(COMMISSIONER, WESTERN AUSTRALIA POLICE) and E

[2009] FCWA 40

[2009] FCWA 40

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS
LOCATION	:	PERTH
CITATION	:	(COMMISSIONER, WESTERN AUSTRALIA POLICE) and E [2009] FCWA 40
CORAM	:	PENNY J
HEARD	:	20 APRIL 2009
DELIVERED	:	24 APRIL 2009
FILE NO/S	:	PTW 496 of 2009
BETWEEN	:	KARL JOSEPH O'CALLAGHAN
(COMMISSIONER, WESTERN AUSTRALIA POLICE) Applicant
AND
E Respondent/Father
Catchwords:

Hague Convention application for return of child to New Zealand

Legislation:

Family Law (Child Abduction Convention) Regulations

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms N Eagling
Respondent	:	Self Represented Litigant

[2009] FCWA 40

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Not Applicable

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

DP v Cth Central Authority (2001) 206 CLR 401
Gsponer v Johnstone (1988) 12 Fam LR 755

[2009] FCWA 40

1 This application is brought by the Central Authority seeking an order pursuant to

Reg 14(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 for the return of the child [A- BE] (“A”) to New Zealand. The Central Authority was requested to take this action by [Mrs R], [A]’s grandmother and legal guardian.

2 The application is opposed by the respondent, who is the father of [A].

3 [A] has always lived in New Zealand, mainly with [Mrs R]. In 2000 the Family

Court at [the capital city] made a custody order in favour of [Mrs R] and an additional guardian order in her favour.

4 The respondent resided in [the capital city] until early 2007, when he re-

partnered and commenced living in Perth. [A] visited her father in Perth with her
paternal grandparents at Easter 2008 and enjoyed the visit.

5 [A] was to enter high school this year and was enrolled to attend [the capital city] Girls School.

6 It was decided that she should visit the respondent in Perth over the summer

vacation. She departed [the capital city] on 20 December 2008 and was supposed to
leave Perth to return to [the capital city] on 1 February 2009.

7 On 10 January 2009 [A] sent an email to [Mrs R]’s partner,[Mr N], saying,

among other things, “and i want to stay and go to school here. i got my own room:
And yeah.” The response the next day from [Mr N] was that:

“Everyone here thinks you should return to [the capital city] as arranged and start @ [the capital city girls school] where you are enrolled with your friends. Any change of school or country or both will be complicated and too hard to sort out in just a few weeks.”

8 This email was followed up by an email from the respondent stating that [A]

herself had decided to stay in Perth and neither the respondent, nor his wife, had
influenced her decision.

9 In an email from the respondent to [Mr N] on 23 January 2009 he acknowledges

that “when [A] was sent over here we agreed she would return on 1 February 2009.” He stated that she would not now be returning, as to do so would be to place in an unsafe environment.

10 [A] was not returned to New Zealand and the Central Authority filed the application for the return of [A] on 5 February 2009.

11 There is no dispute on the facts that reg 13(1) applies. [Mrs R] has rights of

custody in respect of [A] and she was retained in Australia by the respondent when he

failed to return her to New Zealand on 1 February 2009.

12 Regulation 16(1) states that:

[2009] FCWA 40

If:

(a)	an application for a return for a child is made; and
(b)	the application … is filed within one year after the child’s removal or retention; and
(c)	the responsible Central Authority … satisfies the court that the child’s removal or retention was wrongful under sub- regulation (1A);

the Court must, subject to subregulation (3), make the order.

13 The application was filed within a year after [A]’s retention. The issue for

determination by me is whether [A]’s retention was wrongful and if it was, whether there are any matters raised by the respondent pursuant to reg 16(3) which would result in the Court refusing to make an order for the child to be returned.

14 Regulation 16(1A) states:

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, 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.

15 Paragraph (a) is satisfied. [A] was born [in] January 1996 and had her

13th birthday in Perth this year. It is not in dispute that [A] was habitually resident in New Zealand immediately before her retention in Australia and New Zealand is a convention country.

16 “Rights of custody” is defined in reg 4:

[2009] FCWA 40

(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.

17 [A] was resident in New Zealand before her retention in Australia and [Mrs R]

had rights of custody which arose by operation of law (reg 4(3)) in that there was a custody order made in her favour in 2000. In particular, she had the right to determine the place of residence of [A] (reg 4(2)).

18 It is not in dispute that [A]’s retention in Australia was in breach of [Mrs R]’s

rights of custody.

19 The respondent states that [Mrs R] was not exercising her rights of custody as

she had suffered a stroke and was bedridden. After having the stroke, [Mrs R] was in and out of hospital for a time. Prior to [A]’s trip to Perth, [Mrs R] was bedridden, but was living in the same home as [A], making decisions in relation to her long term care, welfare and development, for example, which school she should attend; and providing emotional and financial support for her. The physical activities required to care for her were completed by her partner, [Mr N]. I am satisfied that despite her illness she had the mental capacity to make decisions in relation to [A] and was assisted in exercising her rights of custody by her partner, [Mr N].

20 There are two other matters raised in reg 16(3) which enliven the Court’s

discretion to refuse to return a child. The first is that there is a grave risk that the return of the child under the convention will expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation (reg 16(3)(b)) and the second, that the child objects to her return to New Zealand.

21 The respondent says that to return [A] to New Zealand would expose her to a

grave risk of physical or psychological harm. The onus of proof of this lies with the party opposing the return. In DP v Cth Central Authority (2001) 206 CLR 401 at 416, the High Court (Gaudron, Gummow and Hayne JJ) stated:

It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that enquiry. Often enough, the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return. It is important to notice that this answer has two parts: first, that there will be judicial proceedings in the country of return and, second, that the feared harm which is alleged can be a matter relevant to those proceedings. Both parts

[2009] FCWA 40

of that answer are important if it is to meet a contention that return will
expose the child to a grave risk of harm.

22 The respondent raises two issues in respect of the issue of grave harm. The first

is the negative influence upon [A] of residing with her sister, [(“L”)] and the second is
the fact of [Mrs R]’s disability.

23 The respondent says the risk to [A] results from the fact that [Mrs R] has had a

stroke and is unable to physically care for and supervise her. He further states that the
child [L] and her friends were a poor influence on [A] and she is frightened of them.

24 It has been conceded that [L] had serious behavioural and other issues. After

[A] left for Australia, [L] stole a credit card and cash from [Mrs R]. She no longer resides with her and now resides with her mother in [another town]. The mother of [L] and [A], [the mother], has suffered from mental health issues and has not been primarily responsible for the care of either child for a number of years. When she was responsible for their care it was with the assistance of [Mrs R], the respondent and various nannies.

25 The respondent says that [A] was poorly dressed and poorly fed when she resided with [Mrs R]. He further alleges that she was unsupervised.

26 While all these matters may give rise to concern as to the wellbeing of [A]

should she be returned to [Mrs R]’s care, they do not, in my view, amount to a grave risk of exposure to harm should she be returned to New Zealand. The matters raised by the respondent are all matters which would be relevant to an application properly made in the New Zealand court as to the appropriate residence for [A]. The court in New Zealand has jurisdiction to deal with this issue and make findings on the matters raised by the respondent. Clearly the appropriate forum for such an examination of these facts is New Zealand, where the witnesses who can give evidence about the circumstances of the care provided to [A] by [Mrs R] can be examined, including health professionals, school teachers and officers from the Department of Child Protection.

27 In my view, there is no grave risk of exposure to harm which cannot be

adequately investigated and dealt with by the court in New Zealand, if necessary, on
an interim basis.

28 The respondent states that [A] objects to being returned and that wishes should be taken into account.

29 [A] was interviewed by [the Family Consultant], who published his report on

16 April 2009. In discussion with [the Family Consultant], [A] stated that after her arrival her father had asked her if she wanted to stay in Australia, and she told him wanted to stay and visit New Zealand. She described enjoying fishing with her father and playing with broken cars. She stated she knew her father loved her because he supported her decision to stay in Australia.

30 [A] reported she likes to spend time with her mother. She speaks to her mother every weekend and her mother wants her to go back to New Zealand.

[2009] FCWA 40

31 [A] said she had a good relationship with [Mrs R] and described her as a nice person. She stated she misses her, but said she misses [L] most of all.

32 She reported that after her grandmother had a stroke, [L]’s friends used to stay at

the house and she was afraid to sleep there. She said she would go to an aunt’s or a
friend’s house to sleep.

33 [A] described being upset when her father moved to Australia in 2007. She

described liking it in Australia when she visited at Easter, but at that time did not want to stay. It was after her return to New Zealand that [Mrs R] had a stroke. She stated that if [Mrs R] had not had a stroke she would have been happy to go back to New Zealand now.

34 On two occasions [A] said that she would not mind which place she lived as

long as should could come back to see her father in Australia. She stated if she returned to live in New Zealand she would not want to live with her grandmother, preferring to either live with her mother and [L], or her paternal grandparents.

35 [A] stated she knew the respondent wanted her to live in Australia and said “I’d

love to stay here and love to stay in New Zealand”. She stated her ideal situation
would be for her and the respondent to be living in New Zealand.

36 [A] is obviously torn between wishing to live with her father and wishing to live

in New Zealand, where her grandparents, mother, sister and other family members and friends reside. In Gsponer v Johnstone (1988) 12 Fam LR 755 at 767 the Full Court (Fogarty, Frederico and Joske JJ) differentiated between return of the child to the party who previously had custody of the child and the return of the child to the country in which they had been habitually resident.

37 At 768 the Court stated as follows:

Orders under the Convention are in reality directed to the return of the child to the other country, and this would be so as a matter of practical reality even if the “applicant” under reg 13 is the other parent. This is made clear from the preamble to the Convention which speaks of the “prompt return (of the child) to the State of their habitual residence.” Once the child has been so returned, no doubt the appropriate court in that country will make whatever orders are then thought to be suitable for the future custody and general welfare of that child, including any interim orders.

38 In my view, the respondent has not proved either that there is a grave risk of [A]

being exposed to physical or psychological harm, or that she shows an objection to returning to New Zealand with a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

39 The appropriate order should be that [A] be returned forthwith to New Zealand.

The relevant child protection authority in New Zealand should be advised of the concerns raised by the respondent in his affidavit. Upon the child’s return there is no

[2009] FCWA 40

reason why the respondent cannot make an immediate application to the appropriate

court in relation to the residence of [A].

I certify that the preceding [39] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate