COMMISSIONER, WESTERN AUSTRALIA POLICE and MOORE
[2015] FCWA 46
•17 JUNE 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 (Cth)
LOCATION: PERTH
CITATION: COMMISSIONER, WESTERN AUSTRALIA POLICE and MOORE [2015] FCWA 46
CORAM: CRISFORD J
HEARD: 4 JUNE 2015
DELIVERED : 17 JUNE 2015
FILE NO/S: PTW 1495 of 2015
BETWEEN: KARL JOSEPH O'CALLAGHAN COMMISSIONER, WESTERN AUSTRALIA POLICE
Applicant
AND
MS MOORE
Respondent
Catchwords:
FAMILY LAW - CHILD ABDUCTION - Hague Convention - Where the father’s application is for the return of the child to New Zealand - where the Court found the child had been wrongfully removed from New Zealand - where there are no grounds to refuse to make an order for the return of the child - where the Court ordered the return of the child to New Zealand.
Legislation:
Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms Eagling
Respondent: Ms Heslop
Solicitors:
Applicant: State Solicitor's Office
Respondent: Cleveland & Co
Case(s) referred to in judgment(s):
De L v Director General NSW Department of Community Services (1996) 187 CLR 640
DP v Commonwealth Central Authority (2001) 206 CLR 401
LK and Director-General, Department of Community Services (2009) 237 CLR 582
Re M [1999] 1 FLR 171
Re W [2004] 2 FLR 499
Zotkiewicz v Commissioner of Police (No 2) (2011) FLC 93-472
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
1The Convention on the Civil Aspects of International Child Abduction, signed at The Hague on 25 October 1980, (“the Convention”) is implemented in Australia by the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
2The objects of the Convention as stated in Article 1 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.
3When a child is abducted to Australia, an application for the return of the child is made to the Commonwealth Central Authority (“the Central Authority”). This authority must take action by applying for an order of the Family Court under reg 14 to secure the return of the child to the country in which the child was habitually resident before the wrongful retention.
4The court to which the application is made must order the return of the child to the requesting state if certain pre-conditions are fulfilled and unless one or more of the exceptions to mandatory return are made out. If an exception does apply, there is a discretion not to return the child.
5The rationale behind the Convention is to ensure the prompt return of an abducted child to their country of habitual residence, the most appropriate forum for adjudicating issues of custody and parental responsibility between parents.
6The best interests of the child are not the immediate concern of the convention. In an English decision, Re W [2004] 2 FLR 499, Baron J stated at p 509:
In these cases, the authorities make it clear that in normal circumstances the courts of the country of habitual residence are best to determine issues relating to the welfare of the child, primarily because the best outcome for the child’s future will be identified by reference to past events and the physical, emotional, social and cultural milieu in which the family have lived. All these matters, including in particular any resolution of factual disputes relating to past events, are, prima facie, more easily addressed in courts of that state.
7The father is the parent who has requested the Central Authority to make this application for the return of the child to New Zealand after what he alleges is effectively an abduction to Australia. He says the child was taken by his mother to Australia after the parties had returned five months earlier to live in New Zealand permanently.
8The mother resists the Central Authority’s application. She asserts:
(a)the child is not a habitual resident of New Zealand;
(b)the father consented or subsequently acquiesced to the mother and the child relocating to Australia;
(c)the father was not exercising any rights of custody in New Zealand; and
(d)if the child is returned to New Zealand he will be in an intolerable situation.
9The Central Authority and the mother accept the first issue for the Court to determine is whether the child’s removal to Australia was wrongful. In that respect, the main question is where the child was habitually resident immediately prior to his removal to Australia. If the reason for the family coming to New Zealand was a permanent move and the mother subsequently changed her mind then it is likely I would find the habitual residence of the child to be New Zealand. If this is the case I would still need to address the other grounds upon which a court determines whether a removal is wrongful.
10If there are such grounds then I would still need to consider whether I ought to refuse to return the child to New Zealand. If I find the child should be returned it is necessary to look at how any risks there may be can be ameliorated by conditions being placed upon the return.
11It is clear from the words of reg 16(1)(c) that the onus is on the applicant to satisfy the Court that each of the elements of a wrongful removal or retention has been proved.
12The opening words of reg 16(3) also make clear that in establishing any grounds for refusal of return the onus is on the person opposing the return of the child. This was discussed by the High Court in De L v Director General NSW Department of Community Services (1996) 187 CLR 640, where Kirby J said at p 674 (footnotes omitted):
Clearly, the purpose of the amendment to reg 16(3) was to cast on the “person opposing return” the obligation of establishing the application of one or more of the exceptions.
