Department of Child Safety & Bates
[2007] FamCA 570
•30 May 2007
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF CHILD SAFETY & BATES | [2007] FamCA 570 |
| FAMILY LAW - CHILD ABDUCTION – Hague Convention – The mother removed the child from New Zealand to Australia – The mother argued that the father consented to the removal or alternatively that the father was not exercising his custodial rights at the time of removal – Held that it was highly unlikely the father signed a consent to the removal of the child given he had recently secured the child’s return after a previous abduction and was eager to establish a contact regime with his child. He had engaged solicitors for that purpose, and immediately complained about the mother’s attempts to have him sign the document of consent. Even if consent had been given it had been withdrawn by a letter from the father’s solicitors written before the mother left New Zealand with the child – The father was clearly seeking to exercise his custodial rights in relation to the child by attempting to establish a contact regime on a regular basis – A mandatory order for the return of the child was required – Considering that the child has lived in Australia effectively for two years, has siblings here and is well settled, the return to be delayed pending the outcome of a judicial conference to be held by telephone in the New Zealand proceedings. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| APPLICANT: | DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY |
| RESPONDENT: | MS BATES |
| FILE NUMBER: | BRF | 261 | of | 2006 |
| DATE DELIVERED: | 30 May 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Kay J |
| HEARING DATE: | 30 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Parrott |
| SOLICITOR FOR THE APPLICANT: | Crown Law |
| COUNSEL FOR THE RESPONDENT: | Mr Barataraj |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That the child a son born … July 1998 be returned to New Zealand within 14 days of the conduct of a judicial conference in the New Zealand proceedings unless otherwise ordered by the New Zealand court. The mother is required to do all things reasonably required of her to facilitate the prompt holding of such judicial conference. The father is requested to keep the New Zealand Central Authority advised of the progress of the proceedings and the New Zealand Central Authority is requested to keep the Queensland State Central Authority similarly advised.
That pending the child’s return to New Zealand, the Respondent mother 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;
That pending the return of the child to New Zealand, the Respondent mother continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the child from the premises where she and the said child are currently residing.
(a) Until further order, the Registrar of this Honourable Court retain all current passports relating to the mother and the child, ... .
(b)To facilitate the return of the child 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 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
That subject to sub-paragraph 6 below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the Respondent mother, … born … March 1979 and the said child, … born … July 1998, on the Airport Watch Alert System at all international departure points in Australia;
That the child and the Respondent mother be removed from the Airport 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 12.01am on the date nominated for the said travel in the letter;
That the Marshall 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;
That the Father …, pay to the mother $450 Australian towards the necessary expenses associated with returning the child to New Zealand prior to the child’s return.
That liberty to apply be granted to the Applicant to seek any further orders necessary to allow her to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.
That there be general liberty to apply.
That Orders 5 – 13 inclusive made by Judicial Registrar Smith of 18 January 2007 and all orders made by Judicial Registrar Smith on 8 February 2007 be discharged.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF261 of 2006
| DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY |
Applicant
And
| MS BATES |
Respondent
REASONS FOR JUDGMENT
Before the Court is an application filed by the Director General of the Department of Child Safety in her role as the State Central Authority seeking the return to New Zealand of the child, a son born on … July 1998.
The proceedings come before me today by way of a review of orders made by Smith JR earlier this year that required the return of the child. They were made on an undefended basis on 8 February 2007. The respondent mother filed an application to review those orders.
The proceedings before me take the form of a hearing de novo of the Director General’s initial application. It is only that if in the event that I agree with all of the orders that were made in the same form as the Judicial Registrar that I will dismiss the application for review.
The background to the material, to the proceedings, is that the parents of the child are Mr T and the Ms Bates. Ms Bates is also the mother of two other children, R, born in November 1994, he is now 12, and A, born in September 2002. He is now four. I am assuming that there are three different fathers involved in relation to each of the children.
There is some dispute on the material as to how long Ms Bates and Mr T were living together as husband and wife in a de facto relationship, and it would seem that whatever the accuracy of when the position began, they had ceased living together by 1999. That seems to be common ground.
The material then raises a significant clash of evidence as to the role that the father played in the child’s life from the time of separation up until the mother left New Zealand with the child for the second time on 28 May 2006. I say "left New Zealand for the second time" because she had previously taken the child and his siblings to Australia in 2005. The effect of that removal from New Zealand was to generate an application also brought under the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) on behalf of the father seeking the child's return which application was filed on 31 January 2006.
Orders were made in relation to that application by consent that saw the return of the child with the mother to New Zealand in April 2006. The child had been in Australia at that time since March 2005.
Effectively today, at the end of May 2007, the child has been in Australia all bar one month of a period in excess of two years. On the evidence as best I can glean it, he has only seen his father on one occasion during that time. Much of the time the father was unaware of the mother's whereabouts and the child's whereabouts.
