The application related to four boys who were aged 10, 7, 5 and 3 years at the time of the appellate hearing. Until May 2006 they had spent their entire lives in Israel with their married parents. The mother was Australian and she had relocated to Israel for the purposes of her marriage. In 2005 the parents’ marriage encountered difficulties and in September 2005 the father moved out of the family home.
On 16 May 2006 the mother and children left Israel to travel to Australia. The father took them to the airport and a return to Israel was booked for 27 August 2006. The children commenced school in Sydney on 30 May 2006. There was disagreement between the parents as to the terms and conditions under which the mother left Israel with the children.
The mother asserted she left on an understanding that if the father advised her that the marriage was over, she would not be returning and would settle permanently with the children in Australia. The father asserted that the mother had left for a fixed period only and that he never consented to the children remaining away from Israel on any permanent basis.
In June 2006 the parents raised the possibility of divorce and the mother alleged that the father had stated that she and the children could remain in Australia. She stated to him at that time that she needed to remain in Australia for the remainder of the calendar year to consider their situation.
The mother duly did not return with the children on 27 August 2006. The father then attempted to secure a return by agreement and when that was not successful he subsequently invoked his rights under the Convention. On 29 August 2007 the Family Court of Australia ordered the return of the children, subject to undertakings: [2007] FAMCA 1099. The mother appealed.
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