Background
13Both parties were born in, and are citizens of, New Zealand. They commenced their relationship in Australia in late 2007 and married in [Suburb D] Western Australia in 2011. In November 2013 the child was born. The mother has two children from a previous relationship; [Child B] who is currently 15 years of age; and [Child C] who is 12 years of age. The father of those children resides in Western Australia.
14The parties lived in [Suburb D] Western Australia. In July 2014 the father was made redundant from his employment. On 16 August 2014, the parties relocated to New Zealand. The mother says that she was reluctant to move back to New Zealand. The father disputes this. He says it was an agreed permanent move back to their country of origin.
15In October 2014 the mother alleges that she became aware that the father was sexually assaulting Child B and this led to the parties’ separation on 19 October 2014. The mother notified the police.
16On 29 October 2014 the father was arrested at Auckland airport when he attempted to travel out of New Zealand to Western Australia. He was then charged with indecent assault and was granted bail on conditions. The father says he was leaving the country to return to Australia to find work on a temporary fly-in fly-out basis as he had not found work in New Zealand.
17On 5 November 2014 the father made contact with a family lawyer in New Zealand and on 14 November 2014 a temporary Customs Automated Passenger Processing System (“CAPPS”) listing was placed on the child’s passport. This listing was due to expire on 14 January 2015. The father says he instructed his lawyer to have it extended.
18[In] December 2014 the father entered a plea of not guilty to the charge of indecent assault. The trial is set to be heard [in] June 2015.
19The father spent time with the child on one occasion in November 2014 and again on 6 December 2014.
20The child was removed from New Zealand by the mother on 23 January 2015. They left by air and travelled to Western Australia where they now reside in [Suburb E].
21The father made his application for return on 25 February 2015.
The applicable law
22The father’s application for the return of the parties’ child is brought pursuant to reg 14 on the basis that the child has been wrongfully retained in Western Australia.
23Regulation 16 sets out a Court’s obligation to make a return order. In particular, sub-reg 16(1) states if:
(a)an application for a return order 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 sub-reg (3) make the order.
24Firstly, in the context of this particular matter, it is necessary to determine whether the child’s removal or retention is wrongful.
25Sub-regulation 16(1A) sets out that 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 has 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.
•Habitual Residence
26All five paragraphs in (1A) must be satisfied to establish that the child’s removal to or retention in Australia was wrongful. The contentious issues here are that of habitual residence and the exercise of rights of custody.
27I first turn to the question of the child’s habitual residence immediately before removal to, or retention in, Australia. “Habitual residence” is not defined in the Regulations. The determination of habitual residence is a question of fact in each individual case.
28Relevantly in LK and Director-General, Department of Community Services (2009) 237 CLR 582 the High Court said:
[22]… The search must be for where a person resides and whether residence at that place can be described as habitual.
[23]… it is sufficient for present purposes to make two points. First, application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.
…
[25]… it may be accepted that “[h]abitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities” (Scholes, Hay, Borchers and Symeonides, Conflict of Laws, 4th Ed (2004) at 247, 4.14). …
…
[27]When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. …
[28]Although intention is a necessary element in deciding domicile of choice, and “habitual residence” is chosen as a connecting factor in preference to domicile, examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.
[29]First, individuals do not always act with a clearly formed singular view of what is intended (or hoped) that the future will hold. Their intentions may be ambiguous. …
…
[33]Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. …
[34]Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
…
[44]… it is sufficient to observe that in P v Secretary for Justice [[2007] I NZLR 40], the effect of the decision in SK was described in the plurality reasons of the Court of Appeal of New Zealand … as holding that the inquiry into habitual residence is “a broad factual inquiry”. The plurality went on (69) to say in P:
“Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.”
29In Zotkiewicz v Commissioner of Police(No 2) (2011) FLC 93-472 the Full Court said, at [74], that in order to find someone is habitually resident in a place “they must generally have lived there for an ‘appreciable period’” and at [75] “what amounts to an “appreciable period” will differ from case to case, and in our view must be dependent to some extent on the intentions of the parents”.
30The Full Court said further at [81]:
… it is important to find a “strong and readily perceptible link” between the child and the country in which he is said to be habitually resident, as this recognises “that if children are to be linked to a State, and sent back there, they should have “a real and active connection with that place”. Additionally, as they say… concentration on the issue of whether, from the child’s perspective, there is a “real and active connection” with the purported place of habitual residence “further serves to distinguish the concept of habitual residence from that of domicile, which can be acquired immediately”.
Father’s position
31The Central Authority says that the habitual residence of the child immediately prior to the wrongful removal to Australia was New Zealand.
