Buscador de jurisprudencia

The parties' divorce settlement provided that the mother should have sole custody of the child of the marriage, with visitation for the father. It was also provided that neither party could take the child outside the jurisdiction without the written consent of the other or of the court.

The mother persuaded the father she was taking the child to relatives in Bulgaria for a holiday, in order to get his permission to take the child abroad. However, she actually she took the child to Australia, intending to remain there permanently. The father's application to the Australian courts under the Hague Convention was successful and the child was returned to Israel to his custody.

The Australian court ordered the mother to reimburse the father the cost of his flight, his accommodation expenses in Australia and the expenses involved in obtaining a visa. This was in accordance with Regulation 30 of the Family Law (Child Abduction Convention) Regulations, which gives effect to the power to order payment of necessary expenses conferred by Article 26 of the 1980 Hague Child Abduction Convention.

In this action, the father claimed compensation for all the expenditure which had not been recoverable in the Australian case. The mother argued, inter alia, that the ruling of the Australia's court constituted an estoppel.

Procedural Matters

The mother's action in taking the child abroad without the father's consent was a breach of her statutory duty under the section 373 of the Penal Law (making it an offence to remove a child from the jurisdiction without the consent of each person having custody).

The phrase custody in this section should be interpreted widely to include a parent who had the right to determine the child's place of residence, so as to create uniformity with Article 5 of the 1980 Hague Child Abduction Convention  (which defines "custody right" - "...including rights concerning the child itself and in particular the right to determine the child's residence"..)

Compensation for breach of statutory duty under section 63 of the Torts Ordinance (which provides that breach of a statutory duty may amount to a tort) would be awarded as the purpose of section 373 of the Penal Law was not only to prevent the phenomenon of abduction, but also to protect the interest of parents that their children should not be taken from them. Thus, the breach of the duty created a right of action for the injured parent.

Child abduction is to be denigrated. Obtaining the return of an abducted child to his habitual residence costs the applicant parent large sums of money and there is no reason why the abductor should not be required to reimburse this expenditure.

The Australian court ruling was not held to constitute an estoppel. Even though some of the expenditures could have been claimed in the Australian court, the summary nature of that procedure meant that only expenditure which was clearly essential and proved immediately could be claimed. This did not prevent the left-behind parent from claiming wider reimbursement of expenses at a later date.
 
In addition, the Court held that a party who wished to rely on estoppel needed to prove, through expert opinion, that this argument would have been accepted in country where the decision was given, before bringing the argument to the Israeli courts.

In a similar case (Leave for Family Appeal 3241/09), the Israeli Supreme Court upheld a compensation award to the left-behind parent made by the lower courts. The latter concerned the left-behind parent's expenses in staying in a hotel and hiring a car in London whilst he attended the Hague Convention proceedings there and damages for emotional distress.