Department of Child Safety and Pelt

[2009] FamCA 412

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & PELT [2009] FamCA 412

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Wrongful Retention – Application seeking return of child to New Zealand pursuant to Hague Regulations – Grave Risk Of Harm

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986

De L v Director General New South Department of Community Services and Another (1996) FLC 92-706
De Lewinski v Department of Community Services (1997) FLC92-737
Director General Department of Community Services v Crowe (1996) FLC 92-717
Gsponer v the Director General Department of Community Services Victoria (1989) FLC 92-001

APPLICANT: Department of Child Safety

RESPONDENT: Ms Pelt

FILE NUMBER: BRC 1801 of 2009

DATE DELIVERED: 28 April 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 28 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PARROTT

SOLICITOR FOR THE APPLICANT: CROWN LAW

COUNSEL FOR THE RESPONDENT: MR GARDINER

SOLICITOR FOR THE RESPONDENT: MICHAEL DWYER  SOLICITORS

Orders

IT IS ORDERED

1. That the child, … born … February 1998, be returned to the country of New Zealand and for the purposes of giving effect to this order:

   a.    That the said child leave the Commonwealth of Australia on or before 11 May 2009;

   b.    That pending the said child, …, born … February 1998, returning to New Zealand, the respondent mother, Ms Pelt, 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 said child, …, born … February 1998 to New Zealand, the respondent mother, Ms Pelt, born … July 1952, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child, … born … February 1998, from the premises where the mother and the said child are currently residing namely, …, Queensland;

   d.    That the respondent mother, Ms Pelt, pay all the necessary expenses associated with returning the child to New Zealand, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane Airport to New Zealand, and in the event the Respondent mother fails or refuses to pay these expenses; the respondent mother pay to the applicant the necessary expenses incurred by or on behalf of the applicant and the child, in returning the child to New Zealand, within two business days of the applicant making a written demand for reimbursement of the said expenses.

   e.    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 child in accordance with this order.

   f.     That paragraphs 1, 2 and 4 of the orders of the Honourable Justice Jordan made 9 March 2009 be discharged forthwith.

2. That all other Applications be dismissed.

3. That there be liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1801 of 2009

DEPARTMENT OF CHILD SAFETY

Applicant

And

MS PELT

Respondent

EX TEMPORAE

REASONS FOR JUDGMENT[1]

[1] Reasons refusing an oral application for adjournment, and have been incorporated into Reasons ordering return of the child. Reasons for each were given separately on the day of the hearing.

1. A preliminary point is raised at the commencement of the hearing of what might conveniently be described as a Hague application by the Central Authority for the return of a child to New Zealand. 

2. It seems abundantly clear, and no submission has thus far been made to the contrary, that all of the prerequisites for the application of the Regulations have been met. 

3. Return is, on the face of the respondent mother's material, resisted by reference to the objections of the child and, potentially, the risk of harm to the child if a return is ordered.  It is in respect of the second of those two matters that a preliminary point is raised by Mr Gardiner, counsel for the respondent mother. Mr Gardiner argues that the hearing should not proceed until a report from a neurologist, or similarly qualified expert, is obtained in respect of the father.   

4. The evidence reveals that the father, in whom rights of custody vest, has suffered a stroke.  The evidence in respect of that is contained in a report from Mr C who provided a report pursuant to reg 26 on 23 April 2009. 

5. In particular Mr C refers, at para.14, to a conversation he had by telephone with the father, who resides in New Zealand, as follows:

   "His speech again appeared somewhat laboured.  He advised that he had suffered a stroke and that his is currently undergoing a program of rehabilitation.  He advised that he is residing at his sister's house in [W].  As I understood it, this is a considerable distance from the family home in [T]".

6. In the following paragraph, Mr C says:

   "[The father] advised that he has been given 'medical clearance to drive and to do normal functions.'  He stated he wants [the child] to return.  "She is loved and missed by me and her brothers and sisters."  [The father] stated that he is fit to care for her and has "documentation" that he can produce to support this.  He envisaged that he would be returning to [T] should [the child] return".

