COMMISSIONER, WESTERN AUSTRALIA POLICE and BEECH

[2017] FCWA 79

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 (Cth)

LOCATION: PERTH

CITATION: COMMISSIONER, WESTERN AUSTRALIA POLICE and BEECH [2017] FCWA 79

CORAM: DUNCANSON J

HEARD: 18 APRIL 2017

DELIVERED : 13 JUNE 2017

FILE NO/S: PTW 3162 of 2016

BETWEEN: KARL JOSEPH O'CALLAGHAN COMMISSIONER, WESTERN AUSTRALIA POLICE

Applicant

AND

MR BEECH
Respondent

Catchwords:

FAMILY LAW - CHILD ABDUCTION - Hague Convention - Whether the removal of a child from New Zealand to Australia was wrongful - Rights of custody - Conclusion that father is the biological father of the child and was living in a de facto relationship with the mother at the relevant time - Where the removal was wrongful - Grave risk - Acquiescence - Where there are no grounds to refuse to make an order for the return of the child

Legislation:

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980
Care of Children Act 2004 (NZ)
Interpretation Act 1999 (NZ)

Category: Reportable

Representation:

Counsel:

Applicant: Ms C Thatcher

Respondent: Mr M Nicholls QC

Independent Children's Lawyer : Mr R Bannerman

Solicitors:

Applicant: State Solicitor's Office

Respondent: Legal Aid WA

Independent Children's Lawyer : Bannerman Solicitors

Case(s) referred to in judgment(s):

DP v Commonwealth Central Authority; JLM v Director General, NSW Department of Community Services (2001) 206 CLR 401

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1These proceedings concern the child [Child A] who was born [in] 2011 in New Zealand.

2[In] January 2016 the child’s mother [Ms Beech] brought the child to Australia from New Zealand. [Mr Prescott] who asserts he is the child’s father, (and who, for the purpose of these proceedings, I refer to as “the father”) seeks her return to New Zealand.

3This is an application by the Commissioner of the Western Australia Police who represents the Central Authority for the return of the child to New Zealand.

4The father alleges the child was wrongfully removed to Australia by the mother. The mother is not a party to these proceedings. The mother left the child in the care of the maternal uncle, [Mr Birch]. The mother has since returned to New Zealand. The maternal uncle opposes the return of the child to New Zealand on the basis that:

•there is insufficient evidence to satisfy the court that the father had rights of custody in relation to the child in New Zealand immediately before her removal to Australia;

•there is a grave risk that returning the child to New Zealand would expose her to physical or psychological harm or otherwise place her in an intolerable situation;

•the father acquiesced in the child’s removal to Australia.

5It is necessary for the Court to determine whether the child’s removal to Australia was wrongful.

6In determining that issue, the main question to be answered is whether the father had rights of custody in relation to the child under the law of New Zealand immediately prior to her removal to Australia. If the Commissioner establishes that the father had rights of custody it is necessary for the Court to consider the exceptions to the mandatory return of the child.

7The maternal uncle asserts the father subsequently acquiesced to the child’s removal to Australia. He further asserts that the return of the child will expose her to a grave risk of harm or place her in an intolerable situation. The onus of establishing acquiescence and grave risk rests with the maternal uncle.

BACKGROUND

8The father was born [in] 1981 in New Zealand. The mother was born [in] 1986, also in New Zealand.

9The maternal uncle was born [in] 1984. He lives in Australia with his partner, [Ms Rowley] and their two sons.

10The mother has two children from a previous relationship: [Child B] who was born [in] 2002, and [Child C] who was born [in] 2004.

11The mother and father commenced a relationship in 2004.

12They lived together in New Zealand with the mother’s two children.

13In 2007 Child, Youth and Family (“CYF”) were notified about Child B and Child C following concerns about emotional abuse and neglect and the mother’s ability to look after the children due to her mental health and suicidal tendencies.

14Further notifications to CYF were made in April 2009 including that the mother and father were drinking and using “crack”, and were verbally abusive to each other in front of the children. Child B and Child C were reported as being scared of the father.

15In September 2009 Child B and Child C were placed in the care of the maternal grandparents. [In] February 2010 interim parenting orders were made that the maternal grandparents have the day to day care of Child B and Child C and the mother have supervised contact with them.

16After the child’s birth in 2011, the mother and father continued in a relationship until about late 2013 when the relationship ended.

17The child spent time with the father.

18In mid-2014 the father commenced a relationship with [Ms Hitchens].

19The child last spent time with the father in December 2015.

20[In] January 2016 the father commenced proceedings for a parenting order in the New Zealand Family Court.

21[In] January 2016 the mother brought the child to Australia. She placed the child in the care of the maternal uncle.

22Thereafter text messages were exchanged between the mother and the father to which I refer below.

23The mother returned to New Zealand in about May 2016. She is believed to be living in Auckland and has not participated in these proceedings.

24The father made his application for the return of the child [in] June 2016. On 12 September 2016 Mr Bannerman was appointed as the Independent Children’s Lawyer.

25On 23 September 2016 the Family Consultant’s report was published.

THE APPLICABLE LAW

26The father’s application for the return of the child to New Zealand is made pursuant to regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Convention on the Civil Aspects of International Child Abduction (“the Convention”) is implemented in Australia by the Regulations which are made under s 111B of the Family Law Act 1975 (Cth) (“the Act”).

27Article 1 of the Convention states that the objects of the Convention are:

a to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

THE RELEVANT PROVISIONS OF THE REGULATIONS

28Regulation 1A provides:

(1)The purpose of these Regulations is to give effect to section 111B of the Act.

(2)These Regulations are intended to be construed:

(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and

(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and

(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.

29Regulation 16 provides:

Obligation to make a return order

(1)If:

(a)an application for a return order for a child is made; and

(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and

(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);

the court must, subject to sub regulation (3), make the order.

30This application was filed [in] June 2016, within one year after the child’s removal from New Zealand to Australia. Therefore, provided the requirements of Regulation 16(1) are met and no exception is established under Regulation 16(3), the Court must make the return order.

31The Commissioner must satisfy the Court that the child’s removal to Australia was wrongful. Regulation 16(1A) provides as follows:

(1A)For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

(a)the child was under 16; and

(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

(c)the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

(d)the child's removal to, or retention in, Australia is in breach of those rights of custody; and

(e)at the time of the child's removal or retention, the person, institution or other body:

(i)was actually exercising the rights of custody (either jointly or alone); or

(ii)would have exercised those rights if the child had not been removed or retained.

32Subregulations (1A)(a) and (1A)(b) are uncontentious. With respect to subregulations (1A)(c) and (1A)(d), the maternal uncle disputes that the father had rights of custody in relation to the child immediately before her removal, and consequently that her removal to Australia is in breach of those rights of custody.

33The question therefore to be determined is whether the father had rights of custody in relation to the child under New Zealand law immediately prior to her removal to Australia [in] January 2016.

RIGHTS OF CUSTODY

34Regulation 4 provides:

Meaning of rights of custody

(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.

35It is not in dispute that the child was habitually resident in New Zealand immediately before her removal and retention in Australia. The Commissioner submits at [43] that the evidence is sufficient to establish, on the balance of probabilities, that the father had rights of custody in respect of the child under the law of New Zealand [in] November 2016. This is a simple error in the written submissions of the Commissioner who should have referred to January 2016, being the date of removal.

36The Commissioner relied upon the affidavit of Jacinda Helena Rennie, a Barrister and Solicitor of the High Court in New Zealand, sworn 24 May 2016.

37The Care of Children Act 2004 (NZ) (“the New Zealand Act”) which came into effect on 1 July 2005 defines the rights and responsibilities of parents in New Zealand in relation to their children.

38Ms Rennie deposes that the cumulative effect of various sections of the New Zealand Act is that if a parent has rights of guardianship, then he will have rights of custody pursuant to the Convention.

39Rights of custody are defined in s 97 of the New Zealand Act and include rights relating to the care of the child and the right to determine the child’s place of residence.

40Ms Rennie deposes that the father has rights of custody because he is a guardian of the child pursuant to s 17 of the New Zealand Act. She deposes he is a joint guardian with the mother because he was living with her in a de facto relationship prior to, and after, the conception of the child.

41Section 17 relevantly provides:

17 Child’s father and mother usually joint guardians

(1)The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of subsection (2) or subsection (3).

(2)If a child is conceived on or after the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—

(a)married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor

(b)living with the father of the child as a de facto partner at any time during that period.

…

42Ms Rennie deposes a de facto relationship is not defined in the New Zealand Act, although it is defined in the Interpretation Act 1999 (NZ) as a relationship between a couple who live together as a couple in a relationship in the nature of marriage.

43Ms Rennie deposes as the father and mother are joint guardians, pursuant to s 15 of the New Zealand Act they have all duties, powers, rights and responsibilities that a parent of a child has in relation to the upbringing of the child. This includes:

(a)having the role of providing day to day care for the child (s 16(1)(a)); and

(b)determining changes to the child’s place of residence (s 16(2)(b)).

44The Commissioner submits the father has rights of custody because he is a parent of the child and a guardian of the child pursuant to s 17 of the New Zealand Act. It is not in dispute that the mother and father were neither married nor in a civil union. The Commissioner submits the father is a joint guardian with the mother because he was living in a de facto relationship with her prior to and after the conception of the child, and as a joint guardian he has the right to determine changes to the child’s place of residence.

45For the father to be the child’s guardian the Commissioner must satisfy the Court on the balance of probabilities that:

•the father is the child’s biological father; and

•he was living with the child’s mother as a de facto partner at any time between the child’s conception and birth (s 17(2) of the New Zealand Act).

46The maternal uncle submits the Commissioner has failed to so satisfy the Court.

Is the father the child’s biological father?

47The father asserts he is the child’s father in these proceedings. In his application to the New Zealand Family Court filed [in] January 2016 the father says he is the child’s natural parent. He says he is not on the child’s birth certificate, but says the mother acknowledges he is the father. He says he has been acting as the child’s father since birth. In his said application the father makes references to his daughter and the bond between them.

48No finding as to paternity is made in the New Zealand Family Court and the Judge’s Memorandum states:

However applicant appears possibly guardian and if so he should be consulted about any relocation to Australia …

49The father contradicts his assertions that he is the child’s father in text messages to the mother sent on 25 March 2016 and 6 May 2016.

50The father deposes when he and the mother have a disagreement, she often says he is not the father of the child as “she knows it will be what gets to me the most”. On the other hand, the mother referred to him as “the worst father alive” in a text message dated 25 March 2016. The maternal uncle referred to the father as the child’s father in a text message dated 21 April 2016, in the context of seeking financial support for the child. The maternal aunt referred to the father as the child’s father when she said to the Family Consultant “we don’t mention her Dad … She doesn’t like her Dad, she does miss her brother and sister”.

51The texts messages were sent by the father and the mother in the course of arguments between them. They were abusive and offensive. The father deposed he said he was not the child’s father “in the heat of the moment”.

52In evidence the father explained that he said he was not the child’s father in text messages out of anger and frustration. He said he received abusive text messages from the mother every day saying he was not going to see his daughter or he was not her dad and never would be.

53Having regard to the circumstances in which text messages were sent, and statements made by both parties, I consider little weight can be placed upon this contradictory evidence.

54The father is not on the child’s birth certificate. He said this was his choice, in the context of providing financially for the child. The father told the Family Consultant he was not named on the child’s birth certificate so that the mother “couldn’t shaft me basically about the money, she always threatened to take money”. The father is willing to undergo parentage testing, but that is not possible in the absence of the mother’s consent.

55In evidence, the father told the Independent Children’s Lawyer that he had recently spoken to the mother on the phone and said she was living in Auckland. He said the outcome of the conversation was that she would agree to the DNA test being done. He went on to say “And she admitted that [Child A] was a daddy’s girl”. The Independent Children’s Lawyer subsequently confirmed notwithstanding the father’s evidence regarding DNA testing, it had been impossible to engage with the mother.

56When asked when he last sent money to support the child he explained he had not done so because he did not want to “enable” the mother to keep his daughter in Australia.

