Commissioner of Police South Australia (State Central Authority) and Daru
[2013] FamCA 623
FAMILY COURT OF AUSTRALIA
*Pursuant to Rule 17.02 of the Family Law Rules, judgment amended on the 27 day of August 2013
| COMMISSIONER OF POLICE SOUTH AUSTRALIA (STATE CENTRAL AUTHORITY) & DARU | [2013] FamCA 623 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – where the child was habitually resident in New Zealand – where the child has been wrongfully retained in Australia by the mother – where the mother has not established any exceptions to a return order – orders made returning the child to New Zealand. |
| Family Law Act 1975 (Cth) Care of Children Act 2004 (NZ) |
| Gazi & Gazi (1993) FLC 92-341 Police Commissioner of South Australia v Temple (1993) FLC 92-365 Re Bassi; Bassi and Director-General, Department of Community Services (1994) FLC 92-465 Re R (Child Abduction: acquiescence) [1995] 1 FLR 716 McCall and McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551 Emmett v Perry; Director General, Department of Family Services and Aboriginal and Islander Affairs; Attorney Generalof the Commonwealth of Australia (intervenor) (1995) FLC 92-645 Director General; Department of Community Services v Crowe (1996) FLC 92-717 De L v Director General, New South Wales Department of Community Services (1996) 20 Fam LR 390 Director General Department of Families Youth and Community Care v Thorpe (1997) FLC 92-785 Director General; Department of Child Safety & S (2006) 34 Fam LR 636 MW v Director-General, Department of Community Services (2008) 39 Fam LR 1 Director-General, Department of Child Safety & Milson [2008] FamCA 872 (22 October 2008) |
| APPLICANT: | Commissioner of Police South Australia (State Central Authority) |
RESPONDENT: | Ms Daru |
| FILE NUMBER: | ADC | 630 | of | 2013 |
| DATE DELIVERED: | 27 August 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 5 and 6 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Olsson |
| SOLICITOR FOR THE APPLICANT: | Crown Solicitor’s Office |
| COUNSEL FOR THE RESPONDENT: | Ms Ross |
| SOLICITOR FOR THE RESPONDENT: | Hamilton Legal |
Orders
That Y Daru (“the child”) born … 2002 be returned to New Zealand in the company of his father Mr Daru.
That until further order the respondent mother Ms Daru surrender forthwith to the Registrar of the Family Court of Australia at Adelaide any current passport relating to the said child.
That the child leave the Commonwealth of Australia on a date to be agreed and failing agreement not later than two weeks before the commencement of the *fourth school term in the city in which the father lives.
That pending the child returning to New Zealand the mother be restrained and an injunction is granted restraining her from removing or attempting to remove the child from the Commonwealth of Australia.
That the Commissioner of the Australian Federal Police and all Federal Agents and Australian Federal Police shall retain the name of the child Y Daru born … 2002 on the all ports watch alert system at all international departure points in Australia.
That the said child be removed from the All Ports Watch Alert System by officers/agents of the Federal Police upon receipt of a letter from an Officer of the Commissioner of Police for the State of South Australia on behalf of the State Central Authority advising of the travel arrangements for the said child to return to New Zealand on a date nominated for the said travel in the letter.
That the Marshall of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and Officers of the Police Forces and Services of the various states and territories are required and empowered to take all necessary steps to give effect to these orders.
That liberty to apply be granted to the applicant to seek any further orders necessary to allow such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.
That there be liberty to apply.
That all applications be otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Daru has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 630 of 2013
| Commissioner of Police South Australia (State Central Authority) |
Applicant
And
| Ms Daru |
Respondent
REASONS FOR JUDGMENT
introduction
On 22 February 2013, proceedings were issued pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth)[1] by the Commissioner of Police in South Australia (“the State Central Authority”)[2] seeking orders for the return of Y Daru (“the child”) to New Zealand.
[1] Hereafter referred to as “the Child Abduction Regulations.” The Child Abduction Regulations are the means by which the Commonwealth of Australia has elected to give effect to its obligations as a signatory to the Hague Convention of 22 October 1980 on the Civil Aspects of International Child Abduction (hereafter referred to as “the Child Abduction Convention”). The Child Abduction Regulations are made under s 111B of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”).
[2] The Attorney-General of the Commonwealth has appointed the Commissioner of Police in South Australia to be the State Central Authority of Australia for the purposes of the Child Abduction Regulations pursuant to Regulation 8 of the same.
The child currently resides in Australia with his mother Ms Daru (hereafter referred to as “the mother”).
The child’s father, Mr Daru (hereafter referred to as “the father”), continues to live in New Zealand. He has signed an authority empowering the State Central Authority to act on his behalf in respecting of the application at hand.
Background
The father was born in New Zealand in 1963. He is a New Zealand citizen. The mother was born in Thailand in 1971. The mother came to New Zealand in 1999, at which point the parties commenced a relationship. The mother worked in the adult entertainment industry. The parties married in Wellington in 2001. The child was born in 2002.
It is submitted that in or about 2004 the mother returned to work in the adult entertainment industry in New Zealand, on her case with the knowledge and support of the father. Whilst the mother’s employment was not a matter of significant focus in the proceedings, there was a concession by the mother that, upon her return to work, whilst the father did not have the primary care of the child, as he alleges, his care of the child was in any event significant.
The mother obtained New Zealand citizenship in 2005. The family moved to Wellington. The child, now aged three years, was enrolled in a day care centre. Upon the child reaching five years of age, he was enrolled in and attended at the J Primary School, where he continued to be enrolled as at the date of the filing of the application by the State Central Authority. The father submits that the child’s friends and family reside in New Zealand and that there is a support network. This is disputed by the mother.
The relationship between the parties was marred by significant unhappiness. The mother alleges that she returned to work with the knowledge, consent and perhaps, importantly, the approval of the father. The mother alleges that the father could not manage money, rarely worked and/or was rarely in employment. In summary, the mother alleges that the father lived on the monies earned by the mother from the adult entertainment industry. The mother also alleges that the father was aggressive and at times threatening. The father generally denies the allegations of the mother.
There is a dispute as to the extent of care exercised by the father in respect of the child. As previously noted, the father alleges that he had the primary care of the child once the mother returned to work, whereas the mother concedes only that the father provided support in the care of the child from the time he was 18 months of age. I do not consider that much turns on this dispute. What is agreed is that the mother left New Zealand to live in Australia in about 2009. The mother ultimately took up residence in Adelaide and formed a relationship with her current partner Mr N (hereafter referred to as “the mother’s partner”).