32The father says the parties’ return to New Zealand was an agreed course of action. He said the parties talked about it between themselves and there was nothing to indicate the mother did not want to return to live in New Zealand on a permanent basis as a family unit.
33On 9 July 2014, whilst still in Australia, the mother sent a Facebook message to her mother-in-law in New Zealand confirming the move. She talked of the parties plans to buy a house around the [Suburb F] area. However, she said that if it were not for her mother who was terminally ill she would not return to New Zealand. She then says that if her mother was not in New Zealand she would come “home” in any event because of the father’s desire to do so. She said she had the best intention and a positive outlook. She said [Suburb F] was to be the parties’ base but their plan was to go wherever the work was.
34The father says that the move was no small undertaking in that:
•The family’s belongings, including household items, two cars and a boat were shipped back to New Zealand at substantial expense;
•On 2 October 2014 the mother signed a lease agreement on behalf of the parties for a property in [Suburb F] to commence on 3 October 2014. This was for a periodic tenancy with no fixed term. Any notice to terminate was to be no less than 21 days. The rent was $295 each week payable in advance. A bond of $1,180 was to be paid before taking possession of the property; and
•The mother’s two daughters were enrolled in school and the child was also enrolled in a Maori Early Childhood Centre.
Mother’s position
35The mother says she did not leave Australia to return to New Zealand with any settled intention of always remaining in New Zealand. Her position is that it was for a trial period. She said the parties had agreed that “if we faced financial hardship in New Zealand we would return to Australia”.
36The mother highlights the fact that when the parties arrived in New Zealand she went to the South Island to assist her ill mother and the father remained with his family in the North Island. She joined him on 12 September 2014 at his request. Her other children remained with her mother until early October.
37She says the parties then only lived together for approximately one month and the total period of time in New Zealand was five months. She said the child only attended the Childhood Centre on a few occasions. The mother says the child has lived most of his life in Australia.
38She also highlights the father’s own attempt to return to Australia in late October 2014. She denies that it was simply for the purpose of work. She refers to text messages she received from him whilst he was at the airport just prior to his arrest. She asked the father if he was running away and he replied that he was starting a new life, it was time to move on and to chase his dreams. He did enquire about how he could pay child support for the child.
39The father’s evidence is that the parties had discussed him doing work on a fly-in fly-out basis from Australia if he was unable to obtain employment in New Zealand. He said this had been an option for the parties to consider once they were settled with a house in New Zealand. This would give them a base and he would return to Australia do such fly-in fly-out work. He said this is why he was leaving at that time. He also said he needed some space because of the allegations of indecent dealings.
40Whilst I consider the father’s attempt to return to Australia in late October 2014 to reflect some uncertainty of his intent, given the timing, I am not persuaded that immediately before the child’s removal in January 2015 the child was anything other than habitually resident in New Zealand.
41The parties, in my view, returned to New Zealand to make it their home base. They chose a rental property in very close proximity to the husband’s family rather than anywhere else in New Zealand. This is consistent with the Facebook exchange between the mother and the father’s mother prior to the parties coming to New Zealand. Even if the mother had some doubts about the relocation, understandably in the circumstances, I am satisfied they intended to raise the child in New Zealand and to live and work there. The mother had her own mother in New Zealand. If the parties were not able to find work then as a short term measure the father would seek work elsewhere but with New Zealand, and Suburb F in particular, being the base.
42The mother did not seek to terminate her tenancy of the rental property despite the parties’ difficulties. She was attending church and had some friends to rely upon. Although the parties were not there for very long, I find New Zealand was the child’s habitual residence at the time of his removal.
•Rights of Custody
43The next issue that the Central Authority needs to address is to be found in sub-reg 16(1A)(e). This relates to the exercise of rights of custody. It is common ground the father does have such rights. He is the natural father of the child and was married to the mother at the time of birth. As such he is a guardian of the child and this includes rights of custody. The question here relates to the exercise of such rights.
44When the child left New Zealand the parties were separated. They had separated on about 19 October 2014 in the context of allegations of sexual abuse levelled against the father by his stepdaughter.
45After the father was charged there were bail conditions in place that prevented him from associating or having contact directly or indirectly with his stepdaughter or with the mother. Despite this the parties utilised others to arrange two periods when the child could spend time with the father and his family. The people included a church pastor and two friends. The last of these periods was in December 2014.
46The father has attached some Facebook messages to his affidavit. Although the exact dates are uncertain it is clear they relate to a period of time between 19 October 2014 and 23 January 2015. I am satisfied that the father wanted to see his son and tried to do so although, the circumstances were very difficult. It was not easy to arrange. He enquired after the welfare of the child and his general circumstances.
47The father sought family law advice and secured a CAPPS listing to prevent the mother taking the child from the country. Unfortunately this expired after a few months and given the Christmas period steps were not taken in a timely fashion to renew it despite the father’s efforts. I accept his evidence in this regard.
48I am far from satisfied that the father had abandoned all responsibility for or contact with the child at the time the mother left the country. The mother did not tell the father of her intent to leave New Zealand. Once he became aware of the child’s removal it he took immediate steps to ensure a return.
49I find all the matters in sub-reg 16(1A) proved on the balance of probability and the removal of the child to have been wrongful.
•Refusal to make an order
50Sub-regulation 16(3) provides that the Court may refuse to make an order for the return of the child if the 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.”
51In her answer and cross application filed 11 May 2015 the mother, in opposing the father’s Hague Convention application, claims in the event the Court does not accept Australia was the child’s habitual residence that:
•the father consented or subsequently acquiesced to the child being retained in Australia; or
•upon the child’s return to New Zealand he would be placed in an intolerable situation; or
•the father was not exercising his rights of custody.
52As noted, the onus of establishing these exceptions rests with the mother (DP vCommonwealth Central Authority (2001) 206 CLR 401 at 416.)
•Exercising Rights of Custody
53I find that the father had wanted to see, and be involved with, the child prior to his removal. The circumstances were unusual and difficult. The failure to physically spend time does not equate to either abandonment of rights or disinterest. I have addressed this particular issue in the context of reg 16(1A) and I am satisfied that the applicant has established the father was exercising those rights at the time of the removal.
•Consent and Acquiescence
54In relation to the notions of consent and acquiescence it is important to understand they are distinct notions. In Re M [1999] 1 FLR 171: referring to reg 16(3)(a)(ii) Wall J stated that:
The word ‘subsequently’ ... only qualifies the word ‘acquiesced’. Consent, accordingly has to arise before the act of removal or retention: acquiescence can only arise after such an act.
55It is common ground that the father was not advised by the mother she was returning to Australia with the child. She gave no clear indication to his family. She was aware of the earlier CAPPS listing. The father had seen the child, at the latest in December 2014. This was some time after he had attempted to leave New Zealand for work in Australia. He was on bail and his opportunity to see the child was made difficult by this fact. It must also be noted the child was just over a year old. The father and his family were interested in the child up to the time of the removal and made this known to the mother via her friends and members of the church at which the parties had attended.
56Although, perhaps of marginal relevance, it is worth noting that the mother said during the course of her evidence at the trial that she had taken her two daughters from Western Australia without advising or obtaining the consent of their father. The mother said, by way of an explanation, that she had been angry with him. The father deposed to the mother being aware of the need to discuss the move with her daughters’ father. It appears to be something the mother was aware of yet she failed to undertake.
57The mother was asked why, knowing of the CAPPS listing, she did not seek leave of the court to return to Australia. She replied that she did not know how to do this. Later in her evidence she said she had a friend in New Zealand who is a lawyer.
58I am not satisfied that the mother has provided the Court with evidence, on the balance of probabilities, that the father consented to her return to Australia with the child or thereafter, he acquiesced to such a course. An application for the return of the child was made two days after the return to Australia and upon the father becoming aware of the removal.
•Intolerable Situation
59Further, the mother says the child will be in an intolerable situation if he is to return to New Zealand. There can be no doubt that the mother would be placed in a difficult situation if she had to return to New Zealand. She does not have accommodation, employment or the same support network that she has in Western Australia. The child would not return to the father but to New Zealand.
60It is to be borne in mind that the mother will have to return to New Zealand with her other children for the father’s criminal trial in any event. This is at the end of June 2015. There was no suggestion that the child, the subject of these proceedings, would be separated from his primary caregiver over that time. He will be returning to New Zealand, no doubt, for a period in any event.
61I do not accept the submission of the mother that the child “would suffer from a significant and upsetting change in circumstances.” The stability of the child is more related to him being with the mother than being in any particular physical environment. He will be with his mother and his siblings. This is his attachment.
62The mother was able to obtain accommodation when she was in New Zealand and she had the support of a local church. I have no doubt that the mother has some emotional resources and has contacts in New Zealand. Her mother resides in New Zealand.
63The mother’s situation will be difficult and unsatisfactory but it will not be intolerable in the sense of the legislation. There is no evidence of a grave risk of harm.
Conclusion
64I find the case for the return of the child to New Zealand to have been made out. I accept there are some concerns about accommodation and financial support and will hear submissions in this regard.
I certify that the preceding [64] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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