Department of Child Safety, Youth and Women and Fulton
[2018] FamCA 666
•24 August 2018
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & FULTON | [2018] FamCA 666 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Respondent admits that children were habitually resident in New Zealand immediately before their removal from that country and admits that such removal was wrongful – Respondent seeks to establish the defences prescribed in Regulation 16(3)(b) and (c) – Return Order made |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Care of Children Act 2004 (NZ) |
| Cooper v Casey (1995) FLC 92-575 De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640 Director-General, Department of Families v RSP (2003) FLC 93-152 DP v Commonwealth Central Authority (2001) 206 CLR 401 Harries v Harries (2011) 45 Fam LR 598 HZ v State Central Authority (2006) FLC 93-264 In the Marriage of Murray and Tam; Director, Family Services (ACT) (1993) FLC 92-416 State Central Authority v DB [2002] FamCA 804 Wolford v Attorney-General’s Department (Cth) [2014] FamCAFC 197 |
| APPLICANT: | Department of Child Safety, Youth and Women |
| RESPONDENT: | Ms Fulton |
| FILE NUMBER: | BRC | 7348 | of | 2018 |
| DATE DELIVERED: | 24 August 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 24 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Green |
| SOLICITOR FOR THE APPLICANT: | McInnes Wilson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Lyons |
| SOLICITOR FOR THE RESPONDENT: | Journey Family Lawyers |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous Orders are discharged.
The children, X a male, born … 2006 and Y, a male, born … 2008 be returned to New Zealand.
To give effect to Order 2:
(a)the said children leave the Commonwealth of Australia on or before 7 September 2018; and
(b)the said children arrive in New Zealand on or before 8 September 2018; and
(c)pending the children returning to New Zealand, the Respondent, Ms Fulton, born … 1973, is restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the children from the Commonwealth of Australia; and
(d)pending the children returning to New Zealand, the Respondent, Ms Fulton, born … 1973, is restrained and an injunction is hereby issued restraining her from removing or attempting to remove the children 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 Fulton, born … 1973, and the children X (a male) born … 2006 and Y (a male) born … 2008 on the Family Law Watchlist at all international departure points in Australia; and
(f)the names of the children 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.
Ms E, Department of Child Safety, Youth and Women or her nominee be at liberty to release all current passports relating to the children for the purpose of the children’s return to New Zealand and to release the Respondent’s passport to her (or her nominee) upon request.
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.
All other Applications are dismissed.
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 children 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).
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 DCSYW & Fulton 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 7348 of 2018
| Department of Child Safety, Youth and Women |
Applicant
And
| Ms Fulton |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By Application in Form 2, filed on 3 July 2018, 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 Regulations1986 (Cth), applies for an order for the return of the children,[1] X born in 2006 and Y, born in 2008, to New Zealand.
[1]Both within the definition of a ‘child’ for the purpose of the Regulations which define that term to mean “a person who has not attained the age of 16 years”: Regulation 2.
The Regulations under which this Application must be determined are made pursuant to s 111B[2] of the Family Law Act1975 (Cth), which 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.
[2]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).
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.
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.[3]
[3]Regulation 1A(2), Family Law (Child Abduction Convention) Regulations 1986 (Cth).
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)[4] wherein it was emphasised that the Convention is directed to the prompt return of children to the State of their habitual residence where questions concerning their welfare and the merits of any dispute about where and with whom they 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.
[4](1996) 187 CLR 640.
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.[5] If certain prescribed matters are established, the Court is obliged to make a return order relating to children.[6]
[5]Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).
[6]Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).
Relevant background
The requesting Applicant, under the Convention, is the children's father, Mr Fulton, born in 1971. He is a New Zealand national. The Respondent to the Application is the children's mother, Ms Fulton. She was born in 1973, and is also a New Zealand national.
The allegations contained within the Form 2 Application are to the effect that the Respondent caused the children to be wrongfully removed from New Zealand on 22 April 2018; that such removal was wrongful in that it was without the consent or knowledge of the father, and that the children have, thereafter, been retained in Australia by their mother.
The parental relationship, it seems, commenced in about 2003. The children were born in Australia in 2006 and 2008 respectively. The father and mother married in 2012 in Australia. In 2014 they returned, with the children, to live in New Zealand. They separated there in 2016.
They subsequently engaged in a family mediation in New Zealand, at which time it was agreed, it would seem, that the children would live with their mother and spend time with their father, such that prior to their removal from New Zealand earlier this year, the children were spending time with their father on a Thursday of each alternate week, each alternate weekend, and for half of school holiday periods.
It seems accepted that, at or after a subsequent mediation between the children's parents in about April 2017, the mother's then desire to relocate the children to live in Australia was discussed. It is also, I think, agreed that the only agreement reached between the parents at that point in time was that they would meet at a future time to discuss this proposition. It is clear that the parents did not then reach any agreement about the children moving to live permanently in Australia.
Whilst there appears, on some documents, to be a little confusion about the date, it seems likely that, on 16 March of this year, there was a physical altercation in which the parents were involved when the father attended at the mother's home to collect the children to spend time with him.
Each of the parents provides contrasting evidence about some aspects of that altercation. The father advances that the mother instigated the altercation as part of an overall plan or desire to relocate the children to Australia. The mother disputes such assertion, and contends that the altercation came about as the consequence of the father's deliberate actions toward her. She has provided a statement to New Zealand police, as has a friend of hers who was present on that occasion. The children have each been interviewed by officers of the New Zealand police force, and a copy of the transcript of their respective interviews is in evidence before the Court.
On the occasion of 16 March 2018, police attended at the residence. The father was charged and bailed on conditions, the implementation of which prevent him from contacting the mother other than to organise visits with the children. There are other bail conditions which restrain his attendance at the premises.
The evidence before this Court is that the father intends to contest the charges he currently faces, which appear to be one of man assault woman and one alleging an assault of one of the children. The evidence establishes that those charges are listed for trial in New Zealand in December of this year.
It is accepted that the children subsequently spent time with their father over the Easter 2018 weekend, and for a week of the Easter school holiday period in April of this year. The father's evidence before this Court is to the effect that he later learned that the mother's home, in which she and the children had previously lived, had been listed as available for rent on or about 3 April 2018.
These proceedings have proceeded for determination on the basis that I would have regard to the evidence on the papers, as it were; the absence of cross-examination means that there is no further explanation or exploration of these assertions or other pieces of evidence, such as the timing which underpinned the removal of the mother and children's belongings and transportation of the same to Australia.
It is clear, on the evidence, that the children returned to their mother's care on 20 April 2018. The father's evidence – to the effect that there was no discussion then about the children moving to live in Australia – is unchallenged.
The mother and children entered Australia on 22 April 2018. On 23 April 2018, the mother emailed the father to convey her assertion that she and the children no longer lived in New Zealand, that due to recent events that had come to light she could leave New Zealand with the children legally and return to live in Australia.
It appears, on the evidence, that the father has been able to have communication with the children since about 24 April of this year, either by way of telephone or Skype communication.
The father signed an Application seeking the return of the children on 29 May 2018 and, as I have already adverted to, the Form 2 Application initiating the proceedings in this Court was filed by the Applicant on 3 July of this year.
Matters which are clearly established on the evidence
I am satisfied that:
a)the father did not consent to the children moving to live in this country at any time before they were removed from New Zealand on 22 April 2018; and
b)the father did not consent to the children remain living in Australia at any time after that date and has proactively sought the children's return to New Zealand; and
c)the father has not, in any way, acquiesced to or in the children's removal from New Zealand on 22 April 2018, or in their retention in Australia after this date; and
d)the Application for a return order for the children has been filed within one year of their removal from New Zealand and their subsequent retention in Australia;[7] and
e)each child is under 16 years of age.[8]
[7]Regulation 16(1)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[8]Regulation 16(1A)(a) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
What must the Applicant establish
The Regulations make it clear that the Applicant bears the onus of establishing a number of prerequisites. In the present case, the Respondent admits that the Applicant has discharged such onus. I am also satisfied that the Applicant has discharged the onus of establishing those matters required by it to be established. I consider that the evidence clearly establishes that:
a)the children were habitually resident in New Zealand, a Convention country within the meaning of the Regulations, immediately before they were removed from New Zealand and thereafter retained in Australia by the Respondent;[9] and
b)by reason of his status as the children's father and, consequently, as their 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 the children under the law of New Zealand;[10] and
c)the children's removal to Australia and retention here was in breach of the father's rights of custody;[11] and
d)at the time of the children's removal from New Zealand in April of this year and subsequent retention here, the father was actually exercising his rights of custody, or would have exercised them if the children had not been removed from New Zealand and retained here.[12]
[9]Regulation 16(1A)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[10]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).
[11]Regulation 16(1A)(d) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[12]Regulation 16(1A)(e) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
It follows from the above, as I have already said, that I am easily persuaded that the Applicant has satisfied the Court that the children's removal from New Zealand on 22 April 2018 was wrongful under the Regulations.[13] As I have said, the Respondent admits this to be so.
[13]Regulation 16(1)(c) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Given this conclusion, and the conclusion that the other statutory prerequisites have been satisfied, I am compelled to make an order for the children's return to New Zealand unless the Respondent establishes one of the exceptions particularised in Regulation 16(3) of the Regulations.
If the Respondent establishes an exception, then, and only then may the Court consider not making an order for the children's return to New Zealand.[14] 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,[15] but may exercise the discretion to decline to order the children's return to New Zealand.
[14]Regulation 16(3) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[15] Regulation 16(5) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
What must the Respondent establish?
The Respondent seeks that the Application is dismissed on the basis that there is a grave risk that the children's return to New Zealand will expose them to physical or psychological harm, or otherwise place them in an intolerable situation[16] or alternatively, on the basis that the children object to being returned to New Zealand.[17]
[16]Regulation 16(3)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[17]Regulation 16(3)(c) Family Law (Child Abduction Convention) Regulations1986 (Cth).
Has the Respondent established grave risk or intolerable situation?
As I have said, the Respondent contends that there is a grave risk that the return of the children to New Zealand will expose them to physical or psychological harm, or otherwise place them in an intolerable situation.[18]
[18] Regulation 16(3)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The relevant paragraphs of DP v Commonwealth Central Authority[19] were referred to by both Counsel.
[19](2001) 206 CLR 401; see also: Director-General, Department of Families v RSP (2003) FLC 93-152; Wolford v Attorney-General’s Department (Cth) [2014] FamCAFC 197.
In that case, the plurality (Gaudron, Gummow and Hayne JJ) said:
41. In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42. Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43. Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44. These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45. That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
(Footnotes omitted)
I have taken all of the evidence before me into account in my consideration of whether the Respondent has discharged the onus of establishing that there is a grave risk that a return of the children to New Zealand will expose them to physical or psychological harm or otherwise place them in an intolerable situation. I am not persuaded that she has discharged such onus. I accept the tenor of the submissions provided by Counsel for the Applicant in this respect.
I note, also, that the Respondent's statement to police, given on 16 March 2018, was unequivocal in its assertion that there was not any physical abuse during the parental relationship. This evidence is clearly relevant to the assessment of the likelihood of a repeat of events which occurred on 16 March 2018 (as contended for by the Respondent).
I also note that the Respondent alleged the existence of verbal and mental and economic abuse during the parental relationship. These allegations are the subject of contest. I consider that, even if they were made out, the existence of the current bail conditions imposed upon the father as a result of the charges laid following the incident on 16 March 2018 is such to persuade me that the risk that the children would be exposed to the same if returned to New Zealand is ameliorated to the extent that I am not persuaded that it should properly be classified as "grave." Whatever the behaviour by the father during the relationship and after separation, it was not such as to preclude the parties reaching agreement about the children's parenting arrangements and to implement the same.
In addition, as authority such as In the marriage of Murray and Tam; Director, Family Services (ACT)[20] and Cooper v Casey[21] have noted, it would be presumptuous in the extreme for this Court to conclude that the relevant New Zealand authorities would not enforce protection orders made there by the Courts, or that if moved by either the mother, the father or the relevant child protection authorities, the Courts in that country would not act to protect the children.
[20](1993) FLC 92-416 per Nicholson CJ and Fogarty J (with whom Finn J agreed on the relevant point at 80,259).
[21](1995) FLC 92-575 at 81,698.