Notwithstanding the apparent concerns of the mother in respect of the father generally, but his lifestyle, living circumstances and associates in particular, the mother was evidently content for the child remain in the father’s care when she left for Australia.
There is some uncertainty as to whether the mother had a clear intention to take up residence in Australia from the time of her departure given that she travelled back to New Zealand with some frequency during which time she saw the child.
The father refers to his relationship with the mother following their separation in paragraphs [12]–[13] of his affidavit dated 1 February 2012:-
12. [The mother] and I separated around 3 years ago. Our relationship was on and off for a few years during which time she would spend 4 to 5 months at a time in Australia before returning to New Zealand. Throughout this period of time [the child] remained in my care in New Zealand.
13. In December 2011 [the mother] said she was going to return permanently to Australia on the pretext of looking after somebody else’s home. I have subsequently learned that she was in a relationship.
In response, the mother says at paragraph [20] of her affidavit filed 10 May 2013:-
20.As to paragraph 12 of the said affidavit, I say that I left the father and New Zealand in 2009 upon legal advice. I needed to get out of the [work] in which I was trapped in New Zealand. I agree that throughout the time that I was in Australia from 2009 until [the child] came to Australia he was in the care of the father in New Zealand. However, the father was often unable to provide care for [the child] and my friend [Ms L] had the majority of the care for [the child]. When I travelled to New Zealand [the child] stayed with me for all of the time I was in New Zealand.
Whilst I am not able to resolve the evidentiary dispute between the parties as to the care arrangements generally for the child, I find that the mother had effectively relinquished her parenting of the child to the father. Whatever arrangements were made for the child’s care whilst he remained in New Zealand they were parenting decisions made for and on his behalf by his father with little or no input from his mother.
In December 2011 the mother met and thereafter formed a relationship with her current partner Mr N.
Thereafter the parties agreed, albeit on the mother’s case with some considerable difficulty, to the child travelling from New Zealand to Australia to spend time with his mother. The father alleges that there had never been any difficulty with the arrangements, whereas the mother asserts that the father manipulated the travel arrangements to cause additional cost and expense to the mother. I am not able to make any findings in respect to the travel arrangements, nor do I consider that it is important to do so. What is conceded by each of the parties is that when the child travelled he was unaccompanied. The general tenor of the affidavit material is that the child travelled to Australia during his school holidays to spend time with his mother and then, following the commencement of her relationship with Mr N, to spend time with the mother and Mr N in Mr N’s home.
On 11 December 2012, the mother had a telephone conversation with a friend known as Ms L, who resides in New Zealand, and on the mother’s case is friendly not just with her but also the father in circumstances where the mother alleges that the child spent significant time with Ms L. Ms L allegedly reported to the mother that there had been a home invasion which occurred whilst the child was present and that her concern at this information was such that the mother on 12 December 2012 spoke to the father about the allegation. The father denied the events but according to the mother the allegations of a home invasion caused the mother and Mr N to consider the living arrangements in respect of the child. On the mother’s case, an offer was made by Mr N to the father that he should allow the mother and Mr N to look after the child whilst the father sorted out his parlous affairs. She further alleges that the ongoing living arrangements for the child would be further considered on and after the child was due to travel to Australia and spend time with the mother and Mr N on 4 January 2013.
The father refers to the allegation of home invasion at paragraphs [48]–[51] of his affidavit sworn 27 May 2013. In summary, the father denies that there was a home invasion and can only speculate on the story allegedly relayed by Ms L to the mother on 11 December 2012.
The father alleges that as a result of a contract to paint a house, the father used a trailer belonging to the home owner which was subsequently collected by two men who attended the property and collected the trailer without incident. To the extent that the mother alleges that in this home invasion the father’s passport was taken, the father denies the allegation and as proof of same annexes to his affidavit a certified copy of the passport as evidence by his lawyer.
The issue of the home invasion is raised not because I am necessarily able to make a finding as to whether a home invasion did occur in circumstances where the child was present, but the alleged incident is a matter referred to in the Hague Convention Family Report published on 5 July 2013 by family consultant Ms C (hereafter referred to as “Ms C”). I will return in more detail to the Family Report, but at this stage it is sufficient to note that the mother relies upon the information contained in the report and its summary in support of the exceptions to a return order contained in Regulations 16(3)(b)–(c) of the Child Abduction Regulations.
Whilst there is at least some broad agreement as to the arrangements in respect of the child prior to 4 January 2013, there is little or no agreement as to the events thereafter.
Indeed, certainly in respect of the contention of the mother that the father gave effective consent to the child remaining in her care, there is no agreement.
Conduct of the proceedings
I interrupt the historical narrative to set out the manner in which the hearing was conducted. I do so because, at the commencement of the proceedings, I gave leave for counsel on behalf of the Central Authority and the mother to cross examine the Family Consultant, the mother, the mother’s partner, and the father. The cross-examination was limited to the topic of whether there was consent or acquiescence by the father to the child remaining in the care of the mother in Australia.
Regulation 15(2) of the Child Abduction Regulations provides that:-
A court must, so far as is practicable, give to an application such priority as will ensure that the application is dealt with as quickly as a proper consideration of each of the matters relating to the application allows.
Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ of the High Court of Australia said in their joint judgment in De L v Director General, New South Wales Department of Community Services (1996) 20 Fam LR 390 at 403:-
Prompt listing for hearing is one thing; an over-hasty and insufficient hearing is another. That point is made in the concluding terms of reg 15(2) set out above. Further, there may be cases where, consistent with those precepts, some, even if restricted, cross-examination on affidavits is appropriate to assist the court to reach a decision whether to refuse an order for the return of the child.
This is not a case where the evidence put before the court could be considered succinct. The affidavit material is relatively extensive and it contains significant allegations and counter allegations. Much of the affidavit material is inadmissible and is replete with hearsay and assertions of opinion.
As Ellis, Nygh and Ross-Jones JJ (sitting as the Full Court of the Family Court of Australia) held in their joint-judgment in Gazi & Gazi (1993) FLC 92-341 at page 79,623:-
The primary purpose of the Convention, the relevant legislation and regulations is to provide a summary procedure for the resolution of the proceedings, and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody or access … Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of the proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate.
