Department of Child Safety & Butler

[2009] FamCA 740

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & BUTLER [2009] FamCA 740

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Removal from NZ to Australia – Whether the child was habitually resident in Australia – Regard to be had to the circumstances of the case – Find that the child was habitually resident in Australia

FAMILY LAW – PRACTICE AND PROCEDURE – Whether New Zealand Court would not permit proceedings – Orders already made in Australia – Registration of Australian orders not possible

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Whether the mother or child would be at grave risk – Onus of establishing risk on the mother – New Zealand authorities capable of providing requisite protection – Grave risk not made out

Care of Children Act 2004 (NZ)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Property (Relationships) Act 1984 (NSW)

Blatch v Archer (1774) 1 Cowp 63
Friedrich v Freidrich 983 F 2d 1396 (6^th Cir. 1993)
LK v Director-General, Department of Child Services (2009) HCA 9
Mozes v Mozes 2001 U.S.APP. Lexis 291
Re B (Minors)(Abduction)(No. 2) (1993) 1 FLR 993
Vetter v Lake MacQuarie City Council [2001] HCA 12

APPLICANT: Director-General, Department of Child Safety

RESPONDENT: Ms Butler

FILE NUMBER: SYC 3519 of 2008

DATE DELIVERED: 14 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 8 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Parrott, Solicitor of Crown Law appeared for the Applicant

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: Mr Page of Senior Counsel appeared for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Bell Dixon Butler

Orders

1. The Application in Form 2 Family Law (Child Abduction Convention) Regulations filed 17 June 2008 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC3519/2008

Director-General, Department of Child Safety

Applicant

And

Ms Butler

Respondent

REASONS FOR JUDGMENT

1. The Director-General of the Department of Community Services (NSW) in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 filed an application in form 2 in June 2008 seeking the return of a nine year old child, a daughter, to New Zealand.[1]  The application was originally filed in the Sydney Registry of this Court as the Respondent was believed to be residing in New South Wales.  There were difficulties in locating the Respondent. She was eventually served in Queensland and the proceedings were transferred to this Registry by virtue of an order made by Judicial Registrar Johnstone in the Sydney Registry of this Court.  The consent orders so far as they are relevant are in the following terms:[2]

   “1.That this matter be transferred to the Family Court of Australia, Brisbane Registry.

   2.That the Director-General of the Department of Child Safety, Queensland be substituted as the Applicant in these proceedings in lieu of the Director-General of the Department of Community Services, NSW.”

   [1] Family Law (Child Abduction Convention) Regulations Form 2 filed by the Applicant on 17 June 2008.

   [2] Orders of Judicial Registrar Johnstone dated 20 October 2008.

2. The material relied on by the Applicant consists of:

   ·    Form 2 application initiating proceedings filed 17 June 2008;

   ·    Orders of Jordan J dated 13 November 2008;

   ·    Affidavit of Mr M (the child’s father) filed 27 January 2009;

   ·    Affidavit of Ms C filed by leave 29 January 2009;

   ·    Judgment of the Supreme Court of New South Wales Common Law Division filed in that Court on 28 February 2005 filed by leave on 29 January 2009.

3. The Respondent opposes an order for the return of the child on the following grounds:

   ·    New Zealand

   was not the habitual residence of the child as at

   
   12 September 2007

   the date she travelled from New Zealand to Australia with her mother.[3]

   ·    “There exists a real likelihood that in terms of s.126 of the Care of Children Act 2004 the Family Court in New Zealand would exercise its discretion not to permit the Applicant proceedings (sic) on the basis of the matters set out in that section.”[4]

   ·    “That exists a grave risks that the return of the child to New Zealand would expose her to physical or psychological harm or otherwise place her in an intolerable situation.”[5]

   [3] Respondent’s case summary document filed 29 January 2009 at “Conclusions Advanced” para 1(a).

   [4] Respondent’s case summary document filed 29 January 2009 at “Conclusions Advanced” para 1(c).

   [5] Respondent’s case summary document filed 29 January 2009 at “Conclusions Advanced”, p 4 para 1(d).

4. The material relied on by the Respondent consists of the Form 2A Answer and Cross Application filed on 10 December 2008 together with the attachments to that document as set out on pages 5 and 6 thereof.

5. Each party produced a case summary document.[6]

   [6] Applicant’s case summary document filed 29 January 2009; Respondent’s case summary document filed 29 January 2009.

relationship history

1. Co-habitation between the parties commenced in July 1998.  The child was born in January 2000 in New Zealand.  Both parents at all relevant times have been New Zealand citizens.

