AUSTRALIA – GENISH – 2002

AUSTRALIA – GENISH – 2002 (2002) (Return ordered by lower court, overturned on appeal) (Grave Risk) (War Zone) GENISH-GRANT v DIRECTOR-GENERAL DEPT of COMMUNITY SERVICES. This is an appeal by the mother against orders form the lower court ordering the return of the children to Israel. The appeal was allowed.

Genish v Dept of Community Services (Australia 2002)Appeal No. EA 110 of 2001
11 International Abduction [USA 2002]
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FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
Appeal No. EA 110 of 2001
File No. SY 4998 of 2001

IN THE MATTER OF:

JANINE CLAIRE GENISH-GRANT

Appellant

– and –

DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

BEFORE: Finn, Holden and Barlow JJ
HEARD: 10th and 11th days of April 2002
JUDGMENT: 27th day of May 2002

APPEARANCES: Mr Connor of counsel (instructed by Swaab,
Attorneys, Swaab House, Level 5, 12
O’Connell Street, Sydney, NSW 2000)
appeared on behalf of the appellant

Ms Hartstein of counsel (instructed by
Department of Community Services, Legal
Services Unit, 164-174 Liverpool Road,
Ashfield, NSW 2131) appeared on behalf of
the respondent

1. FINN and BARLOW JJ. This is an appeal by the mother
of two children, aged approximately nine and five years old,
against all orders made by O’Ryan J on 10 December 2001, the
essential effect of which was to order the return of the two
children “to Israel” pursuant to the provisions of the
Family Law (Child Abduction Convention) Regulations (“the
Regulations”).

2. The factual background to this case, and a detailed
analysis of O’Ryan J’s reasons for judgment, are contained
in the judgment of Holden J. We do not need to repeat any
of that material.

3. Holden J has also set out in his judgment the nine
grounds of appeal which the mother pursued before us, and
which raised issues concerning a number of different
provisions in the Regulations. Ultimately, his Honour has
concluded that there is no substance in any of the mother’s
grounds of appeal, and accordingly he would dismiss the
appeal.

4. We agree with his Honour that there is no substance
in any of the grounds of appeal, and we agree generally with
his reasoning for so concluding.

5. However, as Holden J has recorded in his judgment, at
the hearing of the appeal, the mother sought leave to adduce
further evidence. Part of that evidence, being a travel
advice from the Department of Foreign Affairs and Trade
(“DFAT”) issued on 3 April 2002, and current on 10 April
2002 (when the hearing of the appeal commenced), was
admitted by consent.

6. Holden J has concluded that, notwithstanding that
DFAT travel advice (the terms of which we will shortly set
out, but which can briefly be described as an upgraded
warning to Australians from that which was current at the
time of O’Ryan J’s orders), the mother has still failed to
establish that there is a grave risk of exposure to physical
harm to the children if they were returned to Israel because
of unrest in that country.

7. We do not agree with his Honour’s conclusion in
relation to this matter. Contrary to his Honour’s
conclusion, we would allow the appeal on the basis of the
further evidence constituted by the DFAT travel advice, and
make an order dismissing the application of the Central
Authority for the return of the children to Israel. Our
reasons for so concluding are as follows.

8.Regulation 16(3) of the Regulations provides that:

“A court may refuse to make an order under
subregulation (1) if a person opposing return
establishes that:



(b) there is a grave risk that the return of
the child to the country in which he or she
habitually resided immediately before the
removal or retention would expose the child
to physical or psychological harm or
otherwise place the child in an intolerable
situation;”

9. In the relatively recent High Court decision in DP v
Commonwealth Central Authority; JLM v Director-General, NSW
Department of Community Services (2001) FLC 93-081, Gaudron,
Gummow and Hayne JJ made the following observations in
relation to the construction of Regulation 16(3)(b)
(emphasis added):

“41. … On its face reg 16(3)(b) presents
no difficult question of construction and it
is not ambiguous. The burden of proof is
plainly imposed on the person who opposes
return. What must be established is clearly
identified: that there is a grave risk that
the return of the child would expose the
child to certain types of harm or otherwise
place the child in ”an intolerable
situation”. That requires some prediction,
based on the evidence, of what may happen if
the child is returned. In a case where the
person opposing return raises the exception,
a court cannot avoid making that prediction
by repeating that it is not for the courts of
the country to which or in which a child has
been removed or retained to inquire into the
best interests of the child. The exception
requires courts to make the kind of inquiry
and prediction that will inevitably involve
some consideration of the interests of the
child.

42. Necessarily there will seldom be any
certainty about the prediction. It is
essential, however, to observe that certainty
is not required: what is required is
persuasion that there is a risk which
warrants the qualitative description
”grave”. Leaving aside the reference to
”intolerable situation”, and confining
attention to harm, the risk that is relevant
is not limited to harm that will actually
occur, it extends to a risk that the return
would expose the child to harm.

43. Because what is to be established is a
grave risk of exposure to future harm, it may
well be true to say that a court will not be
persuaded of that without some clear and
compelling evidence [cf Re C (Abduction:
Grave Risk of Psychological Harm) [1999] 1
FLR (UK) 1145 at 1154 .] . The bare
assertion, by the person opposing return, of
fears for the child may well not be
sufficient to persuade the court that there
is a real risk of exposure to harm.

44. These considerations, however, do not
warrant a conclusion that reg 16(3)(b) is to
be given a ”narrow” rather than a ”broad”
construction. There is, in these
circumstances, no evident choice to be made
between a ”narrow” and ”broad”
construction of the regulation. If that is
what is meant by saying that it is to be
given a ”narrow construction” it must be
rejected. The exception is to be given the
meaning its words require.”

10. Before us, the mother has sought to rely simply on
the terms of the DFAT travel advice issued on 3 April 2002
in order to satisfy the Court that there is a grave risk of
physical harm to the children within the meaning of
Regulation 16(3)(b) if they were to be returned to Israel.
The question for us is whether that document provides “clear
and compelling evidence” that there is a grave risk of
exposure to future harm for these children.

11. The terms of that DFAT travel advice are as follows
(emphasis added):

“Australians should defer all travel to
Israel. Australians should not travel to the
West Bank and the Gaza Strip. Australians
already in Israel should carefully consider
their need to be in the country at this time,
taking into account the security situation
and their personal circumstances.

Australians in the West Bank and Gaza Strip
should leave where it is possible and safe to
do so. Australians in closed military zones
should not attempt to leave until advised by
local authorities that it is safe to do so.

The deterioration in the security situation
has included a high number of terrorist
attacks in recent days against civilian
targets in Netanya, Tel Aviv, Jerusalem and
Haifa. All population centres in Israel are
at very high risk of terrorist attack at the
present time. Targets in the past have
typically been areas where large numbers of
people gather, including hotels, pedestrian
promenades, street shopping malls,
restaurants, cafes and other places of
entertainment and buses and bus stations.

The situation on the West Bank and the Gaza
Strip is extremely dangerous. The Israeli
Defence Force (IDF) have entered a number of
Palestinian towns, including Ramallah,
Bethlehem, Qalkilya and Tulkarem and declared
general curfews. Travel outside of
residences in these areas is extremely
unsafe. Regular exchanges of live fire are
taking place. House to house searches are
also being undertaken by the IDF. Further
IDF incursions into the West Bank and
possibly the Gaza Strip should be expected.”

12. While we recognise that this advice primarily focuses
on the “extremely dangerous” situation in the West Bank and
the Gaza Strip, and that the area where the children’s
father resides is some distance (relatively speaking) from
these places, the advice does say that Australians should
defer “all travel to Israel”. It will be recalled in this
regard that O’Ryan J’s order simply required the return of
the children “to Israel”.

