Biton and Biton (Fam.Ct. 1997) Family Court for Tel Aviv & Central Dist. No. 89340-kaf/97 17 International Abduction [ISRAEL 1997] =========================================================== Family Court for the Tel Aviv and Central Districts Case Number 99340-kaf/97 25 Dec 1997 Before: the Honorable Judge Y. Shtufman. In re Hague Convention Law (Return of Abducted Children), 5751-1991 The Plaintiff: Yaakov Biton, Israeli Passport No. 438069 Represented by: Attorney Edwin Freedman 40 Enso Sereni St, Givatayim Versus The Defendant: Orly Biton Represented by Attorney Roni Schwartz 20 Hess St., Tel Aviv JUDGMENT 001 Before me is the plaintiff's claim that his minor daughter, Lital, be returned to Los Angeles, her habitual place of residence, pursuant to the Hague Convention Law (Return of Abducted Children), 5751-1991. 002 1. These are the main facts pertinent to the petition. 003 The plaintiff and defendant were born in Israel and are Israeli citizens. They were married to each other, in IsraeL according to Jewish religious law, on November 11, 1986. 004 Lital, the minor, was born to the plaintiff and the defendant on February 22, 1987. Let it be noted that the defendant and the daughter, LitaL hold French citizenship in addition to their Israeli citizenship. 005 At the end of 1989, the plaintiff went to Californian. The defendant and the daughter, Lital, joined him there three months later. 006 The daughter, Lital, lived with her parents in the U.S. for eight years. She went to the local schools in her place of residence and completed third grade there, as specified in taf/3, taf/4 and taf/5. 007 2. According to the plaintiff, the defendant and Lital went to Israel for a visit, in July 97, returning to the U.S. on July 27, 1997. 008 The plaintiff claims that while they were in Israel he sold some of their household goods to pay for the trip, He also claims that he left the essential items for daily living in their joint household. 009 According to the plaintiff, after the defendant returned to California, they continued living together in their joint household for a number of days. However, when the parties realized that their relationship had deteriorated badly, the defendant temporarily moved in with her sister, who also lives in California. 010 The parties agreed on temporary joint custody of their daughter, Lital. 011 3. The plaintiff claims that he understood at the end of August that the defendant intended to return to Israel, and he asked a local lawyer to take steps to prevent Lital's removal from California. 012 On August 29, 1997, an order was issued in the Los Angeles District Court instructing the defendant's and Lital's passports to be deposited with Ms. Sukir, the plaintiff's attorney. The plaintiff also claims that an injunction was issued forbidding Lital's removal outside California's borders (Appendix A of the Statement of Claim). 013 In addition, the plaintiff claims that the defendant deposited both of the minor's passports, the French and the Israeli, with Attorney Sukir, but did not deposit her own passport on which the minor is also listed. 014 According to the plaintiff, another injunction was issued together with the order to deposit the passports. This injunction, Appendix B of the Statement of Claim, determined that the minor would be temporarily placed in the plaintiffs and defendant's joint custody. 015 4. The plaintiff claims that the parties held negotiations in order to settle their differences, but that these negotiations were unsuccessful. 016 The parties reached an agreement on September 9, 1997, confirmed by a Judgment (Appendix C of the Statement of Claim), by which the plaintiff agreed to pay the defendant S1,040 per month in child support. It was determined that the first payment would be made on October 1, 1997. 017 The plaintiff claims that when his daughter did not telephone him at the beginning of October, as she had habitually done when staying with the defendant, he made efforts to discover what had happened to his daughter. It then became evident that the defendant had left the U.S. together with the daughter, Lital, and that they were in Israel. 018 The plaintiff claims that when he learned that his daughter bad been removed to Israel, he had his Attorney appeal to the Los Angeles court on October 14, 1997, an Ex Parte decision was rendered, by which custody of the minor, Lital, was awarded to her father, the plaintiff (Appendix D of the Statement of Claim). 019 5. The defendant does not dispute any of the facts described by the plaintiff. 020 The defendant claims that the return of the minor to Israel was accomplished with the plaintiff's consent. The defendant also claims that neither the plaintiff, the defendant, nor the minor have the legal right to reside in the U.S. 021 The plaintiff categorically denies the defendants claim that he consented to the minor being returned to Israel. He also argues that the matter of the plaintiff's and minor's right to reside in the U.S. is not relevant in deciding a claim pursuant to the Hague Convention Law. 022 The questions upon which the parties do not agree are as follows: 023 a. The question of agreement - that is, did the plaintiff agree that, the minor, Lital, could go to Israel. 024 b. Whether the question of the plaintiff's, defendant's, and minor's right to reside in the U.S. is relevant for reaching a decision pursuant to the Hague Convention Law. 025 6. The Agreement Defence - Art. 13(a) of the Convention. 026 The parties agree that the Los Angeles Court's decision on September 29, 1997, (Appendix C of the Statement of Claim), determined that the minor, Lital, would be under her mother's and father's, i.e., the plaintiff and defendant, joint custody. 027 The parties also agree that the minor, Lital, traveling to Israel, constitutes an infringement of the plaintiff's custodial rights. 028 The defendant's defense is, as stated, that the plaintiff consented that the minor could travel to Israel. 029 7. Let it be noted that the plaintiff has submitted an affidavit in support of his claim, but that he did not appear for examination on the affidavit and did not produce any witnesses in his support. The defendant submitted an affidavit, was cross-examined, and an additional witness testified on her behalf. 030 In this matter, regulation 295 T (d) of the Personal Status Ordinance determines the following: "(d) If a declarer, including a litigant who has submitted an affidavit, does not appear for examination, the court will not delay the hearing, but will judge the matter on its merits, and the court is entitled to take the matter into consideration in rendering its judgment." 031 Therefore, despite the fact that the plaintiff did not appear to be examined on his affidavit, the hearing was not be delayed. Together with this, the significance of the plaintiff's non-appearance must be taken into account, inasmuch as it is relevant to the matter at hand. 032 The burden of proof that the father actually consented to let the minor travel to Israel, rests with the defendant. She must convince us that the father really did give his permission for the minor's trip to Israel. 033 The defendant claims that the condition of Article 13(a) of the Hague Convention Law exists in this instance, and, therefore the Court is not entitled to order the minor's return to the U.S. 034 Article 13(a) of the Hague Convention Law reads as follows: "(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;" 035 Case law interprets the above exception in its narrow sense; in the words of Judge Goldberg in Civil Appeal 1372/95 Stegemann v. Stegemann, Piskei Din 49 (2)-431, P. 438: "The abducting parent, who would like to benefit from his action, must prove that the exception exists. Meaning, that doubt as to the exception's existence works in favor of returning the abducted child, and not for leaving him with his abductor." 036 In Civil Appeal 7206/93 Gabai vs, Gabai (unpublished), the Honorable President Barak analyzed the basis of the aforementioned claim of consent, as 'follows: "Article 13 (a) of the Hague Convention Law differentiates between consent and acquiescence. The difference between these two is on the level of time. Consent is given in advance, acquiescence comes after the fact. Consent and acquiescence may be by either act or omission. They may be accomplished in any manner (in writing, verbally or behaviorally). Consent and acquiescence are only effective if they are performed out of awareness of the relevant data. The objects of consent or acquiescence are custodial or visitation rights. Parents "consent" or "acquiesce" to their their child's removal or non-return when it can be concluded from their behavior (in its broadest sense) that they waive immediate or urgent realization of the custodial or visitation rights which have been legally granted, in the country of their habitual residence, close to or before the child's removal or non-return." 037 According to the honorable Judge Porat, Vice President of the Court, as well, who held in Personal Status Case 5201/93 Gesundheidt vs. Gesundheidt (unpublished): "Consent, according to Article 13(a), as noted in the Leibowitz affair, must be clear, evident, and without any qualifications. It may be granted in writing and may be interpreted from behavior. However, the matter must be absolutely clear." 038 The defendant must prove, therefore, that the plaintiff's explicit consent was given for the minor's trip to Israel. 039 8. In her affidavit, nun/1 the defendant describes the events that preceded her arrival in Israel together with the minor: 12. My Israeli passport which had already expired in 1994, was at my parents house in Israel. Lital's' French and Israeli passports were with my sister, so I gave Yaakov my, French passport on which Lital was also listed. Later, I deposited Lital's French and Israeli passports, which had been with my sister, with Yaakov's attorney. 13, On September 29, 1997, a hearing was held in the Los Angeles court and the Judge ordered Yaakov to pay $1,040 per month in child support. The judge also ordered Yaakov to give me back the Mercedes automobile. 14. Yaakov did not make any child support payments whatsoever and notified me that if I wanted to stay alive I had better forego the child support payments and the Mercedes and also give him $70,000 in cash. Only then would he consent to let me return to Israel with Lital. 15. I used all of my credit cards to withdraw S20,000 from the bank and transferred the entire sum to Yaakov, promising him that I would raise another $50,000 from my family in Israel. 