COMMONWEALTH CENTRAL AUTHORITY & FULLER

[2012] FamCA 395

FAMILY COURT OF AUSTRALIA

COMMONWEALTH CENTRAL AUTHORITY & FULLER [2012] FamCA 395

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Habitual residence and/or Acquiescence – where the mother and elder child had moved from Australia to New Zealand on numerous occasions – a second child born in Australia after the mother last left New Zealand which child was not subject to the application – consideration of the Full Court’s decision in Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472 in applying the test for determining the children’s habitual residence and taking into account all relevant matters together applying the settled principles applicable in determining habitual residence as set out by the High Court in LK v Director-General, Department of Community Services (2009) 237 CLR 582 – where on balance it was not established that the return of the mother and child to New Zealand from August 2010 to April 2011 was pursuant to a settled purpose further that the father had acquiesced to the mother’s April 2011 removal of the child from New Zealand – finally that the mother’s return to New Zealand with the child in June 2011 was for the express knowledge and initial consent of the father that the purpose of that trip was to enable the mother to collect possession and for the father to spend a short period of time with the elder child – the Central Authority’s application for the child to be returned to New Zealand is dismissed.

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14 and reg 16

State Central Authority v Camden [2012] FamCAFC 45
Zotkiewcz v Commissioner for Police (No. 2) (2011) FLC 93-472

APPLICANT: Secretary of the Department of the Attorney General as Commonwealth Central Authority

RESPONDENT: Ms Fuller

INDEPENDENT CHILDREN’S LAWYER: Mrs Mooney

FILE NUMBER: HBC 177 of 2012

DATE DELIVERED: 30 May 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2 & 3 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Wilson

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

COUNSEL FOR THE RESPONDENT: Mr D G Grey

SOLICITOR FOR THE RESPONDENT: Zeeman Kable & Page

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs K Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

1. The application of the Secretary of the Department of Attorney General filed 2 March 2012 is dismissed.

2. The respondent mother, Ms Fuller, be and is at liberty to collect from the Registry Manager any passport of the child J born … 2008 (“the child”) and herself currently held for safe-keeping in the Registry of this Court.

IT IS REQUESTED

1. The Australian Federal Police shall remove the name of the child, J born … 2008, from the Airport Watch List, at all points of international arrivals and departures from Australia.

IT IS FURTHER ORDERED

1. These proceedings shall be removed from the list of cases requiring determination.

2. All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commonwealth Central Authority & Fuller 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 HOBART

FILE NUMBER: HBC 177 of 2012

Secretary of the Department of Attorney General (as the Commonwealth Central Authority)

Applicant

And

Ms Fuller

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings by the Secretary of the Attorney General’s Department (as the Commonwealth Central Authority) (“the Central Authority”) who seeks orders for the return to New Zealand of the child J born in 2008 (“the child”) pursuant to r16 of the Family Law (Child Abduction Convention Regulations) 1986 (Cth).  The proceedings were commenced in Hobart in early March 2012.

2. Ms Fuller, (an Australian citizen), (“the mother”), and Mr H (a New Zealand citizen), (“the father”), are the child’s parents.  They met in Country A and commenced a personal relationship in 2006.  Since that time they have lived together and separately in Country A, New Zealand and Australia.

3. The child was born in New Zealand and has at all times been in the primary care of the mother.  In December 2011 the mother gave birth to a second child, Y, who is presently aged about six months.  When the mother first informed the father of her pregnancy with Y, the father accepted that the child was his.  Since that time he has changed his mind and now raises concerns about Y’s paternity.  He has said that he will seek orders that Y undergo DNA testing to determine if he is the father.  The mother has at all times asserted that Y is a child of their relationship and has agreed to participate in DNA testing.  That, of course, is not a matter for these proceedings.  Neither that father nor the Central Authority sought the return of Y to New Zealand.  These proceedings related only to the child, J.

4. The child is a New Zealand citizen and his sister is an Australian citizen. However, citizenship is not the test I need to apply, although it is a factor which I have considered in determining the question of habitual residence.

5. The hearing of this application was expedited and it was heard on 2 and 3 May 2012.  Each of the parties was legally represented and an Independent Children's Lawyer represented the interests of the child. 

6. The initiating application particularised that the child had been wrongfully removed from New Zealand on 1 July 2011.  It also impliedly particularised that the child had been wrongfully removed on 9 April 2011 (paragraph 6.5.6).  At the commencement of hearing the Central Authority asserted that the wrongful removal of the child occurred in April 2011, that the mother and child returned to New Zealand in June 2011 and then the child was again wrongfully removed on 1 July 2011.

7. For the purpose of the determination I have treated the application as being that that the child was removed from New Zealand on either 9 April 2011 or 1 July 2011.  This was confirmed in the summary of argument provided by the Central Authority who went on to assert that the child’s removal from New Zealand to Australia on both of those dates was wrongful because at the time of removal, the habitual residence of the child was New Zealand, the child was living with both his parents and the father was exercising custodial rights and that the mother, unilaterally, and without notice to the father, removed the child from New Zealand to Australia.  Finally, that the child remains in Australia contrary to the expressed wishes of the father.

8. The mother contended that the child did not habitually reside in New Zealand immediately prior to or at the time of the child’s removal in both April and June 2011 and consequently he was not wrongfully removed from New Zealand.  Further the mother submitted that if the Court determines that the child was habitually resident in New Zealand and was wrongfully removed in either April or June 2011 that the father acquiesced to the child remaining in Australia.

THE RELEVANT REGULATIONS

1. The relevant Regulations are:-

   14 Applications to court

   (1) If a child is removed from a convention country to, or retained in, Australia:

   (a)the responsible Central Authority may apply to the court, in accordance with Form 2, for any of the following orders:

   (i)a return order for the child; …

   16 Obligation to make a return order

   (1)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 subregulation (1A);

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

   (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.

   (2)If:

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

   (b)the application is filed more than one year after the day on which the child was first removed to, or retained in Australia; and

   (c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;

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

   (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.

   (4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

   (5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.

ISSUES

1. The act or acts complained of were removals on either 9 April 2011 or 1 July 2011 rather than retentions.  The child is under the age of 16 years.

2. The application was filed on 2 March 2012 within a year of the two dates.  There was an issue, which in the circumstances I do not need to determine, as to whether the application filed by the Central Authority on 2 March 2012 needed to be amended to include 9 April 2011 as a date of removal and if so whether there could be such an amendment to the application twelve months after the alleged removal of the child.

3. The father is the requesting party under the Convention.  He lives at Town W in New Zealand.  He has rights of custody in respect of the child.  The Central Authority initially asserted that the child was habitually resident in New Zealand on 1 July 2011 in that the mother wrongfully removed the child to Australia on that date.  In submission the Central Authority claimed that the wrongful removal was on 9 April 2011.

4. The history leading up to the April and July 2011 removals contextualise the events upon which the Central Authority grounds this application.

5. The mother and father met and commenced a relationship in Country A in 2005/2006.  They lived together in Country A until about July 2007.

6. In July 2007 they travelled to New Zealand and lived there for about six months.  They then travelled to Tasmania in January 2008.  The mother was pregnant with the child at that time.  The father worked initially in Tasmania and then in Western Australia.  The mother remained in Tasmania until mid 2008.

7. On 21 July 2008 the mother travelled to New Zealand and gave birth to the child in early September 2008.  The father returned from Western Australia to be present at the birth.  On 18 October 2008 the mother and child visited the father in Western Australia and then she and the child returned to live in Tasmania.  The mother claimed she and the father were separated at that time.  The father spent a few days with the mother and the child in Tasmania before Christmas in 2008 and then he returned to New Zealand to spend Christmas with his family.  The mother and child spent that Christmas with her family in Tasmania.

8. The mother and child visited New Zealand for a month in April/May 2009 and she and the child again went back to New Zealand on 19 June 2009.  She and the child remained in New Zealand until 13 October 2009. At that time she and the child returned to live in Tasmania.  The mother claims the relationship had ended at this time.  The father contended that it was continuing. In any event the father spent Christmas 2009 with the mother and the child in Tasmania.  During 2010 the mother and child spend two to three months in New Zealand from March 2010 to May 2010.  The mother and the child returned to New Zealand on 31 August 2010 and remained there until 9 April 2011 (apart from a short visit by the mother and child to Tasmania in March 2011).

9. The case for the Central Authority was that the child was wrongfully removed from New Zealand on 9 April 2011 and then the mother returned to live in New Zealand and reconciled with the father on 19 June 2011.  The Central Authority thus contended that the wrongful removal was when the mother departed with the child in 1 July 2011.  The Independent Children's Lawyer contended that in the light of the evidence the only date that the Central Authority could rely upon was 9 April 2011.

10. The wrongful removal, whichever date is relied upon, must be based on a finding of fact by me that the place of habitual residence of the child at the date of removal was New Zealand.  The Central Authority contends that the place of habitual residence of the child at all relevant times was New Zealand.  The mother contends that neither she nor the child were habitually resident in New Zealand on either date, but if the child was habitually resident in New Zealand on 9 April 2011 the father acquiesced to her remaining in Tasmania and that the trip to New Zealand in June/July 2011 was for the limited purposes of her collecting her possessions and enabling the child to spend time with his father. 

11. The issues to be determined are:-

    a)Whether the child was habitually resident in New Zealand prior to his removal by the mother in April or July 2011, the burden of proof falling on the Central Authority. 

    b)If the Central Authority establishes that the child was habitually resident in New Zealand was the removal of the child wrongful.  If there was habitual residence it is conceded that the removal was wrongful

    c)If there was wrongful removal, the mother contends that the father acquiesced to the removal of the child.  The onus of proof in respect of any alleged acquiescence rests with the mother.

    d)If the Court concludes there was acquiescence within the meaning of regulation 16(3) whether in any event the Court should make an order for the return of the child.

BACKGROUND

1. This is in amplification to the synopsis of the parties history set out earlier.

2. The mother is aged 36 and was born in Australia.  She is an Australian citizen.  The father is aged 31.  He was born in New Zealand and is a New Zealand citizen.

3. The parties met in Country A in December 2005.  They lived together in Country A from some time in 2006 to July 2007.  Both the mother and the father had visas to travel in Country A.  Those visas expired a month or so after their departure from Country A.

4. In July 2007 the parties travelled to New Zealand, where they lived together until January 2008.  In that month they moved to Tasmania.

5. In May of 2008 the father’s employment in Tasmania concluded and he commenced work in Western Australia.  The mother remained living primarily in Tasmania.  The travels of the mother and father and subsequently the travels of the child between Australia and New Zealand are a significant feature of these proceedings.  The chronological history of the travels relative to each of the parties which appears not to be in issue following the tender of the movement details and the passenger incoming and outgoing passenger cards by the mother and the Central Authority.[1]

   [1] Exhibits CA1 and M1.

6. The mother was living in or visiting in New Zealand on the following dates:-

   -         July 2007 to January 2008 (about 6 months);

   -         21 July 2008 to 18 October 2008 (about 3 months);

   -         13 April 2009 to 13 May 2009 (about 1 month);

   -         19 June 2009 to 13 October 2009[2] (about 4 months);

   -         4 March 2010 to 22 May 2010 (2 to 3 months);

   -         31 August 2010 to 9 April 2011 (about 8 months); and

   -         19 June 2011 to 1 July 2011 (about 12 days).

   [2] From September 2008 the child travelled wit the mother.

7. The father’s time in Australia are as follows:-

   -26 June 2007 to 28 June 2007 (2 days);

   -19 January 2008 to 30 April 2008 (about 3½ months);

   -21 May 2008 to 5 August 2008 (about 2 ½ months);

   -7 September 2008 to 18 December 2008 (about 3 months);

   -5 January 2009 to 25 February 2009 (about 2 months);

   -5 March 2009 to 11 April 2009 (about 6 weeks);

   -13 May 2009 to 18 May 2009 (about 5 days); and

   -17 December 2009 to 2 January 2010 (about 2 weeks).

8. In February 2008 the mother executed a will in Australia.  There was an issue about the mother using her New Zealand address in the will.  Not much swings on this as the will must have been made according to Australian domestic law and the place of residence of the parties in Tasmania at that time was in a state of flux.

9. The mother lived primarily in Australia from January 2008 until August 2010.  The mother did travel to New Zealand as set out above.  The father worked initially in Tasmania, then Melbourne and Perth between January 2008 and January 2010.  This was interdispersed with regular trips to New Zealand.

10. The father had returned to New Zealand in August 2008 to attend the birth of the child.  That birth was later than had been anticipated and the father left New Zealand a few days after the birth as he needed to return to work.  The father worked in Western Australia the remainder of the year but spent several days with the mother and the child in Tasmania before he travelled, alone, to New Zealand on 18 December 2008.  He remained in New Zealand until 5 January 2009, a period of about 2 weeks.  The mother and the child were living in Tasmania at that time.

11. In April/May 2009 the father ceased employment in Western Australia and returned to New Zealand to work and to build a home on the land he purchased from his parents.  The mother travelled to New Zealand on 5 April 2009 with the child and departed one month later to return to Australia.

1. The mother travelled to New Zealand on 19 June 2009 and remained there until October 2009.  There was an issue as to the circumstances of the mother leaving New Zealand on 13 October 2009.  The mother asserted that she wanted to return to Tasmania but that the father had refused to allow her to take the child unless she signed a Relationship Property Agreement.  The mother claimed the parties had separated.  The father disputed this assertion of fact.

2. The father spent Christmas and New Year with the mother and child in Australia over a period of about two weeks in December 2009/January 2010.

3. In October 2010 the father purchased a new farm property and at the same time or subsequently sold the Town L house and land.  The new farming property was purchased by the father, his mother and his accountant as trustees for the ‘X Trust’.  The mother was not a beneficiary of that trust.  The parties moved into that new property in about January 2011.

4. The mother fell pregnant with the child Y in about March 2011.

5. On 9 April 2011 the mother left New Zealand with the child without the father’s permission and commenced residing in Australia.  

6. Subsequently, the mother travelled to New Zealand with the child on 19 June 2011 and, the father collected them from the airport.  The mother travelled with a return ticket for herself and the child.  She planned to leave New Zealand on 4 July 2011.[3]  There is an issue as to the basis of the mother’s return to New Zealand in June 2011.  The father says it was a reconciliation, the mother says she was travelling back to New Zealand to finalise matters arising out of their relationship breakdown and to enable the father to see the child.

   [3] Annexure “K” to the affidavit of the father filed 23 January 2012.

7. It is not in issue that the mother left New Zealand on 1 July 2011 without the father’s knowledge or consent (at least in respect of the departure that day). 

8. The mother gave birth to the child Y in December 2011.  The mother has at all times asserted that the father is Y’s father.  Prior to Y’s birth, and prior to 1 July 2011, the father accepted Y as being his but has, since that time, expressed doubts as to paternity and now requires DNA testing.  The father gave evidence that he wanted an order for DNA testing with regard to Y.

9. In 2005 the father had purchased from his parents some land at Town L in New Zealand.  This purchase was apparently completed in 2007.  The father had hoped to build a home on that land and subsequently did so.

10. In October 2009 the parties entered into an agreement which apparently precluded the mother from making any claim to that real property and purportedly prevented the father making a claim to a property owned by the mother in Tasmania.  The agreement acknowledged a debt due by the father to the mother of $40,000 which was repayable by the father to the mother on the sale of the Town L land or on the breakup of their relationship.  The Agreement is dated 22 October 2009.  There is no issue the mother left New Zealand on 13 October 2009 and did not return until 2010.  There is no issue that the mother’s signature to that agreement was witnessed by a New Zealand legal practitioner.  I am satisfied that the agreement was signed by the mother prior to her departure from New Zealand on 13 October 2009. 

11. On 30 January 2012 the mother commenced proceedings in the Federal Magistrates Court in the Launceston Registry seeking parenting orders in respect of both the child and Y.  Those proceedings have now been transferred to the Family Court and are stood over generally pending the outcome of these proceedings.

12. I raised with counsel at the commencement of these proceedings as to what steps I ought to take once these proceedings are determined. Counsel for the mother confirmed that if I made an order requiring the return of the child to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) the parenting proceedings in Australia ought to be dismissed. On the other hand if the application by the Central Authority is dismissed then I would need to list the parenting proceedings for directions. Having regard to the outcome of these proceedings and the desire of the father that there be DNA testing in respect of Y, in the inter party proceedings, I have listed those proceedings to a Registrar in Launceston in June 2012 and I have directed the father to file an address for service and a response. Further, I have made a chambers order for DNA testing with an authorised testing laboratory that is able to collect samples both in New Zealand and Australia. As to the cost of that testing, as the father now challenges paternity, he should meet the initial cost with the overall question reserved pending the outcome of the test.

13. At the conclusion of the hearing counsel for the mother submitted that the child has lived in Australia for 631 days and in New Zealand for 375 days from the date of his birth to 1 July 2011.  I am not convinced that this arithmetic is correct.  However, it is clear that over that period the child and mother spend more time living in Australia than in New Zealand.

WITNESSES AND CREDIBILITY

1. An affidavit by Ms M[4] as to the law in New Zealand was read into evidence without controversy and I accept her evidence in that respect.

   [4] Filed 2 March 2012.

2. The credibility of both the mother and father were in issue and both were cross examined in respect of their evidence.

The father

1. The father provided evidence by way of three affidavits filed in these proceedings.  The first affidavit was sworn 9 December 2011 and the second affidavit was sworn 23 January 2012.  Those two affidavits provided the primary evidence upon which the application by the Central Authority was based.  After the mother filed her affidavit the father filed his affidavit in reply sworn 17 April 2012.  His affidavits were read into evidence.

2. As there were significant issues of fact counsel for the parties and the Independent Children’s Lawyer sought to cross examine the parents.  That leave was given and at the request of counsel for the Central Authority the father gave his oral evidence by telephone from a solicitor’s office in New Zealand.

3. The father said he was only informed that he was required for cross-examination a day or two before the hearing.  In assessing his evidence I have been conscious of that circumstance and that he was giving evidence via telephone.

4. When giving evidence the father impressed me as being at times upset and at other times agitated.  He endeavoured to argue the case from his perspective, which is understandable in the circumstances.

5. The father was not an impressive witness.  He was at times non-responsive in his answers, at other times he prevaricated and obfuscated.  There were a number of examples of this approach.

6. One such example is that the mother provided a detailed description of the father being violent with the child, verbally abusive to her and the child and threatening to assault her.  The detail of those allegations is set out in her affidavit filed 4 April 2012.[5]  In response to the allegation the father said[6] “I do not disagree with much of the contents of this’.

   [5] Annexure “A”, (affidavit filed in Federal Magistrates Court 30 January 2012, paragraphs 30 to 35) of the mother’s affidavit filed 4 April 2012.

   [6] At paragraph 31 of the father’s affidavit filed 17 April 2012.

7. In cross examination the father said he had no memory of the event except that he recalled collecting a dead cow after the animal had been discovered by the mother.  He said he had no recollection of smacking the child or abusing the mother or the child over television programs.  I accept the mother’s evidence.  The mother’s evidence was that she had travelled to Tasmania with the child some weeks before.  The mother had complained to the father’s mother about the continuing abusive behaviour to her by the father, to the extent that the father’s mother gave a brochure to the mother from the L Women’s Refuge on ‘Breaking the cycle of family violence’.[7]  The mother and child then went away for five days in mid March 2011.  After the event on 26 March 2011 the mother left the father and New Zealand.  There is evidence that the father apologised for the events on that day.  It beggars belief that his memory of this event had so comprehensively failed.

