Department of Child Safety & Hunter - [2009] FamCA 263

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY & HUNTER

[2009] FamCA 263

FAMILY LAW – CHILD ABDUCTION – Hague Convention – 12 year old boy removed from New Zealand – Rights of custody and rights of access under the Convention – Removal not wrongful because father’s rights to access only

APPLICANT:

Director-General,
Department of Child Safety

RESPONDENT:

Ms Hunter

FILE NUMBER:

BRC

3264

2008

DATE DELIVERED:

26 March 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Jordan J

HEARING DATE:

25 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge

SOLICITOR FOR THE APPLICANT:

Mr K Parrott, Crown Law

COUNSEL FOR THE RESPONDENT:

Mr Page SC

SOLICITOR FOR THE RESPONDENT:

Pippa Colman & Associates

ORDERS

IT IS ORDERED

That the Form 2 Application Initiating Proceedings filed on 11 April 2008 be dismissed.
That Orders 1, 2, 4 and 5 of Annexure A to the Orders of the Hon Justice O’Reilly made on 24 April 2008 be discharged.

IT IS REQUESTED

That the Australian Federal Police remove the names of Ms Hunter born … May 1974 and the child … (a male) born … September 1996 from the All Points Watch Alert System at all points of international arrivals and departures in Australia.

IT IS FURTHER ORDERED

That costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3264 of 2008

DIRECTOR-GENERAL, DEPARTMENT OF CHILD SAFETY

Applicant

And

MS HUNTER

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

In this matter, the applicant, the Director-General for the Department of Child Safety, seeks an order on behalf of the Central Authority that the child, born in September 1996, be returned to his country of habitual residence, New Zealand, pursuant to an application brought under the Family Law (Child Abduction Convention) Regulations1986.

Background

The child is the son of the respondent, Ms Hunter, and Mr C. The parents resided in a de facto relationship at least between November of 1996 and some time in 2000.
After separation, the father continued to see his son on an intermittent basis to the extent the parties could agree. Issues emerged in relation to those arrangements and the parties sought counselling and, in early 2007, they reached agreement and entered into a parenting plan which provided for a form of shared care arrangement which resulted in the child being cared for by his father for six nights per fortnight and by his mother for eight nights per fortnight. Whilst there were some disruptions to those arrangements, it appears the parties largely abided by that regime until 26 February 2008, when the mother removed the child to Queensland in Australia, where he has remained.
In her Form 2 response, the mother raised as a ground of defence to the Central Authority’s application a claim that the father had consented to the removal. She supported that proposition by two short paragraphs in her affidavit in support (paras 197 and 198), which faintly raised that prospect. However, it is clear from the information provided by the mother to the family consultant (paras 28 to 30 of the report of Ms D), and the acknowledgement that the father was not consulted and was actively deceived immediately prior to the child’s removal, that such a defence was not open on the evidence. That issue was not pursued by counsel on behalf of the respondent mother.
As soon as the father became aware of the removal, he sought the assistance of appropriate authorities in New Zealand and Australia and this application was filed in the Family Court at Brisbane on 11 April 2008. Regrettably, the matter has taken almost 12 months to reach final determination. The principal cause of the delay related to the consequences of the fact that issues relating to this matter were being litigated in both Australia and New Zealand.
In June 2008, the Central Authority made a request under Article 15 of the Convention for a determination by the New Zealand Courts in relation to questions of the wrongfulness of the mother’s removal and the nature of the father’s parental rights under New Zealand law. The matter was initially referred to a Family Court Judge who referred the matter to the High Court, having regard to the important and complex issues involved. The matter was heard before two Judges of that Bench on 17 October 2008 and judgment was delivered on 24 November 2008.
An appeal from that decision was lodged and that appeal was listed for hearing on 11 February 2009 and the judgment of the Court of Appeal of New Zealand was handed down yesterday, 24 March 2009, under dealing number CA777/2008 in a decision to be reported and cited as Fairfax v Ireton. That judgment discloses the serious reservations and concerns of the members of the Court of Appeal Bench about the appropriateness of the Article 15 request (see particularly paras 34 to 39 of the judgment). I share the expressed concerns about the process and particularly about the consequential delay.
Despite such reservations, the Court of Appeal proceeded to make declarations in relation to some, but not all of the determinations referred by the Australian Central Authority. In particular, the New Zealand Court of Appeal made the following declarations:
a)Whether the father is a guardian of the child under the Care of Children Act 2004 (NZ) turns on whether or not the father and the mother were living together as de facto partners at the time of the child’s birth;
b)The father jointly with the mother had in relation to the child immediately before the child’s removal from New Zealand to Australia rights relating to the care of the person of the child, including the role providing day to day care for the child and, in particular, the right jointly with the mother to determine the child’s place of residence.
The Court of Appeal expressly declined to determine whether the removal was wrongful and whether the father’s rights under New Zealand law constituted rights of custody under the convention. The Court took the view that those issues were questions for the Australian Courts applying its own jurisprudence on the meaning and application of the convention (see para 17).
In the substantive proceedings before this Court, the parties raise additional issues which remain relevant to the Court’s determination. It is common ground that, should the Court determine that the parties were residing in a de facto relationship at the time of the birth of the child, then the father is a guardian under the provisions of the Care of Children Act 2004 (NZ) with rights of custody as prescribed in the convention and, further, that the removal of the child in February 2008 would, in those circumstances, be in breach of the father’s rights of custody. The father contends that the parties were residing in a de facto relationship prior to and at the time of the birth. The mother maintains that the parties did not enter into a de facto relationship at any time prior to November of 2006. In those circumstances, she contends that the father had no prescribed rights of custody to be breached at the time of the removal.
Finally, it is argued by the respondent mother that, in the event the Court finds that the father did have rights of custody at the time of removal, the facts of this case establish that the child objects to being returned to New Zealand in such a way as to give rise to a discretion to refuse to make the order for the return of the child and that, in this case, I should exercise that discretion so as to dismiss the application brought by the Central Authority.
From that background, a number of factual and legal issues fall for determination by this Court as follows:
i)Does the available evidence establish on the balance of probabilities that the parties resided in a de facto relationship as at the date of birth of the child? If that question is answered in the affirmative, it is agreed that the only matter remaining for determination by this Court is the question of the exception contended for by the respondent mother.
ii)If question one is answered in the negative, does the father otherwise acquire rights of custody as prescribed under the convention? That question would necessitate a consideration of the status of the decision and declarations of the New Zealand Court of Appeal on 24 March 2009. If the New Zealand decision is not decisive in these proceedings, it would give rise to the necessity to consider the terms and status under Australian law of the parenting plan entered into by the parents in 2007.

The Existence of a De Facto Relationship Between the Parents as at the child’s birth in September 1996 - A Question of Fact

The only evidence is the affidavit evidence filed by each of the parties. At earlier mentions of this matter, it was foreshadowed that applications might be made to cross-examine deponents. The opportunity to pursue that course was expressly abandoned at the commencement of the final hearing before me. As a consequence, and as is usually the case, the Court must therefore do its best to reach conclusions in the face of a body of contradictory evidence seeking to establish inconsistent propositions.
In his affidavit evidence attached to the original Form 2 application filed on 11 April 2008, the father’s evidence on this point is quite limited, and it appears in para 3 as follows:
"[The mother] and I lived together off and on since before [the child]’s birth. At the time of [the child]’s birth [the mother] was living at my parents’ house with me. After his birth we lived at her sister’s house for a number of weeks. We lived together around this time, living between my parents’ house and [the mother]’s sister’s house with [the child]".
The affidavit material filed by the mother in reply is quite extensive. She contends that the parties were engaged only in a boyfriend/girlfriend relationship between 1992 and 1996. In her material, the mother descends into quite some detail which includes the following assertions. That at the time leading up to the birth, the mother was living at her sister’s and the father was living at his mother’s. The mother received a single pension up to the date of birth, although I note that, even on the mother’s own case, she continued to receive the pension even during the duration of the admitted de facto relationship, which disclosure diminishes the value of the earlier piece of evidence on this point. The mother contends that there was no merging of finances and little sharing of chores. She acknowledges only that she occasionally spent nights at the father’s mother’s house and that the father occasionally spent nights with her at the mother’s sister’s house. She said that the parties did not keep clothes and possessions at the other house. She said that the parties did not spend holidays together, they were not treated as a couple, they rarely attended functions as a couple, and they did not attend family and Christmas type functions together.
Generally, the mother says there was great uncertainty and extended periods of non-engagement during that time. She says the father varied between oppositional and non-committal about the pregnancy and his willingness to take responsibility for the child. She provides extensive evidence indicating that the relationship was an abusive one and that the father appeared to abandon the relationship from time to time.
The mother is corroborated by a number of deponents in relation to material aspects of her account of the history and to her description of the various ingredients of a de facto relationship. The deponents relied upon by the mother presented as witnesses who would be well placed to make the types of observations set out in their material.
In his affidavit in reply filed on 11 June 2008, the father does little more than rejoin issue on this question. The vast bulk of the affidavit in reply deals with later times and other issues referred to in the mother’s material. The father makes reference to an affidavit by his stepfather, Mr H, and the assertions apparently contained in that affidavit. That affidavit was not read or relied upon in the proceedings before me. The applicant did not produce any witnesses to support the father’s account or to refute the evidence of the mother and her witnesses.
The applicant carries the onus of establishing a de facto relationship. The material filed by the applicant from the father on that point is little more than a bald assertion to the effect that a de facto relationship existed. In her material in response, the mother provides great detail and addresses many of the relevant issues. She provides corroboration. There was nothing inherently improbable in the mother’s account, or the account of her witnesses. The father chose largely not to meet the mother’s detailed allegations on the particular vital points in his affidavit in reply.
I am certainly not provided with any basis upon which I could reject the testimony of the mother and her witnesses, nor do I have any grounds to prefer the evidence of the father. In all the circumstances, I am unable to conclude that the evidence is sufficient to establish that a de facto relationship existed at the relevant time. I am therefore not able to find that the father has rights of custody under the provisions of the Care of Children Act 2004 (NZ).
The supplementary question is: does the father otherwise acquire rights of custody which should be recognised by the Family Court of Australia as rights of custody under the convention? Article 5 of the Convention on the Civil Aspects of International Child Abduction prescribes as follows:
For the purposes of this convention:
(a)“rights of custody” shall include rights relating to the care of a person of the child and, in particular, the right to determine the child’s place of residence;
(b)“rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.
Under this article, distinction is drawn between rights of custody and rights of access. It is common ground in these proceedings that, on the facts of this case, the power of the Court to make an order for a return can only be enlivened if I find that the father had acquired rights of custody as prescribed under the convention, which rights existed at the time of the removal. I have earlier concluded that the applicant has failed to establish that the father had rights of custody pursuant to the Care of Children Act 2004 (NZ) at the relevant time.
The Central Authority argues that this Court should find that the father acquired rights of custody as a consequence of the parenting plan entered into between the parties in 2007. The Central Authority argues, firstly, that this Court is bound by the determination of the Court of Appeal on 24 March 2009 which declared that the father had a right to determine the child’s place of residence prior to the child’s removal. The Central Authority argues that the Court must accept that finding as conclusive of the fact that the father had the type of rights of custody under the domestic law of New Zealand, which in turns meets the prescriptions of Article 5. In the alternative, the Central Authority argues that, if the question remains at large notwithstanding the determination of the New Zealand Courts, such New Zealand determinations would be an important, if not decisive factor in the deliberations of this Court.
Mr Page, senior counsel for the mother, argues to the contrary. He submits that the parenting plan in New Zealand was nothing more than a casual arrangement between the parties for times for access between the father and the child. He argues that the parenting plan only bestowed rights of access upon the father. Additionally, he submits that this Court is not bound by the determination of the New Zealand Courts and, indeed, is bound by the decisions of the High Court, and by the decision in MW v Director-General [2008] HCA 12 in particular, which decision distinguishes between rights of custody and rights of access. He submits it is clear from that decision that rights of access cannot give rise to remedies for return under the convention.
On the issue of the status of the decision of the Court of Appeal in New Zealand, that Court really provides its own answers to that question as appears in the judgment, for example at para 45:
"Further, we are not determining whether the rights which the father has amount to rights of custody under art 3, as interpreted in Australia. That is a question for the Family Court of Australia to determine.”
Paragraph 53:
"…Whether the parenting plan is “an agreement having legal effect” for Convention purposes is entirely a matter for the Australian Courts…”
Paragraph 64:
"…It is not for us to say how the Australian Courts should construe art 5 of the Convention or its domestic equivalent…”
Recent decisions of the Full Court in Wenceslas v the Department of Community Services [2007] FamCA 398 and of the High Court in MW v Director-General (Supra) confirmed the validity of those observations and the relevance of the New Zealand decisions. It remains for this Court to determine whether the agreement conferred rights of custody in the terms of the convention applying Australian law.
The remaining competing arguments of counsel for the parties give rise to the need to consider the terms of the parenting plan, and that prospect exposes another fundamental deficit in this case. Neither the mother, nor the father, nor the Central Authority produced the parenting plan before the Court. The New Zealand Court of Appeal grappled with the same issue and was left to surmise from the available evidence. I find myself unable to do otherwise. Again, the father’s evidence on this point is quite limited and is as follows:
"[The mother] has previously prevented [the child] from seeing me at times. As a result of this, approximately 12-18 months ago I applied for counselling (through the [Family Court in New Zealand]) to organise regular contact. Thius [sic] was after [the mother] had again prevented contact and chopped and changed days when [the child] and I were supposed to see each other. As a result of the counselling [the mother] and I arrived at an arrangement which saw [the child] in my care for 2 nights one week and 4 nights the next week - on a 2-weekly cycle plus extra nights by agreement. It was almost a shared care arrangement.”
Similarly, there is limited reference to this aspect of the case in the mother’s material. In para 156 of her affidavit, she says:
"…made an arrangement whereby [the father] would see [the child] two days in one week and four days in the next, i.e. six days a fortnight.”
Paragraph 157:
"After we made this arrangement, [the father] saw [the child] more often but was still late, and changed arrangements as it suited him.”
Paragraph 158:
"After the parenting agreement was made in 2007 between the father and me, …"
That is the extent of the evidence on the parenting plan. Indirect evidence as to the substance of the parenting plan emerges from the welfare report in paras 3 and 4 thereof, but it is impossible to determine to what extent the observations contained in those paragraphs might represent the direct assertions of the mother or, alternatively, expressions and overviews of the family consultant herself. I simply note that the family consultant makes reference to:
"A more structured parenting arrangement".
And otherwise makes reference to “time spent”.
The father makes no further reference to the agreement in his affidavit in reply. To this day, it is not clear to me whether the agreement was oral or in writing and I am unaware of any other terms of the agreement. From the totality of the evidence, I am limited to the following conclusions:
i)The evidence establishes that, prior to the agreement entered into in 2007, the father did not have rights of custody;
ii)On the evidence produced by the parties, the only term of the agreement of 2007 disclosed to this Court is that it provided for the father to spend time with, or care for the child two days in one week and four days in the other;
iii)The material is silent as to any other terms and conditions and, in particular, there is no reference in any of the material to any rights to determine the child’s place of residence or any rights of veto.

In these deliberations, I do, of course, take account of the decision of the New Zealand Court of Appeal and, in particular, paragraph 63 thereof, where their Honours made the following observation:
“…We consider the agreement in this case did confer ‘the right to determine the child’s place of residence’. The mother agreed the father should have day-to-day care of [the child] six days a fortnight. That meant [the child] was to live for those six days in the place his father chose. Obviously, however, the shared care arrangement the parties reached meant each was obliged to live within reasonable proximity to the other. Neither could choose to live further afield with [the child] without the consent of the other or, in the absence of consent without a Court’s blessing.”
Whilst I have regard to the letter of, and the spirit behind that decision, and the basis for it, I am not bound to adopt that reasoning in evaluating the efficacy of the agreement in terms of the convention.
In evaluating this aspect of the case, I am greatly assisted by the deliberations of the Full Court in Wenceslas (Supra) and the High Court in MW v Director-General (Supra). In the majority judgment by the Full Court, May and Thackray JJ observed upon the liberal approach of the New Zealand Courts and the propensity in that forum to find “rights of custody” under the convention in arrangements which essentially provided for access.
The most recent case of the Court of Appeal in this matter appears to be a furtherance of, or extension of that approach. Of course, I hasten to acknowledge that the Court of Appeal was only purporting to determine domestic legal considerations and expressly declined to extend such an approach to hear and determine convention questions. In the judgment of the Australian Full Court, their Honours observed that this liberal approach adopted in New Zealand appeared to be ahead of those adopted in other convention countries.
Their Honours in Wenceslas (Supra) also reviewed decisions of Australian Courts on this point and ultimately reached the following conclusion, as appears at para 167 of the majority judgment as follows:
"Hence, we conclude that mere rights of access or contact are insufficient to constitute rights of custody, unless accompanied by the right to determine the place of residence of the child. In other words, the right to determine the place of residence of the child is not sufficient, but necessary to establish “rights of custody” for the purposes of the regulations.”
While the appellant was successful in overturning the decision of the Full Court in Wenceslas in some respects, the High Court confirmed the approach of the Family Court as is highlighted by the following extract from the judgment of Gleeson CJ at para 84:
"The Authority fails in its reliance upon the Access Order as the source of custodial rights of the father because its argument does not adequately observe the distinction drawn in the Regulations and in the Convention between rights of custody and those of access. The importance of the preservation of the distinction in construing the Convention was, with respect, correctly emphasised by the House of Lords in In re D (A Child) (Abduction: Rights of Custody) [2006] UK HL 51; 2007 1 AC 619 at 635. Reference was made by the Authority to the “frustration” of the rights of access given the father pursuant to the Access Order, by removal of the child from New Zealand. But that description of events that happened does not translate the rights of the father to a right of determination of the place of residence of the child and thus to a right of custody.”
Given my determination that, subject to the terms of the agreement, the father had no rights of custody, I take the view, based on the above authorities, that I must be able to find that the agreement went beyond merely providing definition as to the time the child would be in his father’s care. It would be necessary to find, within that agreement, that the father was given the right to determine the place of residence of the child either expressly or by finding some implicit right of veto within the terms of the agreement. Clearly, there is no evidence that such a term formed part of the agreement between the parties.
Whilst I am attracted to the logic of the proposition considered by the New Zealand Court of Appeal relating to the need for continual proximity to give effect to the agreed contact or care arrangements, I am unable to embrace that proposition as one of legal principle.
I acknowledge that the bulk of the authorities considered and adopted by the Australian Courts identify what I might suggest are clearly access cases, and often only of the alternate weekend type. However, for my part, I fail to see how the inferred need for continuing proximity is any more telling where the access or contact is for two, four or six days per fortnight. The Australian authorities demand more than just a designation of time spent with each parent, and the evidence provides me with no more than that.
Under the agreement, the father was entitled to have the child with him for six days per fortnight. No other rights were expressly conferred upon the father and no other rights can be inferred from the limited information I have. I am left with no option other than to conclude that the father did not acquire rights of custody as prescribed under the convention as interpreted by Australian Courts by virtue of the provisions of the parenting plan entered into between the parties in 2007.
Having earlier determined that no rights of custody arose under the Care of Children Act 2004 (NZ), I am left to conclude that the father did not have any rights of custody at the time of the removal and that, therefore, the removal was not wrongful. I must, in those circumstances, dismiss the application.
I cannot close without observing that that decision is not one which sits comfortably with me. This case demonstrates the limitations of the Convention and the extent of the harm occasioned by the existing terms of the Convention. I note the observations of Baroness Hale of Richmond in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 All ER 783 and those of Lord Justice Thorpe in Hunter v Murrow [2005] 2 FLR 1119. Their observations in those cases highlight that the types of challenges exposed by this matter could be readily addressed if the convention prescribed that all removals without the consent of both parties were deemed wrongful or, alternatively, if the liberal approach adopted by the New Zealand Courts which supports the rights of all parents who maintain relations with children was more broadly adopted across the convention countries.
The real merits of this case cannot be addressed by the current limiting terms of the convention as strictly interpreted by Australian Courts. This Court was unable to find that the requisite de facto relationship existed at the date of birth of the child, but it is common ground that such a relationship existed within weeks of the child’s birth and persisted for the following four years. During that time, the parties established a home and conducted themselves as partners and parents. After separation, the father continued to pursue his relationship with his son and shared in the responsibilities relating to his upbringing, including providing financial support and being actively involved in his extracurricular activities.
When contact arrangements broke down, he pursued counselling and sought and acquired a parenting plan which resulted in an arrangement which provided for extensive, ongoing involvement in the child’s day to day care and life approaching a shared care arrangement. The family consultant report discloses that the child wishes to maintain his relationship with his father and spend time with him. My very firm view was that the evidence filed by the mother and the family consultant’s report fell far short of amounting to evidence of any objection to returning to New Zealand sufficient to enliven a discretion to refuse to make an order for return.
The mother’s unilateral removal of the child from New Zealand without the father’s knowledge and consent abruptly severed the relationship between father and son who have now not seen one another in the 14 months since the date of removal. In this era, where most jurisdictions recognise the importance of joint parenting, recognise the shared rights and responsibilities of parents and the rights of children to have meaningful relations with each of the parents, the prospect that one parent should be able to unilaterally sever relations between a child and the other parent is a repugnant one.
What the mother did was morally wrongful but, as I interpret the current state of the law, the circumstances are not such as to enable me to find that it was wrongful under the terms of the convention. I trust that, having received the benefit of this decision, the mother will move quickly to ensure that the child is able to have his wish to spend some time with his father met.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate

Date: 26 March 2009