2. In May 2001 the Father was facing serious criminal charges in New Zealand.  Whilst on bail he absconded to Australia by use of a false passport.  Shortly thereafter in July 2000 the Mother travelled with the child to Australia.  The parties resided in the central coast area of New South Wales with the Father adopting an assumed name.

3. In October 2003 the Father took the child from the Mother’s care.  This led to the Mother filing an ex-parte application before Rowlands J.  On 23 October 2003,  His Honour made orders in the followings terms:[7]

   [7] Orders of Rowlands J dated 23 October 2003 (Annexure A to Answer and Cross Application filed by the Respondent on 10 December 2008).

   “1.The Respondent be restrained from commencing or proceeding with any application for a passport for the child […] born […] January 2000 from the Foreign Affairs Department of the Commonwealth of Australia or the Consulate or any other appropriate authority of any other country.

   2.Pursuant to Section 67ZD, the Respondent surrender forthwith to the Registrar of this Court any passport that the Respondent holds for the child of the marriage or any other passport which would enable the child of the marriage to be removed from the Commonwealth of Australia.

   3.The Respondent forthwith return the child to the Applicant at her home in [the central coast area] (or to the Manager of Mediation at the Family Court of Australia at Newcastle during office hours).

   4.That a Recovery Order issue directed to the Marshal, all officers of the Australian Federal Police and of the Police Forces and Services of the various Australian States and Territories authorising and directing them to locate the said child and recover the child and deliver the child into the care of their mother or to the Manager of Mediation at the Family Court of Australia at Newcastle during office hours.

   5.That the child reside with the Applicant until further order.

   6.That the Applicant have the sole responsibility for making decisions about the day to day care, welfare and development of the child.

   7.Either party be and hereby are restrained from removing and/or causing or allowing the child […] (female) born […] January 2000 to be removed from the Commonwealth of Australia.

   8.The Australian Federal Police place the name of the said child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further Order of the Court.

   9.The matter be adjourned to 27 October 2003 at 2.15pm at the Family Court of Australia Newcastle Registry.

   10.The father have liberty to apply on short notice to the Court.

   11.This order be served upon the father in the first instance by mobile telephone call and then as soon as practicable by personal service in the written form.

   IT IS NOTED THAT:

   These orders were made without the father having an opportunity to put his case.  Such an opportunity will be provide (sic) when the case comes before the Court for hearing.”

4. The child was returned to the Mother shortly thereafter.

5. On 17 November 2003 the Father removed the child once again from the Mother’s care.  On 25 November 2003 further orders were made by Rose J on an ex-parte basis sitting in the Newcastle Registry.  His Honour issued an information order, a recovery order and a publication order.[8]

   [8] Orders of Rose J dated 25 November 2009, at Order 1, 4 and 2 respectively (Annexure C to Answer and Cross Application filed by the Respondent on 10 December 2008).

6. The Father was taken into police custody when the recovery order issued by the Court was executed in about mid-2004.  The child was returned to her mother.

7. The Father was extradited to New Zealand to face the outstanding criminal charges for which he was sentenced to a term of imprisonment of five and a half years of which he was required to serve three years.

8. On 5 July 2004 the Mother made application to the Newcastle Registry of this Court to have restraining orders made by Rowlands J on 23 October 2003 lifted for the purpose of allowing her to travel to New Zealand with her children.[9]

   [9] Orders of Rose J dated 5 July 2004, at Order 1(Annexure F to Answer and Cross Application filed by the Respondent on 10 December 2008); Relating to an application of the Mother filed 24 June 2004.

9. That application was acceded to.  Thereafter the Mother discontinued any further proceedings in this Court.

10. In February 2006 the Mother travelled to New Zealand with her then defacto partner and her three children and resided in the L area in reasonable proximity to members of her family.

11. The Father was released on parole in July 2007.  In August 2007 he filed an application for contact in the New Zealand Courts.  He sought that an order be issued on a without notice basis preventing the removal of the child from the jurisdiction.  The Court declined to make an order in those terms.

12. On 7 September 2007 the Mother was served with the Father’s application. 

13. On 12 September 2007 the Mother returned to Australia with her children.

14. On behalf of the Applicant it was submitted:[10]

    [10] Applicant’s case summary document filed 29 January 2009 at “Conclusions Advanced”, p 3.

    “It has been established that:

    (a)That the habitual residence of the child as at 12 September 2007 was New Zealand;

    (b)New Zealand is a Convention country to which the Hague Convention on the Civil Aspects of International Child Abduction applies;

    (c)The requesting Applicant, [the father], possesses rights of custody in respect of the child;

    (d)That the physical removal of the child from New Zealand by the mother on 12 September 2007 breached the father’s rights of custody in respect of the child, which he was exercising at that time, and/or would have exercised but for the removal.

    It has not been established that:

    (e)The return of the child to New Zealand would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation;

    Further:

    (f)Even if the exception is made out, the Court should exercise its residual discretion to order her return in any event.”

15. In the Respondent’s case summary document under the heading “Conclusions Advanced” the following is submitted:[11]

    “1.      The following findings/conclusions will be submitted to the Court:

    (a)That as at the date of the removal of the child by the Respondent from New Zealand on 12 September 2007, the habitual residence of the child was Australia;

    (b)That as at 12 September 2007, the Applicant Father, [Mr M], also known as […], possessed rights of custody in respect of the child by reason of the provisions of the Care of Children Act 2004 (New Zealand);

    (c)That given the circumstances of this matter and in particular the nature of the offences which resulted in the incarceration of the Applicant, the limited contact which the Applicant has had with the child, the conduct of the Applicant in having abducted the child on two occasions whilst residing with the Respondent in Australia and after, the fact that the Family Court of Australian has made orders in relation to this child, there exists a real likelihood that in terms of s.126 of the Care of Children Act 2004 the Family Court in New Zealand would exercise its discretion not to permit the Applicant proceedings on the basis of the matters set out in that section.

    (d)That exists a grave risk that the return of the child to New Zealand would expose her to physical or psychological harm or otherwise place her in an intolerable situation.”

    [11] Respondent’s case summary document filed 29 January 2009 at “Conclusions Advanced”, p 4 para 1.

16. The principle issue to be determined is whether the child was habitually resident in Australia or New Zealand as at 12 September 2007?

17. I note that paragraph 1(b) of the Respondent’s “Conclusions Advanced” are at odds with paragraph 3 of the form 2A document filed on 10 December 2008 where it was contended that the child’s removal from New Zealand was not wrongful as the Father did not have any rights of custody prior to the child’s removal.[12]  Although this point was originally raised when the matter was first mentioned before me in January this year in light of the submissions in the Applicant’s case outline the argument was not pursued.[13]

    [12] Respondent’s case summary document filed 29 January 2009 at “Conclusions Advanced”, p 4 para 1(b); Answer and Cross Application filed by the Respondent on 10 December 2008 at p 1, para 3.

    [13] Applicant’s case summary document filed 29 January 2009 at (in particular) para 46-49.

was the child habitually resident in australia or new zealand as at 12 september 2007?

1. It is accepted that immediately prior to the Mother’s departure to New Zealand with her defacto partner and her three children in about February 2006 the child was habitually resident in Australia.  The then six year old the subject of these proceedings had spent the last five and a half years of her life in this country up to that point in time.

2. In her affidavit filed in the Newcastle Registry on 24 June 2004 in support of her application to have the child’s name removed from the Watch List preventing the child’s removal from Australia, the Mother deposed:[14]

   “5.I have no family and support in [the central coast area] or Australia.  My mother has said to me words to the following effect:

   “[…], You (sic) must come home with your children to New Zealand where we can assist in supporting you in caring for you and the children.”

   6.I wish to return to New Zealand with my mother as soon as possible to visit my family.  Whilst I am in New Zealand I will decide whether in fact I wish to return to New Zealand on a full-time basis.

   7.I would ask that the Court remove all Orders which restrain [the child] from being removed from the country to allow me to travel to New Zealand with my daughter to live with my family or return to Australia or remain residing in New Zealand.”

   [14] Affidavit of the Respondent filed 24 June 2004 at para 5-7 (Annexure E to Answer and Cross Application filed by the Respondent on 10 December 2008).

3. On 5 July 2004 on an ex-parte basis Rose J made an order:[15]

   “THAT the mother be permitted to travel to New Zealand with the child […] for the purposes of visiting her family and possible relocation to New Zealand.”

   [15] Orders of Rose J dated 5 July 2004, at Order 1 (Annexure F to Answer and Cross Application filed by the Respondent on 10 December 2008).