16. After Yaakov received the $20,000, he returned my French passport on which Lital was also listed, and notified me that he had no objections to my traveling to Israel. 17. I promised Yaakov that I would send him another $50,000 and on October 9, 1997, left for Israel with Lital, This, with Yaakov's full knowledge and consent." 040 I cannot accept the defendant's claim, and I am of the opinion that the defendant did not at all prove that the plaintiff consented to the minor's going to Israel. 041 In my opinion, the circumstances and the evidence clearly show that the "consent" claimed by the defendant is no more than the defendant trying to explain her trip to Israel with the minor, "after the fact." 042 Under cross-examination, the defendant's attention was called to Appendix B of her Statement of Response. Appendix B was written by the defendant's attorney and sent to the director of the visa section at the U.S. Embassy. Among the rest, this document also states the reasons for the defendants leaving the the U.S. with the minor. 043 It is stated, in a letter in Appendix B, among the rest, that the plaintiff did not pay child support to the defendant, and also that he did not give her the automobile as he bad been obliged to do. Because of this, the defendant had no other choice but to leave California and return to Israel with her daughter, Lital. The letter does not indicate, or even so much as hint, that the defendant went to Israel with the plaintiff's consent. 044 9. Not only this - but while the defendant was being cross examined, document taf/2 from October, 12, 1997, was submitted. This is a Statement of Claim that the defendant filed in the Rabbinical Court in which the defendant asks for child support payments and that a no exit order be issued for the minor, LitaL. 045 The defendant's claim, taf/2, states the following: I, Orly Biton, left America on October 9, 1997, because my husband, Kobi Biton removed all of our belongings from the house, and closed them up in a container, left me without a home, and did not support me. All because he has a girl friend named Debby, and after all this he took me to court and sued me for huge amounts of money so that I would not take the girl, and he took my and the girl's passport and abused me and looked for me all over America, and finally, even made threats against my life. I could not bear such a burden because I am pregnant and because I was afraid to stay in America under fear of his threats. So, I left America by using my French passport. He asked for a reconciliation and I was happy, so I agreed, but his condition was that I give him $20,000, and I used my Visa Card to get the money and gave it to him, and he promised that he would pay the debts, but he took the money and ran away with his girl friend and left me without anything, and I am also five months pregnant" (As written in the original - Y.S.). 046 10. In her petition to the Rabbinical Court, filed two days after the defendant arrived in Israel with the minor, the defendant relates that the plaintiff took away all their joint property and their passports, and to her regret she had to run away from America. The defendant claims that she feared the plaintiff's threats, could no longer bear her distress and, therefore, used her French passport to leave America and go to Israel. 047 In her Statement of Claim to the Rabbinical Court taf/2, the defendant does not state or even hint that the plaintiff consented to her traveling to Israel, made the trip conditional on any payment whatsoever, and returned her passport. 048 In other words - in the claim the defendant filed with the Rabbinical Court, submitted immediately upon her arrival to Israel, in which she related the circumstances of her arrival in Israel for the first time, there is no support for the defendant's claims of defense as raised in the case before me. More so - Statement of Claim, taf/2, constitutes an out of court acknowledgment by a litigant, and this acknowledgment is tantamount to admissible evidence of its content's truth. (In this matter, see my precedent "On Evidence," part two, pp. 657, 662-663). 049 11. I cannot accept the testimony of defense witness 2, the defendant's sister, who, among the rest, states the following in her affidavit nun/2: "2. On October 12, 1997, her sister's husband, Mr. Yaakov Biton (hereinafter: Yaakov) called her parent's home. 3. I answered the phone and Yaakov asked to speak with my sister, Orly. 4. I knew from my sister, Orly, that Yaakov was demanding that she give him $50,000 immediately. 5. Since Orly, who is pregnant, was lying down because she did not feel well, I spoke to Yaakov and informed him that Orly had no way of obtaining $50,000 and that she would not give him such an amount of money. 6. Yaakov was furious and said that he had consented to Orly returning to Israel with Lital only because he believed her when she promised to send him $50,000. 7. Yaakov threatened to do away with Orly if she did not immediately send him S50,000. He also said that he would see to it that Lital was returned to the U.S., and he would make the lives of all my family miserable. (Emphasis mine - Y.S.). 