful manner in any of the participating
States.”
035 Art. 3 states that the removal or custody shall be
considered unlawful:
a) when an infraction occurs that violates
custody rights that have been attributed,
severally or jointly, to a person, an
institution or any other organization, in
accordance with current laws of the State in
which the minor has taken up habitual residence
immediately prior to his removal or retention;
and
b) when this right is effectively exercised,
severally or jointly, at the time of removal or
retention, or would have been exercised if said
removal or retention bad not been produced.
036 Art. 4 further adds that “the Covenant shall apply to
all minors that have taken up habitual residence in a
participating State immediately prior to the infraction of
the custodial or visitation rights.”
037 It should be noted that “Beginning at the 1891 The
Hague Conference, during the 1900 session, the concept of
domicile was substituted by that of habitual residence in
matters of guardianship, a criteria which has been followed
in successive treaties and conventions, among them The Hague
Convention of 1980 . .. whereby habitual residence
constitutes a sociological point of connection, unlike that
of domicile, which is more standard in nature.
038 It therefore signifies the place where the minor
carries out his activities, where he has been established
with a certain degree of permanence, the centre of his
emotional and daily experiences . . . the expression
‘habitual residence’ refers to a factual situation that
assumes stability and permanence . . . The experts from the
countries that intervened in the elaboration of the Covenant
chose the habitual residence of the minor for the purpose of
attributing jurisdiction to the same, on the grounds that
this is a concept that tends to provide greater juridical
security in matters of restitution, due to the fact that
judges who are from the place in which the minor lives his
daily life will be better suited to assess the fundamental
questions (cons. C1, CC San Isidro, Room 1, August 31st,
2000, E.D. -191, Resolution No. 50.577, page 122., doctrine
and jurisprudence cited therein: idem. Comments on the
above-cited Resolution by Stella Maria Biocca: ‘The
interests of the minor and the fundamental rights of same’,
pg. 228, paragraph 🙂 published in ‘Family Law’,
Interdisciplinary Journal of Doctrine and Jurisprudence”,
No. 1 [illegible], Edit. (Abeledo Perrot, 2001).
039 In accordance with these parameters, I should clarify
that there is no doubt that the family traveled to Israel to
find new horizons in the year 1997, and that, in 2001, the
couple bad in fact separated. That is to say, I consider
this place to be the habitual residence of Sebastian. who
attended the “[illegible] School” (page 49 and 93) and aLso
carried out his daily social and family life there in
Israel.
040 Furthermore, his parents also resided there, and, in
fact, the Plaintiff filed for divorce before Jerusalem’s
Rabbinical Tribunal.
041 Moreover, the Defendant consented to the above
jurisdiction, based on the fact that both parties appeared
before this Tribunal on May 6, 2001.
042 The agreements established in that hearing are
illustrative, firstly because the husband designated a
representative, witness and messenger, and the parties
suspended the divorce proceedings for a period of seven
months, subject to the behaviour they demonstrated during
this time, details of which are given
043 Secondly, because they also agreed that a ruling
would be made on the subject of a temporary support
allowance to be granted in favour of the minor, Zwi
(Sebastian). Lastly, the husband undertook to hand over the
child’s passport his wife and both agreed not to remove
their son from the country without the express consent of
the other parent (page 41). On that date, the Tribunal
ordered Mr. Altheim to pay support to his wife for the
minor, commencing on June 5, 2001. (page [number
illegible]).
044 Notwithstanding, the Defendant, without the consent
of the other party, removed his son from his place of
residence and transferred him to this country on June 10,
2001.
045 Two days later, the Rabbinical Tribunal of Jerusalem
ruled that the minor was to remain in the custody of his
mother (pg. 15).
046 In light of the above, there is no doubt in my mind
that Sebastian was removed in an unlawful manner from his
place of habitual residence and that the circumstances
stipulated in Art:, clause a) and b), second paragraph of
the Convention have been produced.
047 Therefore, I must, in principle, order his immediate
restitution restitution to the State of Israel.
048 V. However, the father alleges that the minor would
be put at serious physical and psychological risk should he
be returned (Art. 13, clause b) of the Convention) due to
the state of war in which the country finds itself with
regard to the Palestinian community, which has intensified
over the past few years. following the assassination of the
Israeli Prime Minister in 1995.
049 Unfortunately, acts of terrorism due to political,
racial and religious intolerance occur all over the world.
As the Prosecutor for Minors points out in his judgment on
pages 129/131, in the city of Buenos Aires, where Sebastian
currently makes his habitual residence, terrorist acts were
perpetrated in 1992 and 1994, which, due to their grievous
nature, caused outrage around the world.
050 One must also remember the horrific assassination of
Yitzjak Rabin in 1995, as well as countless other bloody
events that could specifically be cited.
051 But this worldwide situation was not an obstacle to
the Altheim couple who, two years later, decided to move to
Israel to live. If the husband had considered then that the
trip would put the lives of his loved ones at serious risk,
he would evidently not have made the trip.
052 Despite the contradictory arguments given in his
response statement, the conduct displayed over the past few
years indicates that this real risk did not exist, in other
words, I reiterate that he would not have made the trip in
1997, or at the very Least, the family would have returned
very quickly.
053 That country has lived under war-like conditions for
many years with its Palestinian neighbours, with alternating
periods of relative peace mixed with escalating
confrontation. Despite this fact, its inhabitants, who have
always lived in this manner, continue to carry out their
daily activities, as I have stated, even under these
particular circumstances in which the country is
experiencing.
054 In any event, the request filed by the Defendant was
formuLated before the savage attack that took place in the
cities of New York and Washington on September 11, 2001,
which cost the lives of thousands of people of diverse ages,
sexes, race, religions and nationalities.
055 This fact has indeed put the entire world in a state
of alert, especially countries In the Middle East, and those
in which a traditional conflict has existed with the Arab
world, such as Israel.
056 In this country there have been escalating and
repeated terrorist acts that have cost the lives of many
innocent people. And, although terrorism knows no borders,
the reality is that, given the situation today in the world,
there is the possibility that, within a short period of
tune, the events in Israel could worsen and become a serious
threat to the safety of a child that is taken to this
country, although this might not occur.
057 Therefore, although there is no doubt in my mind that
the minor should be returned to Israel, where he Lived up
until a few months ago with his mother, I shall suspend its
implementation for two months – untIl December 5, 2001 on
the understanding that, should the situation continue to
stabilize, Sebastian must travel immediately to said
country.
058 In light of the above, and in a accordance with the
legal regulations cited, and the provisions of Art. 3 of the
Convention on Children’s Rights, having heard the statement
of the Prosecutor for Minors, pg 129/131, and that of the
Government Attorney, pg. 133/136 [illegible], I hereby
059 a) Declare the present to be a question in law,
060 b) Order the restitution of the minor, Sebastian
Altheim, in the State of Israel, and defer its execution to
December 5, 2001, under the conditions laid out in the
clause V., final paragraph.
061 c) The cost of the this process shall be assumed by
the Defendant, who must undertake to pay the expenses that
shall be incurred in the transfer of the child back to his
place of residence (Art. [illegible] of the Procedural Code,
and 25, last paragraph of Law 23.857).
062 d) I set the fees of the legal representative of the
Plaintiff, Dr. Enrique Ignacia Brochard, at $2,000 (two
thousand pesos) (Arts. 1, 6, 7, 30, and 33 of Law 21.83
[illegible], amended by Law 24.432), which must be paid
within a period of 10 execution.
063 The parties to be notified with due diligence of the
day and time, as well as the representatives of the Public
Ministries in their office. P.A.S.
[Signed]
Note by Wm. M. Hilton
Pursuant to the letter of 15 Mar 2002 from the State of
Israel, Ministry of Justice, to Edwin Freedman, Attorney,
the minor child was given over to the custody of the mother
on 05 Dec 2001 and returned to Israel.