In fact, the evidence before me, established by reference to the mother's affidavit and annexures to the same, clearly establishes already that, after the incident on 16 March 2018, a number of things occurred:
a)the mother was contacted by a representative of F Group on 19 March 2018. On the mother's account, she expressed to that person that she was considering a return to Australia. The mother says she was later told that to do so would not amount to her doing anything illegal; she says she was asked how quickly she could go, which she says she took as an encouragement to leave New Zealand as soon as possible. Whilst that is the mother's evidence, there is no direct evidence to suggest that the mother received a direction (or information in the sense of a direction) from such a person telling her that she should leave New Zealand as soon as possible; and
b)a person known as “Ms G” from the Ministry for Children New Zealand contacted the mother on 17 April 2018 to make inquiries for contact details for the father.
Both of these pieces of evidence establish, to me, that it is clear that the New Zealand authorities acted and responded to the complaint made to police on 16 March 2018 – such actions relevantly ameliorate any future risk to which the children may be exposed if returned to New Zealand.
I also note that it is apparent from the mother's affidavit that she was able to obtain a copy of the transcripts of each of the children's interviews by police from New Zealand by contacting a police officer by email on 19 July 2018. That she was able to do so suggests, to me, that she has easily been able to maintain some contact with that officer, who appears to be familiar with the complaint and the facts (or allegations, at least) arising out of the incident on 16 March 2018.
It also establishes, to me, that such officer remains accessible to the mother and, therefore, more likely than not to be able to assist her.
I consider these matters to be further evidence of the mechanisms in place that ameliorate any risk to the children to the extent that I am not persuaded that it is properly classified as "grave."
For the reasons outlined, then, I am not persuaded on the evidence before me that the Respondent has discharged the onus of establishing that there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm, or otherwise place them in an intolerable situation.
I note that the evidence establishes the existence of support services for the mother and that the relevant agencies have already taken proactive steps to act following the receipt of the information after the incident on 16 March of this year.
Do the children object to being returned to New Zealand?
In order to establish this exception, the Respondent must establish that the children object to being returned to New Zealand and that their objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes, and that they have each attained an age and a degree of maturity at which it is appropriate to take account of their views.
Having regard to the evidence of Ms H, a Family Consultant who interviewed the children on 3 August 2018 and prepared a Regulation 26 report bearing the same date and whose evidence I accept, I am not persuaded that either of the children object to being returned to New Zealand. Any objection is no more, in my view, than an assertion of preference or wish, and it does not demonstrate a strength of feeling beyond a mere expression of a preference or an ordinary wish.
Further, having regard to Ms H's evidence and her opinion, which I accept, I am not persuaded that any objection that the children may have to returning to New Zealand, currently expressed by either of them, shows a strength of feeling beyond the mere expression of a preference or of an ordinary wish. I am not persuaded further, having regard to Ms H's evidence (which I accept in this regard) that either child has obtained the age and degree of maturity at which it is appropriate to take account of their views, other than to note their "preferences" and the expressed basis for the same as reported by Ms H in her report.
Consequently, I am not persuaded that the Respondent has established this exception to the mandatory return of the children to New Zealand. It follows that I am mandated by the Regulations to order the return of the children to New Zealand.
Exercise of discretion
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 children if a Respondent establishes an exception under the Regulations.
In case I am wrong in the conclusions I have reached to the effect that the Respondent has failed to establish the exceptions sought to be established, had I been called upon to exercise the discretion,[22] known colloquially as the residual discretion on occasion, I would not have been persuaded to refuse to order the return of the children to New Zealand.
[22]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.
I have reached this conclusion because I consider that:
a)as the children had lived in New Zealand since 2014, including for periods after the parental separation, that country provides the more suitable forum for the determination of their future care arrangements; and
b)the return of the children to New Zealand will return them to the parenting regime which had been implemented from about December 2016 following a mediated agreement reached between the parents; and
c)the return of the children to New Zealand will return them to known environs; and
d)there is nothing in the evidence to suggest that the Respondent would be unable to instigate proceedings for appropriate parenting orders in New Zealand, as she and the father obviously could have done at any time before she made the decision to remove the children from New Zealand and travel with them to Australia on 22 April of this year; and
e)I accept that the circumstances of this case are such that it is a clear case of the type of behaviour the Convention was designed to prevent: noting, as I do, that the mother had previously raised with the father a wish to relocate the children from New Zealand to Australia but the father had voiced a disagreement with such a proposition; and that, in the absence of any further discussion and/or consent to such a move, the mother acted in the manner that she did in April of this year; and
f)whilst there may well be financial imposts cast upon the Respondent, there is nothing in the evidence before me to suggest that she would likely encounter any particular hindrance in accessing legal assistance or the Courts in New Zealand, her country of origin; and
g)given the similarities in law between New Zealand and Australia, whatever determination is arrived at for the children's future parenting arrangements, it is one which will involve a determination of whatever parenting arrangement is in their best interests; and
h)the purpose and underlying philosophy of the Convention would, in my view, be significantly at risk of frustration if a return order were not made in the circumstances of this case.
Conclusions
For the reasons outlined above and expressed by me orally, I am satisfied that a return order should be made.
Ms Lyons (who appeared for the Respondent) submitted that, if a return order is made, the children should be permitted to remain in Australia to finish the current school term (which is due to conclude on 21 September 2018) and that the return order should provide for them to be returned to New Zealand by no later than 7 October 2018 to facilitate their return to school in New Zealand – where I am told the term would commence, I think, on 15 October 2018.
Ms Lyons also submitted that such a timeframe for a return order would enable the Respondent to make practical arrangements to amass the funds needed to facilitate the children's return to New Zealand and to deal with practical matters such as the lease to which she is subject in Australia and to make other arrangements for the return of belongings and chattels to New Zealand.
Whilst there is no evidence before me in relation to the dates of term times proposed by Ms Lyons from the bar table, I note that, quite properly, she was not challenged in her assertions by Mr Green, who appears on behalf of the Applicant.
Whilst no opposition to the dates, or the accuracy of the dates was taken, the Applicant opposes there being any delay in the children's return to New Zealand. Such opposition rests primarily upon the purpose of the Regulations being to implement Australia's agreement to the Convention, which provides for the prompt return of children to their place of habitual residence.
I consider that the date proposed by the Applicant for the children's departure from Australia and return to New Zealand – namely, that they leave Australia by 7 September 2018 and arrive in New Zealand by 8 September 2018 – provides sufficient time to enable the children to farewell their current classmates and for the mother to make appropriate practical arrangements to facilitate the children's return to New Zealand. It also provides her, in my view, with sufficient opportunity to make whatever contact she may wish to make with the relevant New Zealand authorities.
Given that the object of the Convention is to secure the prompt return of children, and that these children were wrongfully removed from New Zealand in mid-April 2018 and have been subsequently retained in Australia with consequent disruption to their previous lives in New Zealand – including their engagement in the education system in New Zealand and their interactions with their father as agreed between the parents – I consider that they should be returned to New Zealand as soon as practicable.
This will enable the children to recommence their previous participation in the New Zealand education system and to resume their previous relationships with persons in that country, including their father.
For those reasons, then, I consider that the departure date of 7 September 2018 and return date of 8 September 2018 to be appropriate.
I raised, during the course of the hearing, whether it is desirable in the present case that I make orders requiring the Applicant to provide specified particularised authorities in New Zealand with a copy of certain documents.
It is clear in this case that the New Zealand authorities are well aware of the incident on 16 March 2018. As I have already outlined, various New Zealand authorities have made contact with the Respondent. The police have been involved, and the Respondent has been able, on her evidence, to maintain contact with the relevant police officer whom, it appears on the evidence before me, is aware of the incident of that date. Absent these matters, I would have concluded that it is desirable and appropriate for the Applicant to provide information to the New Zealand authorities.
However, upon reflection and given the conclusions I have reached about the knowledge of the New Zealand authorities about the events of 16 March 2018, I am not persuaded in this case that it is appropriate that I make such an order. The purpose of any such order, if it were made in any particular case, is to ensure that the relevant authorities in another country are made aware of information that they have not previously known of. Such orders, which cast upon an Applicant an obligation to take action should not, in my view, be made simply for the sake of making an order, or for having an order made on the record.
Here, having raised the issue, my reflection and my conclusions about the state of knowledge of the New Zealand authorities is such that I have determined that I will decline to make the order, that I had originally raised with Counsel, because I am not persuaded, in the circumstances of this case, that it is necessary or appropriate to make such an order to give effect to the Convention.[23]
[23]Regulation 15 Family Law (Child Abduction Convention) Regulations 1986 (Cth).
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 August 2018.
Associate:
Date: 24 August 2018
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