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Written by carlos
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Thursday, 12 March 2009 14:15 |
Selma Milovanovic
March 12, 2009
A NSW mother has won a High Court appeal overturning an earlier decision that her four Israeli-born children should be returned to their father in Israel.
The court overturned a lower court decision made after Israel applied for the children - who are Australian citizens - to be returned under the Convention on International Child Abduction, which recognises that the appropriate forum for resolving parental disputes is the child's "country of habitual residence".
Justices William Gummow, Kenneth Hayne, Dyson Heydon and Susan Kiefel ruled yesterday that the children were not habitually resident in Israel.
In September 2005, the woman, an Australian citizen, and her husband separated in Israel. The children continued to live with the mother.
In May 2006, the mother and children travelled to Australia. The couple had agreed the woman, known only as LK, would set up a home for herself and the children in Australia, unless her husband decided to reunite with them, in which case they would return to Israel.
But in July 2006, LK's husband filed for divorce and requested that the children be returned to Israel.
A Family Court judge issued orders to return the children to Israel, and the full court of the Family Court affirmed that decision, ruling the parental dispute should be settled according to Israeli law.
Upholding LK's appeal yesterday, the High Court said the full court "should have held that the children were not habitually resident in Israel when the father asked the mother to return them to Israel".
"Whether they were habitually resident in Australia when the father asked for their return need not be decided. What is decisive is that the children left Israel with both parents agreed that unless there were a reconciliation they would stay in Australia, and their mother … set about effecting that shared intention."
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