   [7]Exhibit M3.

8. Another example was when the father was being cross-examined about the Relationship Property Agreement entered into by the parties and dated 22 October 2009.  In that agreement the father acknowledged that the mother had lent him $40,000.  When asked about this debt he prevaricated and declined to acknowledge the debt that he had otherwise acknowledged in the agreement.  The father said that it was not really a debt and that it was a payment for joint credit card liabilities.  Yet in his hand written notes from April 2011[8] he recorded that the mother had requested repayment.  When first asked if the debt had been repaid his answer was at first non-responsive and then when pressed he acknowledged that the debt had not been repaid despite the sale of the property and the, apparent, requirement, for its repayment in those circumstances.  The father eventually acknowledged that the mother had requested repayment in April 2011.

   [8] Annexure ‘H” to the mother’s affidavit filed 5 April 2012.

9. The father’s evidence in relation to the paternity of the younger child is troubling.  His evidence is that he initially acknowledged that he was Y’s father when he communicated with the mother in April/May/June 2011.  However, when the mother returned to Australia on 1 July 2011 he had a change of heart and now requires DNA testing.  It is clear that the child was conceived in March 2011 at a time that the mother and father were cohabiting (except for the short trip to Tasmania and the five days the mother was away in the middle of March 2011). 

10. In his first affidavit the father said that from 9 April to early May 2011 there was no contact with the mother.[9]  There is clear evidence of contact in April 2011 as shown in the father’s written notes.

    [9] At paragraph 15 of the father’s affidavit sworn 9 December 2011.

11. The father asserts that the mother returned to New Zealand in June 2011 to reconcile.  The mother says that she went back to collect her possessions and enable the child to see the father.  It was on the basis of that evidence that the Central Authority initially claimed that the wrongful removal of the child occurred on 1 July 2011.  It was pivotal to that claim.  Yet in the father’s notes made in April 2011, in respect of the conversation on 27 April 2011 (which are set out later in these reasons), the parties discussed sending possessions to the mother, returning a car key, a request for a debt to be repaid, and the father visiting the child in Australia.  This was about separation not reconciliation.  The mother had purchased return air tickets.  The father’s solicitor in his letter to the mother dated 23 August 2011[10] observed:-

    5. You then returned to New Zealand in June with [the child].  You stayed with [the father] at the matrimonial home and said that you would be sorting out your things and would finalise arrangements regarding contact with [the father] whilst you were in New Zealand.  

    [10] Exhibit M2.

12. It is clear from this letter and the mother’s return air ticket that this was a time limited visit, yet the father asserted that it was reconciliation.  

13. My impression is that the father has a tendency to exaggerate.  He did so in saying the couple’s Country A visas had expired, when they still had some months to run.  The father gave evidence that the furniture he and the mother had accumulated was shipped to New Zealand.  When pressed in cross examination the shipped items were merely some cardboard boxes of personal possessions.

14. The father said the mother obtained a drivers licence in New Zealand in about July 2007.  She did, but the father did not add the context of the circumstances in which this arose that the mother’s Australian drivers licence had expired while she was in Country A and that she obtained a renewal of that Australian drivers licence in early 2008 when she moved to Tasmania.

15. The father asserted and annexed to his affidavit a copy of library card belonging to the child.[11]  When pressed, the father conceded that library card was a continuation of a library card which was issued at the request of the father after the child’s return to Australia.  The child did have a library card but there was an misleading element in the father’s use of it in evidence which, I am satisfied, was to show a connection between the child and community life in New Zealand which, in the circumstances of its procurement, it did not. 

    [11] Annexure “D” to the affidavit of the father filed 23 January 2012.

16. In his first affidavit[12] the father asserted at paragraph 2:-

    We purchased a section in [Town L] in 2007, and it was our intention to build a dream home on it.

    [12] Sworn the 9 December 2011.

17. The land at Town L had in fact been purchased by the father in 2005 before the parties had formed a relationship and before they met.  It was never treated as joint property.  The father made that abundantly clear in the Relationship Property Agreement of October 2009.  The father’s evidence at one stage seemed to imply that at the time this agreement was signed up the mother executed a will.  She did make a will but this was about 18 months prior to the Relationship Property Agreement.  That will was made in February 2008.[13]

    [13] Annexure “B” to affidavit of father filed 22 January 2012.

18. In his affidavit sworn 9 December 2011 the father said:-[14]

    3.In August 2008 [the mother] travelled to New Zealand so that [the child] could be born here …

    4.Shortly after [the child’s] birth, [the mother] developed post natal psychosis, and she became homesick for her family in Tasmania. …  Shortly before Christmas 2008, she left New Zealand, and went home to be with her parents.  At that time I was a … Manager for two sites in Perth and Melbourne, and I was able to return to New Zealand on my days off.

    5.During this period, we were in daily contact, and for Christmas 2008, I flew both her and [the child] to Perth, so that we could spend our first Christmas together as a family.  Prior to the end of that planned holiday, [the mother] had a panic attack and left.  I subsequently travelled back to Tasmania to spend Christmas with her and [the child].

    [14] At paragraphs 3, 4 and 5.

19. In his affidavit sworn 17 April 2012 the father said of this time:-[15]

    [18 October 2008 to 13 April 2009]

    22.The initial plan was for us to be together on my birthday, being [October].  At that stage I had a fully equipped accommodation in Perth, and it was agreed that [the child] and [the mother] would come over.  At the expiration of five days, I came home from work and found that she had disappeared without leaving a note.  This was the first occasion that she fled with my son.

    [15] At paragraph 22.

20. The mother’s evidence was that she visited the father on 18 October 2008 (having departed from New Zealand on that day.[16])  She said that within a week she and the father were fighting and that she left on 24 October 2008. She said the relationship had broken down.

    [16] Exhibit M1- mother’s arrival card at Perth, WA, from New Zealand.

21. A number of inconsistencies arise from this. Firstly the father did not spend Christmas with the mother and child. He did not fly them to Perth for Christmas as he first asserted.  The mother did not go home from New Zealand to be with her parents, she went to visit the father.  The father says he returned to New Zealand over this period on his days off.  Yet between leaving New Zealand in September 2008, a few days after the birth of the child, he did not return to New Zealand until he visited his parents over Christmas 2008.  He did have a short visit of about eight days in New Zealand from 25 February 2009 to 5 March 2009, but the mother and child were in Tasmania at that time.  He did travel to New Zealand from 11 April 2009 to 13 May 2009.  There is evidence that the mother and child went to New Zealand to visit with him over this one month period.  There seems little evidence of the father visiting the mother and child in New Zealand on his ‘days off’.   