050 In her cross-examination on December 4, 1997, defense witness No. 2 states on P. 4 of the record: "I thought I would try and I told her that once again that that any salary I would make from work I would pay NIS 1,000 or 2,000 every month. Mornings I do housework and afternoons I work for the Ashdod Municipality." 051 These statements, which the witness made under cross-examination, do not, of course, correspond to the statements she made in her affidavit. 052 12. It would appear, therefore, that the defendant did not provide the burden of proof necessary to prove that the plaintiff actually consented to the minor's trip to Israel. 053 The defendant claims that the plaintiff indeed objected to the minor's trip to Israel, but later changed his mind and consented to the trip. 054 As explained and clarified in defense counsel's summary in section 9, P. 2 of the summaries; "9. The claimants claim (should be - the defendants - Y.S.), which was not refuted by the plaintiff, is that just like Pharaoh in Egypt who strongly objected to Israel leaving Egypt, then consented, and then changed his mind once again after the children of Israel had left Egypt, so it was with the plaintiff." 055 Although the counsel for the defense made truly learned use of the ancient sources, still, the relevant evidence in this case, as brought by the defendant, is not such as to prove that the plaintiff actually changed his mind and consented to the minor's trip, 056 The defendant herself, specified the circumstances of her trip to Israel in taf/2: her use of her French passport, her flight from the plaintiff for fear of his threats; without mentioning or even hinting that the plaintiff had consented to the minor's going to Israel. 057 13. It is clear from the collection of evidence in this matter that I cannot accept the defendant's version on the question of the plaintiff having granted his consent. In my opinion, the plaintiff did not consent to the child's going to Israel. 058 It should be noted that the plaintiff's conduct does not at all correspond with granting consent. 059 The plaintiff initiated proceedings for the minor's return immediately upon learning that she had left the U.S. 060 This type of conduct does not correspond to the defendant's version. 061 The plaintiff's conduct, together with the defendant's admission in taf/2, and the fact that the plaintiffs consent is never mentioned at all in the documents until the claim was filed, lead to the unavoidable conclusion that the defendant's version in the matter of the plaintiff's consent cannot be accepted. In my opinion, this consent was never given. 062 Thus, it appears that the defendant removed the minor from the U.S. without the plaintiff's consent, and by so doing harmed the plaintiff's custody rights. 063 14. The defendant additionally claims that the plaintiff and the minor not entitled to reside in the U.S. In documents nun/3 and nun/4, the defendant also claims that the plaintiff forged his permit to reside in the U.S. 064 Since this is so, the defendant feels that under the circumstances the plaintiff has committed the crime of interfering with justice and she has even filed a claim. with the police. 065 The defendant claims that since the plaintiff and the minor do not have permits to legally reside in the U.S., the minor should not be ordered to be returned to a place where it is illegal for her to reside. 066 According to the defendant, in keeping with the international obligation to honor the laws of other countries, the court should not be a party to breaking another country's law. 067 In the matter of the proceedings in the California court and the orders which. were issued, counsel for the defense explains in his summation. P. 3 of the summaries, section D (5): "Just as thieves know when their partners cheat them and don't split the loot, that despite the wrong and 'injustice' done them they cannot turn to the courts for redress..." 068 Thus, according to the defendant, the orders issued in the U. S. court were given because the court was misled by the parties, and are, therefore, invalid. 069 15. Despite his colorful examples, I cannot accept Defense Counsel's, arguments in the matter of the plaintiff's and minor's legal status in the U.S. and its influence on the proceeding for the minor's return to the U.S. 070 As stated, the defendant claims that it is unthinkable that a court in a country in which a couple may legally reside and litigate, will force that couple to litigate in a country which they cannot enter legally. 071 The defendant claims, therefore, that this should prevent the court from ordering the minor's return to the U.S. 072 I cannot accept this argument. 073 It is not unintentional that the Hague Convention Law does not recognize this argument as a legitimate defense argument. 074 A court judging a claim related to the abduction of a minor pursuant to the Hague Convention Law, must only consider the question of whether the minor was actually abducted from his place of residence, and if one of the defenses determined in The Convention applies. 075 This court is not authorized to search for and adjudicate questions which may arise from its decision in the abduction case. 076 If it should really be necessary to render an opinion on the matter of the parties' legal status, this will only take place in that court which adjudicates the claims that are submitted, if indeed any are submitted, after the claim of abduction has been clarified. 