57The father has acted as the child’s father since her birth. He has cared for her on occasions and spent time with her. She calls him Dad.

58The mother and father were in a relationship which I describe below. It was an exclusive relationship.

59There was no suggestion that any other person could be identified as a possible father of the child.

Was the mother living with the father as a de facto partner?

60I now turn to whether the father was living with the mother as her de facto partner at any time between the child’s conception and birth, that is between about the end of 2010 and [mid] 2011.

61The father deposes he and the mother lived together from 2004 until the end of 2013. They lived apart for about a year which the father says “was way before [Child A] was born”. He travelled for work and lived away during the weekdays. The father deposes he and the mother were living together when the child was conceived, at the time of her birth and until the child was about two and a half years old, when he and the mother separated.

62The father said after the child’s birth the mother often travelled with him when he worked away. He provided financially for her and the child and she had use of his bank card.

63Prior to and during the period between [the end of] 2010 and [mid] 2011 the father had his own home, a rural property at [Town D]. He had lived there for years. It was his base from which he travelled away for work in Auckland and elsewhere. He returned to the property every third or fourth weekend. During that time the mother lived with him either at this house or she travelled with him. She also lived with her parents.

64When the father and the mother were together at his home, they slept together in the same room. The mother had possessions at his home and also at her parents’ home. The father supported the mother financially. He gave her three or four hundred dollars every week. She had his bank card and would get anything she needed. If they were not together, the father transferred funds to the mother.

65After the child’s birth the mother and child were with the father in Auckland for most of the time that he worked there.

66The father said the relationship was very off and on and he would not describe it as “committed”. He may have been referring to the time after the child’s birth because he said “Only reason I stayed with her was because of [Child A]”.

67A number of documents annexed to the affidavit of the maternal uncle suggest that at least until late 2009, the mother’s family unit comprised her, the father and Child B and Child C.

68In August 2009 Child B and Child C spoke with a social worker from CYF. The case note details record that Child C spoke about “mum and [Mr Prescott] fighting – always fight and hurt my Mum”. She also said “Wish I had a nicer Dad”.

69The case note details refer to the parents stating they have verbal arguments and the “stepfather” stating he has temper. The children witness the verbal violence between their parents. The case note details state “Mothers partner works long hours and away from home”. They further describe all actions taken or planned to keep the children safe as including relationship counselling for the parents.

70The case note details dated 22 September 2009 refer to concerns for Child B and Child C while in the care of the mother and her partner.

71Further case note details refer to a social worker’s interview with the mother and the father stating the children appeared to engage with their step-father to try and get their mother’s attention. At this time the maternal grandmother had concerns for the children in the care of the mother and her partner.

72The case note details dated 10 February 2010 refer to a telephone call with the maternal grandmother. At that time Child B and Child C were living with the maternal grandmother, but the mother who was living in Auckland was threatening to come and get the children. The grandmother reported that the mother and step-father are currently taking the drug “P” and there was reported to be domestic violence between the parents. The maternal grandmother reported the stepfather is now hitting the mother on a regular basis. The reference to the mother living in Auckland is consistent with the father’s evidence, that when he was not living in his own home he travelled away for work in Auckland and at times the mother travelled with him.

73Although the children made negative comments about their step-father it appears he was significantly involved in their lives in the earlier years and until late 2009.

74The documents indicate that after Child B and Child C began living with the maternal grandmother, the mother continued in a relationship with the father and was in a relationship with him as at February 2010.

75The Memorandum of Lawyer for the Children dated 25 February 2010 refers to whether the children ought to be permitted to have any contact with the mother’s partner Mr Prescott. It states “The concerns about the mother surround domestic violence between her and [Mr Prescott] and a generally unstable lifestyle”.

76Queen’s Counsel for the maternal uncle submitted that the parties’ relationship was characterised “correctly as an off and on opportunistic, exploitative, violent relationship in which Child A’s mother was taking drugs involved in prostitution and there was nothing in the level of commitment that you would look for in something in the nature of a marriage”.

77The relationship was a violent one. The maternal uncle deposed to visiting the mother after the father had allegedly assaulted her. She was pregnant and she was nursing an injury to her head. The father denied he was responsible for it. The relationship certainly appears to have been a violent one, but it was still a relationship in which the parties lived together as de facto partners. It was an exclusive relationship which had endured albeit with difficulties for several years. The parties lived together as a couple when the father was home from work and also when he was working away. He provided financial support to the mother and there was no suggestion of the parties sharing their lives with any other person. The maternal uncle told the Family Consultant the father was jealous of the mother having contact with anyone apart from the father.

78Queen’s Counsel for the maternal uncle submitted that the problem with the evidence was that nearly all of it comes from one unreliable source. I accept the father has made inconsistent statements as to whether he is the child’s father, but I also find his explanation for doing so, usually in the context of being asked for money, to be plausible. There is no sworn evidence from the mother regarding paternity or the nature and extent of her relationship with the father.

79The maternal uncle deposes he does not know who the child’s father is. However he told the Family Consultant he has communicated with the father to inform him of the child’s progress and he has requested financial assistance from him to purchase clothes for the child.

80The maternal uncle told the Family Consultant he said to the father “she’s your daughter, help her out”, but said the father denies the child is his biological daughter.

81The Family Consultant reported that the maternal uncle is of the view that the mother and the father separated on the child’s fourth birthday after “he walked out”.

82The independent evidence, primarily the CYF documents concerning Child B and Child C places the parties in what appears to be a de facto relationship at the time orders were made placing those children in the care of the maternal grandparents and both prior to and after that. This provides some corroboration of the father’s evidence.

83Considering the evidence as a whole, I am satisfied on the balance of probabilities that the father is the child’s biological father and the parties were living in a de facto relationship between the time of the child’s conception, around the end of 2010 and the time of the child’s birth [in mid] 2011. In satisfying myself to this effect, I have taken into account the seriousness of the likely impact of my decision upon the child.

84Consequently I find the father is the child’s guardian and has rights of custody.

85The child spent time with the father on an ad hoc basis, he said usually once a month. The last time the father spent time with the child was in December 2015. I further find at the time of the child’s removal the father was exercising his rights of custody.

86I find all of the matters in subregulation 16(1A) to have been proved and I am satisfied the child’s removal was wrongful.

EXCEPTIONS CONTAINED IN SUBREGULATION 16(3)

(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

(a)the 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; or

(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

87The exceptions provide a means by which the maternal uncle may resist the application for a return order despite the Commissioner establishing the factors referred to in subregulation 16(1) of the Regulations.

88I am not required to refuse to make a return order merely because the maternal uncle establishes an exception within the meaning of subregulation 16(3) of the Regulations by reason of the residual discretion provided for by subregulation 16(5).

GRAVE RISK

89The maternal uncle relies on the exception contained within reg 16(3)(b).

90He submits the Court should exercise its discretion to decline to return the child to New Zealand because the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

91The maternal uncle submits the application for the return of the child identifies the father as the person to whom the child is to be returned and the father proposes that the child live in his day to day care as the mother appears to have abandoned her.

92There are allegations of family violence involving the father. As discussed above, they include allegations of violence by him towards the mother in the presence of the children Child B and Child C who refer to them fighting and the mother being hurt. The case note details refer to the father having a temper and Child B and Child C witnessing verbal domestic violence in the home on a regular basis. The children referred to the father belting them. The father’s criminal record discloses domestic disputes and assaults on women.

93When the mother and father lived together they used “crack” and drank heavily.

94Most recently [in] September 2015 the father was charged with assault on Ms Hitchens and [in] July 2016 Ms Hitchens contacted the police to report an argument.

95The child has been affected by the father’s behaviour and the Family Consultant stated that she is reportedly anxious when speaking about her father.

96The child has not lived in the father’s care since the parties separated in 2013 when the child was just two and a half years of age. Thereafter she spent time with him about once a month although the father said the child was left in his care at times by the mother.

97The father has not given a great deal of thought to the practical aspects of his proposal that the child live with him upon her return. He has not made any inquiries regarding her schooling. His partner, who he proposes would be significantly involved in the child’s care, has met the child only once. The father has no relationship with the maternal grandparents who have Child B and Child C in their care and was unsure about arrangements whereby the child would see her half-brother and half-sister. Currently the father’s hours of work vary but he said he would ensure that his work was local and he would work school hours.

