Department of Child Safety and Merrell

[2009] FamCA 202

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & MERRELL [2009] FamCA 202

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Children born in Australia of New Zealander parents – Father returns to New Zealand – Boy almost 10 years old and 9 year old girl – Habitual residence – Children sent to Father in New Zealand – Boy for 2 years, girl for 1 year – Intent of parties – Finding boy’s habitual residence changed to New Zealand, girl’s habitual residence remains in Australia – Application for return of boy to New Zealand upheld – Application for return of girl dismissed

APPLICANT: Director-General, Department of Child Safety

RESPONDENT: Ms Merrell

FILE NUMBER: BRC 10921 of 2008

DATE DELIVERED: 9 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 11 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr K Parrott
Crown Law

COUNSEL FOR THE RESPONDENT: Ms J Hogan

SOLICITOR FOR THE RESPONDENT:

Ms K Elphinstone

Condon Charles Lawyers

ORDERS

IT IS ORDERED

1. That the Form 2 Application filed on 1 December 2008 as it relates to the child C (female) born … March 2000 be dismissed.

2. That the orders made by the Court on 10 December 2008 to the extent that they relate to the child C (female) born … March 2000 be discharged.

3. That the child, T (male) born … March 1999, be returned to the country of New Zealand and for the purposes of giving effect to this order:-

   a.That the child, T born … March 1999, leave the Commonwealth of Australia on or before 9 April 2009;

   b.That pending the child, T born … March 1999, returning to New Zealand, the Respondent Mother, MS MERRELL born … November 1970, continue to be restrained and an injunction is hereby issued restraining her from removing or attempting to remove the said child from the Commonwealth of Australia;

   c.That pending the return of the child, T born … March 1999, to New Zealand, the Respondent Mother, MS MERRELL born … November 1970, continue to be restrained and an injunction is hereby issued restraining her from changing the residence of the child, T, from the premises where THE MOTHER and the said child are currently residing, namely …, W, Queensland;

   d.That until further order, the Respondent Mother, MS MERRELL born … November 1970, surrender forthwith to the Registrar of this Honourable Court all current passports relating to herself and the child, T (male) born … March 1999.

   e.That pending the return of the child, T born … March 1999, the said child live with a person or persons nominated from time to time by the Applicant or an officer of the Department of Child Safety and the nominated person or persons have responsibility for the day to day care, welfare and development of the said child;

   f.That subject to sub-paragraph (g) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent Mother, MS MERRELL born … November 1970, and the child, T (male) born … March 1999, on the All Ports Watch Alert System at all international departure points in Australia;

g.That the child, T (male) born … March 1999, and the Respondent Mother, MS MERRELL born … November 1970, be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an Officer of the Department of Child Safety advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter;

h.That the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders;

i.That to facilitate the return of the child, T (male) born … March 1999, to New Zealand, the Registrar of the Family Court shall, upon receipt of a letter from an Officer of the Department of Child Safety advising of the travel arrangements made for the said child to return to New Zealand, release to the person nominated in the letter all current passports relating to the said child for the purposes of the said child's return to New Zealand, and release the Respondent Mother’s passport to her or her nominee upon request;

j.That liberty to apply be granted to the Applicant to seek any further orders necessary to allow him to make such arrangements as are necessary to facilitate and ensure the return of the said child in accordance with this order;

k.That paragraphs 1, 2, 4 and 5 of the orders of Jordan J made 10 December 2008 be discharged forthwith.

1. That there be liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Department of Child Safety & Merrell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10921 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MS MERRELL

Respondent

REASONS FOR JUDGMENT

1. This is an application by the Director-General of the Department of Child Safety under the Family Law (Child Abduction Convention) Regulations 1986 for orders for the return of the children, T, born in March 1999, and C, born in March 2000, to New Zealand.

Background

1. The children are the children of the respondent mother, Ms Merrell, and Mr R (“the father”).  The mother and father were born in New Zealand and commenced an association of substance sometime around 1997.  The mother moved to Australia, and Darwin in particular, on 20 August 1998 with two children of a previous relationship, J, born in October 1987, and K, born in June 1992.  The father followed the mother and moved from New Zealand to Darwin on or about 24 September 1998. 

2. There is a dispute between the parties as to the nature of the relationship between them at that time and as to the question of cohabitation thereafter.  It is conceded by the mother that there was some intimacy in the relationship and that she fell pregnant sometime in the month of September 1998.  The mother says that T was born prematurely in March 1999, after just some 27 weeks gestation.  It is clear that there were serious complications with T’s birth, as the mother was flown to Adelaide by an air ambulance and T remained in intensive care until 10 May 1999, when he was transferred to a hospital in Darwin. 

3. The father attended the mother and T in Adelaide at sometime after the child's birth and up to no later than 30 March 1999.  On 30 March, by agreement with the mother, the father returned to Darwin to care for the mother's older children, J and K, whilst the mother remained in Adelaide with T.  The mother and T returned to Darwin on 10 May and the mother acknowledges that the parties cohabitated as de facto partners for a short period thereafter.  However, she alleges that they finally separated on 25 June 1999 and did not resume any de facto relationship thereafter. 

4. In his affidavit filed with the Form 2 application, the father contends that the parties were in a de facto relationship from "approximately 1997" to "approximately September of 2001", subject to his acknowledgement that there was a period of separation for approximately four months in the middle of 1999.  For her part, the mother contends that C was conceived prior to separation in or around the beginning of June 1999. 

5. On any version, the parties' relationship was a troubled one and the father elected to leave Australia and return to New Zealand to live.  In his original affidavit, the father described a de facto relationship continuing until September of 2001.  However, the Department of Immigration records, which are Exhibit 1 in these proceedings, establish clearly that the father left this country on 22 November 2000 and those records would indicate he has only subsequently returned on one occasion for two days on 15 and 16 March 2002.

6. It is to be noted that the children were aged 20 months and eight months respectively at the time the father chose to return to New Zealand.  It appears that the father did not spend any time with the children from the date of his departure until some six years later.  It also appears that the parties did experience some difficulties in their communication with one another from time to time, although it is equally clear that, on other occasions, their communications were quite amicable.  The mother also maintained contact and correspondence with the paternal grandmother in New Zealand, with whom the father resided in New Zealand from time to time. 

7. It emerges that T was presenting with some behavioural issues in his early days of schooling and that he had been diagnosed as autistic.  It is common ground that, during 2006, the mother and the father, and the mother and the maternal grandmother, engaged in some correspondence about the prospect of T spending some time in his father's care in New Zealand.  Agreement was ultimately reached that T should travel to New Zealand in January of 2007 to enable him to commence the 2008 school year in New Zealand. 

8. There is a fundamental factual dispute between the parties as to the other terms and conditions of that agreement to have T with his father and as to the intended duration of that stay.  The father suggests that it was always intended to be a permanent arrangement, subject only to the mother being satisfied T coped with the early transition period, which he clearly did on any account of the matter.  The mother acknowledges she was happy for T to spend a year in his father's care and that she subsequently agreed to an extension of a further year.

9. The mother says that, at the time the parties were discussing an extension of T’s time in New Zealand, she raised the prospect of C spending some time with her brother and father in that country.  The evidence discloses that the parties ultimately reached agreement about C’s travel to New Zealand, while issues again arise as to the terms and conditions of the move, with the father again alleging it was intended to be permanent and the mother asserting that it was only for the duration of T’s second year in New Zealand.

10. It is again common ground that agreement was reached to have the children return to be with their mother in Australia from late December 2008.  The father argues that the intention of the parties was that this was for the purpose of a school holiday visit only and that the children were to be returned to him in New Zealand for the commencement of the 2009 school year.  The mother, on the other hand, asserts that both children were to remain with her permanently in Australia from late December 2008 pursuant to earlier agreements.  At the same time, the mother acknowledged some apparent change of heart on the part of the father and acknowledges that she engaged in some deception of the father by informing him that she would return T to New Zealand and by purchasing a return ticket to give effect to that assurance.  In her affidavit, the mother said she felt obliged to engage in this deception as she feared the father would not allow T to travel to Australia if she did not do so.