Notwithstanding the above mentioned general principle, I determined that it would be in the interests of justice and, indeed, necessary, to allow limited cross-examination on the important topics of consent and acquiescence, the views of the child and any objections allegedly expressed by him.
At the commencement of the proceedings counsel for the mother advised that the mother’s evidence would need to be given through an interpreter. Furthermore, no interpreter had been used in the mother’s interview with the Family Consultant, nor did the affidavit material filed on behalf of the mother refer in the ducat to an interpreter being used.
The extent to which the mother understood the process and perhaps more importantly the extent and content of the matters raised in her affidavits is critical. No explanation was given as to why the matter of the linguistic difficulties that potentially affected the mother was raised only at the commencement of the proceedings. Out of an abundance of caution I stood the matter down to enable Ms Ross to take instructions from her instructing solicitor as to whether in all the circumstances it was both proper and safe for the Court to rely upon the affidavits filed on behalf of the mother and the matters raised and reported upon by the Family Consultant in her published report.
Upon the resumption of the proceedings Ms Ross confirmed that the mother understood the nature and effect of the contents of the affidavit material and matters raised in the report of the Family Consultant, that they were adopted by the mother, and that I was entitled to have reference to those documents. There was no application to adjourn the proceedings and I acceded to the submission of Ms Ross that the mother understood the contents of her affidavit material and did not seek to resile from any of the matters raised either in the affidavits or the report of the Family Consultant.
Period 11 January 2013 – 27 January 2013
The mother alleges that on 11 January 2013 Mr N phoned the father and complained that they collectively had run out of patience with the father’s prevarication and lies as to his future intentions in relation to where the child would live.
Whilst I accept Mr N may well have telephoned the father on 11 January 2013, I am not able to determine the content of the conversation.
The father specifically denies the conversation but rather at paragraph 10 of his affidavit of 27 May 2013 refers to a text message received from Mr N 11 January 2013 at 17:02 in the following terms:-
Hi [Mr Daru], best you call me asap, re: compulsive lying 2 …. Our lawyer in Wellington has confirmed law to her, re: [the child] returning 2 NZ.
The father says that upon receiving the text message he decided not to react but rather to wait and see if the child was returned on 27 January 2013 in accordance with the agreement that had been made between the parties and consistent with the flights that he believed had been booked for the child’s travel arrangements to and from Australia.
The text message is not the subject of dispute. The import of the message is, however, uncertain. One possible explanation is that it represented advance warning of the mother’s intention to retain the child in Australia and not return him to New Zealand as agreed. The other explanation is that it confirms there had been some discussions between the parties relating to the child remaining the care of his mother. I am not able to decide which of these is the correct interpretation.
Whilst he chose not to respond to the text message, the father did seek legal advice in the week before the child was due to return. On 24 January 2013, a letter was written to the New Zealand Central Authority seeking assistance for the return of the child in circumstances where he feared the child would be retained in Australia by the mother. It is now common ground that the child was not returned on 27 January 2013 and that the father made an application via the Central Authority on 1 February 2013.
The father alleges that following the text received on 11 January 2013 he thereafter had difficulty in speaking to the child via the child’s mobile phone or via the mother’s mobile phone. His evidence is that on each occasion that he rang the phones of the child and the mother the message went through to the mail box. I am not able to make a finding as to the extent to which the father tried to ring the child and the mother, if at all, nor whether the mother put in place a plan to have any calls from the father diverted to a message bank.
The gravamen of the mother’s case that consent was given by the father is focused on the events of 14 January 2013. The mother says that the father phoned the mother’s partner on 14 January 2013 and gave his consent for the child to remain in Australia.
At paragraph [35] of the mother’s affidavit filed 10 May 2013, the mother alleges that she had a conversation with the father on that occasion in which the father advised that he was planning to move to Christchurch in order to “escape his current problems and look for work”, that he was hoping to relocate to Melbourne so that he could be closer to the child and that the child could remain in the care of the mother in Australia. The mother further alleged that the father then spoke to the child, confirmed the matters that he had raised with the mother and promised to send over some of the child’s personal belongings.
The father’s recollection of the events of 14 January 2013 is different. He alleges that, after he was not able to get into contact with the child or the mother from 11 January 2013, he telephoned Mr N on 14 January 2013. He claims that he did not speak to Mr N but as a result of that missed call received a text message from Mr N at 13:14pm on 14 January 2013 which stated:-
I will let him know when I get home from work. They’re both out of credit. I will recharge for him this afternoon.
Mr N acknowledges that he sent the text message and it provides at least some explanation and/or corroboration for the assertion of the father that after 11 January 2013 he had difficulty in contacting his son or the mother.
Importantly, the father denies that thereafter he had any conversation or communication with the mother or Mr N. He does refer to a conversation with the child that allegedly occurred later on 14 January 2013 but under cross-examination denied that he gave his consent to the child remaining in Australia either in the call to the child or at any time to the mother or her partner. There is clearly a substantial dispute as between the mother and her partner on the one hand and the father on the other as to whether a conversation took place on 14 January 2013 between them and if it did whether the content of that conversation included the consent of the father to the child remaining in Australia with the mother.
Paragraph [10] of the affidavit of the mother’s partner filed 14 May 2013 says:-
I have had dealings with the father over the phone about [the child] flying to Australia to visit his mother. During my discussions with the father he consented to [the child] remaining with his mother in Australia because he was facing problems associates were demanding payment of money owed to him. He was not in a position to care for [the child]. Whenever [the child] came to Australia I paid for both airline tickets both to and from New Zealand. The father is a spendthrift and whatever money he does have he spends on alcohol and drugs. When the father gave his consent for [the child] to remain with the mother on 14 January 2013 I cancelled [the child’s] return flight to New Zealand with the father’s consent”. Annexed hereto and marked with the letter “C” is a copy of the cancelled ticket and an authority from me for that to happen.
Little assistance is given by the matters as set out in the above paragraph. The mother’s evidence under cross-examination was not persuasive of the topic and whilst I accept that the mother’s partner had arranged for a ticket for the child to travel from New Zealand to Adelaide on 4 January 2013 and then to return to New Zealand on 27 January 2013, I am not able to find and do not accept that the cancellation of the return ticket was as a result of the alleged consent given by the father in a telephone conversation with the mother’s partner, the mother and the child on 14 January 2013. The father emphatically denies the conversation as alleged by the mother and the mother’s partner and I find that the mother has not discharged her onus of proof in establishing that the father gave his informed consent.
As previously noted, the father signed an authority empowering the State Central Authority to act on his behalf in respecting of the application at hand. That authority was signed on 1 February 2013. The documents that initiated these proceedings were filed by the State Central Authority on 22 February 2013.
Issues of Agreement and Contention between the Parties
Outlines of Argument were filed on behalf of the State Central Authority and the mother. These documents helped crystallise the matters that were agreed and the matters that were in dispute between the parties.
As such, I will turn to the applicable regulations of the Child Abduction Regulations to highlight the areas on which the parties are in agreement and where they are not.
The starting point is subregulation 16(1) of the Child Abduction Regulations”). That subregulation requires the Court to make the return order requested by the State Central Authority in this case if three questions are answered in the affirmative.[3]
[3] The requirement to make the return order requested by the State Central Authority in subregulation 16(1) is subject to certain exceptions provided for in subregulation 16(3) of the Child Abduction Regulations. The potential applicability of any exceptions is considered later on in this judgment.
The first question, pursuant to subregulation 16(1)(a), is whether an application for a return order has been made. This is not, and could not, be a matter of dispute between the parties.
The second question, pursuant to subregulation 16(1)(b), is whether the application for a return order was filed within one year after the child’s removal or retention. Once again, this is not a point of contention between the parties.
The third question, pursuant to subregulation 16(1)(c), is whether the State Central Authority has satisfied the court that the child’s removal or retention was wrongful under subregulation 16(1A). It is with this aspect that the parties are in dispute.
Subregulation 16(1A) requires the Court to be satisfied of five factors if it is to be satisfied that the child’s removal or retention was wrongful for the purposes of subregulation 16(1)(c). The State Central Authority carries the burden of proof in relation to the factors referred to in subregulation 16(1A) (see subregulation 16(1)(c)).
The first factor, pursuant to subregulation 16(1A)(a), is whether the child was under 16 at the time they were removed to, or retained in, Australia. This factor is clearly satisfied on the facts of the case at hand – the child is 11 years old at the time of writing.
The second factor, pursuant to subregulation 16(1A)(b), is whether the child was habitually resident in a convention country immediately before the child’s removal to, or retention in, Australia. New Zealand is a convention country for the purposes of the Child Abduction Convention, with the Convention having been in force in that country since 1 August 1991. Furthermore, the mother does not take issue with the fact that the child was habitually resident in New Zealand immediately before the child was retained in Australia.
The third, fourth, and fifth factors in subregulation 16(1A) all concern the father’s “rights of custody.” Namely:
a. The third factor, pursuant to subregulation 16(1A)(c), is whether the father had “rights of custody” in relation to the child under the laws of New Zealand immediately before the child’s removal to, or retention in, Australia;
b. The fourth factor, pursuant to subregulation 16(1A)(d), is whether the child’s removal to, or retention in, Australia was in breach of those “rights of custody”; and
c. The fifth factor, pursuant to subregulation 16(1A)(e)(i) and (ii), is whether, at the time of the child’s removal or retention, the father either was “actually exercising the rights of custody (jointly or alone)” or “would have exercised those rights if the child had not been removed or retained.”
The mother’s written submissions accept that the third factor (subregulation 16(1A)(c)) is substantiated on the facts of the matter at hand. The written submissions make no reference to the fourth factor (subregulation 16(1A)(d)). The written submissions explicitly disagree that the fifth factor (subregulation 16(1A)(e)(i)–(ii)) can be answered affirmatively in the matter at hand. Therein lays the first issue between the parties.
The remaining three issues between the parties concern the following exceptions contained in subregulation 16(3) of the Child Abduction Regulations:
(3) A court may refuse to make an order sunder Sub-regulation (1) or (2) if a person opposing return establishes that:-
(a) a person, institution or other body seeking the child’s return:-
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to ,or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) each of the following applies:-
(i) the child objects to being returned;
(ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity at which it is appropriate to take account of his or her views;
The exceptions provides a means by which a respondent may resist an application for a return order despite the applicant establishing the factors referred to in subregulation 16(1) of the Child Abduction Regulations (and by necessary corollary, by establishing that a wrongful removal or retention of a child has occurred with reference to the five factors in subregulation 16(1A) of the Child Abduction Regulations.)
I am not required to refuse to make a return order merely because the mother has established an exception within the meaning of subregulation 16(3) of the Child Abduction Regulations due to the residual discretion provided for by subregulation 16(5).
In summary the points of contention between the parties are as follows:-
a)the father was not exercising rights of custody at the time of removal or when the child was retained in Australia;
b)that the father had consented or subsequently acquiesced in the child being removed to or retained in Australia;
c)that there was a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;
d)that the child objects to being returned, that the objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that the child has attained a level of maturity which would make it appropriate to give weight to his views.
I will now consider each of these matters of dispute in turn.
The “Rights of Custody” Issue (subregulations 16(1A)(c)-(e))
As I have already noted, the third, fourth and fifth factor that go to the establishment of a retention or removal of a child as wrongful pursuant to subregulation 16(1A) of the Child Abduction Regulations all concern the father’s “rights of custody.” Namely:
a) The third factor, pursuant to subregulation 16(1A)(c), is whether the father had “rights of custody” in relation to the child under the laws of New Zealand immediately before the child’s removal to, or retention in, Australia;
b) The fourth factor, pursuant to subregulation 16(1A)(d), is whether the child’s removal to, or retention in, Australia was in breach of those “rights of custody”; and
(c) The fifth factor, pursuant to subregulation 16(1A)(e)(i) and (ii), is whether, at the time of the child’s removal or retention, the father either was “actually exercising the rights of custody (jointly or alone)” or “would have exercised those rights if the child had not been removed or retained.”
The respondent’s written submissions accept that the third factor (subregulation 16(1A)(c)) is substantiated on the facts of the matter at hand. The written submissions make no reference to the fourth factor (subregulation 16(1A)(d)). The written submissions explicitly disagree that the fifth factor (subregulation 16(1A)(e)(i)–(ii))can be answered affirmatively in the matter at hand. The content of the respondent’s disagreement is as follows:
…
5.The mother submits that the father was not exercising his rights of custody under New Zealand law at the time of retention of the child nor would he have so exercised those rights but for the retention, pursuant to Regulation 16(1A)(e)(i) and (ii).
6.Under s. 16 of the New Zealand care of Children Act 2004 (“the Care of Children Act”) the matters necessary for the exercise of guardianship are set out. It is acknowledged that the mother and father are joint guardians of the child under s. 16 of the Care of Children Act.