13. Further, and particularly significant for present
purposes, is the fourth paragraph of the notice, where it is
said that “[a]ll population centres in Israel are at a very
high risk of terrorist attacks at the present time”, and
that “[t]argets in the past have typically been areas where
large numbers of people gather”. It is to be noted that
hotels, places of entertainment and bus stations are then
mentioned. We consider this part of the travel advice to be
significant in the present case, because of the following
findings by O’Ryan J concerning the place where the father
of the children lives and works:

“27. In November 1995 the father found a
restaurant complex near Moshav Amirim north
of Israel overlooking the sea of Galilee and
the Mediterranean Sea. There was room for a
large restaurant and 21 rooms as well as
performance areas, workshop and what he
called a healing space room. It also had a
large apartment where the parties could live
and a large garden. …

28. In November 1995 the parties then
commenced to live at and operate a
hotel/restaurant complex near Moshav Amirim.
It is called the Hotel Han HaGalil Amirim and
is located in the Merom HaGalil County in the
North of Israel. The father was the manager.


29. The mother also gave evidence about how
at the complex the father did kabbalat
shabbat ceremonies in the restaurant and that
this began to draw crowds at the restaurant.
The mother described the father as a
“charismatic performer”. The mother
supported the father’s wishes for herself and
the children to be involved with this
religious event and that it was highly
successful. The media were involved and
stories of the “three partners” were in
magazines, newspapers and television. The
mother said that the father became famous.



34. … Notwithstanding the lack of evidence
about precisely when the parties separated,
and the circumstances surrounding the
separation, and where each party lived, it is
conceded that at the time when the mother and
the children returned to Australia the
parties were separated although they were
living in the same complex and perhaps were
living under the same roof. In her oral
evidence the mother said that the parties
separated in August 2000. I am satisfied,
however, that shortly prior to the mother and
children leaving Israel the parties and the
children continued to live in the complex and
that the father’s participation with the
children was to the same extent as it was
prior to the separation of the parties.”

14. We acknowledge that much of the description of the
father’s residence and workplace given by his Honour related
to the position in 1995. Nevertheless, the father is
apparently still at the same complex, and there is nothing
to suggest that its operations have changed.

15. Moreover, a return to Israel would obviously involve,
and this was conceded before us by Counsel for the Central
Authority, the children returning to Israel through an
international airport, and then travelling by public
transport to the Amirim area. We mention in this regard
that as Holden J has explained in his judgment, this case
proceeded on the basis that the children would be returned
to the Amirim area.

16. Given these considerations regarding the type of
place where the father lives and works and the travel
arrangements which would be involved in returning these
children to Israel, we are prepared to accept the passages
of the DFAT travel advice to which we have drawn particular
attention, as constituting clear and compelling evidence of
a grave risk that return of the children to Israel would
expose them to harm.

17. It is not without some relevance, in our view, that
once the DFAT travel advice was before us by consent, the
Central Authority did not seek the opportunity to obtain
updating evidence from Yaakov Dahan, the Commander of the
Security Services of the local County Council of the Upper
Galilee County whose affidavit evidence, filed 5 November
2001, is referred to by Holden J in his judgment.

18. We have had regard in reaching this conclusion to
what was said in Friedrich v. Friedrich, 78 F.3d 1060 (6th
Cir. 1996), where the United States Court of Appeals for the
Sixth Circuit enumerated those types of dangers which might
be considered to create a “grave risk” of the type of harm
envisioned by the Convention:

“Although it is not necessary to resolve the
present appeal, we believe that a grave risk
of harm for the purposes of the Convention
can exist in only two situations. First,
there is a grave risk of harm when return of
the child puts the child in imminent danger
prior to the resolution of the custody
dispute – e.g., returning the child to a zone
of war, famine, or disease. Second, there is
a grave risk of harm in cases of serious
abuse or neglect, or extraordinary emotional
dependence, when the court in the country of
habitual residence, for whatever reason, may
be incapable or unwilling to give the child
adequate protection.”

19. The United States Court of Appeals did not define the
concept of “a zone of war”, but we are of the view that the
situation, as described in the last paragraph of the passage
quoted earlier from the DFAT travel advice (albeit
describing the situation in the West Bank and Gaza Strip)
could well be regarded as coming within the description of a
zone of war.

20. In order for the mother to satisfy us that a return
of the children to Israel would expose them to a grave risk
of harm, it is not in our view necessary for her to prove
that such a return would expose them to a grave risk of
direct harm over and above the risk of harm to which any
individual in Israel is exposed. We reach this conclusion
because, when the relevant harm sought to be relied on for
the purpose of establishing the defence under Regulation
16(3)(b) is in the nature of warfare or civil unrest, we do
not think it necessary or possible to draw any distinction
between a direct risk to a particular individual and the
risk to which the relevant population is generally exposed.

21. Having regard to the decision of the High Court in
CDJ v VAJ (1999) 197 CLR 172; (1998) FLC 92-828 (and
particularly what was said by McHugh, Gummow and Callinan JJ
at [109], [111] and [114]), it is clear that further
evidence, particularly where the evidence relates to events
occurring after the trial, can be admitted by the Full Court
in order to demonstrate that the order under appeal
(although not necessarily erroneous at the time that it was
made) has been rendered erroneous, and where that further
evidence is not in dispute, this Full Court is able to
evaluate it and to take it into account in determining the
appeal without the necessity for a new trial.

22. As we have indicated earlier, the DFAT travel advice
was admitted by consent. We did not understand Counsel for
the Central Authority to dispute that if, on the basis of
that evidence, this Court was satisfied that there is a
grave risk that the return of the children to Israel would
expose them to physical harm, within the meaning of
Regulation 16(3)(b) of the Regulations, then this Court
could in the exercise of its discretion make an order
dismissing the application of the Central Authority for the
return of the children to Israel. In our opinion this is
the course that this Court should adopt. It was not
suggested by either side that there should be a new trial of
this matter.

23. We would also add that we agree with what Holden J
has said regarding the possibility of the grant of a stay
pending the development of the situation. We agree that
such a course would not be appropriate.

24. The orders which we would therefore propose should be
made are as follows:

(1) That the appeal be allowed.

(2) That Orders 1 to 4 of the orders made by
O’Ryan J on 10 December 2001 be discharged.

(3) That the application of the Central
Authority filed on 10 August 2001 be
dismissed.

25. In relation to our proposed orders, we would explain
that although the appeal was against all orders made by
O’Ryan J, we consider that it is only necessary to discharge
Orders 1 to 4, which are concerned with the return of the
children to Israel. Order 5 discharged interlocutory orders
which it seems appropriate to discharge. Orders 6 to 9 are
of a procedural nature.

26. In relation to the costs of this appeal, we received
brief oral submissions in relation to this matter from both
Counsel at the conclusion of the hearing of the appeal. We
are of the view that there should be no order as to costs.

27. HOLDEN J: This appeal involves the application of
the Family Law (Child Abduction Convention) Regulations 1986
(“the Regulations”). Janine Claire Genish-Grant (“the
mother”) appeals against orders made by O’Ryan J on 10
December 2001 the most important of which was:

“That the Central Authority make such
arrangements as are necessary to ensure the
return of the children Shekhina Shula Ellen
Genish born on 29 June 1993 and Hallelujah
Ofer Khai Genish born on 22 May 1997 to
Israel.”

Background

28. The mother was born in Australia on 21 November 1961.
Moshe Genish (“the father”) was born in Israel on 26 April
1965. The parties commenced cohabitation in about April
1990 and were married on 19 January 1997. The parties
finally separated in late 2000. The two children of the
marriage are those named above. The parties lived at
various places in Australia from 1990 until March/April 1995
when they went to live in Israel.

29. The mother returned to Australia with the children on
3 December 2000 with the agreement of the father that she
could remain in Australia for a period of 3 months. His
Honour found that the mother admitted prior to leaving
Israel that she had promised that she would return the
children and that when she said this to the father it was a
lie because she did not intend to return. He accepted the
submission that at all times during 2001 the mother had no
intention of returning the children to Israel and that she
had led the father to believe that she would.

30. An application was filed on behalf of the Central
Authority on 10 August 2001. The matter was heard by his
Honour on 9 and 14 November 2001 and on 10 December 2001 he
delivered his reasons for judgment and made inter alia the
order referred to above.

The Judgment of the Trial Judge

31. Having set out what he referred to as the “short
history” albeit in far more detail than I have, his Honour
referred to the relevant principles and set out Regulation
16 in full. He then referred to the non-contentious issues
which were that: Israel is a Convention country; the
children were under the age of 16 years; the children were
in Australia; and the application of the Central Authority
was filed on a day less than one year after the day on which
the children were removed to or first retained in Australia.

32. His Honour then turned to consider the issue of
whether or not the children were habitual residents of
Israel immediately before their removal or retention. His
Honour concluded as follows:

“69. The parties lived together in Israel
from April 1995 to the end of 2000. The
father went to Israel to see his mother and
also pursue his ambition about peace which
the mother agreed with and supported. The
father became the manager of a resort complex
in November 1995 and has been successful.
The mother became a citizen of Israel. The
children are citizens of Israel. The mother
agreed that she decided to live in Israel.
The mother came to Australia in 1996 and 1999
and returned to Israel. The mother knew when
the parties separated, and she wanted to
return to Australia, that the father would
not agree to the children not returning to
Israel.

70. I am of the view that the parties lived
in Israel for a significant period of time
and that they did so after November 1995 with
a settled purpose. The mother says that she
was unhappy living in Israel and having
considered what the mother said in her
affidavit this unhappiness seems to relate,
inter alia, to what she said about the
infidelities of the father. I am satisfied
that after November 1995 the habitual
residence of the parties changed from
Australia to Israel and that as at December
2000 the children were habitually resident in
Israel.”

33. His Honour then turned to consider whether or not the
father had “rights of custody”. He considered the
provisions of the Capacity and Guardianship Law (1962) of
Israel. He concluded:

“75. Section 14 of the Capacity and
Guardianship Law provides that parents shall
be the natural guardians of their minor
children. Section 15 provides:

“The guardianship of parents shall include
the duty and the right to take care of the
needs of the minor, including his education,
studies, vocational and occupational training
and work, and to preserve, manage and develop
his property; it shall also include the right
to the custody of the minor, to determine his
place of residence and the authority to act
on his behalf.”

76. The combined legal effect of ss. 14 and
15 is that each parent has the right to
custody of minor children and to determine
the residence of minor children. Israeli law
distinguishes between guardianship and
custody. On behalf of the father evidence
was given by a Director of the State of
Israel Ministry of Justice that the combined
effect of ss. 14 and 15 is to establish that
both parents are the joint guardians of their
children and that this right includes the
right to determine their place of residence.
The right to guardianship also establishes
the separate rights of custody and the right
to act on the child’s behalf. ”

34. His Honour then considered various other sections of
the Capacity and Guardianship Law (1962). He referred to
the submission made on behalf of the mother, that the father
had agreed prior to her departure in December 2000 that the
children would live with her and that he would have contact
and thus that he only had rights of access. It was further
submitted that the mother had the right to determine the
children’s place of residence because the father agreed that
she would have physical custody of the children in Israel.
His Honour determined that submission as follows:

“82. I accept that the submission of the
mother has no basis in Israeli law and is
without merit. There were no orders in
relation to any aspect of the guardianship of
the children. The mother and the children
were living in the complex and the father was
actively involved in the daily lives of the
children although the parties were separated.
Even if there had been a court order giving
the mother custody of the children as long as
the father was exercising his rights of
access as the natural guardian of the
children he has an equal right with the
mother to determine the children’s place of
residence.

83. In the result, I am satisfied that at
the time of the retention of the children by
the mother in Australia the father was
exercising rights of custody. He was the
joint guardian of the children and had the
right to determine the place of residence of
the children. I am satisfied that the mother
did not have sole rights of custody under the
law of Israel. There was no court order
giving her those rights. I am also
satisfied that the father had not agreed that
the mother had the sole right to determine
the place of residence of the children.”

35. As to the issue of wrongful retention, his Honour
said as follows:

“84. In re: S (Minors) (Abduction; wrongful
retention) (1994) FLR 70 Wall J held that
where a parent announced her intention not to
return the children to their country of
habitual residence at all that parent could
no longer rely on the other parent’s
agreement to the limited period of removal or
retention.

85. In early March 2001 the father agreed
that the children could stay in Australia for
a further month. However, the mother made no
effort to return the children at the
expiration of a month. I am of the view that
as and from 3 April 2001 the mother
wrongfully retained the children in this
country. It was at that point that the
mother breached the agreement she had with
the father to return the children.”

36. As to whether or not the father consented to the
removal of the children to Australia or acquiesced in their
retention in this country, his Honour said:

“86. The mother and the children came to
Australia for a holiday for a period of three
months and this was agreed to by the father.
The father then agreed to the mother and the
children remaining in Australia for a further
period. O (sic) accept that the mother
having asserted prior to her departure that
she intended to return to Israel and at each
stage upon the father’s request that she
return stated that she intended to return and
just required a little more time in Australia
cannot assert that the father consented or
acquiesced in the children remaining in this
country.

87. As seen, in early June 2001 the father
caused his solicitor to write to the mother
requesting that the children be returned to
Israel and the mother refused.

88. For reasons I have already given I am of
the view that at no time has the father
consented or acquiesced to the children being
retained in Australia.”

37. The reasons that his Honour had already given
referred to in paragraph 88 of his judgment, were as
follows:

“71. As to what has happened since the
mother arrived in Australia it is relevant to
consider the evidence of the mother in cross
examination that she deliberately did not
tell the father what her real intentions were
namely to get to Australia and not return to
Israel because she knew that the father would
not agree. I do not accept the evidence of
the mother about what the father is asserted
to have said to the mother before the mother
and the children left Israel in December 2000
about living in Israel, Australia or
anywhere. Although he was not cross examined
I prefer the evidence of the father. After
considerable discussion and negotiation
between the parties, involving others, it was
agreed that the mother and the children would
come to Australia for three months for a
holiday which means that they were to return
in March 2001. After December 2000 the
parties were in regular communication by
telephone and in early March 2000 the mother
sought and the father agreed to an extension
of one month. After 4 months (April) the
mother asked for more time and the father did
not agree. After 5 months (May) the mother
refused to talk to the father. The mother
asserts and, inter alia, relies upon
conversations that the parties had in June
2000 to establish that the father agreed that
the children should remain in Australia.

72. I accept that between December 2000 and
June 2001 the parties, and others, had
conversations about the future of the
parties’ relationship and the father seeing
the children. The latter matter is
understandable given the close relationship
between the father and the children. On 12
June 2001 the father’s lawyer in Israel wrote
to the mother advising that unless the
children were returned to Israel within 10
days then the father would regard the
mother’s refusal as “kidnapping”. It is
relevant to consider the contents of this
letter.

73. In conclusion, I am of the view that at
no time after 3 December 2000 did the father
agree that the children could continue to
reside in Australia or continue to reside in
a country other than Israel. …”

38. His Honour had to consider whether there was a grave
risk that the return of the children to Israel would expose
them to physical or psychological harm or otherwise place
them in an intolerable situation.

39. His Honour referred to the following passage from a
report of Dr Brent Waters:

“It is my view, based on the material I have
seen, if Mrs Genish-Grant were to return to
Israel to live and the children reside with
her, it is likely that her anxiety would be
significantly increased and that her capacity
to care for the children would be
significantly eroded which would expose them
to physiological harm.

I am not satisfied that it is probable that
the return of the children to Israel would
expose the children to physical or
physiological harm or otherwise place the
children in an intolerable situation by
virtue of contact with their father, or if
they were to reside with him.”