4. On 9 July 2004 the Mother filed an application discontinuing the existing proceedings which had been given an adjourned date of 6 September by Rose J.[16]

   [16] Notice of discontinuance filed by the Respondent on 9 July 2004 (Annexure G to Answer and Cross Application filed by the Respondent on 10 December 2008).

5. For reasons which are not adequately explained the Mother did not at that point in time avail herself of the opportunity to travel to New Zealand.  In fact she delayed her departure for some 20 months, eventually departing in February 2006.

6. One possible explanation for the delay in departure is that there was further litigation between the parties in the period November 2004 until April 2005  pursuant to Property (Relationships) Act 1984 (NSW).

7. At some stage after they settled in the central coast region on their arrival in Australia a house was purchased in the Mother’s name only.  According to the Father’s affidavit filed on 28 January 2009 this property was sold about eight months after acquisition and a second home purchased, again in the Mother’s name only.[17]  This second property was the subject of the application presumably on the basis the Father wanted a declaration that he had an entitlement to a share of the property.

   [17] Affidavit of the father filed by the Applicant on 28 January 2009 at para 37.

8. It has to be borne in mind at this stage the Father was in custody in New Zealand having been sentenced on the outstanding criminal charges.

9. The Magistrate in the Local Court at Coffs Harbour initially held that the Court had jurisdiction on the basis that the parties had spent one third of their overall period of cohabitation in New South Wales. This determination was subsequently the subject of a successful appeal to the Supreme Court of New South Wales which was heard in April 2005.[18]

   [18] Reasons for judgment of Supreme Court dated April 2005 filed by the Applicant on 29 January 2009.

10. A copy of the transcript of the proceedings in the Local Court at Coffs Harbour and the judgment of the Supreme Court form part of the material before the Court in the current application.[19]

    [19] Transcript of proceedings before Magistrate Pearce in Coffs Harbour dated 23 – 24 November 2004 filed by the Applicant on 29 January 2009; Reasons for judgment of the Supreme Court dated April 2005 filed by the Applicant on 29 January 2009.

Respondent Mother’s Affidavit

1. The Respondent Mother swore an affidavit on 10 December 2008 which forms part of the attachments to her Form 2A Answer and Cross Application.[20]  Under the subheading “Whether the Child Has Settled in Australia and Habitual Residence” the Mother gives the following evidence:

   [20] Affidavit of the Respondent sworn 10 December 2008 (Annexure L to Answer and Cross Application filed by the Respondent on 10 December 2008).

   “56.[The child] did not want to go to New Zealand to visit our family in 2006, as she knew her father was there.

   57.It put me in a very difficult position as I wanted to see my mother yet I was mindful of [the child’s] fear.  [The child] only ‘agreed’ to go once I assured her that her father was not able to get her and that he was in fact in prison.

   58.[The child] does not now know any members of the father’s family.  She has not seen his mother (her paternal grandmother) since she was a baby.

   …

   61.Eventually thinking the family was safe to do so, we did travel to New Zealand with [the child] and my other children to spend time with my mother – the children’s maternal grandmother, and to see other members of my family in New Zealand in February 2006.

   62.I have members of my family in Australia also.  My aunt and cousins live near us in Queensland.  [The child] often visits her aunt, and cousins– whom (sic) are close to her age.

   …

   64.It was whilst I was visiting family in New Zealand in late 2006 that [J] and I separated on an amicable basis.

   65.I am currently in a relationship with [Mr M] (aged 38).  We are very committed to each other and we have know (sic) each other for years.  We do not at this juncture reside together, however I am currently 28 weeks pregnant with our child.

   66.I had determined by 2006 prior to my going to visit my family in New Zealand that I would not relocate permanently there.  [The child] and all my family, me included were too afraid of [the father].

   67.[The child], I and my other children stayed in New Zealand for about 19 months.  The only reason we were there for this amount of time was I wanted to complete a [beauty services] course of study.  Initially the course was going to be for six months.  There were delays in the provider starting the course and part way through; the course was extended to 12 months.  It was because I was trying to improve my skills so as to be able to help support my family in the future back in Australia that I stayed to complete this course.  I discussed with the course provider that I was hoping to be able to take the skills I learnt to use when I returned to Australia.

   68.It had been in about June 2007 that [Mr H] and I had discussed getting organised to go back home to Australia.  We spoke to my aunt who lived in Queensland and to my cousins (whom (sic) are drillers in the mines) what the work situation was like for [Mr H] in Queensland.  We planned on moving to live near them in the [B] area.  We were to have (as we did) relocated in plenty of time for [Mr H] to do an induction course and to then be ready to begin work by October/November 2007 in Australia.