7.It is also accepted that the Care of Children Act sets out relevant matters for establishing rights of custody over a child in New Zealand and exercise of those rights.
8.Under s. 16(1)(a) of the Care of Children Act the exercise of guardianship and in particular the duties, powers, rights and responsibilities of the guardian of a child include (without limitation) the guardian’s –
(a) having the role of providing day-to-day care of the child… as well as other relevant matters. It is submitted by the Respondent that the father was not exercising day-to-day care immediately before or at the time of retention and would not have been so exercising that role if not for the retention.
9.It is submitted that the father has relinquished his day-to-day care of [the child] and, thus, his rights of custody, at the time of retention of the child by the mother. It is further submitted that he consented to or acquiesced in the retention of the child by the mother in Australia on or about 14 January 2013. It is submitted that he gave the day-to-day care of [the child] to the Respondent mother at that time.
10.As the father had relinquished his rights of custody to the child there was no wrongful removal or retention of the child under Reg. 16(1A) of the Regulations.
11.The onus is on the Central Authority to establish that the father had rights of custody in relation to the child immediately before the retention and was exercising those rights or would have exercised those rights at the time of retention and it is submitted that the Central Authority has not discharged this onus.
I turn first to consider, pursuant to subregulation 16(1A)(c), whether the father had “rights of custody” in relation to the child under the laws of New Zealand immediately before the child’s removal to, or retention in, Australia.
The starting point is regulation 4 of the Child Abduction Regulations, which is headed “Meaning of rights of custody”. The regulation provides as follows:
(1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b)by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
As is agreed between the parties, the child was habitually resident in New Zealand, a convention country, immediately before his removal and subsequent retention in Australia (subregulation 4(1)(a)).
The next question is whether “rights of custody” in relation to the child are attributed to the father under a law in force in New Zealand.[4] The affidavit as to applicable law prepared by New Zealand solicitor Catriona Mary Doyle (“Ms Doyle”) on 1 February 2013 (as annexed to Document 1) confirms this to be the case.
[4] See, eg, the approach taken in cases such as Police Commissioner of South Australia v Temple (1993) FLC 92-365 (Murray J); Re Bassi; Bassi and Director-General, Department of Community Services (1994) FLC 92-465 (Johnston JR); McCall and McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551(Nicholson CJ, Ellis and Fogarty JJ); and Director General; Department of Community Services v Crowe (1996) FLC 92-717 (Barblett DCJ, Ellis and Lindenmayer JJ).
As noted in paragraph [7] of Ms Doyle’s affidavit, s 17(1) of the Care of Children Act 2004 (NZ) (“the New Zealand Act”) provides that the respondent mother and the father are “guardians jointly” of the child Y.[5] The definition of guardianship and the manner in which guardianship is to be exercised are considered respectively in s 15 and s 16 of the New Zealand Act.
[5] I note that regulation 29(5) of the Child Abduction Regulations allows me to take judicial notice of a law in force in a convention country.
As expounded upon in paragraphs [8]–[13] of Ms Doyle’s affidavit as to applicable law, the status of the father as a “joint guardian” of the child by virtue of s 17 of the New Zealand Act meant that under the law of New Zealand and immediately before the removal of the child from that country, the father had “rights of custody” within the meaning of regulation 4 of the Child Abduction Convention.[6] Indeed, this was acknowledged by the respondent mother in paragraph [4] of her written submissions contained within her outline of case document.
[6] The joint judgment of Gummow, Heydon and Crennan JJ in MW v Director-General, Department of Community Services (2008) 39 Fam LR 1 at 22 is authority to that effect. Kirby J reached a similar conclusion in his judgment at 47, though His Honour dissented from the majority judgment on other issues.
As such, I am satisfied that, for the purposes of subregulation 16(1A)(c), the father had “rights of custody” in relation to the child under the laws of New Zealand immediately before the child was removed and subsequently retained in Australia.
I now turn to consider, pursuant to subregulation 16(1A)(d), whether “the child’s removal to, or retention in, Australia [was] in breach of those rights of custody.” Whether the rights of custody that have been attributed to the father by the operation of the New Zealand Act are “rights of custody within the meaning of the Regulations and whether there has been a breach of those rights are matters to be determined in accordance with Australian law.”[7]
[7] Director General; Department of Community Services v Crowe (1996) FLC 92-717 at 83,637 (Barblett DCJ, Ellis and Lindenmayer JJ).
Rights of custody for the purposes of the Child Abduction Regulations are defined in regulation 4 (as extracted above) and include “rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.”
The father’ status as a joint guardian of the child under the New Zealand Act enables him to determine “for or with the child … questions about important matters affecting the child” including “changes to the child’s place of residence.” [8]
[8] Care of Children Act 2004 (NZ) s 16(1)–(2).
As such, the rights of custody that have been attributed to the father by operation of the New Zealand Act clearly fall within the definition of “rights of custody” within the meaning of the Child Abduction Regulations.
A removal or retention of a child is in breach of rights of custody if the State Central Authority establishes “simply that the removal, or retention, is contrary to or interferes with rights of custody as defined in Article 5” of the Child Abduction Convention (as reflected in Regulation 4 of the Child Abduction Regulations).[9]
[9] Director General; Department of Child Safety & S (2006) 34 Fam LR 636 at 642 (O’Reilly J).
Clearly, the child’s retention in Australia was in breach of the father’s right to determine the child’s place of residence. The mother’s retention of the child in Australia interfered with the father’s ability to exercise that right.[10] Therefore, it was in breach of the father’s “rights of custody.” As such, I am satisfied that the State Central Authority has established that the child’s retention in Australia was in breach of the father’s rights of custody for the purposes of subregulation 16(1A)(d).
[10] Director-General, Department of Child Safety & Milson [2008] FamCA 872 (22 October 2008) at [27].
The final matters to be considered in relation to subregulation 16(1A) are those referred to in subregulation 16(1A)(e)(i)–(ii).That is, was the father, at the time of the child’s retention removal to, or retention in, Australia “actually exercising the rights of custody (either jointly or alone)” and/or would the father “have exercised those rights of the child had not been removed or retained.”
The implication behind the respondent’s argument on this point[11] is that the sole content of the “rights of custody” that the father has (or had) as a result of his status as a “joint guardian” pursuant to s 17 of the New Zealand Act was the right to spend time with the child.