40. His Honour noted that Dr Waters was cross-examined
and that no expert evidence was called by the Central
Authority. He also noted that it was not suggested in
cross-examination that Dr Waters was in error in his
opinion. He therefore concluded that his evidence was
largely uncontradicted. His Honour determined this issue as
follows:

“100. … As to the risk of psychological
harm Dr Waters did assess the degree of risk
in that he said that it is “likely” that the
mother’s anxiety would be significantly
increased and that her capacity to care for
the children would be significantly eroded
which would expose them to physiological
harm. In DP v Commonwealth Central Authority
(supra) Gaudron, Gummow and Hayne JJ did say
that certainty is not required and that what
is required is persuasion that there is a
risk which warrants the qualitative
description “grave”. Further, that the
risk that is relevant is not limited to harm
that will actually occur, but extends to a
risk that the return would expose the child
to harm. Their Honours also said (at 586)
that the application of reg 16(3)(b) requires
consideration of what are said to be the
consequences of return which is essentially a
question of fact.

101. Counsel for the mother relied upon a
decision of the Ontario Court of Appeal of
Pollastro v Pollastro (1999) 171 D.L.R. (4th)
31 as an example of a case where the defence
of grave risk of harm was established. In
that case Abella JA said at 41 that in
Thomson v Thomson [1994] 3 S.C.R.551 the
Supreme Court of Canada established the
interpretative framework for deciding cases
under the Hague Convention. Abella J.A.
referred to the judgment of La Forest J. and
said at 43:

“[23] It must be a “weighty” risk of
“substantial” psychological harm, “something
greater than would normally be expected on
taking a child away from one parent and
passing him to another” (at p.597, quoting
with approval Re A. (A minor) (Abduction),
[1998] 1 F.L.R. 365 (Eng. CC)). Both the
risk and the harm must be substantial.

[24] La Forest J. also stated that the
source of the harm was not material…”

102. If the children lived with the father
there is no risk. However, on the basis that
the children lived with the mother, in my
view, in assessing the risk it is also
relevant to take into account that the risk
may be mitigated by the children having the
opportunity to see and spend time with the
father. Although it was not put to Dr Waters
it is open to me to find that the father may
have the opportunity and be able to shield
the children from the impact on them of the
mothers’ inability to do so. In the result I
am not satisfied that there is a grave risk
of harm to the children or of being exposed
to harm.”

41. He went on to say:

“109. Dr Waters made it clear in cross
examination that the stressor to the mother’s
condition was not the result of a single
thing but the result of a series of things
although at the moment it is the prospect of
going back to Israel. Further, that the
mother’s condition may have existed prior to
December 2000 and was related to the
separation of the parties. The children and
in particular the youngest child had some
problems after the parties separated and
while in Israel.

110. It is clear from the authorities that
the psychological harm must be of a
substantial or weighty kind. Dr Waters did
not say that the harm would fit this
description. Further, as I have said, these
children have a close relationship with the
father and are missing him. The eldest child
wishes that the parents were happy and lived
together ever after in Australia. The
environment in which these children
experienced in Israel and in which they would
live if they returned to that country is very
different to what for example were the
circumstances in Pollastro (supra). I am
therefor (sic) not satisfied that the harm
suggested is of a substantial or weighty
kind.

111. In conclusion, I am not satisfied that
there is a grave risk of psychological harm
to these children if they returned to
Israel.”

42. His Honour also had to consider whether or not the
children would be at grave risk of physical harm. He
concluded:

“112. As to the grave risk of physical harm
to the children if they were returned to
Israel the mother lived in Israel for five
years. She returned to Israel in 1996 and
1999. Lisa Segelov lives and works in or
near Tel Aviv. She has three children and
proposes to continue to live in Israel
because of her commitment to lead a
fulfilling Jewish life and yet she said that
she believes that there is a grave risk of
physical harm to children simply by being
present in Israel. I place very little
weight on her evidence. The Australia
Department of Foreign Affairs has issued a
travel information advise (sic) to Australian
travellers to Israel of safety and security
risks.

113. However, evidence was given by the
father about the situation in the area where
the resort complex is located. As well,
evidence was given by Michale (sic) Agam who
is also involved in running the hotel.
Evidence was also given by Yaakov Dahan who
is the Commander of the Security Services
Division of the Local County Council of the
Upper Galilee County. His duties include the
security needs of a number of settlements
including Amirim. He described the area
under his command as one of the most secure
and trouble free area (sic) of Israel. The
unrest that is experienced in Israel is not
in relative proximity to the family
residence. The mother and the children were
able to leave Israel. There is no evidence
for example that the play group and school
that the children attended are closed or that
the business is not open.

114. Israel has had a security issue since
1948 and it continues to experience security
issues. The gravity of the security issues
has varied. I accept what counsel for the
Central Authority said about the need for
caution in certain parts of Israel for
example in Jerusalem. However, I accept the
evidence of the father and his witnesses as
to the situation in the area where the father
lives. I am not satisfied that the mother
has established by clear and convincing proof
that there is a grave risk of physical harm
to the children because of unrest in Israel.

115. I am also not satisfied that the
children would be placed in an intolerable
situation if they were returned to Israel.”

43. His Honour was satisfied that the mother had failed
to establish the defence that the children objected to being
returned to Israel. As no grounds of appeal address that
issue, it is unnecessary for me to take that matter any
further.

44. His Honour then went on to say that even if he was of
the view that in the circumstances of the case one of the
grounds for refusal to make an order under Regulation 16(3)
was established, he would nevertheless order the return of
the children to Israel stating:

“122. The discretion is not governed by the
principle that the children’s welfare is the
paramount consideration. However, the
children have a close and loving relationship
with both parents. I have no doubt that the
children are missing the father. The
mother’s anxiety is having an effect on the
children and this is causing them harm. The
current stressor is the mother’s anxiety
about the situation in Israel. There is no
guarantee that her situation will abate and
it may persist because of other stresses.
These children need to have a relationship
with the father.

123. Importantly, I am of the view that in
the event that the children needed protection
in Israel the courts in that country could be
expected to provide that protection.”

Grounds of Appeal

45. The grounds of appeal are set out in the Notice of
Appeal filed 20 December 2001. At the hearing of the appeal
ground 7 was abandoned and a new ground 7 was relied upon
without objection, and ground 10 was abandoned.

“1. That His Honour erred at law in failing
to find that there exists a grave risk of
exposure to physical or psychological harm,
or otherwise the children may be placed in an
intolerable situation, in the event that they
are returned to Israel.

2. That his Honour erred in finding that
there was no grave risk of psychological harm
if the children were returned to Israel.

3. That His Honour erred in finding that
there was no grave risk of physical harm to
the children by returning to Israel.

4. That His Honour erred in accepting the
evidence of the father over the evidence of
the mother when the mother was cross-examined
(as were her witnesses) and the father was
not made available to be cross-examined.

5. That His Honour erred in finding that the
children’s habitual residence was Israel at
the time immediately before the alleged
retention.

6. His Honour erred in failing to find that
the husband had consented or acquiesced in
the children remaining in Australia.

7. That his Honour erred in law in holding
that the respondent was actually exercising
rights of custody at the time of the alleged
retention in or removal to Australia and in
finding that the respondent would not (sic)
have so exercised rights of custody but for
the alleged retention in or removal to
Australia.

8. His Honour erred in finding that the
father may have the opportunity to be able to
shield the children from exposure to
psychological harm when clear evidence was
available that this had not occurred in the
past and had adverse impacts on the children.

9. His Honour erred in placing “little
weight” upon the evidence of Lisa Segelov
when this evidence was uncontradicted and she
was not required for cross-examination.”