The current set of proceedings were generated by an application which was filed on 4 December 2006, some seven months after the mother, once again, removed Mason from New Zealand.
Whilst in one part of the mother's material she suggests that the father did not have custodial rights under New Zealand law, that matter has not been urged upon me in the submissions today on her behalf. The relevant New Zealand law provides that the father of an unmarried child who is born in 1998 has guardianship and parental rights over the child if, at the time of the birth of the child, the parties were living together in a de facto relationship. At one stage in the mother's evidence she purported to assert they were not so living, but in an affidavit which she filed in some New Zealand proceedings she told exactly the opposite story. As I have indicated, there has been no point taken in the proceedings today on her behalf that under New Zealand law at some stage in this child's life at least the father did not have rights that would be sufficiently recognised as rights of custody within the meaning of the 1980 Hague Convention and the regulations made there under.
It is the mother's case that a mandatory return of the child to New Zealand, for the purposes of allowing the New Zealand Courts to now determine issues relating to his relationship with both of his parents, which I will conveniently call "custody and access issues", is not required because it is asserted that within the meaning of the relevant regulations either the father has consented to the removal of the child from New Zealand to Australia or, alternatively, the father was not exercising his rights of custody at the time of the removal or would not have exercised the rights had the child been not so removed.
The relevant defences relied upon are set out in the Regulations as follows:
(1) If:
(a)an application is made to a court under subregulation 14(1) for an order for the return of a child who has been removed to, or retained in, Australia; and
(b)the application is made within one year of the child's removal or retention; and
(c)the responsible Central Authority or Article 3 applicant 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.
…
(3) A court may refuse to make an order under subregulation (1)… 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 .. in the child being removed to … Australia;
…
Consent
In support of the argument relating to the issue of the father having consented to the removal of the child, the mother relies upon her sworn evidence that on the evening of 21 May 2006 the father attended at her premises. She says that there was a discussion that took place. She says as follows:
15.I returned voluntarily on 8 April 2006. I was able to contact [the father] (sic) and asked him to come to my house. When he came to my place I showed him the Hague papers and he had no idea what they were and didn't know the solicitor who acted on his behalf.
16.[The father] (sic) told me it would most possibly be his mother who would have filed the papers and he apologised for the same.
17.I told [the father] (sic) that I wasn't living in New Zealand and I felt that there would be more opportunities for me and [the child] in Australia.
[I presume that that paragraph is meant to mean "I told [the father] that I did not want to live in New Zealand." However, that is not what it says]
18.[The father] (sic) agreed and so I wrote out a letter of agreement that he would permit me to go to Australia and he signed it.
19.I then let [the father] (sic) have time with [the child] and told him I was returning to Australia as soon as possible. I also gve (sic) him my mother's phone number for him to contact me if he needs to.
20.I left New Zealand on 23 May 2006.
That is the mother's story.
The father's story is that he did not sign the document and that the signature on it is either a forgery or has been electronically copied onto the document. He also relies not only upon his denial that he signed the document, but upon an affidavit of his solicitor, Garth O'Brien, his solicitor in New Zealand that contains the following material.
There was letter is sent by Garth O'Brien and Associates to solicitors acting on behalf of the mother in New Zealand, Messrs Harris, Harvey, Nash on 11 May 2006. It said as follows:
We spoke to Mr Nash who gave us [the mother’s] number to organise contact.
[The father] was advised that if 'he dropped everything in Court' then he could have [the child] for a week.
Given the course of the proceedings this is completely unacceptable and it is questionable if your client should continue to have day to day care.
Our client last saw [the child] at Easter 2005. At this time he was having weekly contact in [T, New Zealand] during the week.
Our client wishes to re-establish contact on a weekly basis. He works Monday to Friday and is available Friday night to Sunday night to see [the child].
He wishes to establish contact immediately. He proposes to have Mason this Saturday or Sunday from 10 am to 5 pm. Would you please put this in place.
[The child] spoke to his father this morning and is keen to make contact.
Our client would intend to extend contact so that [the child] can travel to [H, New Zealand] and stay with his father.
We understand there is no family violence issues that should prevent any unsupervised contact.
Your urgent response would be appreciated.
Harvey, Harris and Nash wrote back on 18 May 2006 as follows:
Our telephone conversation of even date refers.
We enclose you with a copy of the documents filed in Court. [The mother] would agree to access this weekend presently on a supervised basis at [R, New Zealand]. This is on the understanding that there be no alcohol or drugs before or during the access visit by your client. We suggest your client contact her by phone to finalise arrangements.
Documents annexed to that letter include an application for an interim custody order filed by the mother in the Family Court at U, New Zealand in which she seeks an order for the custody of the child and the affidavit in support in which she outlines that she is desperate to return to Australia to reunite with her family and she wants custody for those purposes. She indicates she would be happy to consider arrangements where:
there could be periodic assured visits by my son to see his father and wider family in the school holidays in New Zealand.