22. Many of the concerns were on their face minor but they had a cumulative impact in terms of credit. Later in these reasons I make comment on the evidence of the father in particular circumstances.

23. I am satisfied that his evidence was at times unreliable and some evidence was fashioned to achieve a result.

The mother

1. The mother relied upon her affidavit filed 5 April 2012.  Annexed to that affidavit[17] was a copy of an affidavit which the mother filed in the proceedings she has commenced in the Federal Magistrates Court at Launceston.

   [17] Annexure “A” to mother’s affidavit filed 5 April 2012.

2. The mother was cross-examined by counsel for the Central Authority and by the Independent Children’s Lawyer. 

3. She was an impressive witness.  She made admissions contrary to her interests, such as her hopes about the August 2010 attempt at reconciliation.  I had the ability to observe her demeanour in the witness box.  She was careful and thorough in giving evidence.  I am satisfied the mother endeavoured to tell the truth in her affidavits and in giving oral evidence.

4. Counsel for the mother submitted that I ought to generally accept her evidence to that of the father where there was an issue of fact.  Having had the opportunity to hear both parties, I accept that the mother was a truthful witness whereas the father was not always a truthful or accurate witness.  Where there is a conflict of evidence in relation to a material fact, I accept the evidence of the mother over that of the father.

5. In these reasons any statement of fact is to be regarded as a finding of fact unless it is clear to the contrary in the context of the statement.

WHETHER THE CHILD WAS HABITUALLY RESIDENT IN NEW ZEALAND PRIOR TO HIS REMOVAL BY THE MOTHER IN APRIL OR JULY 2011, THE BURDEN OF PROOF FALLING ON THE CENTRAL AUTHORITY

1. The Full Court in the State Central Authority v Camden [2012] FamCAFC 45 said that the law concerning the process by which a child’s place of habitual residence is determined has been authoritatively settled by the High Court in LK v Director General, Department of Community Services [2009] HCA 9 (11 March 2209).[18]  The Full Court in Camden (Supra) said:-

   41.The judgment of the High Court in LK makes it clear that “habitual residence” is to be distinguished from concepts such as domicile and that determining the settled purpose of the parents is important in the process but not necessarily decisive. At paragraph 22 of the joint judgment of French CJ, Gummow, Hayne, Heydon and Kiefel JJ, it was said:-

   … The search must be for where a person resides and whether residence at that place can be described as habitual.

   42.    It was also said (at paragraph 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” (Scoles, Hay, Borchers and Symeonides, Conflict of Laws, 4th Ed (2004) at 247, 4.14)

   43.The High Court accepted (at paragraph 44) that the inquiry into “habitual residence” is a broad factual inquiry and approved the following passage from the decision of the Court of Appeal of New Zealand in Punter v Secretary for Justice [2007] 1 NZLR 40 (“Punter”):-

   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 [2005] 3 NZLR 590 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.

   [18] (2009) 237 CLR 582.

1. Her Honour went to say in that case that the establishment of habitual residence involves a search for the connection between the child and the requesting State in which the child was [allegedly] habitually resident before the wrongful retention (or removal).

2. The Full Court said in Zotkiewcz v Commissioner for Police (No. 2) (2011) FLC 93-472 at 95,766:-

   82.… Accordingly, we consider the task of the Judge was twofold.  The first was to ascertain whether the parents had a shared intention that the child would live in Poland with a sufficient degree of continuity that their purpose could properly be described as settled.  The second was to determine whether the period of time spent in Poland was sufficiently appreciable for it to be said that the underlying reality of the connection between the child and Poland was such as to justify a finding he was habitually resident in that country.

   83.In approaching this task, the Judge was obliged to construe the Regulations having regard to the principles and objects of the Convention, recognising “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”.

3. The law is clear that when determining the habitual residence of very young children (as is the case in these proceedings) the place of habitual residence of (the person or persons upon whom the child was immediately dependent for care and housing)[19] is the sensible course, but needs to be seen in context.  The High Court in LK (supra) acknowledged this when it said:-[20]

   … If, as the writings about Abduction Convention and the like instrument repeated the urge, the question of habitual residence of the child is one of fact, it is important not to elevate the observation of the child looks to others for care and housing to some principal of law.

   [19] See paragraph 27 of the Reasons.

   [20] Ibid.

4. The High Court went on to say:-[21]

   … 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. …

   [21] At paragraph 24 of the Reasons.

5. In these proceedings the mother has been the primary carer of the child since birth.  The father remained with the mother for only a few days after the birth of the child and then returned to work in Perth.  This is not a criticism of the father as the child was delivered a week or two late. Similarly when the child was unwell shortly after his birth, the father did not return from Perth to New Zealand.  The father explained, and I accept, that he believed that the child was not particularly ill and had sought advice from his mother.  The mother was critical of the father for not returning.

6. I express no views as to whether he ought to have returned or not, however, it is significant that the responsibility for the child from birth reposed with the mother.  With the apparent consent of the father, soon after the birth of the child the mother and child returned to and lived in Tasmania.

7. The question for me to determine is the question of the habitual residence of the child.  In this case it must be closely identified to the habitual residence of the mother.  The mother is the primary carer of the child and her residence has been that of the child’s throughout.  The mother and father lived together over the period from September 2008 to April 2011 but it was not constant.  It was very much ‘on again … off again.  That the child always lived with and travelled with the mother was consistent.  In this case the habitual residence of the child was that of the mother.  Notwithstanding this, if the mother was habitually resident in New Zealand on either 9 April 2011 or 1 July 2011; it was not open for the mother to unilaterally change that place of residence without the express consent or acquiescence of the father.

8. To ascertain the mother’s place of habitual residence the somewhat peripatetic circumstance of the parties and consequently the child must be considered.

9. It is not in issue that when the father returned to New Zealand from Country A in July 2007 it was his intention that he would live permanently in New Zealand.  The mother’s evidence is that she went to New Zealand to attend the wedding of the father’s sister.  She said that she obtained work when in New Zealand but then returned to Tasmania to live in January 2008.

10. The child was conceived in late December 2007 or early January 2008 and the parties moved from New Zealand to Tasmania at about that time.  The mother intended to live in Tasmania and the father was to work in Tasmania.  Initially the parties lived with the mother’s family in Tasmania and then in rented premises.  The father had been given accommodation in his work in Tasmania (he was working for a New Zealand company on a project in Tasmania) but that accommodation was apparently unsatisfactory.