077 The question of whether the plaintiff and the minor are legally entitled to reside in the U.S. is on the level of relations between the plaintiff and the U.S. authorities. This question is one which may only be decided between the plaintiff and the U.S. authorities, without this court's intervention. 078 It should be noted that the question of the legal status of the minor's parents in the U.S. has no bearing on the question of the minor's place of residence. 079 There is no dispute over the fact that the minors place of residence, before she came to Israel, was in the U. S. The question of the parties' legal status in the U.S. is not relevant in a proceeding dealing with the abduction of the minor. 080 Accordingly, in my opinion, this court is not entitled, and is not required, to consider the question of the parties' legal status in the U.S. 081 In the words of Judge Timor in Personal Status case 4/95, Kastiel vs. Kastiel (unpublished): "Habitual place of residence" refers to the child's residence and not that of the parents. Consequently, it is not significant if the parents have already become acclimatized to the place or if they have permanent work. From this it ran be inferred that there is also no significance to the parent's legal status in that place." 082 On this matter, see also the words of Vice President Porat in Personal Status Case 5097/92 Star vs. Star (unpublished) and in Personal Status Case 2298/92 Cohen vs. Cohen (unpublished). 083 Accordingly, and in view of the aforementioned, I cannot accept the defendants claims touching upon the question of the parties' legal status in the U.S. 084 16. Another question which should be related to within the framework of these proceedings is the matter of the minor's opinion and hearing her position on the subject. 085 17. The provisions of Regulation 259tet (hey) determines the following: "If the child is of an age and maturity it is advisable to consider his viewpoint, the court will not render a decision until the child has been heard, unless the court deems this to be unnecessary for special reasons which will be recorded." 086 In our matter, the minor, Lital, will be eleven this coming February. 087 I spoke privately with Lital, in my chambers, on December 25, 1997. 088 Lital is a shy, attractive girl with a pleasant appearance. She spoke about the good relationship she has with both her parents. 089 Lital described joint activities with her mother as well as with her father. Lital enjoyed living in the U.S, and says that she has many friends both in the U.S. and in Israel. 090 To the question of where she preferred to live, Lital answered that she preferred to live in Israel since life in Israel seemed more secure to her in comparison to life in Los Angeles where she was restricted in terms of activities outside of the home. 091 Lital showed do reservations regarding her father. In fact, the opposite was true. From what she said it was clear that she is connected to both her parents, wants to be with them, has confidence in their love for her and her love for them. 092 Despite that, as stated, Lital said she preferred to live in Israel. I do not think that her opinion in this matter must be accepted. 093 There is no doubt that Lital is with her mother and her mother's family at present and is influenced by them but at the same time, she loves her father, is connected to him and needs this connection. Case law is that although the child's wishes should be respected, they am not sufficient to decide a proceeding pursuant to the Hague Convention. 094 (On this matter, see Civil Appeal 6327/94 Issac vs. Issac (unpublished). 095 18. Conclusion -- It is my opinion, that in the circumstances of this matter, the plaintiff's claim should be accepted and the defendants defense rejected. 096 a) I therefore order that the minor, Lital be returned to her place of residence in California, U.S.A., no later than 7 days from the day on which the plaintiffs counsel notifies the defendant's counsel that the plaintiff has arranged a permit for the minor to enter and reside in the U.S. legally. 097 b) A copy of the judgment will be sent to the Chief Welfare Officer, Ms. Yeal Harmel, at the Ministry of Labor and Social Welfare, 10 Haharutzim St., Jerusalem, in order for a welfare officer to be designated to assist in implementing this judgment. 098 c) A copy of the judgment will be sent to the Central Authority, 10 Haharutzim St., Jerusalem. 099 d) The defendant shall pay the plaintiff's court expenses and Attorneys fees, in the amount of NIS 25,000, which will bear legal interest and linkage from today until the date of payment. 100 e) The defendant shall also pay for the minor's plane ticket to the U.S., and if the welfare officer should decide that the minor must be accompanied, the plaintiff shall also pay for the escort's plane ticket. 101 Let it be noted that a relatively low amount of costs have been determined in consequence of the fact that the proceedings were very short, and because the plaintiff did not appear or produce any witnesses on his behalf. Given today: December 28, 1997 Judge Yehudit Shtufman Decision furnished by Edwin Freedman, 40 Enso Sereni St, Givatayim. Israel.