11. In the meantime, the mother says that, in early October 2008, she discovered a letter written by her daughter K, in which her daughter described experiencing some forms of sexual interference at the hands of the father whilst he was caring for her when the mother was hospitalised with T in Adelaide in March/April 1999.  The mother said she had some discussion with K which suggested that another child may have also been abused by the father.  The mother reported the matter to Queensland police and also subsequently contacted the Wellington police. 

12. The mother says that she was extremely concerned about the safety and welfare of the two children in New Zealand and that she booked the first available flight to New Zealand and arrived in that country on 7 October.  She says that, as soon as she could on the next morning, she reported her concerns to the Child Protection Agency.  The mother describes in her affidavit that she experienced some difficulties with each of the authorities, perhaps largely as a result of the fact that K, the subject of the initial concerns, was a child in Australia and perhaps of limited relevance to the New Zealand authorities and that, in Australia, when the mother raised concerns about C’s welfare in New Zealand, it was a matter about which the Australian authorities could do little to intervene.

13. After she arrived in New Zealand, the mother asked to see the children and the father agreed, being unaware of the allegations at that time.  The mother removed the children from New Zealand on 8 October 2008 without the father's knowledge or consent. 

14. The mother contends that such removal was, at that time, necessary for the safety and welfare of the children, given the disclosures of K and some statements made by C as set out in her affidavit.  The mother says that, after arrival in Australia, C was medically examined and that such examination provided further evidence of possible sexual abuse.  She says both T and C have subsequently made statements which indicate that they were potentially victims of other forms of abuse at the hands of the father whilst living with him in New Zealand.

15. Having been apprised of these matters, the father strenuously denies all allegations of abuse, sexual or otherwise.  More generally, in his material, the father contends that the parties had reached agreement that the children should reside permanently with him in New Zealand and he contends further that the children were doing very well in his care and that the mother's removal was wrongful.  The father took immediate steps to have the New Zealand and Australian authorities secure the return of the children to New Zealand pursuant to the letter and spirit of the Hague Convention.

The relevant legal principles

1. Under reg 15 of the Family Law (Child Abduction Convention) Regulations 1986, the Court is required to make an order for the return of children under the Convention if it is satisfied the conditions of reg 16 have been met. Those conditions include a determination that the removal or retention in question was wrongful by virtue of the following criteria which are relevant on the facts of this case, that is:

   a)the children were under 16;

   b)the children were habitually resident in a Convention country immediately prior to their removal;

   c)the person seeking the return had rights of custody under the law of the country in which it is alleged the child was habitually resident immediately prior to the removal; and

   d)the child's removal was in breach of those rights of custody which were being exercised at that time.

2. On the facts of this case, an order for return should be made if those preconditions are established on the evidence, subject only to a discretion to refuse to make such an order if the respondent establishes one of the exceptions referred to in reg 16(3). 

3. In this case, the respondent argues, firstly, that the discretion described in reg 16(3)(b) does arise, in that the disclosures of K and the two subject children do establish that there is a grave risk that to return the children to New Zealand would expose them to physical or psychological harm and, further, that in all the circumstances I should exercise such discretion so as to refuse the application for return.

4. In order to secure a Court order for the return of the children, the applicant Central Authority must establish each of the aforementioned preconditions.  The first question to be considered, therefore, is whether the children were habitually resident in New Zealand at the time of their removal in October of 2008.  I have been referred to a number of authorities on the topic and accept that the principles relevant on the facts of this case include the following:

   a)The question of a person's place of habitual residence is a question of fact.

   b)Habitual residence is established by the fact of residence and by the intention to reside habitually.

   c)Habitual residence identifies the centre of a person's personal and family life as disclosed by the facts of the individual's activities.

   d)In cases where children are too young to form the necessary intention, habitual residence may only be terminated by both parents jointly forming the intention to terminate habitual residence by removal to another jurisdiction for the purpose of enabling the child to establish habitual residence in that new jurisdiction.

   e)Such intention by separated parents may be proved by evidence of explicit agreement or by inference drawn from the parties' actions.

5. In this case, there cannot be any issue about the fact that Australia was the habitual place of residence for T prior to 13 January 2007 when he travelled to New Zealand, and for C, prior to 17 December 2007 when she travelled to New Zealand.  The question of fact to be determined is whether, in relation to each or either of these children, events subsequent to those dates had the effect of changing the habitual place of residence from Australia to New Zealand.  In the circumstances of this case, the position of each child needs to be considered separately.  I turn to consider T’s position firstly.

6. I am satisfied on all of the evidence that, as at January of 2007, the mother's intention was to send T to his father in New Zealand only for a limited purpose and for a limited time.  She was experiencing difficulty with his care and wanted to provide him with the opportunity to spend time with his father and to otherwise expose him to extended family and New Zealand culture in the hope that would enable him to enjoy an environment which might be conducive to his improved advancement.  I accept that her original intention was that the duration of the stay would be for somewhere between six months to one year, although even that understanding was qualified by clear reference in documents to her intention to monitor the situation and review it after a period of three months. 

7. Evidence produced by the father which, at face value, is indicative of evidencing the mother's acknowledgement that T would be residing with him and that the father would be responsible for his care should, in my view, be interpreted as doing no more than confirming the fact of T’s presence in New Zealand with his father and constituting an acknowledgement of the father's rights and responsibilities whilst T remained in his care.  Having regard to the remainder of the evidence, they should not be construed as an abandonment by her of her rights and responsibilities to the father, or as a statement of a permanent arrangement intended to shift the centre of T’s life and activities to New Zealand.  The documents and statements referred to by the father remain consistent with an intention that the child should be in the father's care for a limited duration of the type I have already described of between six to 12 months as the mother asserted.

8. Further, on the evidence I find that, in or about the middle of 2007, the mother agreed to an extension of an additional one year stay in New Zealand and that, at that time, she proposed that T should be joined by his sister for that second year.  I conclude that, up to that time, the mother had not explicitly agreed to a termination of Australia as T’s habitual place of residence and an adoption of New Zealand, nor were her actions such as to support an inference that it was her intention to sever T’s ties with Australia in that way.  Up to that time, in my view, it remained the intention of the mother to have T return to her in Australia and his stay in New Zealand was only to be a temporary arrangement.

1. However, on the totality of the evidence, I conclude that, subsequently, the mother did, indeed, have a change of mind and acted upon it and did agree to T’s continuing residence with his father in circumstances which should result in this Court determining that the parties had reached an agreement that T’s future was in New Zealand.  In doing so, the mother was acknowledging that New Zealand had become the centre of T’s future and of his living arrangements.  Having accepted the mother's evidence that the joint intention of the parties was to the effect that T’s time should be extended only for a second year and that C should join him for that second year, and that together the children would return to Australia to live permanently with the mother, subsequent events establish to my satisfaction that the mother changed those arrangements. 

2. The correspondence establishes that the mother was asked to consider the future arrangements for the children during 2008.  She was particularly asked to consider T’s position because it was being asserted by the father that he had settled well in New Zealand and had done particularly well in his schooling.  The school reports attached to the father's affidavit clearly support those contentions. 

3. On 21 April, the father wrote to the mother saying that she would need to speak to the children to establish what they would like in terms of their future.  Subsequently, the parties entered into negotiations about the children being with their mother in Australia during the Christmas holidays. 

4. Tellingly, in my view, on 27 August 2008, the mother purchased a one-way ticket for C to return to Australia and at the same time she purchased a return ticket to New Zealand for T.  In her affidavit filed on 27 January 2009 (par 124), the mother seeks to explain this differentiation by the suggestion that she purchased a return ticket for T because of a stated fear that the father would not allow T to travel to Australia if she only purchased a one-way ticket.  Firstly, it needs to be observed that there is no objective evidence to support that bald proposition.  To the contrary, it appears that the initiative to consider the children's travel to Australia for the Christmas period came from the father's side. The matter appears to have been initially raised by the paternal grandmother on behalf of the father in or about April of 2008 (Annexure KMM13 to the affidavit of the mother filed on 27 January 2009).  In Annexure KMM14, the father subsequently confirms he has no objection to the children travelling to Australia during school holidays.  Further, there is direct evidence as to the mother's real understandings and intention from her own hand by her own letter of 11 August 2008, written just 16 days before she booked the return airline ticket for T (see Annexure AA to the father's affidavit filed on 26 February 2009) and on this point, I quote from the mother's own letter:

   "Just sending a message to say hello and let you know what I've been discussing with [the father] in regards to the kids at Christmas time.  I'm sure [the father] has already told you.  

   We've decided that they will be spending Christmas in NZ because of family visiting [the father], and then when I spoke to [the father] the kids would be coming over here for New Years.  Mum is coming over around the 28 December and returning back to NZ after 3 weeks holiday.  Mum is coming over with [T] & [C] and then going back with [T] as he wants to stay in NZ."

5. There can be little doubt about the meaning and effect of those words and, in particular, the statement by the mother that T "wants to stay in New Zealand".  Her apparent agreement to send him back at the end of school holidays for the commencement of 2009 is an express acknowledgement, in my view, of her appreciation that T wished then to remain permanently in New Zealand with his father and her letter is a statement of her agreement to that arrangement.  In my view, the mother's actions and the mother's words at that time represent the clearest possible evidence of the fact that, at some time during the period between 21 April, when the mother first stated her understanding that both children would be returning to Australia to live with her, and 11 August, when those arrangements were fundamentally changed, the mother discussed these matters with the father and with T and reached an agreement with the father to allow T to remain permanently in New Zealand. She acted upon that agreement by the purchase of the ticket.  Her spoken words and actions represent a fundamental change in her attitude and intentions.  Further to that, on her own evidence, it had previously been her intention that the children be reunited initially in New Zealand in 2008 and then in Australia in 2009.  Her decision to book a one‑way ticket for C and a return ticket for T is a stark illustration of a fundamental change in her plans and intentions to have the children reside together from 2009 on.

6. Having regard to the totality of the evidence and after placing particular significance upon the following factors:

   (i)the father’s wish and intention to have T remain resident with him in New Zealand;

   (ii)the mother’s apparent satisfaction that T had formed a preference to remain in New Zealand;

   (iii)the mother’s subsequent advice in writing that she acknowledged T’s wish to remain in New Zealand and consented to it;

   (iv)the fact that, by the time of the events, deliberations and apparent decisions referred to in sub-paragraphs (i) to (iii) hereof, T had already spent almost two years in New Zealand and had, on all of the evidence, clearly become settled and attached to all aspects of life in New Zealand;

   (v)the fact that the mother’s actions in purchasing a return ticket represent practical confirmation of the apparent state of affairs;

   I have concluded that, in all respects, by the time of the mother’s apparent and expressed agreement, New Zealand had become the centre of T’s personal and family life and that his habitual residence thereafter changed from Australia to New Zealand. 

7. I find, therefore, that at the time of his removal in August of 2008 T was habitually resident in New Zealand, a Convention country.

8. Related to that approach to the matter and consistent with it, I find that there has not been established any such intent or any such change of habitual residence in relation to the child, C.  I have already observed upon the evidence in my conclusions that the mother's agreement to have the children reside with the father was initially intended by her as a temporary arrangement only which would see the children return to her after a finite and agreed period.  In the case of C, I am satisfied that, having agreed to an extension of time for T, the mother was anxious that the children should not be separated for so long and was happy to respond to C’s request to spend time with her brother and father in New Zealand during that extended year.  I accept that C’s time should be regarded as little more than an extended period of contact with her father.  I accept that it always remained the mother's intention and understanding that C would be returned to her after her temporary stay in New Zealand to resume her schooling and activities in Australia.  There is nothing in the father's correspondence which suggests anything to the contrary.

9. I repeat my earlier observations as to the equivocal nature of the mother's declarations in correspondence as to the children's residence in New Zealand with their father and in relation to his rights and responsibilities, which expressions were, in my view, in no way inconsistent with the proposition that the mother was vesting those rights in the father for the limited time and for limited purposes.  In the case of C, there is no evidence of any change of heart or change of intention on the part of the mother.  The quite open purchase of a one-way ticket to Australia for C and the confirmation of that arrangement in correspondence is entirely consistent with the mother's stated intentions and understanding and stands in stark contrast to the arrangements made for T.

10. I have concluded that C’s habitual residence in Australia was not changed by any agreement to allow her to temporarily spend time with her brother and father in New Zealand.  I find that, at the time of C’s removal from New Zealand in October of 2008, she remained habitually resident in Australia. 

11. Of course, in order to invoke the provisions of the Child Abduction Regulations, the Central Authority must establish the mother's removal of the children from a Convention country was wrongful.  An essential platform of such a proposition is the need to prove that the children were, indeed, habitually resident in the relevant country.  Having failed to establish that precondition in relation to the child C, the application in relation to her must be dismissed and further consideration of the remaining criteria in relation to that child is of no purpose.

12. Having determined that T was habitually resident in New Zealand at the time of removal, I must proceed to consider the other aspects of the case in relation to that child. 

13. I am satisfied, pursuant to the provisions of reg 16(1A)(c), that the relevant law to consider in determining whether the father had rights of custody is the law of New Zealand and, in particular, the law according to the Care of Children Act.  Section 17 of that Act prescribes that a father has rights of custody if he was in a de facto relationship with the mother of a child at the time that the child was born.  The father asserts that the parties were in a de facto relationship from prior to September 1998 until at least his departure from Australia in November 2000, and certainly that he was in such a relationship at the time of T’s birth.  He acknowledges a period of separation from mid-1999, which would coincide with the mother's evidence to the effect that there was a separation on 25 June.

14. For her part, the mother denies the existence of a de facto relationship at the time of T’s birth.  She acknowledges that the parties cohabited upon her return from Adelaide on 10 May and until 25 June.  In her affidavit material, she denies a de facto relationship was in place at any other time before or after that period.  Curiously, however, the mother attaches her own Centrelink records which establish that she informed Centrelink that she was in a de facto relationship with the father from 31 March 1999, just some few days after the birth of T (Exhibit KMM5 to the mother's affidavit filed on 9 March 2009).  No doubt, the mother intends also to rely upon the further information contained in those records, which is to the effect that the mother was single between 1970 and 31 March 1999, to suggest that the Court should observe that she was declaring that she was not in a de facto relationship as at the date of T’s birth in March 1999.  However, this latter proposition that the mother was single between 1970 and 1999 itself seems prima facie to be inconsistent with her testimony elsewhere, where she describes Mr F, the father of her children J and K born in the 1980s and 1990s, as her partner.  It is to be observed that the mother may have stood to gain from her assertion to Centrelink that she was not in a relationship with the fathers of any of her children, save for the brief period after 31 March 1999.  Whatever be the case, I have some reservations about aspects of that document, but I use as the starting point the fact that the document constitutes an admission by the mother that the parties were, in fact, in a de facto relationship as little as a few days after the birth of T.

15. My task is to determine on the totality of the evidence whether I should conclude, as asserted by the father, that they were, in fact, in such a relationship on the date of T’s birth a few days prior to 31 March 1999.  In my view, the evidence to that effect is overwhelming.  It is inconceivable to me that, in the context of an emergency birth of a premature baby born after only 27 weeks gestation, and being the subject of an emergency air ambulance flight from Darwin to Adelaide, in that context the mother would choose that moment to enter into a previously non‑existent relationship.  On her own case, she would have it that, a few days after the premature birth, when she was in Adelaide and the father was in Darwin, she chose that moment and those circumstances to enter into a committed relationship she had previously resisted.  That would seem to be a most unlikely proposition indeed.

16. The father brings to bear a substantial body of evidence, including documentary evidence, which is indicative of cohabitation and provides other indicia of a relationship.  The very fact that the father followed the mother from New Zealand to remote Darwin within but a very short period of time after the mother's own departure from New Zealand is, itself, indicative of some form of relationship.  Various addresses occupied by the mother and children are recorded in various third party documents as the residential addresses of the father.  One might be able to accept the proposition advanced on behalf of the mother that she allowed him to borrow her address, and perhaps one could readily accept that, immediately upon the father's arrival in Australia, an albeit reluctant partner might be prepared to lend her postal address to her rejected former lover, but the proposition that she would keep allowing a non-partner from whom she says she was estranged to use her residential address in that way stretches credibility.  The frequency of these occurrences provides corroboration for the father's version.  In addition, in this case, the parties shared a post office box address for some time.  Further, the mother is forced to concede the father had a phone connected to one of the addresses she says he never resided at.

17. Further, it is to be noted that the father attended medical appointments before the birth of T.  The father clearly attended the mother and T at the Adelaide Hospital at some time or times between T’s date of birth in late March and the 30th of March, as evidenced by photographs.  The mother registered the father on the birth certificate and used the same address as one occupied by herself.  The mother obviously requested the father to care for her two young children whilst she remained in hospital with their child, T.  Again, the suggestion that that would be the starting point of a relationship is one that does not sit comfortably with me.  I am much more comfortable with the notion that a distressed mother in difficult circumstances would have little decision to make about her children if there was, in fact, an existing intact relationship upon which she could rely to have her partner not only attend upon her and the child at hospital, but then return to Darwin to care for her remaining children.

18. The existence of the relevant relationship before, at the time of and after the birth of T is also corroborated by the affidavit evidence of the paternal grandmother, who appears to have been a person who was supportive of each of the parties and all of the children and to be a person who was an ongoing confidante of the mother right up to the time of the removal of the children from New Zealand.  Her evidence, on its face, appears unremarkable and inherently reliable and is again supported by other evidence produced in this case.  It is difficult to understand why the paternal grandmother would falsify her evidence on this issue.

19. I have concluded on the totality of the evidence that, at the time of T’s birth, the parties were in a de facto relationship.  They were a couple.  They resided together and, although obviously they remained physically separated until the mother's return to Darwin, it is clear that, during that time, the father provided a variety of levels of support for the mother, T and the mother's other children. 

20. I therefore conclude, pursuant to the relevant New Zealand legislation, that the father acquired rights of custody from the circumstances I have described. 

21. It is not contended other than that the father was exercising those rights of custody at the time of T’s removal from New Zealand. 

22. In those circumstances, the Central Authority has established all the necessary preconditions to secure an order for the return of T to New Zealand.

23. The remaining question, then, is whether the respondent has made out the exception pleaded by her so as to give rise to a discretion vested in this Court to refuse to make such order.  She contends that such an order would expose T to grave risk of physical or psychological harm.  Of course, the primary concerns raised by the mother were to the effect that C may have been the victim of sexual abuse.  In support of that proposition, she relies upon the contents of a letter which might be indicative of past sexual abuse of K by the father some 10 years ago and, further, she produces medical evidence which may indicate some past penetration of C’s genitalia. 

24. There is no allegation of sexual abuse of T or of any exposure of T to the father's sexual abuse of others.  Of course, I fully appreciate that, if sexual abuse of one child is established, it is likely that the Court would conclude that an adult capable of such abuse may represent a risk to all children in his care, regardless of the age or gender of the other children.  However, I must consider whether the evidence is such as to establish the grave risk of harm to T as alleged by the mother in the event that I make an order to secure his return to New Zealand as sought by the Department.  My responsibilities in that regard require me to engage in some evaluation of the evidence in relation to the girls and a consideration of other relevant matters.

25. It is to be noted that the original source of the mother's concern is some private, undated jottings of her other daughter recalling events of 10 years ago when she was six years old.  While some of the information contained in that letter is very disturbing at face value, the exact nature of the conduct is not entirely clear.  At one level, the matters set out in the letter sound most sinister, but at the same time "playing" can mean many things and being naked in bed is not necessarily inappropriate.  I do not raise these matters to minimise the potential gravity of the situation disclosed in the letter, but rather to highlight the uncertainty that remains about the contents of that letter.  K has not made any direct disclosures of sexual abuse and K has not made any statement to the police which could be received and considered. 

26. In the case of C, again, there are no direct disclosures of sexual abuse and the only evidence I have is of a worrying irregularity emerging from C’s physical examination by a medical practitioner.

27. Of course, the mother does allege in her affidavit material that each of the subject children has made a number of statements which are potentially indicative of excessive discipline or physically abusive behaviour.  Those statements, however, are somewhat vague and I must consider those matters in the context of this litigation and the contest between the Department and the respondent mother.  I must also consider it in the background of acknowledging the fact that these children were with the father for almost two years and almost one year respectively, without apparent complaint or concern, without the mother raising any issues or becoming aware of any matters of relevance to the present consideration.  She happily allowed her children to remain with the father for those extended periods.

28. I need also to take account of the fact that the father strongly denies all allegations of abuse.  He maintains that he is a dedicated father who cared for the children full-time and cared for them well.  Those assertions by the father are corroborated by the observation and evidence of the paternal grandmother.  The father says that, rather than being the victims of abuse, the children thrived in his care.  Importantly, there is some strong support for that notion to be gained from the extensive information provided by the children's schools. T does, indeed, appear to have thrived in his father's care and in his New Zealand school.  The school reports indicate that he has made significant progress in all areas including, importantly, in his general behaviour, which was the very source of the mother's concerns prior to her decision to send T to New Zealand.  The school appears to make a point in its reports of commenting upon the importance and value of the support T was clearly receiving from his father at home. 

1. I conclude on the evidence as it currently stands that, prior to his removal, T was happy in his school and home environment and that he was thriving in it and wanted to stay in New Zealand and remain with his father.

2. As I have said, the serious abuse allegations which have emerged in this case are in relation to the girls and, while such matters are clearly relevant to T’s welfare in the father's household, they stand at this time as mere allegations, denied by the father, which may necessarily be the subject of further investigations.  The authorities in New Zealand have already been contacted and the evidence indicates that those authorities are obviously attuned to the needs of children for protection.  In the absence of evidence to the contrary, I assume that the New Zealand authorities are more than capable of intervening to protect T if necessary, and that those authorities are in the best position to evaluate the risk matters in issue and make the appropriate judgment. 

3. The mother, of course, is in a position to pursue her concerns through the New Zealand authorities.  In the meantime, I have concluded that the mother has not produced evidence sufficient to enable me to determine that making the order sought by the Department would be to expose T to the grave risks of harm on the evidence provided by the mother in her pleadings.  In those circumstances, I am not satisfied that a discretion to refuse the application sought by the Department arises.

4. Before I proceed to make orders, I propose to briefly stand the matter down.  The consequence of my findings is likely to produce orders which were not in the contemplation of either of the parties.  The mother was seeking orders securing the retention of both children in Australia.  The Department was seeking orders securing the return of both children to New Zealand.  Consistent with my determinations, the order I currently feel obliged to make is an order which will see these children separated and would see T return to his father in New Zealand and C remain in Australia with her mother.  I wish to give the legal representatives the opportunity to confer before I proceed to make those orders, in case any matter arises from that, perhaps, unexpected turn of events.

RECORDED  :  NOT TRANSCRIBED

1. On the question of timing of T’s return, I acknowledge the letter and spirit of the Convention and the need for prompt determination and, upon determination, prompt return. However, this case is unique in its circumstances, in that the legal determinations I have made have resulted in the children being treated differently and, notwithstanding that they have been separated by agreement between the parties for extended periods in the past, having regard to T’s age, having regard to his learning difficulties and the undesirability of unnecessarily interfering with the continuity of his schooling, and having regard to the fact that these children will be separated upon the implementation of this order and the desirability of giving them time together, on balance, I am satisfied that the best interests of this young child are such as to justify some relaxation of the rigid approach to these matters. 

2. That rigid approach is designed to protect all children at large, but when it comes to considering the individual children, in my view, it is appropriate to take account of individual circumstances and, having made the decision that T should be returned to New Zealand, I do not see any value in doing it in a way which might increase the prospect of him being adversely affected by the outcome of the decision.  A delay of two weeks or so beyond the date sought by the Department will still give meaning and effect to the Convention, but will address the individual concerns of this child. 

3. I propose to order the return on or before 9 April 2009.  I dismiss the application as it relates to C.  The second order I will make is that the orders made by this Court on 10 December 2008, to the extent they relate to the child, C, born in March 2000, be discharged.  I otherwise make orders in terms of the draft orders as amended to reflect the decision as it relates only to T.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

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