11. The father at all times regarded New Zealand as his place of residence.  This was despite his frequent travel for work overseas, particularly in Australia when he worked in Tasmania, Victoria and Western Australia.

12. The mother’s habitual place of residence is less clear. Up to July 2007 the mother had resided in Australia for most of her life and had spent some period of a year or two in Country A.  She travelled to New Zealand in July 2007 and remained there for about six months.  She then returned to live in Tasmania.   

13. The father requested of the mother that the child be born in New Zealand.  The mother acquiesced to that request and travelled to New Zealand on 21 July 2008 for the birth of the child with the clear intention to return to Australia.  The mother had taken maternity leave from her job in Australia.

14. The mother and child left New Zealand on 18 October 2008.  This departure was with the consent of the father.  The mother and child visited the father in Perth, Western Australia.  The mother asserted and I accept that the relationship between the mother and father broke down in Perth in about October 2008.  The mother returned to Tasmania and recommenced living in that State, as did the child.  The father consented or acquiesced with that arrangement.  I am satisfied that by that time the mother had formed a settled intent to reside in Tasmania.  She had some plans of moving to New Zealand but these were not settled.  The mother was aware that the father wanted her to live in New Zealand but that she was ‘not prepared to leave the support of my family’.[22]

    [22] At paragraph 6 of the mother’s affidavit filed the 5 April 2012.

15. The mother lived primarily in Tasmania until July 2009.  The mother claimed the Australian baby bonus and an Australian parenting payment.  It was her home and that of the child.

16. The father spent a few days with the mother and child prior to Christmas 2008 but then he spent Christmas 2008 with his family in New Zealand (18 December 2008 to 5 January 2009).  It is clear that the mother was responsible for virtually the whole of the care of the child.  At this time the father had limited time with the child.

17. Over late 2008 and into 2009 the parties were endeavouring to restore their relationship.  The mother and child visited New Zealand for about a month in April/May 2009 and the mother was encouraged to return in July 2009 to look at the father’s home, which he had been building.

18. The mother and child returned to New Zealand on 19 June 2009 to see the house and I am satisfied it was for the mother to consider reconciliation.  In her affidavit[23] she said of this time:-

    13. … [The father] encouraged me [in May 2009] to return to New Zealand in June 2009 to see the completed house.

    14. I returned to New Zealand on 19 June 2009. Within a week of my arrival [the father] gave me a “Relationship Property Agreement”. I saw a solicitor, …, who explained the contents of the document. I told [the solicitor] that I had previously lent [the father] $40,000.00 and we had a verbal agreement for him to repay me when the house was sold.  [The solicitor] suggested that we place into the Agreement clauses dealing with those monies. Over the next few weeks, [the father] saw his lawyer and I got further advice from [the solicitor].  This process caused friction between us and we ended up arguing constantly over the Agreement…

    15. I decided the relationship was not working out and decided to return to Tasmania.  …         

    [23] Ibid at paragraphs 13, 14 and 15.

19. I am satisfied that this was not a settled purpose by her to live in permanently in New Zealand but a visit which was for the purposes of an attempted reconciliation.

20. The mother’s evidence, which I accept, was that the father used intimidation and coercion to negotiate with her and that this time was not a particularly happy one.  The mother said in her affidavit:-[24]

    15. (continued) I had not signed the agreement and [the father] became quite anxious and annoyed with me.  [The father] told me that I could leave and allowed me to book a flight to Sydney for [the child] but only on the condition that I signed the property agreement.  He told me that if I did not sign the property agreement, he would stop [the child] from leaving the Country by contacting his lawyer and placing a block an [the child’s] passport.  I attended my solicitor’s office on Friday 9 October 2009 and signed the agreement.

    [24] Ibid at paragraph 15.

21. The mother had concluded that the relationship was not working out and decided to return to Australia.  The father intimidated and coerced the mother to sign the financial agreement.  The mother capitulated and signed the agreement and, I am prepared to conclude, returned to Tasmania with the child and with the consent of the father.

22. I find that the father used coercion on and intimation of the mother to have her accept his determinations.  He intimidated the mother to accept his verbal and physical abuse of the child on 26 March 2011 and intimidated the mother to force her to draft an equal time agreement in relation to the child in June 2011.

23. The mother had not relinquished Tasmania as her place of habitual residence and nor had she formed a settled intention to habitually reside in New Zealand during the four months which she visited there in 2009, from 19 June to 13 October.  I am satisfied that the settled place of habitual residence of the mother and child from October 2009 to August 2010 remained, and was, Tasmania.  The father spent some time with the mother and child in Tasmania over the Christmas period 2009 but returned early to New Zealand when the mother had at that time refused to accept reconciliation.

24. Over the period 2007 to 2011 the father was focused on his own financial needs as an individual rather than with the mother as a couple.  This can be seen from the terms of the property agreement, the purchase of the new farming property by a trust.  The father gave evidence that he was applying most of the money towards the building of a house but conceded, when pressed, that he had upgraded his motor boat which he said had a value, if purchased from a boat dealer, of fifty to sixty thousand dollars and said it was funded from a bonus from his company.  He treated this bonus as his personal property to the exclusion of the mother.

25. The father was not intent on a joint life in terms of the parties’ finances at that stage (despite from time to time having joint accounts) he was interested in maintaining his own property and ensuring that the mother had no claim to that property. 

26. The parties continued to communicate and the mother travelled to New Zealand between 4 March and 22 May 2010 to again discuss reconciliation. She did not commit herself to the relationship at that time.

27. The mother had been struggling with depression since a few months after the birth of the child.  There is no issue that she struggled with this condition and that she relied upon her local medical practitioner in Tasmania.

28. The mother wanted a relationship with the father but found living with him difficult, as did he with her.  The relationship was not continuous.

29. In August 2010 the mother and father decided to try once again to reconcile. In the words of the Independent Children's Lawyer she gave it ‘a red hot go’. Up to her departure from Australia to travel to New Zealand in August 2010 the habitual residence of the child and mother was Tasmania.  

30. Each of the parties equivocated in terms of the reconciliation. The father purchased land in the name of a trust to which the mother had no interest and she was not a beneficiary under the trust.

31. The mother took one year of extended leave from her employer from July 2010.  She arranged for her home in Tasmania to be tenanted and sent some possessions to New Zealand. She travelled to New Zealand with her parents. The question to be answered did the mother form a settled intent to habitually reside with the child in New Zealand at that time.