7. The report indicates that the conversation between Mr C and the father just referred to took place on 20 April.  The report refers to an earlier conversation with the father which occurred on 16 April.  During that conversation Mr C indicates that the phone was initially answered by a mature woman who said she was the father’s sister.  Mr C then says:

   "[The father] came to the phone.  His speech was quiet and laboured and he advised that he needed to attend 'rehab' that afternoon and suggested I speak with his sister and arrange another time to call.  We arranged the next suitable time to call was on the following Monday, 20 April 2009". 

   It is on that later date that the telephone conversation just referred to took place.

8. The most recent affidavit filed by the Central Authority and deposed to by the father annexes two medical reports.  The first is from a physiotherapist.  The second is from a general practitioner.  Each is brief. 

9. The physiotherapist, Ms L, advises, as at 17 April 2009, of a number of problems experienced by the father during the course of his treatment.  She says that he was transferred from the K hospital on 13 March for rehabilitation after a stroke.  He attended rehabilitation, she says, at the W Hospital daily "where he had intensive physiotherapy and occupational therapy." 

10. She refers to a number of problems experienced by him, namely:

    "Reduced balance, slight reduction in strength in his left lower limb, but also his right due to a previous TKJR.  He was mobilising independently with no aid but did require distant supervision initially; all bed mobility was also independent.  He also had problems with his vision and memory".

11. Ms L then speaks of the physiotherapy conducted and says:

    "On discharge (the father) was mobilising independently inside and outside (no supervision from a mobility point of view).  His strength improved on the left side and his balance continues to improve.  [The father] will continue outpatient physiotherapy for a few weeks".

12. The report from the father's general practitioner, which is exhibit B to the affidavit, is very short.  It is also dated 17 April 2009 and provides:

    "This is to confirm that the above patient is recovering from a recent stroke.  He is currently mobile.  His vision has been tested recently and meets the standard required for driving a motor vehicle."

13. In submissions, Mr Parrott for the Central Authority refers to par.11 of the affidavit by the mother in which she deposes, in effect, to the basis upon which the child continues to remain with her. The reg 26 report of Mr C is also relevant in that respect. 

14. In particular, at par.11 of his report Mr C refers to the conversation he had with the mother and, specifically, to a conversation he had with her relating to whether "she considered [the child] would be at risk should she return to her father in New Zealand." 

15. Mr C says that the mother indicated that whilst she did not consider the child would be in any danger, she stated:

    "If she goes back to New Zealand, then she would be looked after by her family (paternal family allegedly caring for [the father]) not her mother.  A mother's instincts are needed (at her age).  She needs her mother". 

16. It is to be noted that in that conversation, the mother did not refer to any particular dangers or risk emanating from the father's medical condition. 

17. Regulation 16(3)(b) of the Regulations provides for the defence earlier referred to in the context of this application. 

18. Relevantly, the person having recourse to that subparagraph must show "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." 

19. Authorities relevant to that Regulation have shown the, as it were, strictness with which that Regulation ought be interpreted.  In particular, in Gsponer v the Director General Department of Community Services Victoria (1989) FLC 92-001, the Full Court of this Court held that the words "or otherwise" "linked the quality with which each of the first two categories must have to the emphatic words which describe the third category (an intolerable situation).  That is, it is not the grave risk of any physical or psychological harm which would satisfy the first two aspects of this subparagraph.  The physical or psychological harm in question must be of a substantial or weight kind." 

20. That passage might be seen as an example of the significant distinction between, on the one hand, proceedings for parenting orders, in which the physical health of each of the parents might be, and is highly likely to be, a very relevant consideration, and, on the other hand, applications made pursuant to the Regulations. 

21. The latter are essentially about jurisdiction.  They are not essentially about parenting orders.  The applications made pursuant to the Regulations are, in essence, about which Court ought deal with such issues as might arise between the parents in circumstances where there has been a “wrongful retention” (as the Regulations define that term). 

22. Here, there seems to be no issue that the preconditions for the application of the Regulations, including wrongful detention, are met.  The sole issue for determination by the Court, then, is whether the child should be returned to New Zealand in circumstances where that Court would then, if one or both parties so desired it, determine any parenting issues as between the parties. 

23. In order to decide that question, the respondent mother is obliged to satisfy this Court that there is a grave risk of harm in the sense described in the Regulations. 

24. In my opinion the evidence falls far short of that which might be described as satisfying that test.  In the current context, the Court would need to be satisfied that there is, prima facie, a risk of grave harm within the meaning of the Regulations, such that the evidence sought to be obtained by the respondent mother from a neurologist, or a similar appropriately qualified expert, would amplify or explain, or otherwise analyse, the condition of the father to that effect. 

25. Here the evidence, in my view, falls short of that which would be required to indicate that such a report from a neurologist is required. That arises, in my view, because of a misapprehension of the nature of the test applicable to these proceedings.  An insufficient basis is made out for a neurologist, or similarly qualified expert's report, prior to the determination of the proceedings currently before the Court. 

26. Having rejected that preliminary oral application for adjournment, I proceed to determine the substantive issue.

27. When international boundaries separate co-parents of children, and orders are made effectively in contemplation of that separation, it is unsurprising that children, from time to time, express views about how and where they would like to live. 

28. The international boundaries in this case involve Australia and New Zealand.  The child in this case is 11.  She has resided in New Zealand for most of her life and orders have been made by a New Zealand Court placing her into the day to day care of her father in New Zealand and providing for her mother to spend time with her, effectively, in Australia. 

29. The current application arises because, contrary to those orders, the mother retained the child in Australia consequent upon a visit by her to her mother in this country. 

30. The father has therefore invoked what I will call, for ease of reference, the Hague Regulations, and the Central Authority brings an application to be determined by me for orders that the child be returned to New Zealand with consequential orders.

31. During the course of these proceedings, application was made by counsel for the mother that Mr C, a family consultant attached to the Family Court at Brisbane who prepared a reg 26 report issued on 23 April 2009 attend Court so as to be cross-examined. 

32. The initial basis for that submission was that Mr C’s evidence was relevant to the exercise by the Court of what is sometimes called the residual discretion.  During the course of submissions, that submission changed so as to suggest that Mr C’s evidence, or the cross-examination of Mr C, was required in respect of the issue of whether the child was at “grave risk” within the meaning of the Regulation and should she be returned to New Zealand.  I earlier provided reasons earlier for rejecting that submission in each of its forms.

33. The child was born in February 1998.  Her parents separated in New Zealand in March of 2005 and the child remained in the day to day care of her father.  On 1 March orders were obtained from the Court in New Zealand whereby the father obtained parenting orders in his favour granting him "exclusive responsibility" for the day to day care of the child. 

34. Orders were also made for the child to spend time with her mother.  On 17 December 2008 the child arrived in Australia to spend holiday time with her mother pursuant to those orders.  On 27 January 2009 the child was retained by the mother within the meaning of the Regulations. 

35. As is well known, the application of the Regulations require the Court to be satisfied of a number of prerequisites.  It is conceded - properly, if I may say so - by counsel for the mother that those prerequisites have been met in this case. 

36. In essence then, if the child is not to be returned to New Zealand, it is for the mother to establish and prove a relevant exception or exceptions within the Regulations. 

37. Relevantly, the exceptions argued on her behalf were that she was in what I will call grave danger of harm if she was returned to New Zealand or, in the alternative, that she objected to her return (again each within the meaning of the Regulations). 

38. The case for harm, as submitted, revolves around the potential for the child’s care to be significantly compromised by reason of the father having suffered a stroke. 

39. A considerable volume of the mother's evidence was objected to and struck out by me, predominantly as being irrelevant to the issues the subject of these proceedings.  Other parts of the evidence which may have been the subject of objection were not objected to.  One such passage was referred to in argument by counsel for the mother and is directly relevant to the issue of harm just described. 

40. Under the heading "A Grave Risk of Physical or Psychological Harm", and the subheading "Risk of Physical Harm", it is deposed at sub-paragraph (c) on page 18 as follows:

    "I am told and verily believe that the applicant has suffered a stroke and is partially paralysed and may be partially blind.  It is my belief that the applicant will not be able to care for [the child], given his incapacity.  In the event that the Court order (sic) [the child] to return to New Zealand and her brothers and sisters would care for her, I would have concerns for [the child’s] welfare as they have their own lives to live."

41. A number of comments may be made about the probative value of that paragraph or rather, I should say, the lack or probative value of that paragraph. 

42. That paragraph formed the basis of argument by Mr Gardiner on the mother's behalf, and discussion from the Bench during the course of that argument.  Leaving aside its evidentiary deficiencies, it illustrates, it seems to me, the paucity of evidence advanced by the mother in support of this particular exception. 

43. She does not, for example, depose to the source of the hearsay statement deposed to.  That unsourced hearsay statement is apparently used in turn to found the assertion of "incapacity" and the beliefs and assumptions said to arise from that. 

44. As against evidence of that quality, I have before me evidence from the father's treating physiotherapist and general practitioner, albeit in strictly hearsay and untested form.  Neither of those pieces of evidence is objected to. 

45. The evidence from the physiotherapist, Ms L, indicates that the father was initially hospitalised at the K Hospital but was subsequently transferred on 13 March "for rehabilitation post CVA".  It is then said that "he attended rehab at [W] Hospital daily, where he had intensive physiotherapy and occupational therapy."  Ms L deposes to a number of difficulties experienced by the father during that treatment:

    "From a physiotherapy perspective, [the father] presented with reduced balance, slight reduction in strength in his lower left limb but also his right due to a previous TKJR.  He was mobilising independently with no aid but did require distant supervision initially; all bed mobility was also independent.  He also had problems with his vision and memory"

46. Ms L then speaks of the treatment that was provided to him and says ultimately:

    "On discharge (the father) was mobilising independently inside and outside (no supervision from a mobility point of view).  His strength improved on the left side and his balance continues to improve.  [The father] will continue outpatient physiotherapy for a few weeks."

47. That opinion is supplemented by an opinion provided by the father's general practitioner in a short report dated 17 April 2009.  The report says:

    "This is to confirm that the above patient is recovering from a recent stroke.  He is currently mobile.  His vision has been tested recently and meets the standard required for driving a motor vehicle."

48. It seems to me that the evidence just cited provides a much safer foundation than that of the mother for drawing such inferences as are available to the Court with respect to any incapacity on the part of the father. 

49. Further and in any event, it seems to me that, even if I was of the view that the father suffered from an incapacity greater than that which inferences from the evidence might reveal, it does not necessarily follow, in my view, that a finding of grave risk within the meaning of the Regulations would follow. 

50. A significant piece of evidence in that respect, in my view, comes from the mother herself.  One of the areas of concern for the reg.26 report writer, Mr C, was the issue of risk.  He reports:

    "When asked about whether she considered [the child] would be at risk should she return to her father in New Zealand [the mother] indicated that whilst she didn't consider [the child] would be in any danger, she stated, "if she goes back to New Zealand, then she would be looked after by her family (paternal family allegedly caring for [the father]) not her mother.  A mother's instincts are needed (at her age).  She needs her mother".

1. It is clear, then, that, when Mr C directly addressed with the mother the issue of risk her response was "she didn't consider [the child] would be in any danger". 

2. That view, coming as it does from the mother herself, is, in my view, significantly reinforced by the evidence of the physiotherapist and general practitioner to which I have just referred. 

3. In simple terms, the evidence produced by the mother, in my view, falls a long way short of the evidence that would be required to satisfy the court of the stringent test for grave risk of exposure to harm laid down both in the Regulation itself and in those decisions which have flowed from it.  I referred during the course of argument in particular to Gsponer v the Director General Department of Community Services Victoria (1989) FLC 92-001.

4. The second exception relied on by the mother is that contained in reg 16(3)(c).  That is what I called, for ease of reference during the course of argument, the "wishes" exception.  I made it quite clear, though, when using that shortcut form of expression, that I was conscious of the requirements of the regulation which, of course, extends much further than the issue of “wishes”. 

5. Parenting applications before Courts in Australia and, indeed, the Courts in New Zealand, can include references to the "views" or "wishes" of relatively mature children as a significant consideration to be taken into account by a Court when determining best interests.  I consider it is important for Courts charged with the responsibility of making determinations about children's best interests to allow those children to be heard.

6. In these circumstances, it is perhaps understandable that the notion of views expressed by children within the context of parenting proceedings might be confused with the evidence said to sustain the exception provided for in sub-paragraph (c) of the regulation.  There is, however, a distinction, as has been made clear by many earlier decisions, including those of high authority. 

7. I refer, in particular, to the statements of the High Court in De L v Director General New South Department of Community Services and Another (1996) FLC 92-706. I also refer specifically to the comments of the Full Court of this Court in Director General Department of Community Services v Crowe (1996) FLC 92-717, particularly at page 83641 where the Full Court said:

   "In our view (the trial Judge) erred in the approach he adopted in his consideration of the application in reg.16(3)(c) in that he did not consider whether the return to which (c) objected was the return which would otherwise be ordered, namely an immediate return to New Zealand so that the Courts of that country could resolve the merits of any dispute as to where and with whom she should live...

   The relevant objection is an objection to being returned to the country of habitual residence for the purposes of the regulations, not to live with a particular parent..".

8. In a later case of De Lewinski v Department of Community Services (1997) FLC92-737 the Full Court said at page 83,939:

   "It is clear that the objection must be an objection to being returned to the country of the children's habitual residence, here the United States of America, not to living with a particular parent, here the husband, however, as was pointed out by Balcombe LJ in Re R (Child Abduction; Acquiescence) (1995) 1FLR 716, there may be cases "where the two factors are so inimitably and inextricably linked that they cannot be separated."

9. That statement by the Full Court provides some caveat to the broader expression evidenced in some earlier cases. 

10. Here, though, I am clearly of the view that not only are the two issues distinguishable and not "inevitably and inextricably linked", but I am also of the view that the child herself is able to (albeit with the maturity of an 11 year old) make that distinction herself. 

11. In that respect, there are many passages in the evidence which, for the purposes of these proceedings, I accept, where the child clearly indicates that she has a desire to live with her mother.  For example, in the reg 26 report of Mr C, he reports her as saying at paragraph 18:

    "[the child] advised that she left New Zealand for this visit with her mother, thinking that she would return to New Zealand.  She indicated that since spending time with her mother that she realises how much she "needs" her and wants to be able to live with her."  

12. Mr C went on to say that:

    "[The child] stated that she had rung her father of her own volition to tell him that she wanted to remain in Australia.  She stated: "...he didn't answer the first three times...I was nervous...(when he answered).  I said, "Dad, I want to live with mum now"...I started crying and gave the phone to mum, who was next door".

13. Mr C provided the opinion that:

    "[The child] [is] generally of average maturity for her age; however, at her age of 11 years it is generally accepted that children have not reached a sufficient emotional maturity to always know what is in their best interests.  I believe that the views and wishes she has expressed are of her formulation and she has given them considerable thought.  I do not believe, however, that she is of sufficient maturity to be able to adequately consider all of the implications of wishes she proposes."

14. Mr Gardiner submitted that, despite that opinion provided by Mr C, the child was of sufficient maturity that her expressed views should be given very considerable weight by this Court.  If I accede to that submission then, clearly enough, the mother's case in respect of the exception is placed at its highest. 

15. Accordingly for the purposes of examining the submissions made on her behalf, if I assume that to be the case.

16. What then falls for consideration is whether a sufficiently mature child has objected to return in the sense in which that expression is used in the Regulations. 

17. Mr Parrott submits for the Central Authority that, in that respect, the mother does not cross the first hurdle; the child has not objected as that expression is used within the Regulations.  I agree with that submission. 

18. I have had reference in arriving at that conclusion to a number of pieces of evidence.  First, as I indicated earlier, I am of the view that the child herself is able to distinguish between her wishes as to where she may or may not wish to live on the one hand, and an objection to being returned to New Zealand on the other. 

19. Paragraph 24 of Mr C’s report is, in my judgment, very significant. Under the heading "(Whether) The Child Objects to Returning to New Zealand" Mr C says at paragraph 24:

    "[The child] advised that she wishes to remain living in Australia with her mother.  Whilst she did not object to any possibility of returning to New Zealand, she has a clear preference to remain in Australia."

20. An affidavit from Ms E, who is a social scientist employed by the Department of Communities (Child Safety Services), deposes to a conversation in the presence of the child and the mother which occurred on 9 March 2009 immediately consequent upon the first mention of this matter in this Court.  Ms E deposes:

    "4.After the mention [the mother] and I discussed the outcome of the Court proceeding and I confirmed/clarified that the matter had been set down for hearing on 28 April 2009.  I encouraged her to seek legal advice regarding the Hague application brought by [the father]...".

    "6.Whilst I was writing [the mother] a receipt in regard to receiving her and [the child’s] passport, I was present and overheard a conversation which occurred between the mother and [the child].

    7.To the best of my recollection I heard [the child] state, "I don't care about going back to New Zealand if I have to."  [The child] did not appear upset, distressed or anxious when she made this comment. 

    8.[The mother] responded "who is going to look after you?" [The child] stated that someone would look after her and that she wasn't worried about going back.  I believe that this question from (the mother) was made in response to the information that (the father) had recently suffered a stroke and that he was in hospital.

    9.[The child’s] tone of voice was matter of fact and she openly made these comments in front of me without hesitation.  She was not crying and her presentation appeared open to the fact that she may have to return to New Zealand.  [The child] did not present as fearful or concerned about a decision that may be made for her return to New Zealand and to the care of her father."

21. In my view the evidence contained at paragraph 24 of the report of Mr C is entirely consistent with the evidence given by Ms E in respect of the conversation with the child. 

22. Significantly, as it seems to me, that evidence exemplifies the very distinction that the Court needs to make between the wishes or views of a child that may or may not be relevant to one extent or another in parenting proceedings and, on the other hand, the objection that a child may or may not take to being returned to her country of habitual residence. 

23. In my view the evidence is clearly to the effect that, as Mr Parrott submits, the child has not objected in the relevant sense. 

24. If that view be wrong, Mr Parrott goes on to submit that, if there is an objection by the child, any such objection does not satisfy the second limb of the exception, namely that the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes.  

25. In that sense, Mr Parrott  says, in effect, that, if the submissions of Mr Gardiner on behalf of the mother as to maturity are accepted, then the Court would clearly expect to see a child of sufficient maturity expressing, in the clearest terms, objection of the strength and nature contemplated by the regulations.  I agree. As the evidence to which I have just made reference, shows there is no such evidence.  In fact, the evidence, in my view, points to the contrary finding. 

26. As a result of each of those findings, it is not necessary for me to consider what is sometimes called the “residual discretion”.  In earlier reasons, relating to the report writer, Mr C, being cross-examined, I indicated my view of the law, namely that the issue of residual discretion did not fall for determination unless and until the Court was satisfied on a prima facie basis that exceptions under the Regulations had been made out.  I repeat that view of the law in this context. 

27. As will be clear, in my view relevant exceptions under the Regulations are not made out and therefore it does not become necessary for this Court to exercise the residual discretion. 

28. If I am wrong in my view of the law, then, in any event, it seems to me that factors relevant to the discretion point against it being exercised so as to permit the child to remain in Australia. 

29. I have already referred to the fact that there is an existing order in New Zealand.  The child has spent the majority of her life in New Zealand.  She has spent a significant period of time post-separation in her father's day to day care.  She came to Australia on a holiday visit and, in her own words, expected to return to New Zealand.  Her own words to Ms E are that she is not particularly troubled by the notion of returning to New Zealand.  She clearly has a good relationship with both parents.  Her extended family lives in New Zealand.

30. I have also taken into account the purposes of the Convention and the Regulations which embody it in Australian law in the exercise of that discretion.  In that context, Mr Gardiner submits that, at para.136 of the outline of case provided by Mr Parrott on behalf of the Central Authority, which provides:

    "If the Court finds that the child is settled in a new environment or that any of the subsections in reg.16(3) have been satisfied, then it is submitted there remains a residual discretion (reg.16(5)).  Set out below are cases which have commented upon the nature of the discretion and relevant factors to be considered. "

31. Mr Gardiner submits that, as the child has been living in Australia with her mother for some three months or so now, has been enrolled in a local school, seems to be getting on well at that school and seems to have made friends and the like, that she is settled in that environment such that the principle just enunciated and the principles in the cases thereafter referred to should apply. 

32. Mr Parrott submits that the expression used in that paragraph of the outline (“settled in a new environment”) has specific reference to the exception contained in reg.16(2) which, in effect, provides for  an exception where a child has been settled in the "new place" for more than 12 months.  In my view the submission of Mr Parrott is clearly correct in that respect. 

33. For the sake of completeness, I will indicate that, even were that not so, the circumstances outlined by Mr Gardiner would, in my judgment, not be sufficient so as to invoke the residual discretion in light of the matters earlier enumerated by me so as to permit the child to remain in Australia. 

34. The application for return of the child to New Zealand is granted.

35. I order accordingly.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  22 May 2009