98The father accepts the child is currently settled with the maternal uncle. He has discussed obtaining counselling for her but has not organised anything as yet.

99In cross-examination the father conceded that the child may have to live with the maternal grandparents while he re‑established his relationship with her.

100The father was asked about alcohol and drugs and said he had attended drug and alcohol counselling and an anger management course.

101The father attended four counselling sessions but the counsellor started “preaching the bible” to him so he ended it. He thought about seeing another counsellor but he has been “flat out” at work.

102The father had been prescribed antidepressants but ceased taking them because he said he was not depressed.

103The father said he does not do drugs anymore and does not socialise with people he used to socialise with.

104Regulation 16(3)(b) is confined to the grave risk of harm to the child arising from her return to New Zealand rather than her return to the father.

105This Court can assume that once the child is so returned the courts in New Zealand are appropriately equipped to make suitable arrangements for her welfare.

106There are already proceedings concerning the child on foot in New Zealand, the father having applied for a parenting order to the Family Court, Wellington District [in] January 2016. The mother is the respondent in those proceedings.

107The Commissioner relies on the affidavit of Leona Kaye McWilliam, Barrister and Solicitor of the High Court in New Zealand sworn 28 July 2016.

108Ms McWilliam deposes that the New Zealand Act contains specific provisions to ensure a child’s safety in the care of any person.

109In DP v Commonwealth Central Authority; JLM v Director General, NSW Department of Community Services (2001) 206 CLR 401 Gaudron, Gummow and Hayne JJ stated at 417 - 418, in relation to reg 16(3)(b) as follows:

… The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned.

…

Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”.

…

Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence

…

These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. … The exception is to be given the meaning its words require.

That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.

110I have concerns about the return of the child if she is immediately placed into the care of the father as sought by him for reasons set out above. Those concerns can be addressed by the imposition of appropriate conditions for the return. It is however for the courts in New Zealand to determine the welfare of the child upon her return. In that regard it was suggested that the maternal grandparents may have a role to play. The mother may participate in the parenting proceedings if the child is returned.

111It appears the child is comfortable with family members in New Zealand. The Family Consultant reported that she smiled when she spoke about her family, which she described as her grandparents, her older brother and sister as well as her “uncle and the boys and aunty”. She commented to the Family Consultant “Mummy’s kind”.

112The child was born in New Zealand, as were her parents. Until January 2016 the child lived in New Zealand. Her parents, maternal grandparents and half-siblings live in New Zealand.

113There are similarities in the law between New Zealand and Australia where the best interests principle will apply. In these circumstances issues relating to custody and grave risk are best dealt with in New Zealand, being the country of the child’s habitual residence.

ACQUIESCENCE

114The maternal uncle also relies on the exception contained in regulation 16(3)(a)(ii) and asserts the father subsequently acquiesced to the child being removed to Australia. The onus of proof in relation to acquiescence rests upon the maternal uncle and to discharge that onus he must establish clear, unequivocal and unqualified acquiescence.

115The high point of the maternal uncle’s evidence in this respect comprise the text messages sent by the father to the mother in which he uses foul language suggesting he wants nothing further to do with her.

116The father’s text messages were sent in the course of disagreements between the parties. On the contrary, when the mother first suggested she might remove the child from New Zealand the father filed an application to the court on January 2016 seeking a parenting order. In that application he states he would like the child to remain in New Zealand. He subsequently made an application under the Convention [in] May 2016.

117I am not persuaded that the evidence is sufficient to establish that the father’s words or actions clearly and unequivocally showed and led the respondent to believe that the father was not asserting or going to assert his rights to seek the return of the child and that his words or actions were inconsistent with such return.

CONCLUSION

118I find the Commissioner has made out the case for the return of the child to New Zealand. Having regard to my concerns if the child were to be placed immediately in the care of the father, I will hear submissions from Counsel as to conditions to be imposed.

I certify that the preceding [118] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate