Department of Child Safety, Youth and Women and Fogarty

[2019] FamCA 184

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & FOGARTY [2019] FamCA 184

FAMILY LAW – CHILD ABDUCTION – Child brought to Australia – Hague Convention – Application under the Hague Convention for the return of the child to New Zealand – Return Order made.

Family Law Act 1975 (Cth)
Family Law Child Abduction Convention Regulations 1986 (Cth)
Care of Children Act 2004 (NZ)

De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640
Harries v Harries (2011) 45 Fam LR 598
HZ v State Central Authority (2006) FLC 93-264
Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171
State Central Authority v DB [2002] FamCA 804
Wenceslas v Director General, Department of Community Services (2007) FLC 93-321

APPLICANT: Director-General, Department of Child Safety, Youth and Women

RESPONDENT: Ms Fogarty

FILE NUMBER: BRC 1504 of 2019

DATE DELIVERED: 29 March 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Green
SOLICITOR FOR THE APPLICANT:	McInnes Wilson Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Taylor
SOLICITOR FOR THE RESPONDENT:	Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous Orders are discharged.

2. The child, X born in 2018 (a male) be returned to New Zealand.

3. To give effect to Order 2:

   a.the said child shall leave the Commonwealth of Australia on or before 12 April 2019;  and

   b.the said child shall arrive in New Zealand on or before 13 April 2019; and

   c.pending the child returning to New Zealand, Ms Fogarty born in 1981 (the Respondent), is restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the child from the Commonwealth of Australia; and

   d.pending the child returning to New Zealand, the Respondent is restrained and an injunction is hereby issued restraining her from removing or attempting to remove the child from the premises where she and the children are currently residing, namely: B Street, Suburb C, in the State of Queensland; and

   e.subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all federal agents of the Australian Federal Police retain the names of the Respondent, Ms Fogarty born in 1981 and the child, X born in 2018 (a male) on the Family Law Watchlist at all international departure points in Australia;  and

   f.the names of the child and the Respondent be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety, Youth and Women advising of the travel arrangements made for the children to return to New Zealand from 12.00 am on the date nominated for the travel in the letter.

4. The Respondent do all reasonable acts and take all reasonable steps to give effect to this Order.

5. Ms G, Department of Child Safety, Youth and Women or her nominee is at liberty to release all current passports relating to the child for the purpose of the child’s return to New Zealand and to release the Respondent’s passport to her (or her nominee) upon request.

6. The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders.

7. The Applicant has liberty to apply on short notice to seek any further orders necessary to allow him or officers of the Department of Child Safety, Youth and Women to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

IT IS FURTHER ORDERED THAT

1. All other Applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Child Safety, Youth and Women & Fogarty has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1504 of 2019

Director-General, Department of Child Safety, Youth and Women

Applicant

And

Ms Fogarty

Respondent

REASONS FOR JUDGMENT

1. By Application in Form 2 filed on 11 February 2019, the Director-General of the Department of Child Safety, Youth and Women in his capacity as the State Central Authority under the Family Law Child Abduction Convention Regulations 1986 (Cth) applies for an order for the return of the child X, born in 2018, to New Zealand.

2. X, who is about 11 months of age, was born in New Zealand. Before his removal to Australia on 9 December 2018, he had only ever lived in New Zealand.

3. The Regulations under which this Application must be determined are made pursuant to s 111B[1] of the Family Law Act1975 (Cth). This provides that the Regulations may make provision, as is necessary or convenient, to enable the performance of the obligations of Australia under the Convention on the Civil Aspects of International Child Abduction. The Convention is set out in Schedule 1 to the Regulations. 

   [1] And, in so far as they make provision in relation to the rules of evidence which are to apply in proceedings under them, pursuant to s 111D of the Family Law Act 1975 (Cth).

4. The Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States. Australia and New Zealand are contracting States to the Convention. 

5. The Regulations are to be construed having regard to the Principles and Objects mentioned in the preamble to, and Article 1 of the Convention, and as recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to children's care, welfare and development is, ordinarily, their country of habitual residence, and as recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial and administrative authorities (as the case may be) of Convention countries.[2] 

   [2] Regulation 1A(2), Family Law (Child Abduction Convention) Regulations 1986 (Cth).

6. The purpose of the Convention was authoritatively explained by the majority of the High Court in De L v Director General, Department of Community Services (NSW)[3] wherein it was emphasised that the Convention is directed to the prompt return of a child to the State of his or her habitual residence where questions concerning his or her welfare and the merits of any dispute about where and with whom he or she should live can be determined; that is, applications like this one, made pursuant to the Regulations, are matters about forum, not about parenting per se. 

   [3] (1996) 187 CLR 640.

7. The Court may, pursuant to the Regulations, make return orders or any other order it considers appropriate to give effect to the obligations imposed on the Australian Government by the Convention.[4] If certain prescribed matters are established, the Court is obliged to make a return order relating to a child.[5]

   [4] Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).

   [5] Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).

Relevant background

1. The requesting Applicant under the Convention is the child’s father: Mr D who was born in 1991 and who is a New Zealand national.  The Respondent to the Application is X’s mother: Ms Fogarty, who was born in 1981 and who is also a New Zealand national.

Agreed facts

1. The Respondent agrees that the father is the child’s guardian; that there are no current or previous orders or written agreements between herself and the father in relation to X; that there has been no child welfare involvement in relation to X and that there are no orders relating to his protection or hers in existence. She also agrees that, before X was removed from New Zealand to Australia on 9 December 2018, the father exercised regular contact with him. 

What must the Applicant establish?

1. It is clear that the Application for a return order for X was filed within one year of his removal to Australia and retention here[6] and that he is under 16 years of age.[7]

   [6] Regulation 16(1)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [7] Regulation 16(1A)(a) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. The Regulations make it clear that the Applicant bears the onus of establishing a number of prerequisites.  In the present case, I am satisfied that the Applicant has discharged the onus of establishing those matters required by it to be established. 

3. I consider that the evidence clearly establishes that: 

   a)X was habitually resident in New Zealand, a Convention country within the meaning of the Regulations, immediately before he was removed from that country to Australia and thereafter retained by the Respondent here;[8] and

   b)by reason of his status as X’s father and, consequently, as his guardian and by virtue of the operation of the relevant provisions of the Care of Children Act 2004 (NZ), the father has rights of custody in relation to X under the law of New Zealand;[9] and

   c)X’s removal from New Zealand to Australia on 9 December 2018 and subsequent retention in Australia thereafter was in breach of the father's rights of custody;[10] and

   d)at the time of X’s removal to Australia and subsequent retention here,  the father was actually exercising his rights of custody, or would have exercised them if X had not been removed to Australia and retained here.[11]

   [8] Regulation 16(1A)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [9] Regulation 16(1A)(c) Family Law (Child Abduction Convention) Regulations 1986 (Cth); by operation of the New Zealand legislation, that is, the Care of Children Act 2004 (NZ).

   [10] Regulation 16(1A)(d) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [11] Regulation 16(1A)(e) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

4. It follows from the above that I am persuaded that the Applicant has satisfied the Court that X’s removal to Australia on 9 December 2018 and subsequent retention here was wrongful under the Regulations.[12] 

   [12] Regulation 16(1)(c) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

5. Given this conclusion, and the conclusion that the other statutory prerequisites have been satisfied, I am compelled to make an order for X’s return to New Zealand unless the Respondent establishes an exception particularised in Regulation 16(3) of the Regulations. 

6. If the Respondent establishes an exception, then, and only then may the Court consider not making an order for X’s return to New Zealand.[13] Even if this discretion is enlivened, the Court is not precluded from making a return order only because the Respondent has established a matter mentioned in the Regulations,[14] but may exercise the discretion to decline to order X’s return to New Zealand. 

   [13] Regulation 16(3) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

   [14] Regulation 16(5) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

What must the Respondent establish and does the evidence establish it?

1. The Respondent seeks that the Application is dismissed on the basis that the Court will conclude that the father consented to X being removed to and retained in Australia.[15] No other defences were raised.

   [15] Regulation 16(3)(a)(ii) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

2. In order to succeed, the Respondent must establish that the father consented to X being removed from New Zealand to live in Australia; she must establish that his consent was “real”, “positive” and “unequivocal”[16] and she must establish the existence of such consent by clear and cogent evidence.[17] There is no requirement, however, that she establish that the father was happy or content with the agreement or outcome that she asserts was agreed.[18]

   [16] Re K (Abduction: Consent) [1997] 2 FLR 212 per Justice Hale (as Baroness Hale then was) at 217-8; referred to by the Full Court of this Court in Wenceslas v Director General, Department of Community Services (2007) FLC 93-321 at 81,559.

   [17]Wenceslasv Director General, Department of Community Services (2007) FLC 93-321 at 81,560.

   [18]Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 per Wall J at 191.

Conclusions about contentious matters

1. I am not persuaded that, during the conversation between the parties on 16 August 2018 (the recording of which is in evidence before me[19]) the father’s assertions amounted to consent that was real, positive and unequivocal vis-à-vis the Respondent removing X from New Zealand to Australia. I am persuaded, though, by the Respondent’s actions in recording the conversation about her moving to Australia with X, that she knew at that time that she required the father’s consent to that course of action. I consider it much more likely than not that obtaining such consent was the very purpose of the conversation I consider her to have engineered between the parents that day.

   [19] Exhibit 1.

2. It is clear that, when the Respondent sought, via email sent on 17 August 2018, to have the father “confirm” that he agreed to X being removed from New Zealand to Australia (as she had proposed during their conversation the day before), the father almost immediately told her emphatically that he did not agree to her taking X to Australia.

3. Given my conclusions about the true nature of the father’s comments to the Respondent during their discourse on 16 August 2018, I am not persuaded that the circumstances in this case involved the father withdrawing his consent to X being removed from New Zealand  to Australia– because I am not persuaded that there was any consent to withdraw; if I am wrong in this conclusion and the father did consent on 16 August 2018, it is accepted that, as he was entitled to do, he unequivocally withdrew such consent in writing on 17 August 2018.

4. I am not persuaded that, during the conversation between the parties on 18 October 2018, the father’s comments as recounted by the Respondent amounted to consent that was real, positive and unequivocal vis-à-vis her removing X from New Zealand to Australia. I do not regard any comment by him to the effect that, if X was living in Australia, he would follow to constitute real, positive and unequivocal consent to X being removed from New Zealand to Australia. Such conclusion is strengthened by the fact that, on the Respondent’s recounting of the conversation, the father twice said that he did not want X to go to Australia. These assertions also need to be considered in the context that, on the Respondent’s evidence, the father had told her, during a conversation she said happened on 6 September 2018, that “Australia isn’t a good place for my son.”

5. It is also relevant to record that, even on the Respondent’s account of the conversation on 18 October 2018, she told the father, in essence, that she would probably have to leave New Zealand by January to enrol her children in school in Australia and that it would take her another four or five months to get on her feet, so he would have time to attend to certain matters that were coming up in his and X’s extended paternal family’s lives. Contrary to these assertions, the Respondent removed X from New Zealand on 9 December 2018 and the child entered Australia that day.

6. Whilst it is, perhaps, unnecessary to record my conclusion about the Respondent’s belief about the father’s attitude to her removing X from New Zealand, I consider it much more likely than not that she did not actually consider that the father had in fact agreed to her removing X from that country. I have arrived at this conclusion as a result of the combination of the following:

   a)the Respondent’s account of the conversation on 18 October 2018, which contains the comment that the father “may change his mind again” (re: X leaving New Zealand); and

   b)that, despite her 6 November 2018 purchase of one-way plane tickets for her and X (and her other children) to travel to Australia on 9 December 2018, the Respondent did not tell the father about this purchase until she sent him an email, in which she set out her intended move to Australia, on 7 December 2018: I consider it unlikely that, if she truly thought that the father had given his consent on 18 October 2018 to X being removed from New Zealand to Australia, she would not have mentioned this purchase at some time before then, as there would have been no real reason to keep the departure date a secret from the father; and

   c)that when, on 4 December 2018, the father exchanged text messages with the Respondent in an attempt to arrange for X to spend time with him on 8 December 2018, the Respondent told him that: “Hi. Really sorry but we already have plans to stay over in [F Town] on Saturday” and did not mention that this was the day before she would be removing X from New Zealand to live with her in Australia.

7. In addition, I note that the Respondent’s evidence was that she did not tell the father about the date on which she was going to remove X from New Zealand because she was concerned that giving him this information would be the “cherry on the top that would break the camel’s back”; she also said that she did not agree to the father’s request to take X to the birthday party mentioned earlier because she was worried that he would not return the child to her. That she considered these possibilities might flow from the father being told the date when she was going to remove X from New Zealand to Australia does not, to me, support her contention that, when she removed X from New Zealand on 9 December 2018, she thought she was acting with the father’s consent.

8. Further, it was not contested that, on 10 December 2018, the father sent the Respondent a text message to ask to see X and that she responded to the same by calling him and telling him that she had moved with X to Australia and that X would not be returning to New Zealand. The father’s request to see X seems to me to be completely at odds with any suggestion that he had consented to the child being removed from New Zealand prior to that.

9. Having considered the submissions made by Counsel for the Applicant (the content of which I generally accept) and for the reasons outlined, I am not persuaded that the Respondent has discharged the onus of establishing that the father consented to X being removed from New Zealand to Australia on 9 December 2018.

10. It follows that I am not persuaded that the Respondent has established the relevant exception to the mandatory return of X to New Zealand. Consequently, I am mandated by the Regulations to order the return of X to New Zealand. 

Exercise of discretion

1. As noted earlier, the Court is only called on to consider the exercise of discretion in favour of refusing to make an order for the return of X if the Respondent had established an exception under the Regulations. 

2. In case I am wrong in the conclusions I have reached that the Respondent has failed to establish the exception sought to be established, had I been called upon to exercise the discretion[20] (known colloquially as the residual discretion on occasion), I would not have been persuaded to refuse to order the return of X to New Zealand. 

   [20] De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640 at 661; State Central Authority v DB [2002] FamCA 804, per Kay J; HZ v State Central Authority (2006) FLC 93-264; Harries v Harries (2011) 45 Fam LR 598.

1. I have reached this conclusion because I consider that, as X had lived for all of his life in New Zealand before his 9 December 2018 removal from that country, it provides the more suitable forum for the determination of his future care arrangements, especially given that it is the country in which both his parents previously lived; further, his return to New Zealand will, relatively speaking, return him to known environs and there is nothing in the evidence to suggest that the Respondent will be unable to instigate proceedings for appropriate parenting orders in New Zealand.

2. I also consider that, given the similarities in law between New Zealand and Australia, whatever determination is arrived at for X’s future parenting arrangements, it is one which will involve a determination of whatever parenting arrangement is in his best interests. In addition, I consider that the purpose and underlying philosophy of the Convention would be significantly at risk of frustration if a return order were not made in the circumstances of this case.

3. Given that the object of the Convention is to secure the prompt return of children, and that X was wrongfully removed from New Zealand to Australia on 9 December 2018, I consider that he should be returned to New Zealand as soon as practicable. 

4. For the reasons outlined above, I am satisfied that a return order should be made in the terms set out at the commencement of these Reasons. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 March 2019.

Associate: 

Date:  29 March 2019