   69.We had rented a house in New Zealand and the lease on that house was to expire in late September 2007.  [The child], and our entire family were pleased to be shortly going back to Australia to live.

   …

   71.I was fearful of [the father], and I remain fearful of [the father] as do all of my children and in particular, [the subject child].

   72.As it had been my intention at all times to never be in New Zealand if [the father] was not detained in prison.”

1. The Mother’s evidence as quoted above is that she went to New Zealand to see family and to undertake a course in beauty services.  The course was initially to take six months.  For reasons not adequately explained the commencement date of the course was delayed and again for reasons not adequately explained the course was altered to extend for a period of twelve months. 

2. The Mother travelled to Australia with one partner, J, and her three children.  Her eldest child, a son, the child the subject of these proceedings and another daughter born in 2003 in Australia.  The relationship with J was terminated whilst in New Zealand and at some stage she commenced a relationship with Mr H.

3. The Mother did not adduce evidence from her partner, nor members of her family in New Zealand to corroborate her account that at all times she was planning to return to Australia.  She could have adduced evidence from her relations as detailed in paragraph 68 of the affidavit quoted above.[21]

   [21] Affidavit of the Respondent sworn 10 December 2008 (Annexure L to Answer and Cross Application filed by the Respondent on 10 December 2008).

4. I am mindful of the dictum set out in the Applicant’s case outline:[22]

   “- -It is also timely to record the words of Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63³⁵ at page 970 where His Lordship stated:

   “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” (Emphasis added.)

   In Vetter v Lake MacQuarie City Council [2001] HCA 12³⁶, Gleeson CJ, Gummow and Callinan JJ in their joint judgment when referring to Lord Mansfield’s judgment, also made reference to the proof being within the power of the parties.  It is therefore respectfully submitted that to the extent that the ruling in Blatch v Archer (op cit) has application to Hague Convention cases in the manner alluded to by Callinan J, it is appropriate to compare evidence that is within the power of each of the respective parties to adduce.

   A practical difficulty with the application of the ruling of Blatch v Archer to Hague Convention cases, is that the Applicant in the majority of these cases commenced in Australia (and in the present case) is a statutory authority set up under the laws of the State of Queensland and invested with the duties and responsibilities of the Central Authority by the Regulations.  The person, institution or body seeking the return of the child to a Convention Country is not a party to the proceedings.  Consequently, the power (or even capacity) of the Applicant in any particular case to obtain evidence, often in relation to the state of affairs in another country is severely restricted and the Applicant relies upon the cooperative arrangements between State Central Authorities.  This places the Applicant in a very different position to that of either the requesting applicant (be it a person, institution or body) and the Respondent whose interests are often more “personal”.  It is therefore respectfully submitted that the markedly different “ways” in which the Applicant and Respondent are involved in these applications, severely restricts the operation of the rule in Blatch v Archer (op cit) to cases under the Regulations. - -”

   [22] Applicant’s case summary document filed 29 January 2009 at p 28-29, para 68.

5. In November 2003 the Father had abducted his daughter and thereafter held her for a period of about eight months.  As noted previously a publication order was made by Rose J on 25 November 2003.[23]  It appears that the Father resided for that period of time with the child in Sydney. 

   [23] Orders of Rose J dated 25 November 2009 (Annexure C to Answer and Cross Application filed by the Respondent on 10 December 2008).

6. The Mother says the only communication she received in this time was a text message a few days after the abduction to the effect that she would never see her child again.

7. The Mother annexes various press clippings to her Form 2A document which publicise the circumstances of the abduction and in one instance reports on the recovery of the child.[24]  The Mother believes her daughter was disguised for much of the eight month period.  The Mother deposes to the fact that the child told her she had been informed by her father that her mother and siblings were dead.

   [24] Bundle of  newspaper and magazine articles (number 4) concerning the abduction of the child by her father (Annexure H to Answer and Cross Application filed by the Respondent on 10 December 2008).

8. The Father challenges these facts in his affidavit sworn on 9 January 2009.[25]

   [25] Affidavit of the father filed by the Applicant on 28 January 2009 at para 8.

9. I am inclined to accept the Mother’s version of the events at this time.

10. I note that the Father wrote a letter dated 26 July 2007 to the Judge in New Zealand which was annexed to his affidavit filed at the time of filing his application for a contact order.[26]

    [26] Family Law (Child Abduction Convention) Regulations Form 2 filed by the Applicant on 17 June 2008 at p 19, Annexure D.