10. [Abandoned]

Further Evidence

46. By an application received by the Court but not filed
by it on 2 April 2002 the mother sought leave to adduce
further evidence. The evidence that was sought to be
introduced was:
xxx
(a) that the Australian Department of Foreign Affairs and
Trade (“DFAT”) had upgraded the warning in relation to travel
to Israel; and
(b) to lead “further evidence in relation to a Declaration
of War on Terrorism issued by Israel against Palestinian
forces in the occupied territories. [t]o adduce expert
evidence that this development should be treated as analogous
to a Declaration of War, as recognised by International Law”.
47. Upon the hearing of the appeal, the upgraded DFAT
notice went into evidence by consent. The Court was informed
that the additional evidence in relation to a declaration of
war was not pressed but that the mother would want to adduce
further evidence in the event that the Court was minded to
re-exercise the discretion.
48. The relevant portion of the DFAT notice issued on 3
April 2002 is as follows:

“Australians should defer all travel to Israel.
Australians should not travel to the West Bank and the
Gaza Strip. Australians already in Israel should
carefully consider their need to be in the country at
this time, taking into account the security situation
and their personal circumstances.

Australians in the West Bank and Gaza Strip should leave
where it is possible and safe to do so. Australians in
closed military zones should not attempt to leave until
advised by local authorities that it is safe to do so.

The deterioration in the security situation has included
a high number of terrorist attacks in recent days
against civilian targets in Netanya, Tel Aviv, Jerusalem
and Haifa. All population centres in Israel are at very
high risk of terrorist attack at the present time.
Targets in the past have typically been areas where
large numbers of people gather, including hotels,
pedestrian promenades, street shopping malls,
restaurants, cafes and other places of entertainment and
buses and bus stations.

The situation on the West Bank and the Gaza Strip is
extremely dangerous. The Israeli Defence Force (IDF)
have entered a number of Palestinian towns, including
Ramallah, Bethlehem, Qalkilya and Tulkarem and declared
general curfews. Travel outside of residences in these
areas is extremely unsafe. Regular exchanges of live
fire are taking place. House to house searches are also
being undertaken by the IDF. Further IDF incursions
into the West Bank and possibly the Gaza Strip should be
expected.”

Submissions on Appeal
49. Before dealing with the individual grounds of appeal,
it is appropriate that I deal with the submission that his
Honour misconstrued Regulation 29 in that he:
“… held, in substance, that:

(i) the CA [Central Authority] had no need to make
deponents available for cross-examination; and

(ii) their affidavit or statement evidence is evidence
of the facts.”

50. Regulation 29 provides as follows:

“29(1) [Application, document or affidavit admissible as
evidence] In proceedings under these Regulations in a
court:

(a) an application under regulation 13, 14, 24 or 25 or
any document attached to or forwarded in support of that
application is admissible as evidence of the facts
stated in the application or document; and

(b) the affidavit of a witness who resides outside
Australia that is filed in the proceedings is admissible
as evidence in the proceedings despite his or her
non-attendance for cross-examination in the proceedings.

29(2) [Statement in document admissible as evidence of
fact to same extent as oral evidence of fact] In
proceedings under these Regulations in a court, a
statement contained in a document that purports:

(a) to set out or summarise evidence given in
proceedings in a court in a convention country, or
before a competent authority of that country, in
relation to the custody of a child and to have been
signed by the person before whom the evidence was given;

(b) to set out or summarise evidence taken into a
convention country for the purposes of proceedings under
these Regulations (whether in response to a request made
by the court or otherwise) and to have been signed by
the person before whom the evidence was taken; or

(c) to have been received as evidence in proceedings in
a court in a convention country or before a competent
authority of that country in relation to the custody of
a child and to have been signed by a judge or other
officer of the court or that authority;

is admissible as evidence of any fact stated in the
document to the same extent as oral evidence of that
fact, without proof of the signature of the person
purporting to have signed it or of the official position
of that person.”

51. By a letter dated 6 November 2001 (3 days prior to the
trial) the solicitor for the mother gave notice that he
required for cross-examination all deponents of affidavits
relied upon by the Central Authority. On the same day the
solicitor for the Central Authority replied as follows:

“Except for myself, all the other deponents of the
affidavits filed by the Central Authority are currently
in Israel. Consequently, those persons will not be
available for cross-examination at the hearing. I refer
you to Regulation 29 of the Family Law (Child Abduction
Convention) Regulations in this regard.”

52. The submission of the Central Authority (contained in
the outline of case document) which it is said his Honour
incorrectly accepted was:

“The Respondent has asked that the deponents of the
Applicant’s affirmations be made available for cross
examination. These witnesses are resident outside
Australia and cannot be made available for cross
examination. In any event, it is submitted, the
Applicant has no need to make deponents available for
cross examination as their affidavit or statement
evidence is evidence of the facts.”

53. I perceive that submission to be correct insofar as it
relates to the admissibility of the affidavits,
notwithstanding that the deponents are not made available for
cross-examination. Nowhere did his Honour indicate that the
deponents could not be required for cross-examination or that
the Regulation precluded him from attaching such weight to
the affidavits as he considered appropriate in the event that
they were not made available for cross-examination.
54. The simple fact was that after the exchange of
correspondence that took place on 6 November 2001, the matter
was taken no further. Counsel for the mother conceded that
no request was made of his Honour to direct that deponents of
affidavits be made available for cross-examination either in
person or by telephone or video link. It was submitted that
this was because his Honour had expressed his view on the
proper construction of Regulation 29 so strongly that counsel
for the mother appearing at trial concluded that there was no
point in making such a request. There are two difficulties
with that submission.
55. The first is that the passages of the transcript to
which the Court was referred do not support the proposition
that his Honour had made his views known as to the proper
construction of the Regulation strongly or otherwise.
56. The second and insurmountable difficulty with this
submission is that in the absence of direct reference in the
transcript, I have no way of knowing what was in the mind of
counsel for the mother. For all I know, counsel for the
mother made a deliberate decision that it would not be in the
best interests of the mother’s case to require the deponents
for cross-examination.
57. In my view, therefore, it cannot be said that his
Honour adopted one set of rules for the mother and another
less stringent set of rules for the Central Authority with
the effect that procedural unfairness results.
58. Finally, on this point, it was submitted that
Regulation 29(1) was somehow limited in its operation by the
provisions of Regulation 29(2). I need take this submission
no further than to say that a plain reading of the two
sub-sections does not support the submission.
59. I now turn to consider the individual grounds of
appeal. I intend to deal with those grounds in the same
order as they were argued.
60. Ground 5 asserts that his Honour erred in law in
finding that the children’s habitual residence was Israel at
the time immediately before the alleged retention.
61. Counsel for the mother placed considerable reliance
upon the following passage in Re B (Minors) (Abduction) (No.
2) (1993) 1 FLR 993 where at page 995 Waite J summarised the
principles relevant to habitual residence in the following
terms:
“1. The habitual residence of the young children of
parents who are living together is the same as the
habitual residence of the parents themselves and neither
parent can change it without the express or tacit
consent of the other or an order of the court.

2. Habitual residence is a term referring, when it is
applied in the context of married parents living
together, to their abode in a particular place or
country which they have adopted voluntarily and for
settled purposes as part of the regular order of their
life for the time being, whether of short or of long
duration.

All that the law requires for a ‘settled purpose’ is
that the parents’ shared intentions in living where they
do should have a sufficient degree of continuity about
them to be properly described as settled.

3. Although habitual residence can be lost in a single
day, for example upon departure from the initial abode
with no intention of returning, the assumption of
habitual residence requires an appreciable period of
time and a settled intention. The House of Lords in Re
J, sub nom C v S (above) [(1990) 2 FLR 442] refrained,
no doubt advisedly, from giving any indication as to
what an ‘appreciable period’ would be. Logic would
suggest that provided the purpose was settled, the
period of habitation need not be long. Certainly in Re
F (above) [(1992) 1 FLR 548] the Court of Appeal
approved a judicial finding that a family had acquired a
fresh habitual residence only one month after arrival in
a new country.”

62. Counsel placed great reliance upon the term “shared
intentions”. It was argued that his Honour failed to
consider the question of shared intention. I would have
thought that his Honour’s finding that “[t]he mother agreed
that she decided to live in Israel” against which there is no
ground of appeal, would be a complete answer to that
submission.
63. I have no difficulty in concluding that it was open to
his Honour as the primary judge of fact in this case, to find
on the totality of the evidence before him that, at the
relevant time, the children were “habitually resident” in
Israel within the meaning of the Convention.
64. For the sake of completeness, I now refer to the other
matters contained in counsel for the mother’s written
submissions. The submission that the Central Authority, as
an institutional litigant, failed to lead admissible evidence
in relation to habitual residence was not developed and I
need say nothing more about it.
65. His Honour did not reject the mother’s evidence in its
entirety or prefer the evidence of the father in its entirety
on the issue of habitual residence. He appears to have
relied upon facts about which there was little or no dispute
and the admission of the mother during the course of
cross-examination. In arriving at his decision with respect
to habitual residence, his Honour does not appear to have
relied upon the evidence of either Treister or Korathota.
66. The amended ground 7 asserts that his Honour erred in
law in holding that the father was actually exercising rights
of custody at the time of the alleged retention in or removal
to Australia and in finding that the father would have so
exercised rights of custody but for the alleged retention in
or removal to Australia.
67. The relevant law of Israel is the Capacity and
Guardianship Law (1962). As his Honour noted, s 14 of the
Capacity and Guardianship Law provides that parents shall be
the natural guardians of their minor children. Section 15
provides:

“The guardianship of parents shall include the duty and
the right to take care of the needs of the minor,
including his education, studies, vocational and
occupational training and work, and to preserve, manage
and develop his property; it shall also include the
right to the custody of the minor, to determine his
place of residence and the authority to act on his
behalf.”

68. His Honour correctly observed that the combined legal
effect of ss 14 and 15 is that each parent has the right to
custody of minor children and to determine the residence of
minor children.
69. The submission to this Court was that there could be
no unlawful retention, nor could it be said that the father
was exercising a right of custody having regard to s 18 of
the Capacity and Guardianship Law. It was said that this is
particularly so where the father would need to “trigger” a
rebuttal of presumption of agreement in s 18.
70. Section 18 of the Capacity and Guardianship Law reads
as follows:
“18. In any matter within the scope of their
guardianship the parents shall act in agreement. The
consent of one of them to an act of the other may be
given in advance or subsequently, expressly or by
implication, for a particular matter or generally.
Either parent shall be presumed to have agreed to an act
of the other unless the contrary be proved. In a matter
admitting of no delay, either parent may act on his
own.”

71. In my view, a proper construction of s 18 does not
allow me reach a conclusion that the acts of the mother
resulted in the father losing his rights of custody.
72. In any event, there is no dispute that the mother
obtained the father’s consent to her leaving Israel with the
children by lying to him. I would have thought that to be
ample rebuttal of any presumption that she acted with his
consent.
73. I now turn to a consideration of grounds 1, 2, 3 and 8
all of which relate to the issue of whether there is a grave
risk that the return of the children to Israel would expose
them to physical or psychological harm or otherwise place
them in an intolerable situation.
74. The submissions under the four grounds of appeal may
be summarised as follows:
* That his Honour misconstrued the test to be applied
pursuant to Regulation 16(3)(b)
* That there was no “Answer” raised by the Central
Authority to the mother’s claim of grave risk
* That his Honour preferred the entirety of the evidence
of the father over the mother when the father had not been
cross-examined and the mother had
* That his Honour did not consider the current political
environment in Israel
* That his Honour did not consider the children’s
exposure to physical or psychological harm relative to the
father and the marital situation generally
* That his Honour gave insufficient weight to the
evidence of Dr Waters
75. Regulation 16(3)(b) reads as follows:

“16(3) [Where court may refuse to order child’s return]
A court may refuse to make an order under subregulation
(1) if a person opposing return establishes that:

(a) …

(b) there is a grave risk that the return of the
child to the country in which he or she habitually
resided immediately before the removal or retention
would expose the child to physical or psychological harm
or otherwise place the child in an intolerable
situation;”

76. The correct construction to be given to the words of
this Regulation were recently considered in DP v Commonwealth
Central Authority; JLM v Director General, NSW Department of
Community Services (2001) FLC 93-081. Gaudron, Gummow and
Hayne JJ said at 88,390:

” “Narrow construction”?

41 In the judgment of the Full Court of the Family
Court which gives rise to the first of the matters now
under consideration (DP v Commonwealth Central
Authority) it was said that there is a “strong line of
authority both within and out of Australia, that the reg
16(3)(b) and (d) exceptions are to be narrowly
construed”. Exactly what is meant by saying that reg
16(3)(b) is to be narrowly construed is not
self-evident. On its face reg 16(3)(b) presents no
difficult question of construction and it is not
ambiguous. The burden of proof is plainly imposed on
the person who opposes return. What must be established
is clearly identified: that there is a grave risk that
the return of the child would expose the child to
certain types of harm or otherwise place the child in
“an intolerable situation”. That requires some
prediction, based on the evidence, of what may happen if
the child is returned. In a case where the person
opposing return raises the exception, a court cannot
avoid making that prediction by repeating that it is not
for the courts of the country to which or in which a
child has been removed or retained to inquire into the
best interests of the child. The exception requires
courts to make the kind of inquiry and prediction that
will inevitably involve some consideration of the
interests of the child.

42 Necessarily there will seldom be any certainty
about the prediction. It is essential, however, to
observe that certainty is not required: what is
required is persuasion that there is a risk which
warrants the qualitative description “grave”. Leaving
aside the reference to “intolerable situation”, and
confining attention to harm, the risk that is relevant
is not limited to harm that will actually occur, it
extends to a risk that the return would expose the child
to harm.

43 Because what is to be established is a grave risk
of exposure to future harm, it may well be true to say
that a court will not be persuaded of that without some
clear and compelling evidence. The bare assertion, by
the person opposing return, of fears for the child may
well not be sufficient to persuade the court that there
is a real risk of exposure to harm.

44 These considerations, however, do not warrant a
conclusion that reg 16(3)(b) is to be given a “narrow”
rather than a “broad” construction. There is, in these
circumstances, no evident choice to be made between a
“narrow” and “broad” construction of the regulation. If
that is what is meant by saying that it is to be given a
“narrow construction” it must be rejected. The
exception is to be given the meaning its words require.”
[Footnotes omitted]

77. The mother submits that when his Honour stated “It is
clear from the authorities that the psychological harm must
be of a substantial or weighty kind” that he was applying a
narrow construction. I do not agree with that submission.
What is required is persuasion that there is a risk which
warrants the qualitative description “grave”. In my view,
all his Honour is saying is that the risk of harm must be
more than trivial or fanciful. This is consistent with what
the High Court said in DP v Central Authority (supra) at
88,390. The Court referred to the application of Regulation
16(3)(b) in the following terms:
“45 That is not to say, however, that reg 16(3)(b) will
find frequent application. It is well-nigh inevitable
that a child, taken from one country to another without
the agreement of one parent, will suffer disruption,
uncertainty and anxiety. That disruption, uncertainty
and anxiety will recur, and may well be magnified, by
having to return to the country of habitual residence.
Regulation 16(3)(b) and Art 13(b) of the Convention
intend to refer to more than this kind of result when
they speak of a grave risk to the child of exposure to
physical or psychological harm on return.”

78. It is submitted that the Central Authority did not
answer the mother’s claim of grave risk. It was further
submitted that it was incumbent upon the Central Authority as
an institutional litigant to lead evidence on the issue.
79. Reliance for that proposition is placed on Laing v The
Central Authority (1999) FLC 92-849. At 85,994 Kay J said as
follows:
“Special duties of the Central Authority

93. It was submitted that it was incumbent upon the
Central Authority to have the matter reopened once it
was apparent that the wrong Regulations had been
considered. There is weight in the submission that the
Central Authority needs to act to some degree as an
honest broker. Its role may be likened to that of a
Crown Prosecutor who is required to put before the Court
matters which might assist the accused as well as
matters which might lead to a conviction. The Central
Authority’s obligation is not to secure the return of
the child but to implement the requirements of the
Convention.”

He went on to say:
“94. If in implementing the requirements of the
Convention it obtains the return of a child who ought to
be returned then it is carrying out its function. If it
draws to the Court circumstances which might lead the
Court to make an order other than the return of a child
then it is also carrying out its function.”

80. Nicholson CJ said, at 85,954:
“63. However, I do consider that there was a special
obligation upon the Central Authority to take action as
a result of the High Court’s decision in De L as to the
correct regulations to be applied in this case.

64. To use the language of Marc Galanter `Why the Haves
Come Out Ahead: Speculations on the Limits of Legal
Change’ (1974) 9 Law and Society Review 95, there are
aspects of the legal system which involve claimants who
have only occasional recourse to the courts and “repeat
players” who are litigants in a range of similar cases.
Organisations comparable to the Central Authority here
are State and Territory child protection services, or,
for example, to look to other jurisdictions, prosecutors
in criminal matters and government departments in
freedom of information applications.

65. In my view, the repeat involvement of such
organisations in forensic disputes places them in a
circumstance of greater awareness of decisions which are
material to their routine work. That awareness brings
responsibilities. In matters of law, the playing field
is not even when repeat organisational players are in
dispute with a party who lacks a similar familiarity to
be informed and lacks the organisationally vested
responsibility to be vigilant for the effect of
decisions as to the law in the area of their mandate.
I would therefore place at a more stringent level than
Kay J, the obligation upon the Central Authority as to
the applicable regulations and the question of
preventing a perfected order discussed below.

66. A Central Authority is by design within a system of
intelligence as to legal developments that cannot be
deemed as equivalent to an individual respondent to an
application under the Regulations. There are advantages
in litigation that cannot be glossed over. As will
become evident, such a view of the responsibilities
which come from being a repeat player have bearing upon
the question of how my findings to this point affect the
view I have taken of the power to reopen.”

81. It is of some consequence that these comments by their
Honours were made in the context of the Central Authority
having failed to take action upon becoming aware of a High
Court decision which indicated that the wrong Regulations had
been applied in the court below.
82. The comments by their Honours were adopted by the Full
Court in P and the Commonwealth Central Authority (2000)
FamCA 461. In that case the central issue was whether or not
appropriate services existed for a child suffering from
severe autism. During the course of the reasons for
judgment, the Full Court (Nicholson CJ, Buckley and Kay JJ)
said as follows:
“168. We reiterate our comments at paragraph 68
above, and draw attention to the views expressed in
Laing v The Central Authority (1999) FLC 92-849 (paras
62-66 per Nicholson CJ and paras 93-95 per Kay J) about
the special duties of the Central Authority as an
institutional litigant. We think that in the present
case, the CCA could have better performed its “honest
broker” role, by investigating for itself whether
appropriate services exist in Greece for E.L. We would
hope that Authorities will be alert to comparable
situations in future cases and will make their own
inquiries rather than relying on the onus placed on the
person opposing return.”

83. I agree that there may well be circumstances where the
Central Authority is required to perform the role of an
“honest broker”. That obligation does not, however, in my
view, extend to making independent enquiries as to whether or
not there may be evidence upon which a respondent might rely
to bring himself or herself within the exceptions of
Regulation 16.
84. The onus is clear and has been recently affirmed by
the High Court in DP v Central Authority (supra) where
Gaudron, Gummow and Hayne JJ at 88,389 said as follows:
“39. Automatic return of a child to the place of
habitual residence in such a case may not be a desirable
outcome for that child. If it would expose the child to
a grave risk of physical or psychological harm, or an
intolerable situation, the discretion to refuse to make
an order for return is enlivened. It is for the
Australian court to decide whether return would expose
the child to that risk. Of course it must be recalled
that the onus of proof lies on the party opposing
return. It will be for that party to demonstrate a
grave risk of exposure to harm.”

85. The Central Authority is only required to produce an
“answer” once the respondent has established the grave risk.
In this case his Honour was not satisfied that the mother had
established a grave risk, which leads me to a consideration
of the evidence that was before his Honour and the fresh
evidence.
86. I observe at the outset that it is incorrect to assert
that the learned trial Judge preferred the entirety of the
evidence of the father over that of the mother, the subject
of Ground 4. He only rejected two aspects of the mother’s
evidence. The first related to the incident which occurred
on 14 November 2000 when the parties were swimming. His
Honour found that he was not persuaded that on this occasion
the father had abused the mother. That finding was, in my
view, not particularly relevant to the outcome of this case.
87. His Honour indicated that he did not accept the
evidence of the mother about what the father is asserted to
have said to her before she and the children left Israel.
His Honour found that although the father was not
cross-examined he preferred his evidence. It is relevant to
note that his Honour arrived at that finding because of
statements the mother had made during the course of her
cross-examination.
88. As to the evidence generally of grave risk of physical
harm, his Honour considered the evidence of the father,
Michael Agam and Yaakov Dahan who is the commander of the
Security Services Division of the Local Country Council of
the Upper Galilee County. On the basis of that evidence I am
satisfied that it was open to his Honour to conclude that to
order the return of the children to Israel would not
constitute a grave risk of exposing them to physical harm.
89. In arriving at that conclusion his Honour also took
into account the evidence of the mother’s witness, Lisa
Segelov. In my view, he was entitled to place little weight
on her evidence. Accordingly I would reject Ground 9 for the
reasons he gave in his judgment.
90. Finally, it is asserted that his Honour failed to give
sufficient weight to the evidence of Dr Waters. His Honour
clearly accepted his evidence and arrived at the conclusions
that he did for the reasons set out in paragraphs 13 to 15 of
this judgment.
91. His Honour found that there would be no risk of
psychological harm if the children were to live with their
father. Given the contents of Dr Water’s report it was open
to his Honour to find that the risk of psychological harm if
they lived with their mother may be mitigated by them having
the opportunities to see and spend time with their father.
92. The mother complains that his Honour made a finding
unsupported by evidence that the father would be able to
shield the children from “the impact on them of the mother’s
inability to do so”. For the reasons advanced by counsel for
the father, I am satisfied that the inference was available
to his Honour on the evidence.
93. It follows from these reasons that but for a
consideration of the fresh evidence I would have dismissed
the appeal as I do not find merit in any of the grounds
relied upon. The fresh evidence relates to risk of exposure
to physical harm.
94. The words of Regulation 16(3)(b) explicitly speak of a
return of a child “to the country in which he or she
habitually resided immediately before the removal” (emphasis
added). The emphasised words replaced an earlier form of
Regulation 16(3)(b) which spoke of “the child’s return to the
applicant” (emphasis added).
95. In P v Commonwealth Central Authority (supra) the Full
Court commented on this amendment as follows:
“82. First, the change makes it clear that return is to
a jurisdiction rather than to a particular person,
institution or body.

83. Secondly, although a majority of the Full Court in
Laing held that Gsponer was wrongly decided, their
Honours were concerned with a different point, namely
whether the Central Authority was the “applicant” for
the purposes of the prior version of reg 16(3)(b). The
correct manner in which to read the “three categories”
of reg 16(3)(b) thus remains as set out in Gsponer at
page 77,159 and Davis at 78,227 to which the trial Judge
in this case correctly referred (see para 39 above).

84. Thirdly, having regard to the nature of the
amendment, too much should not be made of the reference
to “return of the child to the country in which he or
she habitually resided immediately before the removal”
(emphasis added). A strictly literal reading of the
provision would leave no room to consider the practical
reality of ordering a return to the country of the
child’s habitual residence, nor to the return of a child
to another country where his or her lawful custodian
resides for the time being.

85. We would endorse the approach referred to in
Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir.
06/26/1995). John R Gibson, Senior Circuit Judge, United
States Court of Appeals for the Eighth Circuit delivered
the judgment of himself, Magill and Loken JJ. The
appeal was against the lower Court’s refusal to order
the return of a mother and baby to Mexico. His Honour
said:-

“[22] …After examining the text of the Convention and
cases from a range of other countries, the Supreme Court
of Canada concluded that only severe potential harm to
the child will trigger this Article 13b
exception:Currier v. Currier, 845 F. Supp. 916, 923
(D.N.H. 1994) (in determining grave risk, Article 13
requires the court to evaluate the surroundings to which
the child is to be sent and basic personal qualities of
those located there); In re Coffield, 644 N.E.2d 662,
665 (Ohio Ct. App. 1994) (Article 13 allows the court to
consider “the basic environment” of the home country and
“the basic nature” of the individuals with whom child
would live). To ensure that the child is adequately
protected, the Article 13b inquiry must encompass some
evaluation of the people and circumstances awaiting that
child in the country of his habitual residence.”

96. During the course of its reasons for judgment in
allowing an appeal from that decision, (DP v Central
Authority (supra)) the High Court (per Gaudron, Gummow and
Hayne JJ) said as follows:
“64 Having decided that the primary judge had posed the
wrong test by asking whether the child’s removal from
Greece had been justified, the Full Court concluded that
application of the right test to the findings of the
primary judge would lead to the same conclusion. The
critical step the Full Court took in reasoning to that
view was that it had been for the appellant to
demonstrate a lack of services appropriate to the needs
of the child anywhere in Greece. That was because:

(a) the “return” of which the Regulations speak is
return to a jurisdiction rather than to a particular
person, institution or body; and

(b) return is a return for the limited purpose of
allowing the state to which the child is returned to
determine issues relating to the child’s future welfare.

65 As we have earlier pointed out, the return
contemplated in this case was in circumstances where
there would be a judicial determination about custody.
That is not always so. Secondly, while it may be right
to say that return is to a country, not a place or a
person, the application of reg 16(3)(b) requires
consideration of what are said to be the consequences of
that return. That is essentially a question of fact
which will fall for decision on the evidence that is
adduced in the proceedings. No doubt it is necessary to
bear in mind not only that the person opposing the
return carries the onus of proof, but also the way in
which the proceedings are conducted both by the person
opposing return and by the Central Authority.

66 If, as was the case here, upon return of the child
there will be a judicial determination of questions of
custody and access, it will probably often be the case
that assertions of risk of exposure to harm will not be
established. But the bare fact that there will be such
a judicial determination in the country of return does
not mean that reg 16(3)(b) can have no operation. Cases
in other jurisdictions concerning the possible return of
a child to a sexually predatory or violent parent
illustrate why that is so. The fact that there will be
proceedings between the parties in the country of
habitual residence does not relieve the Australian court
of its obligation to give effect to the whole of the
Regulations including, where applicable, the provisions
of reg 16(3)(b).

67 The present case having been contested at trial in
the way it was, it was not open to the Full Court to
conclude from the findings made by the primary judge
that reg 16(3)(b) was not engaged. The appellant’s case
at trial had been that she could not obtain the services
the child needed. If the Central Authority had wished
to challenge this point or had wished to adduce evidence
about what facilities are available in Greece, whether
in the area to which the mother’s evidence was directed
in great detail, or elsewhere, it should have done so at
trial. The Central Authority not having challenged the
premise upon which her contention was based (that return
of the child to Greece meant him returning to the area
in which his father lived) it was too late on appeal to
the Full Court to attempt to do so. The Full Court’s
refusal of the applications to adduce further evidence
appears to recognise that this was so.” [Footnotes
omitted]

97. Although during the course of her re-examination the
mother indicated that she would not want to live in the
Amirim area, the case proceeded on the basis that that was
where the children would be returned. The evidence as to the
situation in that area of Israel that was before this Court
was identical to that which was before his Honour.
98. The parties had lived in the Amirey HaGalil hotel
complex near that village for 5 years prior to the mother’s
departure from Israel. The eldest child lived there for much
of her life and the youngest, all of his life.
99. Amirim is approximately 13 kilometers from Karmiel,
the nearest city, and Karmiel is approximately 190 kilometers
from the extreme edge of the Gaza.
100. According to the evidence there has not been a
terrorist attack in the area in the last 25 years. It is
described by Yaakov Dahan as “one of the most secure and
trouble free areas of Israel and this is reflected in the
large number of Israeli tourists who spend weekends in our
area”.
101. He goes on to say:
“b) the settlements are not in large, built up areas
where terrorist attacks and suicide bombers can cause
large loss of life, which is their usual objective. They
seek out crowded places to spread maximum fear;

c) The local Arab community is well established and
largely pro Israel, even serving in the Israeli Army and
security forces;

d) I say this area is far away from disputed borders.
Whilst there was a katusha rocket attack once in the
past from Lebanon, that was before the withdrawal of the
Israeli Army from Lebanon, and the border with our area
has been very quiet since. Even when there was a katusha
rocket attack about 5 years ago, there was no person
injured in any way, and no property damage. This is
because of the rural, spread out, and mountainous nature
of the area. I say the area is quiet and secure.”

102. Lastly, he says:
“9) I say there is no security risk for the average
person living in this area and there is no security
danger in travelling by car or public transport from
Amirim to Haifa or Tsefat.”

103. In my view, caution ought to be exercised in placing
undue reliance upon the DFAT warning. The Notice advises
Australian nationals that they ought not travel to Israel.
It does not state that residents of Israel ought not return
home.
104. It is obviously appropriate for the Australian
Government to warn casual visitors to Israel, whether they
intend to be there for business or pleasure, not to expose
themselves to the risks that they may face in Israel.
105. It is, in my view, however, quite another matter to
assume that residents of Israel will face the same risks.
There has been turmoil and violence in Israel during this
whole period which at times has escalated significantly.
This may well be one of those times. Even under the
particular circumstances Israel is experiencing, the evidence
does not establish that its inhabitants are doing other than
continuing to carry out their daily activities.
106. One assumes, perhaps unlike the position of the casual
visitor, that residents of Israel would be acutely aware of
the risks associated with living in Israel and of the need to
exercise caution whilst going about their daily lives.
107. What is to be established is a grave risk of exposure
to future harm. In my view, this Court ought not to be
persuaded of that without some clear and compelling evidence.
In my view, the mere assertion that there are real risks
that, sadly, Israeli children face on a daily basis that most
other children throughout the Hague world do not, is
insufficient. In my opinion, it is necessary for a court to
examine the facts of the particular case before it.
108. Like the trial Judge, and notwithstanding the further
evidence, I am not satisfied that the mother has established
by clear and compelling evidence that there is a grave risk
of exposure to physical harm to the children because of the
unrest in Israel. Accordingly, I would dismiss the appeal.
109. For the sake of completeness, I should say that during
the course of oral argument there was some discussion as to
the possibility of granting a stay of the order so as to
effectively adopt a “wait and see” position as to how the
situation in Israel unfolds. Upon reflection, I am of the
view that would not be an appropriate course of action. The
Regulations are quite clear that unless the mother can bring
herself within either Regulation 16(2) or 16(3) the Court
must make an order for the return of the children. To order
otherwise would be akin to exercising a discretion that is
not provided for in the Regulations.

I certify that the preceding 109 paragraphs
are a true copy of the reasons for judgment
delivered by this Honourable Court

[J Edwards]
Associate