32. The mother obtained part time work in New Zealand and she rented out her home in Tasmania.

33. As I indicated earlier there was some discussion about the mother obtaining a New Zealand drivers licence.  This was used as part of the argument of settled intent, but it needs to be seen in context.  The mother’s Australian driver’s licence had expired in July 2007 (she had been away from Australia for a number of years).  She was not, at that time, planning an immediate visit to Australia and accordingly obtained a New Zealand driver’s licence so she could drive motor vehicles according to the law.  The mother renewed her Australian driver’s licence in January 2008 and that driver’s licence is still current.  I am not satisfied that her acquisition of a New Zealand driver’s licence was indicative of her acquiring habitual residence in New Zealand.

34. The mother was enrolled in the local medical centre and stopped receiving Australian Centrelink benefits.  The child was enrolled in day care.  They moved home to the trust property in late 2010 or early 2011.

35. The mother agreed in evidence that she wanted the relationship to work but denied deciding to live permanently in New Zealand, the mother was reluctant to ‘burn her bridges’.

36. It is apposite to look at the mother’s work history both in New Zealand and in Australia.  Soon after the mother returned to Australia in early 2008 she obtained employment with a bank.  She had previously worked with this bank prior to her trip to Country A.  She was employed and worked with that bank and has been employed since early 2008.  She took maternity leave after the birth of the child and in June/July 2010 and sought and obtained a one year career break whilst she considered and attempted reconciliation with the father in New Zealand in late 2010 and early 2011.  When she returned from New Zealand in mid 2011 she resumed employment with the bank and is now on maternity leave in respect of the birth of Y.  Her employment with this organisation in Australia has been consistent since early 2008.  The mother ‘kept her options open’.

37. The steps taken by the mother in New Zealand were practical necessities for anyone living overseas for a period of time.

38. I have taken into account all of the relevant factors, including:-

    a)A settled purpose - the mother did not have a settled purpose to habitually reside in New Zealand in 2010/2011 or subsequently.

    b)As to the actual and intended length of stay – the mother was intending to try reconciliation but soon after she returned the relationship soured and continued to do so.  I am not satisfied that the mother believed the stay was long term, quite the contrary.

    c)The purpose of the stay – there was an attempt at reconciliation, which did not work.

    d)The strength of the mother’s ties in Australia and New Zealand - the mother had few ties, apart from the father, in New Zealand. She had significant ties in Tasmania including family, medical, home and work. The mother had some assimilation in New Zealand of which I have discussed above, and which was for practice necessities.

39. I am satisfied that the mother and consequently the child, did not change their habitual residence from Australian to New Zealand when they travelled to New Zealand between August 2010 and April 2011. The mother was at that time considering whether she would change the centre of her personal and family life to New Zealand but did not do so.

40. Once she arrived in New Zealand the reconciliation did not work out as the mother had hoped.  The mother says, and I accept, that she was the subject of verbal abuse on regular occasions between August 2010 and April 2011.  I accept her evidence in relation to the events which occurred on 26 March 2011 which included verbal abuse of her and the father yelling and smacking the child.

41. The father purchased the new home in the trust without reference to the mother.  The mother sought medical advice in New Zealand in January 2011 about the verbal abuse she had endured from the father.

42. Over this period in New Zealand the father said to the mother “this is my house, get out”.  The father said to the mother in about March 2011 that she should “consider her options in Australia’.

43. As I indicated earlier I prefer the evidence of the mother to that of the father.  The mother did not form a view over this period to reside in New Zealand, quite the contrary; she came to the conclusion that the attempt at reconciliation was futile and together with the events on 26 March 2011 decided to leave and concluded that the relationship was over.

44. Having lived through difficult times with the father as set out in her affidavits, including the events surrounding the financial agreement and 26 March 2011, the mother left New Zealand to continue her residence in Australia, without first informing the father.  Having regard to the circumstances she deposed that would not be regarded as unexpected.

45. On 9 April 2011 the mother and relevantly the child were not habitually resident in New Zealand at or immediately prior to that removal.  Counsel for the Central Authority submitted that when the mother returned in August 2010 it was with the common intent to change the child’s habitual residence.  It may well have been the father’s hope but it was not the mother’s intent.  She was very careful to ensure that arrangements in Australia were remaining available to her should this reconciliation, like the previous one fail.

46. For the reasons set out as follows I also conclude that 1 July 2011 the mother and the child were not habitually resident in New Zealand at or immediately prior to that removal.

47. As the applicant has not established that the child was habitually resident in New Zealand on either of the dates alleged, the removal was not wrongful within the meaning of the Regulations and the application must fail.

48. If I am wrong about habitual residence then I would need to consider acquiescence.  As the issue of acquiescence was the subject of evidence and submissions I will consider it for the sake of completeness.

DID THE FATHER ACQUIESCE TO THAT OR THE REMOVAL IN APRIL AND JULY 2011 AND IF SO WHETHER IN ANY EVENT THE COURT SHOULD MAKE A RETURN ORDER

1. The father expressed to the mother in March 2011 that she should consider her options in Australia, I take it that he was content for her to leave New Zealand but not the child.

2. After the mother left New Zealand for Australia in April 2011 she was contacted by the father and they had a number of telephone conversations.  I am satisfied that the mother sought from the father the payment of the $40,000 due to her pursuant to the agreement entered into between the father and the mother.

3. The mother’s evidence was that the father accepted the separation that if he had not he would not have allowed her and the child to return to Australia.  He offered to send her personal items to Australia and asked for the return of car keys and bankcards.  The parents discussed a visit to Tasmania for the child to see the father.  The mother discussed her plans for employment in Australia and later discovered and informed the father that she was pregnant with the child Y.  It is not in issue that he father accept that he was the father of Y at that time.  

1. The father made some notes about those communications (one of which was annexed to the mother’s affidavit.[25]  That note set out:-

   27 April 2011   10.30am

   Phoned [mother and child] spoke for forty six minutes, talked to [the child] 4 mins, talked about [mother’s] stuff still in house and having it sent over, talked about flying over to visit the [child] in June.

   Was told I wouldn’t get back into Oz.  And there would be something from her lawyer, she wanted to sell her house and wanted money due on loan![26]

   [The mother] told me she has facilitated my sister and brother to join her.  Asked [the mother] to email list of what stuff she wants sent over.  Asked for keys to be sent back.

   [25] Annexure “H” to mother’s affidavit filed 5 April 2012.

   [26]It is significant that the father said no plans had been made for this money.  He was clearly inaccurate in that recollection

2. The father made another note on 1 May 2011[27] about a telephone call.  That is also indicative of an acceptance of the arrangement.  It sets out plans for Skype, day care for the child and return of car keys etc.

   [27] Annexure “I” to mother’s affidavit filed 5 April 2012.