11. In part that letter reads:

    “Firstly, I totally appreciate the resentment [the mother] harbours towards me through the hell I placed her through - -

    …

    I have made many mistakes but have learnt by them.  Mistakes include:

    ·    My offending occurring end of 1998 prior to [the child’s] birth on […].01.2000.

    ·    Absconding to Australia whilst on bail with [the mother’s] full knowledge and agreement.

    ·    Removal of [the child] due to my concerns for her safety, welfare and environment.

    …

    - - I am truly sorry for what I have placed [the mother] through.  I have learned from my mistakes and would always abide by any conditions imposed by [the mother] and Your Honour.”

12. The Mother returned to Australia five days after service of Court process on her.  I find it likely that the Mother’s return to Australia was hastened by learning of the pending proceedings served upon her on the 7 September 2007 but find she was about to return within a few weeks when the lease on her rental accommodation expired.

13. I am prepared to find that her fears concerning the Father are genuine.  I am prepared to find that at all times during the nineteen month sojourn in New Zealand it was her intention to return to Australia albeit she was in no great hurry to do so.  I find there was no settled intention to remain in New Zealand.

14. The legal representative for the Applicant submitted it could be inferred the child attended school in the L area and at the very latest the Court would find the child was habitually resident in New Zealand from the commencement of the 2007 school year.

15. Whilst I accept this argument is persuasive it can only be so if I reject the Mother’s evidence that she was at all times intending to return with the child to Australia and to undertake such travel with her new partner and her three children.  I accept the evidence of the Mother as detailed in paragraph 66 of her affidavit sworn 10 December 2008 previously referred to that prior to her departure she had determined she would not relocate permanently to New Zealand.[27]

    [27] Affidavit of the Respondent sworn 10 December 2008 at para 66 (Annexure L to Answer and Cross Application filed by the Respondent on 10 December 2008).

16. The Mother deposes to the fact that she made enquiries through relatives in the T region about obtaining work in the coal mines.  Whilst it would have been helpful in the Mother’s case had she made greater attempts to corroborate her version of events I am not prepared to reject her evidence.  I find her account of events as set out in her affidavit to be plausible.

Law to be applied

1. The case law on the issue of “habitual residence” is canvassed in paragraphs 28 to 41 of the detailed helpful case summary document produced by the Applicant.[28] 

   [28] Applicant’s case summary document filed 29 January 2009 at p 10-18, para 28-41.

2. Regulation 4(1)(a) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) provides that the issue of habitual residence is to be determined as at the date of the alleged “wrongful” removal. At paragraph 29 of the case summary document the well known decision of Waite J in Re B (Minors)(Abduction)(No. 2) (1993) 1 FLR 993 is cited, in particular:[29]

   “3.Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention.  The House of Lords in Re J refrained, no doubt advisedly, from giving an indication as to what an “appreciable period” would be.  Logic would suggest that provided that the purpose was settled, the period of habitation need not be long…”

   [29] Applicant’s case summary document filed 29 January 2009 at p 10, para 28.

3. At paragraphs 32 and 33 of the case summary the following appears:[30]

   “32.The question of whether there needs to be an “appreciable period” of residence in a country, and exactly how long that means, has been the subject of much debate in the English Courts.  The latest reported United Kingdom decision on the subject has affirmed by majority, the need for there to be “a period of residence”, but at the same time has approved cases that have held periods as little as 1 month sufficient.¹⁸

   33.To gain an overall prospective (sic) on the question, it is useful to consider the following quote from the United States Court of Appeal, sixth Circuit in Friedrich v Freidrich, 983 F 2d 1396 (6^th Cir. 1993) at page 1401:

   “We agree that habitual residence must not be confused with domicile.  To determine habitual residence the Court must focus on the child not the parents and examine past experience not future intentions…

   A person can have only one habitual residence.  On its face habitual residence pertains to customary residence prior to the removal.  The Court must look back in time not forward”.”

   [30] Applicant’s case summary document filed 29 January 2009 at p 12, para 32-33.

4. At paragraph 37 the legal representative for the Applicant sets out lengthy passages from the United States Court of Appeal for the ninth Circuit decision in Mozes v Mozes 2001 U.S.APP. Lexis 291:[31]

   “On the other side are cases where the child’s initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period.  In these cases, courts have generally refused to find that the changed intentions of one parent led to an alteration of the child’s habitual residence.”

