Department of Child Safety, Youth and Women and Molland - [2019] FamCA 906

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & MOLLAND

[2019] FamCA 906

FAMILY LAW – HAGUE CONVENTION – Child brought to Australia – Application under the Hague Convention for the return of the child to New Zealand – whether habitual residence in New Zealand is established – Whether the father acquiesced in the child remaining in Australia – 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:

Department of Child Safety, Youth And Women

RESPONDENT:

Ms Molland

FILE NUMBER:

SYC

6465

2019

DATE DELIVERED:

29 November 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

29 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge

SOLICITOR FOR THE APPLICANT:

McInnes Wilson Lawyers

THE RESPONDENT:

Mr Hegedus by way of direct access brief

Orders

IT IS ORDERED THAT

All previous Orders are discharged.
The child, Z, (a female) born … 2018, be returned to New Zealand.
To give effect to Order 2:
(a)the said child shall leave the Commonwealth of Australia on or before 13 December 2019; and
(b)the said child shall arrive in New Zealand on or before 14 December 2019; and
(c)pending the child returning to New Zealand, the Respondent, Ms Molland, born … 1977, 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: D Street, Suburb B 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 Molland, born … 1977, and the child Z, (a female) born … 2018 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 child to return to New Zealand from 12.00 am on the date nominated for the travel in the letter.
The Respondent do all reasonable acts and take all reasonable steps to give effect to this Order.
Ms C, 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.
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.
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

All other Applications are dismissed.

IT IS NOTED THAT

The father will pay for the Respondent and Z to fly to New Zealand on economy class tickets.
The father’s evidence is that he will provide the necessary financial support to ensure that the Respondent and Z can live comfortably whilst custody negotiations take place in the New Zealand Courts and that he will offer financial support to ensure that the Respondent’s family can visit.

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 Molland 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: SYC 6465 of 2019

Department of Child Safety, Youth And Women

Applicant

And

Ms Molland

Respondent

REASONS FOR JUDGMENT

By Application in Form 2 filed on 26 September 2019,[1] an order is sought for the return of the child, Z, born in 2018, to New Zealand. Z, who is now nearly 18 months of age, was born in Australia. She has spent time in both Australia and New Zealand, the particulars of which time shall be the subject of further discussion below.
[1] In the Sydney Registry of the Court.
The requesting Applicant under the Convention is Z’s father: Mr D born in 1974 at City E, New Zealand. The Respondent to the Application is Z’s mother: Ms Molland, who was born in 1977 at Town H, New South Wales in Australia.
The Regulations under which this Application must be determined are made pursuant to s 111B[2] 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 and provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States.
[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).
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 a child’s care, welfare and development is, ordinarily, that child’s 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 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, the application is a matter 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 a child.[6]
[5] Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).
[6] Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).