3. In early May the mother sent a list of items she wanted returned to her.[28]  The mother arranged to fly to New Zealand without the child and retrieve her possessions.  That flight did not proceed due to fog.  The father suggested that the mother come to New Zealand for a short trip with the child and to retrieve her possessions.

   [28] Annexure “J” to mother’s affidavit filed 5 April 2012.

4. The father asserts that this was for reconciliation. I do not believe him, having regard to the mother’s evidence, the note and the comments made in the letter from his solicitor.  The father’s instructions to his solicitor in respect of the letter dated 23 August 2011[29] confirm that he asserted that:-

   You [the mother] then returned to New Zealand in June [2011] with [the child].  You stayed with [the father] at the matrimonial home and said you would be sorting out your things and you would finalise the arrangements with [the child] whilst you were in New Zealand.

   [29] Exhibit M2.

5. The mother said that an arrangement was put in place that she would travel to New Zealand for a short period of time, from mid June to 4 July 2011, to enable the child to see the father and enable the mother to collect her possessions.  The father had offered to reimburse her for the fares, including the return airfare.  The mother relied upon that assurance and travelled to New Zealand with the child.  The mother travelled to New Zealand with only hand luggage and left space to bring things back to Australia.

6. On her arrival in New Zealand the mother said to the father that she would be anticipating he would drive her and the child to the airport at the conclusion of that trip.  There is no evidence that the father demurred from this request.

7. The father asserted that the mother had sent him photographs of herself of an intimate nature.  The mother denied that assertion and those photographs were not produced.  I prefer the evidence of the mother in that regard.

8. The father asserted that he and the mother were intimate on at least one occasion.  The mother admitted that occurred but said it was not in the context of reconciliation.  I accept her evidence.

9. Whilst in New Zealand the father demanded equal time with the child.  The mother was intimidated and was unwilling to force confrontation with the father, having regard to their history and as such she drafted an equal time form of agreement.  She did not sign it nor did she in any meaningful way commit to it.  She then left New Zealand, buying a new ticket to return to Australia on 1 July 2011, a few days earlier than planned and without the knowledge, at least on that date of the father. 

10. I am satisfied that the father in clear and unambiguous terms, after 9 April 2011 and prior to 16 June 2011 had acquiesced to the child’s move to Australia.  The father had proposed to the mother that he would travel to Australia to visit the child in June of 2011.   

11. In late April and early May 2011, the father made it clear to the mother that he accepted that she and the child were living in Tasmania and that they would continue to live in Tasmania for the foreseeable future.  He invited the mother to New Zealand to collect her possessions and to enable him to see the child.  He offered to reimburse the mother for the cost of her airfare and that of the child to and from New Zealand.

CONCLUSIONS

1. I am not satisfied that the child was habitually resident in New Zealand prior to his removal by the mother in either April 2011 or July 2011.  That is the State Central Authority did not discharge the burden of proof in this regard.

2. If the applicant had established that the child was habitually resident in New Zealand on 9 April 2011 having regard to the evidence of the mother and the father I would have concluded that the removal on that date was wrongful.  However, I am not satisfied that the child was so habitually resident.

3. In terms of the removal on 1 July 2011, I am not satisfied that the removal of the child from New Zealand in July 2011 was wrongful.  The child was not habitually resident in New Zealand.  The mother had merely returned to New Zealand to collect some of her possessions and to enable the child to spend a short period time with the father.  The father knew that the air tickets purchased by the mother for herself and the child were return tickets to Australia and he had offered to reimburse the mother for the cost of those return tickets.  On the arrival of the mother and the child in New Zealand in June 2011 the father was informed by the mother of the arrangements to return to the airport.  Subsequently the mother left New Zealand about four days early, having been the subject of intimidation by the father.

4. If I am incorrect about habitual residence of the child I am comfortably satisfied that the father acquiesced to both of those removals in April and July 2011.  The mother has discharged the onus of proof in that respect.

5. Having concluded that the father has acquiesced to the mother and child moving to or continuing to live in Australia, I am satisfied that:-

   a)The Courts in New Zealand and Australia are equally appropriate forums to hear the substantive issues of parenting.

   b)The outcome, in either jurisdiction, will have the child’s best interests as its focus.

   c)The child has been living in Australia at least since April 2011.

   d)The mother has no family in New Zealand, and the child’s paternal grandmother, with whom the mother had believed was supportive of her, has made little or no contact with the mother or the two children in recent times.  There is no evidence of accommodation for the mother in New Zealand and the mother’s family, her house and employment are all in Australia.

   e)The mother tried to make the child available to see the father in May and June 2011 but was confronted and intimidated by the father in New Zealand in June 2011, to which I have referred earlier.

   f)The child had lived more of his life in Australian than New Zealand, being the period from the date of his birth until 1 July 2011.

   g)The mother’s removal of the child from New Zealand was not an attempt to avoid the jurisdiction of New Zealand.

6. Accordingly, in the light of such acquiescence and other circumstances I would have exercised my discretion and not ordered a return.

7. Consequently the application by the Central Authority is dismissed.

THE APPOINTMENT OF THE INDEPENDENT CHILDREN'S LAWYER

1. The child is aged four and had there needed to be a return it may have been necessary to involve the State Department of Human Services. I had directed the mother to appear on the first return date and the mother also had care of the child and his infant sister.

2. I was conscious of s 68L(3) of the Act which provides that in relation to proceedings brought under these regulations:-

   The court should only order that a child be independently represented if the court considers that there are exceptional circumstances that justify doing so, and specify those circumstances in making the order.

3. In this case it is alleged by the father that the mother suffers a mental illness, namely, depression.  There were allegations of violence and there was the question of the child’s recently born sibling Y who was not the subject of the application.  The father raised an issue as to his paternity of this newly born child.

4. The subject child is of tender years and of course Australia has responsibilities, pursuant to the United Nations Convention on the Rights of the Child,[30] to hear children in all proceedings.

   [30] United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577  UNTS 3 (entered into force 2 September 1990).

5. The Independent Children’s Lawyer must form and convey her view in that regard and to ensure all appropriate evidence is before the Court.  The Independent Children's Lawyer has a duty to prevent or minimise the trauma to the child associated with proceedings and any change arising from them.  In addition her role was also to facilitating discussions between the parents, making arrangements for mediation, and ensuring that issues such as the conditions of any return are child focused.

6. Having regard to those factors I am satisfied that there were exceptional circumstance which warranted to appointment of the Independent Children's Lawyer; namely the punitive separation of the siblings and the time the child has lived in Australia.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 May 2012.

Associate: 

Date:    30 May 2012