   [31] Applicant’s case summary document filed 29 January 2009 at p 14, para 37.

5. I find it likely that the Mother intended to travel with the children for a specific delineated period albeit a stay that may have had a degree of flexibility about it.  In one sense she was engaging in the dual purpose of seeing her family whilst undertaking a course but at all times intending to return to Australia.  Because of her fear of the Father I find it quite unlikely she ever had a settled intention to remain in the New Zealand environment.  I accept that it is probable the child was attending school and may have been taking part in other extra-curricular activities for a period of about a year and a half but at all times the Mother was intending not to remain in that environment other than on a temporary basis.

6. As was noted by the Court in Mozes:[32]

   “When the child moves to a new country accompanied by both parents, who take steps to set up a regular household together, the period need not be long.  On the other hand when circumstances are such as to hinder acclimatization, even a lengthy period spent in this manner may not suffice. 

   …

   Despite the superficial appeal of focusing primarily on the child’s contacts in the new country, however, we conclude that, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned.

   …

   - - Habitual residence is intended to be a description of a factual state of affairs, and a child can lose its habitual attachment to a place even without a parent’s consent.”

   [32] Applicant’s case summary document filed 29 January 2009 at p 15, para 37; Mozes v Mozes 2001 U.S.APP. Lexis 291 appearing after *31 and *41.

7. In paragraph 41 of the case outline in relating the evidence to the authorities cited the legal representative for the Applicant notes:[33]

   “It is common ground that the Mother travelled to New Zealand in February 2006 and remained there until 12 September 2007.  The mother while in New Zealand completed a course [in beauty services].  Although her affidavit is silent on the issue it is open for the Court to draw the inference that the children of the mother were enrolled and participated in school while in New Zealand.  Although on the version of the mother she retained an intention to return to Australia while she was present in New Zealand the mother and the children became habitually resident in that country.”

   [33] Applicant’s case summary document filed 29 January 2009 at p 18, para 41.

8. I am not prepared to accept the assertion contained in the last sentence of this submission on the facts as presented to the Court.

9. Reference by each side was made to the recent decision of the High Court in the matter of LK v Director-General, Department of Child Services (2009) HCA 9. The Court ruled:[34]

   “44.It is, however, not necessary to examine the decision in SK in detail.  Rather, it is sufficient to observe that in Punter v Secretary for Justice [59], the effect of the decision in SK was described [60] in the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O’Regan JJ) as holding that the inquiry into habitual residence is “a broad factual inquiry”.  The plurality went on [61] to say in Punter:

   “Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and current), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration.  In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive.  It should not in itself override what McGrath J call, at para [22], the underlying reality of the connection between the child and the particular state.”

   As the plurality rightly said, the search is for the connection between the child and the particular state.  That being the nature of the search the plurality’s references to settled purpose are to be read as directing attention to the intentions of the parents.  But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled.  So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified [62] by Lord Brandon in re J, to decide the question of habitual residence “by reference to all the circumstances of any particular case”.”

   [34] LK v Director-General, Department of Child Services (2009) HCA 9 at para 44.

Other Issues

1. I see no merit in the point raised as the second ground submitted by Counsel for the Mother.  Section 8 of the Care of Children’s Act 2004 (NZ) defines “overseas parenting order” as not including an interim order or an order made without notice.

2. It is common ground the order made by Rowlands J was both ex-parte and made on an interim basis.

3. I accept the Father was made aware of the orders at the very latest when the Mother’s solicitors wrote to his solicitors by letter of 12 November 2003.[35]  The affidavit of the Mother’s then solicitor deposes to the fact that she had read the terms of Rowlands J’s order to the Father the day it was made.[36]

   [35] Affidavit of Ms C filed on 24 November 2003 at para 7 (Annexure B to Answer and Cross Application filed by the Respondent on 10 December 2008).

   [36] Affidavit of Ms C filed on 24 November 2003 at para 6 (Annexure B to Answer and Cross Application filed by the Respondent on 10 December 2008).

4. Counsel for the Mother relied on the provisions of sections 81 to 91 of the New Zealand legislation.[37]

   [37] Care of Children’s Act 2004 (NZ), ss 81-91.

5. Counsel conceded the registration of Rowlands J’s orders was not possible in New Zealand but he relied on section 86 of the legislation:[38]

   “86     Evidence of orders made in overseas countries

   Nothing in section 81 prevents a Court from receiving evidence of an order made in an overseas country (whether or not that country is the prescribed overseas country) and relating to the role of providing day-to-day care for, or relating to contact with, a child.”

