Department of Child Safety, Youth and Women and Rattana - [2019] FamCA 457

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & RATTANA

[2019] FamCA 457

FAMILY LAW – CHILD ABDUCTION – Application under the Hague Convention for the return of two children to New Zealand – whether the requesting father has rights of custody in relation to the oldest child – where the Applicant has not discharged the onus of establishing that the requesting father has rights of custody under the law of New Zealand in relation to the oldest child – Application for a return order dismissed in relation to the oldest child – whether the youngest child objects to returning to New Zealand- where the objection exception is not established – Return order made in relation to the youngest child.

Family Law Act 1975 (Cth)
Family Law Child Abduction Convention Regulations 1986 (Cth)
Care of Children Act 2004 (NZ)
Interpretation Act 1999 (NZ),

De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640
Department of Child Safety & Hunter [2009] FamCA 263
Harries v Harries (2011) 45 Fam LR 598
HZ v State Central Authority (2006) FLC 93-264
J and Director-General, Department of Community Services (2007) FLC 93-342
MW v Director-General of the Department of Community Services (2008) 39 Fam LR 1
Re K (Abduction: Consent) [1997] 2 FLR 212
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 Rattana

FILE NUMBER:

BRC

3605

2019

DATE DELIVERED:

12 July 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

3 July 2019; 8 July 2019; 11 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gordon

SOLICITOR FOR THE APPLICANT:

McInnes Wilson Lawyers

THE RESPONDENT:

In person

Orders

IT IS ORDERED THAT

All previous Orders are discharged.
The Application in Form 2 filed 29 March 2019 is dismissed insofar as it seeks an order for the return of the child X, a female, born … 2004, to New Zealand.
The child Y, a male, born … 2005, be returned to New Zealand.
For the purposes of giving effect to this Order:
(a)the child, Y, a male, born … 2005, shall leave the Commonwealth of Australia on or before 20 July 2019; and
(b)the child, Y, a male, born … 2005, shall arrive in New Zealand on or before 21 July 2019; and
(c)pending the child returning to New Zealand, the Respondent, Ms Rattana, born … 1964, continue to be 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 continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the child from the premises where she and the child 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 Rattana, born … 1964, and the child Y, a male, born … 2005 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; and
(g)the Respondent shall do all reasonable acts and take all reasonable steps to give effect to this Order.
Ms D, Department of Child Safety, Youth and Women or her nominee be 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 and the passport of X, a female, born … 2004 to the Respondent (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 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).
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 & Rattana 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 3605 of 2019

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

Applicant

And

Ms Rattana

Respondent

REASONS FOR JUDGMENT

By Application in Form 2 filed on 29 March 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 final orders with respect to the children, X, a female, born … 2004 and Y, a male, born … 2005.
X, who will turn 15 years of age later this month, was born in Sydney, Australia; Y, who is 13 years and seven months of age, was born in City G, New Zealand.
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).
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.[2]
[2] 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)[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.
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

The requesting Applicant under the Convention is the children’s father, Mr A, who was born in New Zealand on … 1967; he is a New Zealand citizen. The Respondent to the Application is the children’s mother, Ms Rattana, who was born in Country H on … 1964; she is an Australian citizen.
I accept that the children’s parents met in Australia. They never married. I accept that during their relationship they lived with the children in both New Zealand and Australia.
I accept that, before the children travelled to Australia on 5 December 2018 for the purpose of holidaying with the Respondent, they had lived with their father in New Zealand since mid-December 2010 (on the father’s account) or around March 2011 (on the mother’s account). I accept that, when the father and the children travelled to New Zealand to live in either mid-December 2010 or around March 2011, the Respondent remained living in Australia.
I accept that the children left New Zealand on 5 December 2018 using return tickets; I accept that, according to the tickets and the agreement between the father and the Respondent before the children left New Zealand, the children were to return to New Zealand on 23 January 2019. I accept that they did not return to New Zealand on the flight on which they were booked and that they have remained living in Australia with the Respondent since then.
I accept that, on 14 February 2019, the father signed the application for the return of the children to New Zealand.
I accept that there are no current or previous parenting orders in either Australia or New Zealand in respect of the children; I also accept that there is no evidence of any written agreement between the parents in respect of the parenting arrangements for the children.
There is no evidence to suggest that there has been any child welfare involvement in relation to the children in either Australia or New Zealand. There is no evidence to suggest that there have been, or are, any orders in either New Zealand or Australia which relate to the children’s protection or that of the Respondent.

Summary of issues

The Respondent agrees that the father is Y’s guardian and, pursuant to New Zealand law, has rights of custody in relation to him. Given my conclusions about those matters which the Applicant must establish (as outlined below), unless the Respondent discharges the onus of establishing one of the exceptions prescribed in Regulation 16(3) of the Regulations (and, if an exception is established, subject to the exercise of the discretion, prescribed by Regulation 16(5) of the Regulations, in her favour), an order for the return of Y to New Zealand must be made.
The Respondent’s assertion in relation to the father’s rights of custody vis-à-vis X differs from that maintained in respect of Y. In so far as X is concerned, the Respondent contends that the father did not have rights of custody in relation to her under the law of New Zealand immediately before X was retained in Australia on 23 January 2019. If this contention is correct, the Application for a return order in respect of X must be dismissed.
If this contention is not accepted and it is concluded that the father had rights of custody in relation to X under the law of New Zealand immediately before she was retained in Australia on 23 January 2019 and the Applicant discharges its onus in respect of those other matters which it must establish in order to succeed on the Application, then, unless the Respondent discharges the onus of establishing one of the exceptions prescribed in Regulation 16(3) of the Regulations (and, if an exception is established, subject to the exercise of the discretion, prescribed by Regulation 16(5) of the Regulations, in her favour), an order for the return of X to New Zealand must be made.

What must the Applicant establish?

It is clear that the Application for a return order for each of the children was filed within one year of 23 January 2019;[6] it also clear that both children are 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).
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 established that:
a)Y and X only travelled to Australia for the purpose of holidaying with the Respondent and each was habitually resident in New Zealand, a Convention country within the meaning of the Regulations, immediately before 23 January 2019;[8] and
b)by reason of his status as Y’s 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 Y under the law of New Zealand;[9] and
c)Y’s subsequent retention in Australia after 23 January 2019 was in breach of the father's rights of custody;[10] and
d)at the time of Y’s retention in Australia after 23 January 2019, the father was actually exercising his rights of custody, or would have exercised them if Y had not been retained in Australia.[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).
It follows from the above that I am persuaded that the Applicant has satisfied the Court that Y’s retention in Australia after 23 January 2019 was wrongful under the Regulations.[12]
[12] Regulation 16(1)(c) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
I turn now to consider whether the Applicant has discharged the onus of persuading, on the balance of probabilities, that, immediately before her retention in Australia on 23 January 2019, the father had rights of custody in relation to X under the law of New Zealand.

Does the father have rights of custody in relation to X?

As there is no judicial or administrative decision about X which confers “rights of custody” upon the father and there is no agreement between her parents about this issue, any “rights of custody” possessed by the father in relation to X must arise by operation of law.[13]
[13] Regulation 4(3)(c) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
In J and Director-General, Department of Community Services,[14] the Full Court approved of a three step process to determine whether a requesting person has rights of custody. Applying that process to the present case requires that I:
a)determine, on the evidence before me, what rights, if any, the father had under New Zealand law in relation to X at the time of her retention in Australia; and
b)resolve, as a matter of Australian law, whether those rights amount to “rights of custody” within the meaning of Regulation 4 of the Regulations; and
c)determine whether or not X’s retention in Australia after 23 January 2019 was in breach of those rights.
[14] (2007) FLC 93-342.
I accept that if, pursuant to the applicable New Zealand law, the father was a joint guardian of X immediately before 23 January 2019, he has rights of custody within the meaning of Regulation 4A and Regulation 16(1A) of the Regulations. If the father has such rights then, subject to consideration of the other issues raised by the Respondent (and discussed below), X’s retention in Australia after 23 January 2019, was in breach of those rights of custody.

The father’s rights (if any) in relation to X under New Zealand law

As already noted, the relevant New Zealand legislation is the Care of Children Act 2004 (NZ). The purpose of this Act is to promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care and to recognise certain rights of children.[15]
[15]Care of Children Act 2004 (NZ), s 3.
To this end, and amongst other things, the Care of Children Act 2004 (NZ) defines parents’ rights and responsibilities in relation to their children. Section 15 of the Care of Children Act 2004 (NZ) defines guardianship as including, “all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child.” Sections 16-18 of the Care of Children Act 2004 (NZ) Act provide, amongst other things, that “the duties, powers, rights and responsibilities of a guardian of the child” include “having the role of providing day-to-day care for the child” and to “determine questions about important matters affecting the child” – a phrase defined in s 16(ii) of the Care of Children Act 2004 (NZ) Act as including “changes to child’s place of residence”. Further, s 97 of the Care of Children Act 2004 (NZ) Act defines rights of custody of a child to include the right to determine the child’s place of residence.
The fact that the father’s name appears on X's Australian Birth Certificate as her father does not confer guardianship upon him according to the law of New Zealand; the only way in which a father who is not a guardian “just because of” the operation of, relevantly, s 17(3) of the Care of Children Act 2004 (NZ) becomes a “guardian” by virtue of his particulars being registered on a child’s Birth Certificate is if such particulars are registered after the commencement of the relevant section as part of a child’s birth information required by New Zealand law to be notified.[16]
[16]Care of Children Act 2004 (NZ), s 18(1).
Further, whilst the Applicant relied upon expert opinion expressed by Ms E (a barrister and solicitor with over 15 years’ experience practising in family law in New Zealand), such opinion is implicitly predicated on:
a)an acceptance of the father’s assertion that he and the mother were living together prior to and at the time of conception and at the time of X’s birth; and
b)a conclusion that the father’s evidence that he and the Respondent were living together when X was born is sufficient to establish the necessary prerequisites mandated by the relevant provision of the Care of Children Act 2004 (NZ).
It is only upon these bases that Ms E opines that the father is a guardian of X pursuant to the operation of s 17 of the Care of Children Act 2004 (NZ) and, consequently, has rights of custody under New Zealand law in relation to her.
I note that Ms E’s affidavit contains the incorrect assertion that the father’s affidavit evidence includes that he had “no prior knowledge that the children were being removed from New Zealand.” This sworn assertion is incorrect. It completely contradicts the father’s actual evidence at paragraph 6 of his affidavit[17] , which begins “Until the children left for an agreed holiday with their mother on 5 December 2018…..”.
[17] Sworn on 14 February 2019 and included within the Form 2 filed 29 March 2019.

Given that there is no contradictory expert opinion evidence and, consequently, I have not been asked to prefer the evidence of another expert to that given by Ms E, this error is not determinative; however, it certainly casts a shadow over the balance of the evidence given by Ms E.
In order to establish that the father had rights of custody under New Zealand law in relation to X at the relevant time, the Applicant must relevantly establish that the Respondent was living with the father as a de facto partner at the time X was born (that is, on … 2004). If the Applicant fails to discharge its onus of establishing this, the Respondent is X’s sole guardian according to New Zealand law and the father does not have "rights of guardianship" in relation to X under New Zealand law and, therefore, he does not have "rights of custody" for the purposes of Regulation 4 of the Regulations. If this conclusion is reached, then the Application for a return order for X must be dismissed.
The term “de facto partner” is not defined in the Care of Children Act 2004 (NZ). However, it is defined in the Interpretation Act 1999 (NZ) to mean “a person who is a party to a de facto relationship (as defined in section 29A)”.
The term “de facto relationship” is defined in s 29A of the Interpretation Act relevantly to mean “a relationship between 2 people… who live together as a couple in a relationship in the nature of a marriage or civil union and are not married to, or in a civil union with, each other and are both aged 16 years or older.”
Further, s 29A(3) of the Interpretation Act prescribes that, in determining whether two people live together as a couple in a relationship in the nature of marriage or civil union, the court must have regard to “the context, or the purpose of the law, in which the question is to be determined”[18] and “all the circumstances of the relationship.”[19]
[18]Interpretation Act 1999 (NZ), s 29A(3)(a).
[19]Interpretation Act 1999 (NZ), s 29A(3)(b).
Consequently, I turn to consider whether, having regard to the context, or the purpose of the Care of Children Act 2004 (NZ) - such purpose being to promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care and to recognise certain rights of children[20] - and all the circumstances of the relationship as found on the evidence, the Applicant has established, on the balance of probabilities, that the father and the Respondent were living together as a couple in a relationship in the nature of a marriage or a civil union when X was born on … 2004.
[20]Care of Children Act 2004 (NZ), s 3.
No reference was made by Counsel for the Applicant to any authority which might be relevant to the consideration of this seminal issue.
In Wencelas and Director-General, Department of Community[21], the Full Court of this Court considered an appeal against a determination at first instance that a father had rights of custody pursuant to the Care of Children Act 2004 (NZ). The first instance determination was, relevantly to this case, arrived at because the trial judge concluded that the evidence before him “inferred” that the parents were in a de facto relationship at the necessary time; he concluded that he was satisfied that they were cohabiting so that, by operation of s 17 of the Care of Children Act 2004 (NZ), the parents were joint guardians of the child.
[21] (2007) FLC 93-321.
Whilst the majority of the Full Court (May and Thackray JJ) concluded[22] that the trial judge had erred in applying this test rather than the correct test, they also concluded that they were satisfied by the evidence that: the child’s parents were living in a de facto relationship at the time of his birth; both parents were the child’s guardians and both had the right to determine his place of residence; consequently, the father had the required “rights of custody” when the child was removed from New Zealand.[23]
[22]Wencelas and Director-General, Department of Community Services (2007) FLC 93-321, 81,553 at [207].
[23] Wencelas and Director-General, Department of Community Services (2007) FLC 93-321, 81,554 at [220]–[221].
These conclusions were expressed after their Honours expressed the following:
When regard is had to the purpose of the legislation it would seem appropriate to set a relatively low threshold when determining whether the parents of a child were living in a de facto relationship. Such an approach would ensure that the child has both natural parents as guardians. This would be consistent with the modern acceptance of the benefits children obtain from having both parents involved in their lives, regardless of whether the parents were married or not. This more contemporary approach can be seen in the New Zealand legislation itself, which has extended guardianship rights to all fathers of ex nuptial children whose name appears on their child’s birth certificate.[24]
[24]Wencelas and Director-General, Department of Community Services (2007) FLC 93-321, 81,554 at [219].
Given the terms of s 18(1) of the Care of Children Act 2004 (NZ), the reference to the extension of guardianship rights to fathers whose names are registered on their children’s birth certificates must be read as implicitly referring only to those circumstances in which such particulars are registered after the commencement of the relevant section of the Act as part of a child’s birth information because both parents both notified the child’s birth as required by the relevant section of the Births, Deaths, Marriages, and Relationships Registration Act 1995 (NZ).
As outlined in the reasons of Finn J (in dissent), the father’s exact evidence at the trial was that ….” I lived together with the mother at the time of [the child’s] birth.[25] The mother’s evidence was that she did not live with the father when the child was born but, one and a half months after the child was born, stayed three nights per week with him for around six months to see if he was capable of being a father to the child; however, her evidence also included the assertion that particularised adverse behaviours toward her by the father were the reason she moved out with her two-month old son and went to live with her parents.[26] The mother’s evidence was also that: she had not ever regarded herself as, nor had she lived, as the father’s de facto partner; the father had never lived with her in such capacity and did not ever assume any responsibilities as such.
[25]Wencelas and Director-General, Department of Community Services (2007) FLC 93-321, 81,529 at [29].
[26]Wencelas and Director-General, Department of Community Services (2007) FLC 93-321, 81,529 at [30].
The trial judge preferred the father’s evidence to that given by the mother about the issue because he considered – as was accepted by the Full Court he was entitled to do for the reasons he gave – that her first-given evidence about moving out with the two month old child to be inconsistent with her later account that the parents had never lived together as de facto partners.
Whilst Finn J accepted that it was open to the trial judge to conclude that the parents were living together when the child was born, she said that that was “not the end of the matter.”[27] This was said to be so because the test in s 17(3)(b) of the Care of Children Act 2004 (NZ) requires not only that the mother live with the father of the child at the time of the child’s birth, but also that she was living with him as a de facto partner at that time.
[27]Wencelas and Director-General, Department of Community Services (2007) FLC 93-321, 81,530 at [35].
Her Honour concluded that, in her view, there was nothing in the parties’ evidence to provide the trial judge with the basis from which to infer that the parents had lived “together as a couple in a relationship in the nature of marriage or a civil union.”[28] She also concluded that it had fallen to the Central Authority to put before the Court the necessary evidence to establish the existence of a de facto relationship on the basis of which the father had guardianship rights in relation to the child and it had failed to establish its case that he was the child’s guardian and could thus determine the child’s place of residence. Consequently, it had failed to establish that he had the requisite “rights of custody” and, therefore, the child’s removal from New Zealand was not wrongful for the purpose of the Regulations.
[28]Wencelas and Director-General, Department of Community Services (2007) FLC 93-321, 81,530 at [41].
Specific reference to the dissentient judgment is necessary because, in MW v Director-General of the Department of Community Services[29], the majority of the High Court (Gummow, Heydon and Crennan JJ) concluded that the affidavit material relied on was insufficient to found an inference that the parents had lived together as a couple in a relationship in the nature of a marriage or a civil union at the time the child was born and, therefore, concluded that the Central Authority had failed to establish its case that the father was the child’s guardian and could determine his place of residence.
[29] (2008) 39 Fam LR 1, [42].
The majority said, at [101]:
It will be observed from the New Zealand legislation that two complex and related questions emerged in this case. The first was whether the appellant and the father were living together at the time of the birth of the child. The second was whether at the time of the birth of the child the appellant and the father were in a relationship in the nature of marriage or a civil union under the law of New Zealand.[30]
[30]MW v Director-General of the Department of Community Services (2008) 39 Fam LR 1, at [101].
The majority concluded that the proper conclusion on the record before the Full Court was that reached by Finn J, wherein her honour concluded that the affidavit material was insufficient to found an inference that the parents had lived together in a relationship of the requisite nature.[31]
[31]MW v Director-General of the Department of Community Services (2008) 39 Fam LR 1, at [115]
Gleeson CJ (in dissent) and the majority referred specifically to the passage set out at [40] above. Gleeson CJ said that he was “not quite sure what they meant by their reference to a “relatively low threshold” of proof…”.[32]
[32]MW v Director-General of the Department of Community Services (2008) 39 Fam LR 1, at [18].
Having referred to the purpose of the Care of Children Act 2004 (NZ) and having set out part of the first part of that which is set out in [40] above, the majority recorded that the appellant criticised the passage, pointed to “the lack of any stated comparator against which the relativity was to be assessed” and also submitted that, on any considered evaluation of the evidence in the case, there could not be a confident conclusion that the Central Authority had made out its case.[33] Despite this specific reference, the majority did not return to this issue.
[33]MW v Director-General of the Department of Community Services (2008) 39 Fam LR 1, at [100].

The competing accounts

Regulation 29, entitled “Evidentiary provisions”, applies in the current proceedings.[34] Consequently, the Form 2 Application or any document attached to or given in support of that application is admissible as evidence of the facts stated in the Application or document.[35]
[34] Regulation 29(1), Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[35] Regulation 29(2), Family Law (Child Abduction Convention) Regulations 1986 (Cth).
The father’s evidence is that he and the Respondent were in a de facto relationship for six years. The mother’s evidence is to the contrary – she said that she and the father were in a de facto relationship for about four years and were not in a de facto relationship when X was conceived, nor at any time during her pregnancy with her. The assertions made by each parent about the nature of their relationship are only bald assertions that a de facto relationship existed and amount to conclusions, of both fact and law.[36]
[36] See: Wencelas and Director-General, Department of Community Services (2007) FLC 93-321, 81,552 per May J and Thackray J at [206].
In order properly to appreciate the evidence relevant to the determination of the issue whether the parents were living together as a couple in a relationship in the nature of a marriage or a civil union when X was born on … 2004, it is useful to have regard to the evidence as it was given chronologically.
The father’s evidence (as contained in his affidavit sworn 14 February 2019) is that he and the Respondent were living together at the time of “the children’s” birth.[37] He said that he and the Respondent first lived together in Australia and then lived together in New Zealand for three years before returning to live in Brisbane, where they lived separately and he had the day-to-day care of the children for two years, before he and the children returned to live in New Zealand on 10 December 2010. He said that, until the children left for an agreed holiday with their mother on 5 December 2018, they had only visited her once in Australia and she had only visited them once in New Zealand in the previous eight years.
[37] Affidavit of Mr A (filed within the Form 2 Application filed 29 March 2019) at [4].
In reality, this was the extent of his evidence about the matters necessary to a determination of the issue of whether he has the necessary rights of custody in relation to X before a further affidavit by him was filed in response to the contents of the Respondent’s affidavit.
In her affidavit (sworn on 27 May 2019), the Respondent denied that she and the father lived together before X was born. In fact, she denied that they lived together in Australia before they moved to New Zealand and lived there together. Her evidence is that she and the father met in or around … 2003 in Sydney; she said they had two sexual encounters over two weeks and, in essence, that this interaction was productive of X. Her evidence is that, after these intimate encounters, the father tried to contact her, but she did not respond; she said that, about seven weeks later, she saw a doctor and was told that she was pregnant. She said that, as she was certain that the father was “the father”, she contacted him to tell him that she was having a child; she said his first reaction was to ask her whether she was sure and that they argued; she said he told her that he was not sure the child was his and refused to acknowledge he was the child’s father.
The Respondent’s evidence is that, during her pregnancy with X, the father continued to deny he was the father; she said he told her repeatedly that he was not the yet-to-be-born child’s father unless a DNA test proved it.
The Respondent said that she and the father were not in a relationship at any stage during her pregnancy; she said they had no further sexual encounters until they started a relationship after she gave birth to X. She said that, whilst the father was not present at X’s birth, she had told the doctor, when asked, that he was the child’s father and the doctor put the father’s details on the documents recording X’s birth.
The Respondent said that, approximately two months after X was born, the father did a DNA test, the results of which established that he was almost certainly the child’s father: she said that it was only after this that he agreed that he was X’s father. She said that it was “shortly after this” that she and X travelled with the father to New Zealand for two weeks to see the paternal family; she said they then returned to Sydney and “started our relationship”.
The Respondent’s evidence is that, even then, she and the father did not live together. She said that, in or around late 2004, they decided to move to New Zealand with X and that they did so because the father wanted to return to New Zealand. She said she and X accompanied the father to New Zealand because she thought it was important for X to have a father in her life.
In his affidavit filed on 27 June 2019 in reply to the Respondent’s affidavit, the father said that he and the Respondent commenced living together during her pregnancy and were living together when X was born.[38] He said that, at that time, he was working around and out of Sydney and that the Respondent would pick him up from work once he finished and they would go out together, often to the casino. He denied the assertion that he and the Respondent were not in a relationship when she was pregnant; he said that he often stayed at her home and they socialised together; he also said that he still had a flat with a flatmate, but hardly ever stayed there. He said that, whilst he sometimes worked out of Sydney for a week or more at a time, most of the time he stayed with the Respondent in her home and contributed financially to both of their living costs and other expenses.[39]
[38] Affidavit of Mr A filed 27 June 2019 at [6].
[39] Affidavit of Mr A filed 27 June 2019 at [6].
In another case, the father’s choice of language may not matter much; however, in this case, I consider it significant that he chose to describe the arrangements which existed when X was born as being that “most of the time” he “stayed” (not “lived”) with the Respondent at “her” (not “our”) home; it is also significant, in my view, that he maintained a flat with a flat-mate at that time.
The father agreed that he was not present at X’s birth, but said this was only because he was working three hours away from Sydney at that time. He said he asked for a DNA test after X was born because, having learned after he met the Respondent that she was “running a house with “working girls”, he had concerns about paternity and wanted to be sure that he was X’s father.[40]
[40] Affidavit of Mr A filed 27 June 2019 at [8].
The father said he and the Respondent were living together when they travelled with X, shortly after she was born, to New Zealand to visit his family. He said they decided they would return to live in New Zealand on a permanent basis and made the move a few months later.

Assessing the accounts

The Respondent was cross-examined by Counsel for the Applicant. The Respondent did not require the father for cross-examination, saying in essence, “what is the point?” That the Respondent did not require the father for cross-examination does not mean that his evidence was unchallenged: it clearly was, by her evidence.
There is no independent extraneous evidence which supports the father’s account and there is no evidence which is corroborative of his account. Save as noted later, there is no independent extraneous evidence to support or contradict the Respondent’s evidence.
I do not consider the evidence given by the Respondent about the living arrangements at the time X was born or her evidence about the nature of the parental relationship at that time to be inherently improbable and/or so unreliable that I should simply reject it.
I am not persuaded that the Respondent was inconsistent in the evidence she gave during her cross-examination; whilst I accept that the questions asked of her elicited additional information, I am not persuaded to disbelieve her response – when asked why this information was not included in her affidavit – to the effect that she told the solicitor who prepared her material about it.
During her cross-examination, the Respondent did not accept the suggestion that, from the time they met until X was born, she and the father spent “regular time” together; even if she had, this would not be sufficient of itself to establish the prerequisites mandated in s 17(3) of the Care of Children Act 2004 (NZ).
When the Respondent was asked during her cross-examination, in effect, whether she said that, from the time they met until X was born, she and the father spent time together four times each week (an assertion not found anywhere in the father’s affidavits), she said that the father only came to visit her two or three times a month and that he did not stay with her on those occasions but just visited. She denied the assertion that she had picked him up from work and said that, during the period from when they met until … 2004, they had only gone to the Casino together with friends on one occasion.

When pressed further during the course of her cross-examination, the Respondent agreed that her evidence was that, in the period from meeting the father and … 2004, she and the father spent time together on two to three occasions per month; she also reiterated, though, that the father did not live with her but came to check on her and ask if “the baby in her tummy” was his; her evidence was that he visited her two to three times per month, asking questions about the baby and then leaving.
The Respondent did not accept that, when the father visited her on these occasions, they lived together or even that they stayed together; she did not accept that, at the time X was born, she and the father were spending significant periods of time together. The Respondent was adamant in her rejection of the suggestion that, during this time (that is, from when they met until … 2004), the father contributed to some of her financial expenses, saying “never one cent for me.”
The Respondent also remained undisturbed in her evidence about the living arrangements which existed when she and X travelled with the father to New Zealand shortly after the results of the DNA test taken at the father’s request confirmed his paternity of X. She said that, at the time they travelled to New Zealand, they were not living together. Her evidence is that, after they returned to Australia from this trip, the father suggested to her that she move to live with him in New Zealand.
During her cross-examination, the Respondent said that, after X was one week old, the father visited her and asked her if X was his child; she said she told him that she was and that, if he was worried about paternity, he could take a DNA test (which he subsequently did). She said that she was then living with a friend and that the father stayed at the premises overnight but they did not sleep together and that she slept with X.
The evidence given by the Respondent during cross-examination about the number of times the father visited her during the period from after they met until … 2004 (namely, two or three times a month) and that he spent one overnight in the same premises as her when X was one week old was not evidence given by her in her affidavit. Counsel for the Applicant submitted that, given this, I should conclude that the Respondent gave inconsistent evidence and, therefore, I should prefer the evidence given by the father about the issues of the existence and status of their relationship when X was born, to that she gave.
I am not persuaded that the Respondent was inconsistent vis-à-vis the evidence given in her affidavit and that given by her orally under cross-examination. Given that she did not say in her affidavit evidence that she never saw the father until after X was born, her evidence during cross-examination that they spent time together on two or three occasions a month from when they met until … 2004 does not establish an inconsistency of account. Whilst her affidavit does not mention that the father stayed one night overnight with her and X when X was about one week old or that such time was spent at her apartment where she said a friend of hers lived also, such evidence does not contradict her other evidence that she and the father did not live together until they moved to live in New Zealand.
Whilst the accounts given by each parent about what happened after they moved to live in New Zealand and their subsequent return to live in Australia (separately under the one roof) are not materially different, this does not seem to me to assist to resolve the issue of whose evidence to prefer about the issues of the existence and nature of their relationship when X was born.
The father gave evidence, in the affidavit included in the Form 2 Application filed on 29 March 2019, that the Respondent “has never paid child support for the two children” and that it was only in the last five months that she started to pay maintenance to him for the children.[41] However, this evidence is contradicted by the Respondent’s evidence and, importantly, a document entitled “Child Support Payer Transaction Statement for the period 08/04/2011 to 16/04/2019” which she exhibited to her affidavit. The contents of this statement support the Respondent’s evidence that she has paid child support for the children since April 2011.
[41] Affidavit of Mr A (filed within the Form 2 Application filed 29 March 2019) at [4].
Whilst the father’s evidence in response to the statement was that he was “mystified by the statement produced by the respondent regarding child support”[42] and that he had not received the amounts referred to in the statement and had seldom received child support and had received $1,000.00 at most by way of child support from the mother, the mother was not challenged during her cross-examination about the statement’s provenance or its contents.
[42] Affidavit of Mr A filed 27 June 2019 at [14].
Nothing in the evidence about the issue of child support causes me to doubt the Respondent’s veracity. Further, I am not persuaded that there is anything inherently improbable in her evidence.
I have concluded that I am not persuaded that there is any persuasive basis upon which I should simply reject the Respondent’s evidence and prefer that given by the father to it.
Rather, even applying the “relatively low threshold” test enunciated by the majority in Wenceslas I have concluded that the Applicant has failed to discharge the onus of establishing that:
a)the father and the Respondent were living together when X was born on … 2004; and
b)the father and the Respondent were living together as a couple in a relationship in the nature of a marriage or a civil union when X was born on … 2004.
Given this, I am unable to conclude that the father is X’s guardian pursuant to New Zealand law and, therefore, am unable to conclude that he had rights of custody in relation to X immediately before 23 January 2019. Consequently, I cannot conclude that X has been wrongfully retained in Australia and therefore the Application for a return order in relation to her must be dismissed.

What must the Respondent establish and does the evidence establish it?[43]

[43] In case I am wrong in the conclusion I have reached about the father’s rights of custody vis-à-vis X, I intend to express my conclusions about the exceptions relied on by the Respondent in relation to both Y and X.

Consent or subsequent acquiescence

The Respondent seeks that the Application is dismissed on the basis that the Court will conclude that the father consented to the children being retained in Australia or subsequently acquiesced to the same.[44]
[44] Regulation 16(3)(a)(ii) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
In order to succeed, the Respondent must establish that the father consented to the children being retained to live in Australia; she must establish that his consent was “real”, “positive” and “unequivocal”[45] and she must establish the existence of such consent by clear and cogent evidence.[46] 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.[47]
[45] 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.
[46]Wenceslasv Director General, Department of Community Services (2007) FLC 93-321 at 81,560.
[47]Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 per Wall J at 191.
The Respondent said that, when the children telephoned their father on 1 January 2019 and told him that they wanted to stay in Brisbane, he “seemed to be fine with it” and “did not raise any issues”. She said he told the children words to the effect of “that’s okay”. She also said that he had told Y that the children could stay in Australia with her.
The Respondent specifically relied upon the contents of paragraph 19 of the father’s May 2019 affidavit as establishing his consent to the children continuing to live in Australia. However, I am not persuaded that this is the case; I accept his evidence to the effect that, whilst he accepts that, when he spoke to the children he did not tell them that he did not agree to them continuing to live in Australia, he specifically refrained from making any such comment to them in an attempt not to involve them in this “adult issue”.
I accept that the father agreed for the children to travel to Australia in December 2018 to spend time with the Respondent; I also accept that this consent was limited to them travelling to Australia for the purpose of holidaying only. I accept that the father did not consent to the children being retained in Australia after 23 January 2019. I am not persuaded on the evidence that he acquiesced in the children remaining in Australia after he became aware that the Respondent did not propose to return them to New Zealand.
I am not persuaded that the Respondent has discharged the onus of establishing that the father consented to or acquiesced in the children being retained in Australia after 23 January 2019. It follows that I am not persuaded that the Respondent has established this exception to the mandatory return of the children to New Zealand.

Objection to returning to New Zealand

The Respondent seeks to establish that the children object to being returned to New Zealand.[48]
[48] Regulation 16(3)(c) Family Law (Child Abduction Convention) Regulations1986 (Cth).
In De L v Director-General, NSW Department of Community Services & Anor,[49] the High Court discussed the nature of the objection to which Regulation 16(3)(c) refers: in their joint judgment the plurality stated at 656:
The return to which the child objects is that which would otherwise be ordered under Article 12 vis-à-vis an immediate return to the country from which he was wrongfully removed, so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live… There is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.
[49] (1996) 187 CLR 640, 656 quoting S v S (Child Abduction) (Child’s views) [1993] Fam 242 per Balcombe LJ at 250.
In order to establish this exception, the Respondent must establish that Y objects to being returned to New Zealand and that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes, and that he has attained an age and a degree of maturity at which it is appropriate to take account of his views. In case I am wrong in the conclusions I have reached about the issue of the father’s rights of custody in relation to X, I will consider these issues in respect of her also.
The Respondent’s evidence is that, during the week between Christmas and New Year in 2018, the children started to tell her that, if they were allowed to do so, they would stay with her in Brisbane; she said they asked her to stay on a few occasions until she agreed that they could. She said that both children have expressed to her a strong desire to remain in Brisbane with her; they both pushed her to stay here and she agreed because they had been adamant about this. The Respondent also said that the children had expressed that their primary desire is to spend time with her so they can build a relationship with her: her evidence is that they had not said too much more than this to her. She said she was aware that the children had told their father of their strong desire to stay in Australia.
The children were interviewed by Ms F, a Family Consultant, on 29 May 2019. She was not required for cross-examination by either party.
I accept the contents of Ms F’s report.[50] I accept her assessment of each of the children vis-a-vis their respective functioning and maturities. I certainly accept that, given their ages, it is appropriate that the children’s views are taken into account and I have done so.
[50] Exhibit 1.
I note that both children spoke positively to Ms F about their living arrangements with their father.[51] Neither appeared to identify anything that wasn’t “good”. X described her father as a “very good Dad”.[52] She also said that she would be “gutted” if made to return to New Zealand because she would greatly miss her mother.[53] Y told Ms F that only seeing his mother “every five years” made him feel “kind of sad.”[54] He said that he would feel “kind of mad and sad” if he had to return to New Zealand as he wanted to stay in Australia with his mother because he had not seen her for a really long time.[55]
[51] Exhibit 1 at [12] and [23].
[52] Exhibit 1 at [14].
[53] Exhibit 1 at [18].
[54] Exhibit 1 at [25].
[55] Exhibit 1 at [29].
X also told Ms F that she did not return to New Zealand after holidaying with her mother in Australia because “we told Dad we wanted to stay here as we really miss her and we didn’t know when we would come back.”[56] Y told Ms F that they did not return to New Zealand at the end of the holiday period because “Mum asked me if we wanted to stay in Australia and I said ‘yes’ as I haven’t seen her for a very long time.”[57]
[56] Exhibit 1 at [16].
[57] Exhibit 1 at [26].
As the mother was not cross-examined about the manner in which any conversations with the children about their return to New Zealand arose and occurred, I consider it impossible to determine the context within which each of X and Y made the comments each reported to Ms F; that is, it is impossible to know whether the question Y told Ms F the mother asked of them occurred as the starting comment in a conversation or during a conversation initiated by the children; it is impossible to determine whether the Respondent raised the issue with the children or sought to clarify their wishes with them. If the context was that she sought clarification of already made comments or expressions of view, this may well be consistent with the account provided by the Respondent; if the context was the former, this may be inconsistent with the account provided by the Respondent, which appeared to suggest that the idea of remaining with her in Australia was something the children themselves first raised with her.
I am not persuaded on the evidence before me that either child really in fact objects to being returned to New Zealand - as opposed to being separated now from their mother whom they had not seen for a relatively significant period of time before travelling to Australia on 5 December 2018. I consider that, in the circumstances of absence from their mother, both children clearly expressed a preference to be able to spend time with her. I consider that any “objection” is really an objection to leaving the Respondent’s care to return to their father’s care, rather than an objection to returning to New Zealand. If I am wrong in this, then I consider that their objections to returning to New Zealand, as conveyed by the Respondent in her evidence and as voiced to and reported by Ms F, to be no more than assertions of preference or wish; I am not persuaded that any objection expressed by each of X or Y to returning to New Zealand demonstrates a strength of feeling beyond a mere expression of a preference, or an ordinary wish to spend more time with their mother.
For the reasons expressed, I am not persuaded that the Respondent has established this exception to the mandatory return of Y to New Zealand. Similarly, I am not persuaded that, if it was applicable in X’s case, the Respondent has established this exception to her return to New Zealand.
Given my conclusions about the exceptions relied upon by the Respondent, it follows that I am mandated by the Regulations to order the return of Y 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 the children to New Zealand 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 in so far as Y is concerned and in case I am wrong in the conclusion I have reached about the father’s rights of custody vis-à-vis X and the exceptions, I record that, had I been called upon to exercise the discretion[58] (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.
[58] Regulation 16(5) Family Law (Child Abduction Convention) Regulations1986 (Cth); 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)the father did not consent to the children returning to live in Australia on a permanent basis at any time before they travelled from New Zealand to Australia on 5 December 2018 for the purpose of holidaying here with their mother; and
b)the father almost immediately proactively sought the children’s return to New Zealand; and
c)until their retention in Australia after 23 January 2019, the children had lived with their father in New Zealand since about December 2010, with the inescapable consequences for them of participation in the New Zealand education system and integration into their New Zealand environs generally; and
d)a return to New Zealand would see the children return to environs which are well-known to each of them; and
e)there is nothing in the evidence to suggest that the Respondent is unable to instigate proceedings for appropriate parenting orders in New Zealand; and
f)given the similarities in law between New Zealand and Australia, if there was a future determination about the children’s future parenting arrangements, such determination would involve a consideration of that future parenting arrangement which is in their best interests; and
g)the purpose and underlying philosophy of the Convention would, in my view, be significantly at risk of frustration if a return order was 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 I have found that Y was wrongfully retained in Australia after 23 January 2019 (having travelled here on 5 December 2018 for a holiday) - with the consequent disruption to his participation in the New Zealand education system in which he has participated since about early 2011 and the associated disruption to his life as it had proceeded prior to 23 January 2019 - I consider he should be returned to New Zealand as soon as practicable. Such return will enable him to resume school and his life in New Zealand.
For the reasons outlined above, I am satisfied that a return order should be made in relation to Y in the terms set out at the commencement of these Reasons.
Insofar as X is concerned, I echo the underlying disquiet expressed by Jordan J at paragraphs [46] and [47] in Department of Child Safety & Hunter,[59] a case with certain factual similarities to the present.
[59] [2009] FamCA 263
Such disquiet is significantly amplified by the facts that:
a)until the end of January 2019, X had lived with her father in New Zealand since about the end of 2011 without the Respondent taking any issue about such living arrangements or making any attempt to change the same; and
b)upon implementation of the Orders made today, these two children will, for the first time in their lives, be required to live separately from each other.
Despite these consequences, for the reasons expressed, I have concluded that the only order which can properly be made on the evidence before me is that the Application for a return order for X is dismissed.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 July 2019.

Associate:

Date: 12 July 2019