She has returnable at some stage, it is not apparent from the face of the documents, an application before a New Zealand Court seeking permission to leave.
She says that on the night of 21 May 2006 the father came to her home and he signed the consent.
On 22 May 2006 a letter was written by the father's solicitors to the mother's solicitors reading as follows:
[The father] travelled four hours to [O] to see his son last weekend.
We understand that [the mother] allowed him half an hour to see the child as she pestered him to sign papers to release her to travel back to Australia.
Clearly this is not an appropriate arrangement.
Accordingly, our client is lodging an application for parenting orders to take over the day to day care of his son, […]. In the alternative he will be seeking to have contact with [his son] on a regular basis unsupervised.
It is rich for [the mother] to insist that [the child] not be removed from her home when she is the person who has removed [the child] from New Zealand without obtaining our client's consent. Should [the mother] have an appropriate arrangement for contact please let us know what that is so that our client can arrange to see [the child] on a regular basis.
We will be requesting that a lawyer be appointed for [the child] as soon as possible.
So in light of that, two matters arise. Firstly, it would seem to me that it is highly unlikely that the father signed the document in circumstances where he had already required the mother mandatorily to return to New Zealand, where he was anxious to establish a contact regime with his child, where he had solicitors acting for him, and where he immediately complained of the mother's attempts to have him sign the document.
Even if he did sign the document on 21 May in the emotional circumstances that no doubt existed in the face to face contact with the mother, he had withdrawn his consent the next day in the letter from the solicitors. By 22 May that consent had been certainly withdrawn and when the mother left New Zealand on 23 May she no longer left with any consent that had previously been given.
So the time of the removal of the child from New Zealand which appears to be 23 May, it is clear that the child was, in my view, not removed with the consent of the father. I am not satisfied within the meaning of the regulations that a defence is established that would convert my obligation to make a mandatory order for the return of the child back to a discretionary order.
Exercise of custodial rights
As to the second part of the argument that the father was not exercising his custodial rights within the meaning of the regulations, or would not have exercised the rights if the child had not been removed, the very nature of the correspondence that was taking place between the solicitors gives lie to that fact. The father was clearly endeavouring to ensure the creation of some form of regime of contact on a regular basis. That carries with it the necessary implication that the father was not consenting to waiving his rights to determine the place of residence of the child.
In those circumstances, in my view, I am not satisfied the matters required by reg 16(3) have been established and, accordingly, it is then required of me to make the order for the return of the child to New Zealand.
Implementing a return order
That having been said, I have already had some discussion with counsel as to the logistics of such an order, and I would now propose to stand the matter down to enable some inquiries to be made as to the best way of implementing this order so as to cause the least disruption to the child and his siblings, and to, at the same time, acknowledge that the proper forum for determining issues relating to the child’s future is the court in New Zealand.
In anticipation of this possible outcome, as I have already indicated to the parties, I have had discussions this morning with the Acting Principal Family Court Judge in New Zealand to determine what the processes are in New Zealand. Judge von Dadelszen informed me that the normal processes are that on the equivalent of our first return date, there would be a judicial conference held. That conference can be held by telephone and at that point directions can be made for the preparation of the necessary material for the proceedings which may include a family report and directions can also be made for interim orders relating to contact and the like.
It seems to me that as this child has now lived in Australia effectively for two years and has siblings here and is well settled, that the sensible arrangement would be to delay the return of the child pending the outcome of the judicial conference and to abide the further directions of the New Zealand Court as to when their Court would expect the child to be returned physically to New Zealand for the purposes of enabling it to exercise its jurisdiction over the child in a meaningful way.
There is an issue of who should pay for the cost of the exercise. It seems to me that the mother has had to bear the entire cost of raising this child with no assistance from the father for many years. She is in part the creator of that by having simply gone underground, but at the same time, on the limited material I have as to her finances, she is going to be extremely stretched having to take herself back to New Zealand, let alone take the child, and that it might well be appropriate that the father be responsible for the provision of the airfare for the child's return when he is required to do so by the New Zealand Courts.
The understanding is that New Zealand is the place that will determine the child's future, although I would anticipate that the New Zealand Courts are not adverse to concepts of what is in the best interests of the child and it may well be that, clearly, the best interests of the child may well see him living in Australia but having some regime established of meaningful contact with the father, which would see either the child travelling to spend large amounts of time with the father in New Zealand or the father coming to Australia to spend time.
It seems a bit of a misuse in some senses of the Convention to solve what is really a contact issue and hopefully the parties can resolve that in their judicial conference with the trial judge.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay
Associate:
Date: 13 June 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DEPARTMENT OF CHILD SAFETY & BATES
0
2