[11] The argument is outlined in paragraphs [8]-[11] in the written submissions contained in the outline of argument as relevantly extracted above in paragraph [61] of this judgment.
This implication has to hold true for the respondent’s submissions on this point to have any cogency. This is because the respondent claims that the State Central Authority has failed to establish the matters referred to in subregulation 16(1A)(e)(i)–(ii) for the following two reasons:
a) The father “was not exercising day-to-day care immediately before or at the time of retention and would not have been so exercising that role if not for the retention” and as a result of this, had “relinquished” his “rights of custody”; and/or
b) The father “consented to or acquiesced” in the mother’s retention of the child by giving “the day-to-day care of [the child] to the Respondent mother” on 14 January 2013, and that as a result of this, the father had “relinquished his rights of custody.”
As a result of my findings of fact concerning the events of the 14 January 2013, the second of these claims is factually incorrect.[12]
[12] See above at paragraph [42] of this judgment.
However, both claims are legally incoherent. As I have already noted earlier in this judgment, the “rights of custody” spoken of in the Child Abduction Convention and the Child Abduction Regulations is a broader concept than just the right to physical “custody” of the child, or the right to spend time with the child.
The child’s presence in Australia came about as a result of the mother and father’s joint exercise of one of their rights of custody, namely, the right to determine the child’s residence. The respondent mother’s affidavit filed 10 May 2013 (Document 3) confirms that it was agreed that the child would spend the first half of the holidays with the father” and thereafter “the child would fly to Australia on 4th January 2013 and return to New Zealand on 27 January 2013 in time for school.”
As such, the respondent’s argument that the father “was not exercising day-to-day care immediately before or at the time of retention and would not have been so exercising that role if not for the retention” and as a result of this, had “relinquished” his “rights of custody,” is not a convincing one.
I turn to the respondent’s second argument, that the father “consented to or acquiesced” in the mother’s retention of the child by giving “the day-to-day care of [the child] to the Respondent mother” on 14 January 2013, and that as a result of this, the father had “relinquished his rights of custody.”
As I have already noted, I have found that the father did not, as a question of fact, consent to the child remaining in Australia on 14 January 2013. However, this argument also fails on the following points of law:
a) Consent and acquiescence are not questions that fall to be considered for the purposes of establishing the wrongfulness of a removal or retention of a child or a breach of an applicant’s rights of custody pursuant to the matters in subregulations 16(1) and 16(1A) of the Child Abduction Regulations. It is only once a wrongful removal or retention has been established as a result of the matters in subregulations 16(1) and 16(1A) being proven by the applicant that the respondent then has the opportunity to invoke the exceptions contained in Article 13 of the Child Abduction Convention (reflected in subegulation 16(3) of the Child Abduction Regulations) in an attempt to prevent the return of the child.[13]
b) Even if I had found that the telephone conversation alleged by the mother to have occurred on the 14 January 2013 did occur, and in that conversation the father had told the mother that he was amenable to the child staying in Australia on either a temporary or permanent basis, that would not have had the effect of “relinquishing” his rights of custody. Indeed, that act of the father would have in actuality been an exercise of one of his rights of custody, namely, his right to determine the child’s place of residence. It is illogical that the father could have relinquished his rights of custody in the process of exercising the same.
[13] See generally the approach of O’Reilly J in Director General; Department of Child Safety & S (2006) 34 Fam LR 636 at 639–643 and in Director-General, Department of Child Safety & Milson [2008] FamCA 872 (22 October 2008) at [22]–[29].
As such, I am satisfied for the purposes of subregulations 16(1A)(e)(i)–(ii) that, at the time of the child’s retention in Australia, the father was “actually exercising [his] rights of custody” and “would have exercised those rights if the child had not been removed or retained.”
For the foregoing reasons, the State Central Authority has satisfied me that the child’s retention in Australia was wrongful within the meaning of subregulation 16(1A) as referred to in subregulation 16(1A)(c).
Given my earlier findings concerning subregulations 16(1)(a) and (b), the Court’s obligation to make the return order as requested by the State Central Authority is enlivened, subject only to the applicability of any of the exceptions contained in subregulation 16(3). It is to the exceptions that have been raised by the mother that I now turn my attention.
Exception 1: Whether the father gave his consent to the mother’s retention of the child
Regulation 16(3)(a)(ii) of the Child Abduction Regulations provides:-
(3) A court may refuse to make an order under subregulation (1) or (2) [for the return of the child] if a person opposing return establishes that:
(a) the person, institution or other body seeking the child’s return:-
(ii) had consented or subsequently acquiesced in the child being removed to or retained in Australia.
The wording of the abovementioned regulation and the inclusion of the word “may” supports the contention that even in circumstances where consent is demonstrated there is a residual discretion enabling a return orders to be made.
During the final submissions of counsel for the mother, and in relation to the topic of consent and acquiescence, I made reference to the decision of Director General Department of Families Youth and Community Care v Thorpe (1997) FLC 92-785. This case appeared in the case outline documents of both parties. Mr Ross, counsel for the mother, sought to distinguish that case on the basis that it primarily dealt with acquiescence whereas the issue at hand in respect of the child’s retention by his mother in Australia focussed upon whether consent had been given by the father.
With respect to counsel for the mother, I do not agree with that contention. There is ample authority for the proposition that consent “and acquiescence” are distinct in that the concept of acquiescence is qualified in Regulation 16(3) (a)(ii) of the Child Abduction Regulations by the word “subsequently”. This suggests a temporal distinction, namely, that consent as a concept relates to a time prior to the retention of the child whereas acquiescence can only arise after the event of retention (See generally the English decision of Re M [1999] 1 Fam LR (Eng) 171).
Irrespective of the distinction, it is common to each notion that the consent or acquiescence must be informed. In Emmett v Perry; Director General, Department of Family Services and Aboriginal and Islander Affairs; Attorney Generalof the Commonwealth of Australia (intervenor) [1995] FLC 92-645 at 82,523 Jordan J said:-
In my view, essential components of any relevant acquiescence must include, firstly, an acceptance of the course of conduct of the other party and, secondly, such acceptance must be communicated with the other party. The acquiescence must also be unequivocal.
It is of further assistance to consider the case of Re R (Child Abduction: acquiescence) [1995] 1 FLR 716 at [119]–[120], in which Stuart-Smith LJ said:-
a party cannot be said to acquiesce unless he is aware, at least in general terms, of his rights against the other parent. It is not necessary that he should know the full or precise nature of his legal rights under the convention: but, he must be aware that the other parents act in removing or retaining the child is unlawful. And if he is aware of the factual situation giving rise to those rights, the court will no doubt readily infer that he was aware of his legal rights, either if he could reasonably be expected to have known them or taken steps to obtain legal advice.
The evidence in respect of consent or acquiescence in this case is scant. There is certainly nothing in the allegation or assertion of the mother and/or Mr N which would enable me to find, even if as alleged the father gave his consent, which he trenchantly denies, that the father was aware of the consequences of such consent being given.
What is telling in my opinion is that, even if I were to accept the position as set out by the mother and her partner arising out of their alleged separate conversations with the father, there is nothing that could be referred to which would demonstrate what were the consequences of the child remaining in Australia. There is nothing to suggest on what basis if any the child would see his father if he remained in Australia with the mother or indeed, how any such agreement between the parties would be confirmed to ensure the arrangement was clearly understood, stable and would not result in further litigation either in Australia or in New Zealand.
Even if consent was given I find that it could not have been informed consent. The period of time between the alleged consent on 14 January 2013 and the date upon which the father commenced these proceedings was of such short duration that it speaks against the mother’s case that the father gave his consent. To the extent that the mother might rely upon the notion of active acquiescence, I reject that proposition.
Exception 2: Grave risk to the child
The case of the mother also raises the exception of “grave risk” pursuant to regulation 16(3)(b) of the Child Abduction Regulations, which provides:-
(3)A court may refuse to make an order under sub-regulation (1) or (2) [for the return of a child] 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.
I do not propose to set out in detail the extent of the mother’s written submissions on the topic, but the mother’s case can be summarised as follows:-
a)It would be difficult for the mother to return to New Zealand if an order is made for the child’s return;
b)That if the mother did return to New Zealand she fears being caught up with her previous associates and the dangers and risks to her arising from her previous connection with the adult entertainment industry in New Zealand;
c)That the mother would not have financial support or accommodation for herself and the child in New Zealand;
d)That if the mother did not return, the child would reside with the father and that would place the child at grave risk and that he would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation;
e)That in support of the contention of grave risk the father has significant financial difficulties and appears to be unable to properly accommodate himself and the child if he were to reside with the father;
f)An allegation that the child was present during a home invasion and that this would place the child at grave risk.
g)That the child would be distressed if he were to return to New Zealand and this would represent a grave risk of psychological harm to the child; and
h)The father is a compulsive smoker and this would present a grave risk of physical harm to the child given that he suffers from asthma.
I do not propose to deal with each of the aspects of the mother’s argument on this point. To a significant degree the allegations made by the mother are matters of consistent denial by the father.
Whilst the father does admit to some financial difficulty arising out of unpaid rent, that in and of itself could not be sufficient to support the exception to a return order contained at Regulation 16(3)(b) of the Child Abduction Regulations.
At the commencement of the proceedings, I invited counsel for the mother to make a submission as to the intention of the mother should I order the return of the child to New Zealand. The issue arose because it became apparent from a reading of the report of Ms C that the report was fundamentally based upon the proposition that if a return order was made the effect would be that the child would return to the care of the father. That issue was the subject of challenge in the outline of argument document relied upon by counsel for the State Central Authority. That document contains a criticism of the Family Report on the basis that it did not take into account that the return is not a return to the father but rather to New Zealand.
The evidence, but in particular the cross-examination of the Family Consultant, was on the basis of an agreed position between the parties, namely, that if a return order was made the mother would accompany the child back to New Zealand.
After the conclusion of the evidence and at the start of final submissions by counsel for the mother, Ms Ross submitted that her client had now changed her mind having given the matter significant consideration overnight. The mother’s position was that she would not return to New Zealand with the child. I am not necessarily able to speculate as to what arrangements will be made for the child in the event of a return order. He may well live with his father in circumstances not dissimilar to the previous three years before his retention in Australia. It is also alleged by the mother that various friends and associates took an active and important role in caring for the child at various times. The mother relied upon further affidavits in support of her case but in particular the affidavit of Mr M filed 11 July 2013. Mr M refers to himself as the child’s registered grandfather at his former school. He is also apparently a person whose contact details are on the school file. At paragraph [6] of the affidavit of Mr M he says the following:-
[The child’s] father took reasonable care of [the child] but kept him on his side by buying [the child] expensive computer toys and games from a young age.
There is therefore significant uncertainty as to whether a return to New Zealand would place the child in an environment that could support the contention that he would be at “grave risk”. The father makes credible denials and it must be the case that the mother bears the onus of establishing that a return of the child to New Zealand would expose him to physical or psychological harm, or otherwise place the child in an intolerable situation. Subject to a consideration of the report of the Family Consultant, I am not satisfied on the evidence that the return of the child to New Zealand would impose any “grave risk” as referred to in the subregulation.
To a significant degree the manner in which the mother ventilated her case are matters that go to parenting issues. A summary of the mother’s case is crystallized in the question “should [the child] return to live with his father?” There is now a clear and settled position that the purpose of the Child Abduction Convention, and accordingly the Child Abduction Regulations, must be directed towards an early and proper return of the child to New Zealand, his habitual place of residence. It is in that jurisdiction that parenting issues can be properly determined. A point well made by Ms Olssen, counsel for the State Central Authority, is that New Zealand has a well established system of family law and the courts in New Zealand are able to make orders as to the time that the child would spend with his mother and his father. More importantly, orders protecting the child would be available upon the mother’s application. The unwavering thread through the cases referred to by each of counsel is that the process involves a return to country, not to the custody of the father.
Exception 3: Objection by the child to being returned
Regulation 16(3)(c) of the Child Abduction Regulations provides:-
(3)The court may refuse to make an order under subregulation (1) or (2) [for the return of the child] if a person opposing return establishes that
(c)each of the following applies:
(i)the child objects to being returned;
(ii)The child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)The child has attained an age, and degree of maturity, at which it is appropriate to take account of his or her views.
A preliminary question here is at what point in time should any relevant objection expressed by the child be addressed by the evidence.
In Emmett v Perry; Director-General, Department of Family Services and Aboriginal and Islander Affairs; Attorney General (Cth) (intervenor) 1995 (FLC 92-645) at 82,526, Jordan J said:-
In my view, there would need to be cogent and telling evidence that the children’s objection was so strong as to justify a wrongful retention of the children … It would be dangerous and unsatisfactory to place significant weight upon the subsequent development of the children’s wishes in the background of one parent having made a unilateral decision in defiance of an existing custody order and with the children being under the sole influence of that combatant parent would necessarily be in a position to engage in active or passive manipulation of the children wrongfully retained.
In the case at hand I am of the view that the consideration of the exception relied upon by the mother should be as at the time of the hearing of the application, but in doing so I must be mindful of the state of any objection (or lack of same) by the child at the date of retention and the regard that I am able to have to any wishes and/or objections expressed by the child given that he has been in the effective care of his mother since 4 January 2013, as at the date of the hearing more than seven months without effective contact or communication with his father.
The mother relies heavily upon the Hague Convention Report prepared by Ms C. The preamble to the report confirms that it is limited to the following issues:-
·Whether the child objects with the strength of feeling beyond the mere expression of a preference or of ordinary wishes to be returned to New Zealand;
·Whether the child has attained an age and maturity at which it is appropriate to take into account his view;
·Whether the child has been influenced in his opinion concerning the matters referred to above; and
·Whether there is a grave risk that to return the child to New Zealand would expose him to physical or psychological harm.
Ms C in her interview with the child describes him as follows:-
Although he looked younger than his age, his serious polite manner, steady eye contact and considered and thoughtful responses made him seem much older. [The child] impressed as having a gentle, sensitive nature. He spoke quietly and often tearfully, especially when referring to his father who he said he misses and worries about a lot.
Ms C found that the child was “confused” and “burdened” by the court proceedings.
In paragraph [15] the report explores the alleged conversation between the child and his father whereby the child alleges that his father gave consent to the child staying in Australia and that the consent was confirmed by a subsequent promise to send the child his Playstation gaming console. This is against the clear denial by the father of such a conversation ever having taken place. In evidence and under cross examination by Ms Ross the father denied that such a conversation took place or that there was any reference to a Playstation gaming console. The father makes the point in his evidence that he would not have contemplated sending a play station to the child given that he expected the child to return on 27 January 2013.
I am not able to find much support for the mother’s version of the events on 14 January 2013 in the Family Report. The child is clearly distressed not by the possibility that he would return to New Zealand but rather by the conflict between his parents. Indeed, it was a curious but telling concession by Ms C in her evidence that the child was not concerned about returning to New Zealand or even to the care of his father (which the child clearly contemplated happening by his willingness to see his father for holiday periods) but rather, the child was keen to avoid any circumstance where his parents were in close geographical proximity to each other whether that be in Australia or New Zealand. Accordingly, the distress that was observed by Ms C arises out of the conflict between the parties and not the possibility of return to New Zealand.
In paragraph [15] of the Family Report, Ms C reports as follows:-
It was distressing to witness [the child’s] physical anguish at this point. When trying to expand on his heightened distress, [the child] was apologetic before identifying that he felt he was to blame for the current legal battle between his parents, especially as he wants to stay with his mother rather than return to live with his father in New Zealand. He identified feeling worried about hurting his father’s feelings. [The child’s] concern for his father was evident throughout his interview.
In paragraph [16] of the report, the child was asked whether he had ever told his father that he was not happy staying with his mother. The child acknowledged that he had on one occasion told his father that he was not happy living in Australia. It is reported he said “when I first arrived I was missing him…I told Dad I was unhappy here…only once when I first came here I was missing him…I was really worried about him.”
The difficulty in terms of the child’s presentation is that he is now clearly influenced by pleasant experiences in respect of his life in Australia over the last seven months. The child has made friends and he is well disposed to his new school. The child contrasts the more mundane aspects of his life in New Zealand with those now experienced by him in Australia.
Whilst it is easy to understand the child’s presentation, I find that it arises, or at the very least is primarily influenced by, the time he has spent with his mother and under her primary influence. It is an unfortunate consequence of the delay in the proceedings being heard. Whilst it is a matter of speculation, it is reasonable to opine that if the current hearing had occurred soon after the retention by the mother, the various life experiences that appear to be now enjoyed by the child would not have taken place. Given at the time of retention the child expressed a view that he missed his father it is likely that any wish and/or objection to return to New Zealand would not have been present if the matter had been heard earlier.
At paragraph [19], Ms C sets out the child’s reaction to the proposition of both parties living in the same country:-
[The child] began to cry again when it was suggested to him that it might be easier for him if both parents lived in the same country as he gave the impression of loving them both equally. He said, “no....if Mum and Dad were together they would fight….they fight about who I will live with…they always fight about me.
As previously stated, Ms C admitted that her report was predicated upon a view that a return order would inevitably see the child returning to live with his father. It is implicit in the answers given by Ms C under cross-examination that her view would be different if it was not a return to father but rather, a return to country as the guiding proposition.
I am however of the view that the child is not fearful of his father, continues to love him and expresses a clear position that he wants to see his father on a regular basis. What he doesn’t want to happen is that both of his parents reside geographically close to each other.
Accordingly, I disagree with the summary as set out in paragraph [35] of the Hague Convention Family Report and consider that notwithstanding the view expressed by the child against a return to New Zealand it is a position significantly confused by the parental conflict. Furthermore, I find that the child has been influenced in his opinion not necessarily overtly by the mother but by the mischief created in respect of inappropriate delay in the resolution and hearing of this matter and the limited contact that the child has had with his father over the ensuing seven months.
I do not find that the child is at risk of physical or psychological harm if returned to New Zealand.
Conclusion
Given my findings concerning the inapplicability of any of the exceptions to a return order contained in subregulation 16(3), I do not consider that I need to engage with the residual discretion as provided for in subregulation 16(5) of the Child Abduction Regulations.
The evidence supports a finding that the child has been habitually resident in New Zealand at the time or immediately prior to the retention of the child in Australia by his mother. There is a clear finding that at the time of retention the father had rights of custody in respect of the child and that he was actually exercising those rights, or would have exercised those rights if the child had not been removed or retained. The retention of the child in Australia was wrongful within the meaning of subregulation 16(1A) of the Child Abduction Regulations. In addition, I find that none of the exceptions as set out in subregulation 16(3) of the Child Abduction Regulations that were relied upon by the mother have merit or should have application to the matter at hand.
I propose that the child be returned to New Zealand as soon as appropriate in all of the circumstances.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 August 2013.
Associate:
Date: 27 August 2013
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Consent
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Injunction
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Remedies
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Abuse of Process
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