Overview

Z’s parents met in about July 2001 whilst both were travelling overseas. They travelled to Australia together in about March/April 2003. Whilst here they lived together in shared accommodation: the father took up a job in Brisbane and the Respondent obtained employment on the Gold Coast. The father subsequently bought a house located at the Gold Coast, where they both lived until he returned to New Zealand in early 2006 to take up an offer to manage a business in City F. The Respondent remained living in Australia at that time and their relationship subsequently ended.
According to the Respondent, when she and her mother travelled to City F for a holiday in July 2015, they stayed at the father’s apartment there. Further, when the Respondent and a friend travelled to New Zealand to walk the Milford track, the father let them stay in his City F apartment for a night before and after they completed the walk; after various discussions between the father and the Respondent, they met up on about 27 May 2017 on the Gold Coast (where the father was for a “boys weekend” with friends) before the father returned to New Zealand.
According to the Respondent, she and the father spoke in early June 2017 about resuming a relationship: during these discussion the father told her that, if they got back together, he wanted to have a baby; they then discussed issues about fertility given their respective ages. The Respondent said that, following these discussions, she travelled to City F twice for the weekend in June and July 2017; she said, in essence, that, whilst concerned about what relocating to live in New Zealand might mean for her, she thought that she could give it and living in New Zealand a go and see what happened. Whilst her evidence was that her willingness to relocate to New Zealand was “completely dependent upon the success” of her relationship with the father, there is nothing in the evidence to suggest that she made the father aware of this at any time before she moved to live with him in New Zealand.
The father said that he and the Respondent agreed that they would live in City F since his restaurant would be the family’s main source of income.
The Respondent resigned from her employment in Town K in July 2017; when she moved to City F to live with the father on 30 July 2017, she left some of her belongings at her mother’s house in that city; she arranged for her car to be shipped to New Zealand and registered there because it was cheaper to do that than buy a car in New Zealand; she took her clothes and important possessions.
After moving to live with the father, the Respondent and he acted to implement their shared plan to have a child together; the Respondent learned that she was pregnant in September 2017. At this time, the Respondent had also obtained employment in City F; she described meeting ‘some lovely colleagues’. I did not understand there to be a challenge to the father’s evidence that the Respondent was a New Zealand resident for tax purposes, had a New Zealand tax number, a New Zealand bank account, contributed to her KiwiSaver account (a work based savings initiative) and qualified for paid parental leave in New Zealand, nor to his evidence that she obtained a New Zealand driver’s license, mobile phone and joined a gym in City F.
On the Respondent’s account, she considered there to be many difficulties in her relationship with the father, even as they were trying to have a child together. She said that, such were the arguments between them, she threatened to pack her bags and return to Australia on more than one occasion; she also said she then sought advice from the City F Citizens’ Advice Bureau about their circumstances and the possibility of their relationship ending and was advised to give birth to Z in Australia to ensure the child was born an Australian citizen; she also said that she received similar advice from an Australian family lawyer.
The Respondent also said that, at about the same time, the father asked her to enter into a pre-nuptial agreement: she said that she told him that, if she signed anything, she would insist that he sign a document allowing Z (and her) to return to Australia in the event their relationship (that is, the parental relationship) ended; she said he thereafter did not present her with a pre-nuptial agreement, but was then more reticent about her giving birth in Australia. I consider this aspect of the Respondent’s evidence to be particularly telling; I also consider that, by acting as he did in response to the Respondent’s request that he execute a document to permit Z to move to live in Australia if the parental relationship broke down, the father clearly demonstrated that he would not agree to their child moving to live out of New Zealand if the adult relationship broke down.
The Respondent subsequently returned to Australia on 23 November 2017 for a period of time; she returned to City F in time to spend Christmas with the father and his family in City F.
Despite whatever reticence the Respondent felt that the father demonstrated about her giving birth in Australia, Z was born in Australia in 2018 after the Respondent travelled from City F back to Queensland on 10 April 2017 for that purpose. The father had also flown to Queensland on about 4 May 2017 in anticipation of Z’s birth. After Z was born her parents arranged for her to be issued with an Australian passport and Medicare card: I note that the Birth Certificate Application contains the information that the father’s home address was an address in City F; I accept his evidence that the Suburb J address provided on the Application was provided to enable Z’s parents to receive the issued Birth Certificate through the post.
The Respondent said that the father remained in Australia for about three weeks after Z was born – although his account is that he remained here for about six weeks – before returning to City F on 5 June 2018; she said that she and Z subsequently returned to City F in late June/early July 2018 and she returned to work on a part-time basis (two half-days per week).
The father said he and the Respondent had always intended to return to City F to raise Z and they did so in late June 2018: he was not cross-examined about this aspect of his evidence and I accept it; further I consider that, by taking Z to live in City F with them, the parents manifested their shared intention that she live in New Zealand. I am not persuaded that this shared intention is in any way undermined by the fact that only the father is the registered proprietor of the former shared home in City F into which he, the Respondent and Z moved in about late June 2018.
I accept that, following her arrival in City F in about late June 2018, Z settled in City F: I accept that she attended medical appointments, a group for exploring movement and participated with the Respondent in weekly mothers’ groups; she was enrolled with a doctor and a dentist. The father also said that he, the Respondent and Z thereafter travelled to Australia for holidays to visit the Respondent’s family and some of her friends came to visit them in New Zealand.
From the Respondent’s perspective, the problems in the parental relationship persisted after Z’s birth. She said that she expressed her views about these issues and how she was feeling in an email she sent the father on 23 September 2018. From her perspective, the father was uninvolved with Z and too focused on his business: she clearly felt that their lives “just revolved around the [business]”.
Despite these issues, it is also clear that Z’s parents continued to make joint arrangements for her care: for example, the father said the Respondent was involved in getting quotes for furnishings for their new home in March and April 2019 and an Invoice, dated 20 March 2019, includes reference to the fabric which had been chosen for Z’s room no longer being available and the supplier looking to find replacement pink fabrics. I consider this to evidence a further manifestation of what I regard as a shared parental intention that Z continue to reside in City F.
I accept that, consistent with their agreement to return to Australia with Z for a period of four-six weeks to celebrate her birthday with the Respondent’s family, Z’s parents planned a holiday to visit the maternal family for Z’s first birthday in Australia; I accept they booked flights departing New Zealand on 8 May 2019 and returning to New Zealand on 7 June 2019. Whatever the Respondent’s internal feelings, there is nothing in the evidence to suggest that, at any time before Z left New Zealand with her parents to travel to Australia on 8 May 2019, there was any agreement between the Respondent and the father that Z would thereafter remain living in Australia. I accept that Z left New Zealand on the basis that she would be returning to that country at the conclusion of what was, in reality, a holiday to Australia. There is nothing in the evidence to suggest that, at the time the father agreed to Z travelling to Australia he did so on the basis that Z was thereafter going to live in Australia.
I also note that the father’s evidence was that he and the Respondent had intended, whilst in Australia, to arrange for the remainder of the Respondent’s belongings to be transferred from Australia to New Zealand at the conclusion of this trip.
I consider it much more likely than not that, immediately before they left New Zealand with Z for their holiday travel, the father and the Respondent had a shared intention that they would return to City F with Z after the May/June 2019 holiday and resume their lives in New Zealand: I base this conclusion on the facts that the Respondent had not resigned from her employment in City F prior to travelling to Australia on 8 May 2019 – but was supposed to resume her employment in City F on 10 June 2019 – that they had travelled to Australia on return tickets and that they had booked return flights from City F to City G to facilitate their attendance at the father’s sister’s wedding between 4 and 9 July 2019.
I accept that, after spending time with the maternal extended family in Town K, the father, the Respondent and Z travelled to the Gold Coast: this was to facilitate the father participating in an annual four day trip with friends, starting on 29 May 2019; members of the extended maternal family joined the Respondent and Z at the rented apartment in his absence.
I accept that, on 1 June 2019, the Respondent sent the father a text which said: “there’s a Monday morning flight you can catch back to City F. Go straight there. Z and I are staying in Aussie.” I accept the father’s evidence to the effect that Respondent repeated this message verbally to him many times.
I accept that, despite this text, the father returned to the apartment on the morning of 3 June 2019. He said he did so to try and resolve the issue and to ascertain why the Respondent wanted to stay with Z in Australia. He also said that, despite the Respondent telling him that she did not want him to accompany her and Z back to Town K (as had previously been planned), he travelled with them in an attempt to work out their issues: he said that the Respondent continually told him that she and Z would not be returning to New Zealand.
The father said that, on 5 June 2019, he learned that the Respondent believed that he had been cheating on her; he also said that he learned that she had been telling her friends for several months that she was moving back to Australia with Z.
I accept that, when the father, the Respondent and Z travelled back to Town K, they stayed together overnight in a motel. I accept the Respondent’s evidence that, after they argued about “everything” that night, she told the father that she and Z would stay in Australia for an extra week; I accept that she also contacted her employer in City F to ask that he extend her leave, which he did.

I accept that, when the Respondent told the father on 7 June 2019 that she was not returning to City F and would be staying in Australia with Z, he told her then that he did not consent to this. I accept the father’s evidence to the effect that, whilst he did not consent to Z remaining in Australia after 7 June 2019, he did not know what other options he had, but to take the pre-booked return flights from Town K back to City F.
I think it much more likely than not that, during his communications with the Respondent following his return to New Zealand, the father attempted to see if he could persuade the Respondent to return with Z to New Zealand. Whilst the Respondent’s evidence was to the effect that the father did not express a desire that she and Z return to New Zealand, she contacted her employer in City F to ask that he extend her leave for a further three weeks. I consider that this action is inconsistent with any suggestion that, by then, the Respondent had abandoned what I find to have been her habitual residence in New Zealand.
I note that the Respondent’s evidence included that, despite her attempts to resolve things between them, the father kept telling her that their relationship was over and, when she asked him why he did not ask them to travel back to New Zealand, he told her that he was waiting for her to come back on her own account; it is clear that the manner in which the father communicated with the Respondent at this time fell far short of how she expected him to react. It is also clear that the father had, by then, acted so that the Respondent received what she described as “legal threats”.
The father said that, on 28 June 2019, the Respondent indicated to him that she may not plan to stay in Australia and might return to New Zealand. He also said that, despite inferring that she would return with Z for his sister’s wedding in City G on 6 July 2019, this did not eventuate.
The Respondent said that, on 3 July 2019, she sought legal advice in Town K and that she was advised to stay in Australia where she had the support of family; she also said that she was advised that, if she returned Z to New Zealand, the father could “block” the child’s passport (by which I took her to mean that he could take steps to prevent her from removing Z from New Zealand).
I accept that, despite the existence of plane tickets for the father, the Respondent and Z to attend the father’s sister’s wedding in City G between 4 and 9 July 2019 having already been booked before the parents and Z left City F to travel to Australia on 9 May 2019, Z did not attend her aunt’s wedding.
I accept the father’s evidence that, on 25 July 2019, the Respondent’s City F employer contacted him to ask if he knew when she was returning to work because he had kept her employment open since 10 June 2019 and she was scheduled to return to her job.
The Respondent said that, when the father flew to Australia to see Z on 26 July 2019, they stayed together in an apartment at the Gold Coast for five nights; her account is that, whilst the father asked her what her intentions were for Z, he appeared to be happy with Z and the Respondent living in Australia. I do not accept this aspect of the Respondent’s evidence: it seems inconsistent with the likely attitude of a person whom – as the Respondent recounted- had expressed a desire to have a child if their relationship recommenced.
I accept that, during this visit to Australia to spend time with Z, the father tried to speak to the Respondent about their relationship and Z’s return to New Zealand; I accept that, after the Respondent told the father on about 30 July 2019 that she had no intention of returning with Z to New Zealand, he returned alone to New Zealand on 2 August 2019 and pursued the current Application. I accept he did so at that time because he had concluded that all other avenues had been exhausted and that the Respondent had no intention of returning Z to New Zealand.
I accept that the father has subsequently travelled to Australia on a number of occasions to spend time with Z.

What must the Applicant establish?

The Regulations make it clear that the Applicant bears the onus of establishing a number of prerequisites.
It is clear that the Application for a return order for Z was filed within one year of her asserted retention in Australia.[7]
[7] Regulation 16(1)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Regulation 16(1A) provides that Z’s retention in Australia was wrongful if:
a)she is under 16 years of age[8] – as she is; and
b)she was habitually resident in New Zealand immediately before her retention in Australia – a matter in dispute; and
c)her father had rights of custody in relation to her under the law of New Zealand (on the assumption that this was the country in which she was habitually resident immediately before her retention in Australia) – a matter which is accepted; and
d)her retention in Australia is in breach of those rights of custody – a matter which is in dispute on the basis that the Respondent alleges that the father exercised his rights of custody to consent to Z remaining living with her in Australia on a permanent basis; and
e)at the time of her retention, the father was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights if she had not been retained – a matter which is accepted.
[8] Regulation 16(1A)(a) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
If the Applicant fails to discharge the onus of establishing any of those matters it is required to establish, then the Application for a return order must be dismissed.

Was Z habitually resident in New Zealand immediately before 7 June 2019?[9]

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

It is clearly established that the inquiry into habitual residence is “a broad factual inquiry”[10], intended to involve a search for the underlying reality of the connection between a child and a particular State: the search is for where Z resided immediately before she was retained in Australia by the Respondent on 7 June 2019 and whether residence at that place could be described as habitual[11] – whether New Zealand was the centre of her personal and family life as disclosed by the facts of her activities[12] and, given her age, those of both the father and the Respondent. Given the evidence before me, I consider that it was.
[10] At least in the sense of the application of the concept: see Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 as referred to by the Full Court in Secretary, Department of Family and Community Services & Padwa (2016) FLC 93-701; (2016) 55 Fam LR 261.
[11]LK at [22].
[12]LK at [25].
The meaning of “habitual residence” in the context of the Regulations has been extensively and authoritatively discussed by the High Court in LK v Director-General, Department of Community Services[13] where the Court said, at [23]:
… First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence.
[13] (2009) 237 CLR 582.
The High Court also approved that the inquiry into Z’s “habitual residence” should take into account all relevant factors including: settled purpose (in the sense of whether her parents had a shared intention that she live in a particular place with a sufficient degree of continuity to be properly described as settled, from her perspective; whether her presence in New Zealand had a “degree of settled purpose” from her perspective[14]); the actual and intended length of stay in a State; the purpose of the stay; the past and present strength of ties to the State and to any other State; the degree of assimilation into the State (including living and schooling arrangements) and cultural, social and economic integration.[15]
[14]LK at [45].
[15] LK at [44] where the Court approved the passage from the decision of the Court of Appeal of New Zealand in Punter v Secretary for Justice [2007] 1 NZLR 40.
It is also authoritatively established that the intentions of either parent and the factor of “settled purpose” are not to be given controlling weight in the determination of the answer to the question of fact of Z’s habitual residence at the relevant time. That is, whilst ‘settled purpose’ is important, it is not necessarily decisive and is not, of itself, something which overrides the underlying reality of the connection between Z and, here, New Zealand.
Consequently, the relevant question may be formulated as follows: whether, immediately prior to 7 June 2019, Z’s presence in New Zealand had a degree of settled purpose from her perspective, in all the circumstances of this case, to result in the conclusion that she was then habitually resident in New Zealand.[16]
[16] See: Secretary, Department of Family and Community Services & Padwa (supra) at [38]; State Central Authority & Camden (2012) FLC 93-501; (2012) 46 Fam LR 583; Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472; (2011) 46 Fam LR 335.
Having searched for the underlying reality of the connection between Z and New Zealand, from her perspective, I have concluded that I am satisfied that, immediately before 7 June 2019, she was habitually resident in New Zealand.
I have arrived at this conclusion because I consider that:
a)until the Respondent retained Z in Australia on and after 7 June 2019, Z had only ever lived in City F: she was settled there; had been enrolled to receive medical and dental treatment and had spent time there with the father’s friends and members of her extended paternal family; and
a)following her travelling with her parents to New Zealand about six weeks after her birth on 15 May 2018, Z did not enjoy settled time in Australia before she was retained here by the Respondent from 7 June 2019: that is, between late June 2018 and 7 June 2019, she had only travelled to Australia for holiday purposes and had otherwise lived with the father and the Respondent in City F; and
b)prior to her retention in Australia by the Respondent from 7 June 2019 she had experienced relative continuity of place, from her (Z’s) perspective and was engaged, to the extent that she could be given her age, in the City F community: for example, she had attended a mothers’ group with her mother and was enrolled as a patient of medical and dental practices located in City F; and
c)both the father and the Respondent had clearly been making plans in March and April 2019 (before they travelled to Australia for the holiday which was to culminate with their joint return to New Zealand on 7 June 2019) for Z’s accommodation: for example, they had made decisions about the curtains which were to be hung in her room in their home in City G; and
d)to facilitate the travel which she, the father and Z undertook to Australia on 8 May 2019 – on tickets which had a return date of 7 June 2019 – the Respondent took leave from the employment she had obtained in City F, rather than resigning from the same, and subsequently sought, from Australia, that her employer extend that leave for a further period of time; and
e)when the father, the Respondent and Z travelled from New Zealand to Australia on 8 May 2019, they travelled only with those possessions necessary for holiday travel; and
f)before the Respondent decided unilaterally to retain Z in Australia on 7 June 2019, she and the father (who had lived in City F since 2006) had lived together in City F for nearly two years; and
g)both the Respondent and the father had a shared intention that, after her birth, Z would reside in New Zealand and they did not reach any joint agreement before the Respondent unilaterally retained Z in Australia after 7 June 2019 to change the child’s place of habitual residence; and
h)whilst the Respondent gives evidence of her underlying discontent with her life in City F before she, the father and Z travelled to Australia for a holiday in May 2019, she maintained her employment there even when they left that country for their 2019 holiday; and
i)there was no agreement between the father and the Respondent that Z would move with the Respondent to live in Australia; and
j)given that the Respondent had resigned from her employment in Australia to move to live in City F with the father, at a time she knew that he owned a business there and was involved in the day-to-day operation of the same and that they both deliberately sought to have a child together after they started to live together and that the Respondent obtained employment in City F and that, after giving birth to Z in Australia, the father, the Respondent and Z all returned to live together in New Zealand where Z became as involved in the City F community as one might expect of a child of her age, there was a settled purpose in relation to Z’s residence in City F at the time the Respondent unilaterally determined not to return the child to New Zealand but retain her in Australia from 7 June 2019; and
k)the Respondent’s now expressed intention not to remain living with the father in New Zealand – an intention which was not expressed to the father until they were in Australia with Z – carries little if any weight.[17]

Did the father consent to Z being retained in Australia, such that her retention here after 7 June 2019 was not in breach of his rights of custody?

[17]Zotkiewicz & Commissioner of Police (No 2) (supra) at [104].

The father said he does not and did not consent to Z’s ongoing retention in Australia by the Respondent since 7 June 2019. His evidence is that he never agreed to Z staying permanently in or moving to live in Australia.
I do not accept that, by leaving Z with the mother in Australia when he left this country on 7 June 2019 to return to New Zealand, the father demonstrated his consent to Z remaining in Australia on a permanent basis. I have arrived at this conclusion because I accept his evidence to the effect that he did not know what else he could do; I also think it relevant that he needed to return to manage his business in City F.

Conclusions

I consider that the evidence clearly establishes that:
a)Z was habitually resident in New Zealand, a Convention country within the meaning of the Regulations, immediately before she was retained by the Respondent in Australia;[18] and
b)by reason of his status as Z’s father and, consequently, as her 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 Z under the law of New Zealand;[19] and
c)Z’s retention in Australia after 7 June 2019 was in breach of the father's rights of custody;[20] and
d)at the time of Z’s retention in Australia, the father was actually exercising his rights of custody, or would have exercised them if Z had not been retained in Australia.[21]
[18] Regulation 16(1A)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[19] 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).
[20] Regulation 16(1A)(d) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[21] Regulation 16(1A)(e) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
It follows from the above that I am satisfied that the Applicant has discharged the onus of establishing those matters required by it to be established; I am persuaded that the Applicant has satisfied the Court that Z’s retention in Australia from 7 June 2019 was wrongful under the Regulations.[22]
[22] 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 Z’s return to New Zealand unless the Respondent establishes an exception 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 Z’s return to New Zealand.[23] 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,[24] but may exercise the discretion to decline to order Z’s return to New Zealand.
[23] Regulation 16(3) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[24] Regulation 16(5) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

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

Counsel for the Respondent abandoned the contention that there is a grave risk that the return of Z to New Zealand would expose her to physical or psychological harm or otherwise place her in an intolerable situation[25] but maintained that the Court conclude that the father consented to or subsequently acquiesced in Z being retained in Australia.[26]
[25] Regulation 16(3)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[26] Regulation 16(3)(a)(ii) Family Law (Child Abduction Convention) Regulations 1986 (Cth).

Did the father consent to, or subsequently acquiesce in, Z being retained in Australia?

In order to succeed on this contention, the Respondent must establish that the father consented to Z being retained in Australia after 7 June 2019; she must establish that his consent was “real”, “positive” and “unequivocal”[27] and she must establish the existence of such consent by clear and cogent evidence.[28] 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.[29]
[27] 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.
[28]Wenceslasv Director General, Department of Community Services (2007) FLC 93-321 at 81,560.
[29]Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 per Wall J at 191.
I am not persuaded that the father acted so as to manifest consent that was real, positive and unequivocal vis-à-vis the Respondent retaining Z in Australia after 7 June 2019. Consequently, I am not satisfied that the Respondent has established this exception to a mandatory return order being made.
In determining whether the father subsequently acquiesced in Z remaining living in Australia after 7 June 2019, the Court is required to have regard to that which occurred after Z was retained here on 7 June 2019.[30]
[30] Director-General, Department of Communities (Child Safety Services) & Rolfston [2010] FamCAFC 149 at [58].
“Acquiescence” is not a term of art: it is an ordinary word, meaning “to assent tacitly or to agree or consent”. It is clearly established that the Court should be slow to infer an intention to acquiesce from attempts by the father to effect a reconciliation with the Respondent after she retained Z in Australia from 7 June 2019 or from his attempts to try to persuade her to agree to return Z voluntarily to New Zealand[31] or from the fact that he has travelled to Australia on a number of occasions since June 2019 in what I accept have been his efforts to maintain Z’s relationship with him.
[31] See: In Re H (Abduction: acquiescence) [1998] AC 72 at 88; [1997] 2 All ER 225 at 235 per Lord Browne-Wilkinson, with whom the other members of the House of Lords agreed.

I consider that nothing in the father’s behaviour was inconsistent with reasonable and bona fide attempts to negotiate the return of Z to New Zealand and/or to act to maintain his relationship with her pending determining of the current proceedings. I consider that his statements as recounted by the Respondent and his actions to be demonstrative of his desire to have Z returned to New Zealand. I am not persuaded that, in acting as he has since she was retained in Australia from 7 June 2019, the father acquiesced in Z’s retention in this country.
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 subsequently acquiesced in Z being retained in Australia after 7 June 2019. Consequently, I am not satisfied that the Respondent has established this exception to a mandatory return order being made.
It follows that I am not persuaded that the Respondent has established any exception to the mandatory return of Z to New Zealand. Consequently, I am mandated by the Regulations to order the return of Z 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 Z if the Respondent had established an exception under the Regulations.
In case I am wrong in the conclusions I have reached that the Respondent has failed to establish the exceptions sought to be established, had I been called upon to exercise the discretion[32] (known colloquially as the residual discretion on occasion), I would not have been persuaded to refuse to order the return of Z to New Zealand.
[32] 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)there is nothing in the evidence to suggest that the Respondent will be unable to instigate proceedings for appropriate parenting orders in New Zealand; and
b)given the similarities in law between New Zealand and Australia, whatever determination is arrived at for Z’s future parenting arrangements, it is one which will involve a determination of whatever parenting arrangement is in her best interests; and
c)one of the policies underpinning the Convention is that parents should not be able unilaterally to choose the forum in which they litigate their disputes and to permit Z to remain in Australia in the circumstances in which she was retained here from 7 June 2019 would result in that very eventuality; and
d)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.
Given that the object of the Convention is to secure the prompt return of children, and that Z was wrongfully retained in Australia after 7 June 2019, I consider that she should be returned to New Zealand as soon as practicable.
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. The order will contain a notation which records the father’s willingness to meet the costs of Z and the Respondent’s flights to New Zealand and his evidence about the financial support he intends to provide to the Respondent and Z following their return to New Zealand.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 November 2019.

Associate:

Date: 29 November 2019