   [38] Care of Children’s Act 2004 (NZ), s 86.

6. I accept the submission made by the Applicant’s legal representative that section 86 is an evidentiary provision only and cannot be interpreted in the manner contended for by Counsel for the Mother.

7. I find when the Mother was served with the Court documents in New Zealand the Father was a guardian and vested with the rights and responsibilities set out in the Care of Children’s Act 2004 (NSW).

Grave Risk

1. I would be confident in the event the child was required to return to the New Zealand jurisdiction the Courts and authorities in that country would be vigilant in protecting both Mother and child from any risk of harm by putting in place a regime of Orders to ensure that was the case.

2. I accept that the Mother and child would have in all probability a high level of anxiety because of the previous incident of abduction for eight months but the risk would be more imagined than real.

3. The Father has had no convictions since the offences were committed in the 1998/1999 period.  I leave aside the fact that he could be dealt with in this country for contempt of Court for abducting his daughter in the circumstances he did in November 2003.  The likelihood however is that that will never occur as it is highly unlikely he will be allowed back in to this country.

4. Equally I leave aside the fact that prima facie, the Mother has breached the terms of s 80 of the New Zealand legislation:[39]

   “80     Taking a child from New Zealand

   Every person commits an offence and is liable on summary conviction to a fine not exceeding $2,500, or to imprisonment for a term not exceeding 3 months, or for both, who, without the leave of the Court, takes or attempts to take any child out of New Zealand –

   (a)knowing that proceedings are pending or about to be commenced under this Act in respect of the child - -”

   There appears to be clear evidence the Mother departed the country with full knowledge legal proceedings had been instituted.

   [39] Care of Children’s Act 2004 (NZ), s 80.

5. The Father annexes reports to his affidavit sworn 9 January 2009 from the District Health Board in New Zealand dated 28 September 2007 and a report of Ms W, a registered psychologist with the Department of Corrections of 12 June 2008.[40]  In that report she notes:[41]

   “Please find [the father’s] final treatment report enclosed.  In response to your email of 13 May 2008, I have recommended no further treatment at this stage.

   To be more explicit, I would consider that his current condition for the STOP programme would not be currently warranted or justified, given the lengthy offence-focussed treatment work that [the father] has undertaken, and my opinion that he has evidenced good self-management of his risks for re-offending (including sexual re-offending).”

   [40] Affidavit of the father filed by the Applicant on 28 January 2009, Annexures A and C respectively.

   [41] Affidavit of the father filed by the Applicant on 28 January 2009, Annexure C.

6. In circumstances where the onus of proof is on the Respondent Mother I find no basis established that the child would be at grave risk if returned to the New Zealand environment.

Conclusion

1. The effect of the Orders that I propose to make dismissing the application for an order that the child be returned to the New Zealand jurisdiction will undoubtedly be disappointing both to the Father, his family and his legal representatives.  When the Father approached the New Zealand Courts in 2007 he specifically sought an order restraining the Mother from leaving the jurisdiction.  The Judge in the exercise of his discretion declined to make an order in those terms.  The consequence was it left the door open and the Mother was able to depart the country.

2. However the Father’s rights in relation to the child are not extinguished by my decision.  The proceedings under the Hague Convention are effectively one of forum.  To use the sporting vernacular a Judge is simply determining whether it will be a home game or an away game.  I appreciate where we are talking different countries the difference can be significant but there is a high degree of co-operation between the Courts of our two countries.

3. Although the Father may not be able to come to Australia there is nothing to preclude him from instituting proceedings in this jurisdiction or in the Federal Magistrates Court seeking orders which would give him visitation rights to his child.  At that time the Court would weigh the evidence and make whatever decision was found to be in the best interests of the child.  It may well be held the child could be adequately protected by the contact initially being spent at a contact centre or being supervised by responsible independent citizens.  I understand there are mediation services which may also be available avoiding the need for litigation.

4. In the event the matter has to be litigated, I would have thought the Father could give his evidence by video link or by telephone link for that matter.  It may be that with assurances given that he would be accepting of the orders of the Australian Court the matter may be resolved by way of consent agreement.  Those are matters that await a future date if the Father elects to take that course. 

5. For the reasons given the Application in Form 2 filed on 17 June 2008 is dismissed.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date: