Department of Child Safety, Youth and Women and Zakaria
[2018] FamCA 699
•11 September 2018
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN & ZAKARIA | [2018] FamCA 699 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Application for the return of children to New Zealand – Mother relocated to Australia in May 2017 leaving the children in their father’s care in New Zealand – Father consented to the children travelling to Australia for a holiday – children retained in Australia by their mother after the April 2018 school holiday period – Whether the father subsequently acquiesced in the children being retained in Australia – Whether there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation – Whether the children object to being returned to New Zealand – Whether the children’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes – Order for return made. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Care of Children Act 2004 (NZ) |
| Cooper v Casey (1995) FLC 92-575 De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640 Director-General, Department of Families, Youth and Community Care v Bennett (2000) FLC 93-011 Director-General, Department of Families v RSP (2003) FLC 93-152 DP v Commonwealth Central Authority (2001) 206 CLR 401 Harries v Harries (2011) 45 Fam LR 598 HZ v State Central Authority (2006) FLC 93-264 In the Marriage of Murray and Tam; Director, Family Services (ACT) (1993) FLC 92-416 State Central Authority v DB [2002] FamCA 804 Wolford v Attorney-General’s Department (Cth) [2014] FamCAFC 197 |
| APPLICANT: | Department of Child Safety, Youth and Women |
| RESPONDENT: | Ms Zakaria |
| FILE NUMBER: | BRC | 8280 | of | 2018 |
| DATE DELIVERED: | 11 September 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 7 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Selfridge |
| SOLICITOR FOR THE APPLICANT: | McInnes Wilson Lawyers |
| THE RESPONDENT: | In person |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous Orders are discharged.
The children, X (a male) born … 2005 and Y (a male) born … 2010 be returned to New Zealand.
To give effect to Order 2:
(a)the said children leave the Commonwealth of Australia on or before 21 September 2018; and
(b)the said children arrive in New Zealand on or before 22 September 2018; and
(c)pending the children returning to New Zealand, the Respondent, Ms Zakaria, born on … 1978, is restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the children from the Commonwealth of Australia; and
(d)pending the children returning to New Zealand, the Respondent, Ms Zakaria, born on … 1978, is restrained and an injunction is hereby issued restraining her from removing or attempting to remove the children from the premises where she and the children are currently residing, namely: B Street, Suburb C in the State of Queensland; and
(e)subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all federal agents of the Australian Federal Police retain the names of the Respondent, Ms Zakaria, born on … 1978 and the children, X (a male) born … 2005 and Y (a male) born … 2010 on the Family Law Watchlist at all international departure points in Australia; and
(f)the names of the children and the Respondent be removed from the Family Law Watchlist by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Department of Child Safety, Youth and Women advising of the travel arrangements made for the children to return to New Zealand from 12.00 am on the date nominated for the travel in the letter.
Ms D, Department of Child Safety, Youth and Women or her nominee be at liberty to release all current passports relating to the children for the purpose of the children’s return to New Zealand and to release the Respondent’s passport to her (or her nominee) upon request.
The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders.
All other Applications are dismissed.
The Applicant has liberty to apply on short notice to seek any further orders necessary to allow him or officers of the Department of Child Safety, Youth and Women to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this Order and pursuant to the Central Authority’s obligation under Regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Child Safety, Youth and Women & Zakaria 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 8280 of 2018
| Department of Child Safety, Youth and Women |
Applicant
And
| Ms Zakaria |
Respondent
REASONS FOR JUDGMENT
By Application in Form 2 filed on 19 July 2018, the Director-General of the Department of Child Safety, Youth and Women in his capacity as the State Central Authority under the Family Law Child Abduction Convention Regulations 1986 (Cth) applies for an order for the return of the children[1] X (a male, born in New Zealand in 2005)[2] and Y (a male, born in New Zealand in 2010) to New Zealand.
[1] Both within the definition of a ‘child’ for the purpose of the Regulations which define that term to mean “a person who has not attained the age of 16 years”: Regulation 2.
[2] Whom I will refer to in these Reasons as “X”.
The Regulations under which this Application must be determined are made pursuant to s 111B[3] 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.
[3] 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.[4]
[4] 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)[5] wherein it was emphasised that the Convention is directed to the prompt return of children to the State of their habitual residence where questions concerning their welfare and the merits of any dispute about where and with whom they should live can be determined; that is, applications like this one, made pursuant to the Regulations, are matters about forum, not about parenting per se.
[5] (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.[6] If certain prescribed matters are established, the Court is obliged to make a return order relating to children.[7]
[6] Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).
[7] Regulation 16(1), Family Law (Child Abduction Convention) Regulations1986 (Cth).
Relevant background
The requesting applicant, under the Convention, is the children's father, Mr E, born in 1976. He is a Country F national with New Zealand citizenship. The Respondent to the Application is the children's mother, Ms Zakaria. She was born in 1978 and is also a Country F national with New Zealand citizenship. At present, she and the children are living at B Street, Suburb C in the State of Queensland.
It appears that the children’s parents separated before Y was born in 2010. At that time, the family was living in G Town, New Zealand. It also appears that an order made in the relevant Court in New Zealand on 11 December 2010 provided that the Respondent have the day-to-day care of the children and that they spend time with their father for a few hours each alternate weekend.
It also appears that, in about November 2011, the Respondent commenced proceedings in the relevant Court in New Zealand seeking to be able to relocate with the children to City H. Whilst I initially thought that the Respondent did not pursue the same after the father voiced his disagreement to such a proposal, the Respondent told me during submissions that she was in fact unsuccessful in her quest for orders and, consequently, remained living in G Town with the children. A further order – made on 17 April 2015 – provided again that the Respondent have the day-to-day care of the children; it also provided that the father have contact with the children from Thursday after school until Friday before school (in week one) and from Thursday after school until Monday morning before school(in week two). The Order contained a number of provisions about overseas travel during school holiday periods, one of which is that the children be back in G Town, New Zealand at least 48 hours prior to school recommencing the next term.
It seems the father re-partnered and married in about 2016.
As I understand it, before the Respondent relocated to live in Australia in May 2017, she sought the father’s consent to the children moving to live with her in this country. After he declined to agree to her proposal, the Respondent relocated by herself to live in Australia in May 2017 – the children moved to live with their father and his wife, who has children of her own, including an about 18 year old daughter, Ms L. I accept that the Respondent made the decision she did because she concluded that it was best for her to move. I also note that she decided that she would be able to spend time with the children during the school holiday period and that, from her perspective, the children would make their own decisions once they were old enough.
Despite the fundamental change to the parenting arrangements which followed the Respondent’s decision to relocate to Australia in May 2017, the terms of the April 2015 parenting order remain unvaried.
Whilst the father initially said that the children then spent time with the Respondent in Australia during the September/October 2017 school holiday period, he subsequently agreed that the Respondent is correct in her assertion that the children in fact spent time with her during the June/July 2017 school holiday period.
I accept that the Respondent contacted the children’s school in about July/August 2017 to check up about the children after one of them raised some concerns with her. I also accept that the principal of the children’s school advised the Respondent (by email dated 7 August 2017) that Y’s teacher advised that he had settled and was making consistent progress across all academic areas. I also accept that the principal advised the Respondent that her concerns about the care and protection of the children were best dealt with either through her own lawyer or by making contact with Mr J (the New Zealand Ministry for Vulnerable Children). I accept that, having been made aware of this, the Respondent took no further action in respect of whatever concerns the children (or one of them) had raised with her.
The parents agree that the children next spent time with the Respondent in Australia from about 29 December 2017 until the end of January 2018, before returning to New Zealand for the February 2018 start of the school year.
I accept the Respondent’s evidence to the effect that, because of the impact on her financial position of having to pay child support and pay for the costs associated with the children traveling to Australia to spend time with her, she had decided that she would not require that they spend time with her during the April 2018 school holiday period.
I accept that it was the father who insisted that the children spend time with her during the April 2018 school holiday period.
It is agreed that the children then travelled to Australia to spend time with the Respondent during the April (Easter) 2018 school holiday period. However, the father contends that the children left New Zealand on 9 April 2018, whilst the Respondent said they left that country on 12 April 2018. I accept as more likely than not that the father erred in his recitation of the date and I accept that the children left New Zealand on 12 April 2018 and entered Australia on that date. Given that this case involves the assertion of wrongful retention and not wrongful removal, the resolution of this issue in the Respondent’s favour does not advance her case.
I accept that the children left New Zealand only for the purpose of travelling to Australia for a holiday and not pursuant to any agreement between their parents that they would thereafter live in this country.
The Respondent said that, as soon as the children came into her care on 12 April 2018 (in City K, New Zealand), they told her that Y had been hit by their father’s wife when their father was absent at a conference; that their father’s wife picked on Y and demeaned him and threw his clothes around: she said they were adamant that they would not return to New Zealand.
I accept the father’s evidence to the effect that he twice emailed the Respondent during the April 2018 school holiday period to ask her when the children would be returning to New Zealand. I also accept that the next school term in New Zealand commenced on 30 April 2018 and it was the father’s expectation that the children would return to that country in time to recommence school for that term. It is uncontested that, until they were retained in Australia at the end of April 2018, the children had only ever attended school in New Zealand.
The allegation is that the Respondent wrongfully retained the children in Australia on or about 28 April 2018. I accept the father’s evidence to the effect that the Respondent emailed him that day to tell him that the children would not be returning to New Zealand and that she also told him that she had enrolled the children in a local school.
The father said that the Respondent also told him that Y had told her that his wife had “whacked” him and that the children had been left unsupervised at home at night when the father attended a conference and his wife was at work. Whist the father accepted that there was an occasion when he was at a work event at night and his wife was at work, he denies that the children were left unaccompanied: he said that his wife’s 18 year old daughter Ms L was present to supervise the children when he and his wife were absent. His evidence is, to an extent, corroborated by that given by the wife because, whilst she maintained that the children were left unsupervised and managed to call her, she also said that Ms L in fact attended at the home.
Whilst the Respondent’s view of Ms L’s attendance at the house is that it was “quite fortunate” that Ms L then “turned up”, even on her account the children were not in fact left unsupervised for the night when their father was at a work event and his wife was at work.
I accept that on 2 May 2018 the father’s solicitor emailed the Respondent seeking that the children be returned to New Zealand.
I accept that, despite receiving information from the father’s solicitor to the effect that the father denied the allegations that Y had been hit by his wife and that the children had been left unsupervised at night, the Respondent maintained her refusal to return the children to New Zealand.
I accept that on 3 May 2018, the Respondent asserted, in an email sent to the father’s solicitor, that the children were fearful of returning to New Zealand; I accept that she also said that until the children’s safety was guaranteed she would retain them and enrolled them in a school in Australia.
I accept that, in an email sent on 4 May 2018, the father’s solicitor outlined to the Respondent that the children’s habitual residence was in New Zealand and asserted that any of her concerns about their safety should properly be addressed in New Zealand. The Respondent was also advised that if the children had been enrolled in a school in Australia, she had breached her guardianship obligation to consult with the father, who did not agree to such enrolment.
The father said that, when he spoke with X (who I hereafter refer to as X, as I understand this is the name by which he is known within his family) on 7 May 2018, the child was very aggressive toward him and accused him of involving the police. The father said he thought that X had been told that if he refused to return to New Zealand, police officers would make him return and that was why he thought his father had been to the police.
The father’s supposition is certainly not far-fetched: the Respondent’s evidence is that, when X threatened self-harm and to run away if he had to return to his father’s care, she used the scenario of members of Australian Border Force forcibly removing them to “encourage” the children to return to New Zealand. Perhaps unsurprisingly, the children became hysterical following this ostensible attempt at encouragement. Whilst the Respondent said she provided the children with this explanation in an effort to “encourage” them to leave her care and return to New Zealand, I retain a significant degree of scepticism about the truthfulness of her explanation for her choice. Even if she honestly thought that this was an approach likely to persuade the children to return to New Zealand, the likely significant impact of such discussions on the children’s later reported fear of returning to New Zealand cannot, in my view, be ignored or discounted.
In any event, I accept as more likely than not that, by no later than 7 May 2018, the children had been told by the Respondent that if they did not agree to return to New Zealand, they would be forcibly removed from her care by members of Australian Border Force. In this regard, I also note the Respondent’s evidence to the effect that X has told her that he will “face” Australian Border Force “if they come for him as I have explained to him that I have seen them do at the prison I work”.
I consider that the children’s later expressed reluctance to return to New Zealand cannot sensibly be assessed absent a proper recognition of the likely impact of being told these things by the Respondent. Whilst this was ultimately accepted by Dr M (the Family Consultant engaged to prepare the report ordered pursuant to Regulation 26 of the Regulations), nothing in his report makes it clear that he in fact took this factor into account in arriving at the opinions he expressed; nothing in his report explains the manner in which this issue was considered by him in his evaluation and assessment of the children’s asserted objections to returning to New Zealand; nothing in his report explains the manner in which this issue was considered by him in arriving at his opinion that the children’s stated objections to returning to New Zealand show a strength of feeling beyond the mere expression of preference or of ordinary wishes.
I think it much more likely than not that any expressed fear of returning to the care of their father in New Zealand can only have been significantly influenced by the manner in which the Respondent determined to attempt to “encourage” the children to leave her care and her decision to tell them about the actions of members of Australian Border Force directed towards adults who are incarcerated in correctional facilities.
The absence of explanation about the issues canvassed in the preceding paragraphs and those other matters raised with Dr M during his cross-examination as being relevant to the assessment process and the formulation his opinions is such that I am unpersuaded by the opinions at which he arrived and which he expressed in his report and I decline to accept them.
I accept that, by email sent 9 May 2018, the Respondent advised the father’s solicitor that she did not intend to try any more to convince the children to return to New Zealand.
I accept that the father signed an Application seeking the return of the children on 15 May 2018 and, as already noted, the Form 2 Application initiating the proceedings in this Court was filed by the Applicant on 19 July 2018.
The Respondent said that the children refused to return to New Zealand due to the intolerable conditions they were living in. Her evidence includes a letter that she said X wrote to the Court. The contents of this document include the assertion that the father’s wife got really annoyed at Y on an occasion when their father was at a conference and Ms L was not there and smacked him, leaving a bruise on his thigh; that their father had threatened Y with a belt; that the father’s wife had thrown Y’s belongings around because he was slow in going to the car; that he (X) felt angry when he saw them bullying Y for no reason and that they (the children) had always lived with the Respondent until she left and it had been hard to live with other people.
In this correspondence, X does not suggest that he has ever been subjected to threatening or aggressive behaviour by his father or in his father’s home: all of his reported complaints are about alleged behaviours allegedly directed toward his younger brother.
I accept that the father subsequently travelled to Australia in late August 2018 to spend time with the children. I accept that he did so in order to “break the ice” with the children because he was concerned that each of them might be worried about being in trouble for saying things that the Respondent reported them to have said. I also accept that the father has made various inquiries to ensure that, in the event that an order for the return of the children to New Zealand is made, the children will receive such support as they might need to reintegrate into his household. I accept that he and his wife are supportive of engaging in counselling if this is needed and that he has made contact with the school to enquire about what supports the children can receive from that aspect of their lives.
The father accepted that, when he spent time with the children in Australia most recently, he told them that there might be a chance that they could stay with their mother but there were issues that needed to be ‘ironed out’ before that could happen. He denied the suggestion put to him by the mother that he told the children that he would support them remaining in Australia and would withdraw his application for their return to New Zealand. He said that he told the children that there might be a chance that they could stay in Australia but, first, all sorts of issues would have to be resolved.
I accept the father’s evidence about the content of his discussion with the children during the time he spent with them in Australia at the end of August 2018.
Matters which I consider are clearly established on the evidence
I am satisfied that the father did not consent to the children moving to live in this country at any time before they were removed from New Zealand on 12 April 2018. I am also satisfied that the father has proactively sought the children's return to New Zealand.
It is clear that the Application for a return order for the children has been filed within one year of their retention in Australia[8] and that each child is under 16 years of age.[9]
[8] Regulation 16(1)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[9] Regulation 16(1A)(a) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
What must the Applicant establish
The Regulations make it clear that the Applicant bears the onus of establishing a number of prerequisites. In the present case, I am satisfied that the Applicant has discharged the onus of establishing those matters required by it to be established.
I consider that the evidence clearly establishes that:
a)the children were habitually resident in New Zealand, a Convention country within the meaning of the Regulations, immediately before they were retained in Australia by the Respondent;[10] and
b)by reason of his status as the children's father and, consequently, as their guardian and by virtue of the operation of the relevant provisions of the Care of Children Act 2004 (NZ), the father has rights of custody in relation to the children under the law of New Zealand;[11] and
c)the children's retention in Australia after the end of the April 2018 school holiday period was in breach of the father's rights of custody;[12] and
d)at the time of the children's retention in Australia after the end of the April 2018 school holiday period, the father was actually exercising his rights of custody, or would have exercised them if the children had not been retained in this country.[13]
[10] Regulation 16(1A)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[11] 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).
[12] Regulation 16(1A)(d) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[13] Regulation 16(1A)(e) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
It follows from the above that I am easily persuaded that the Applicant has satisfied the Court that the children's retention in Australia after about 28 April 2018 was wrongful under the Regulations.[14]
[14] Regulation 16(1)(c) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Given this conclusion, and the conclusion that the other statutory prerequisites have been satisfied, I am compelled to make an order for the children's return to New Zealand unless the Respondent establishes 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 the children's return to New Zealand.[15] 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,[16] but may exercise the discretion to decline to order the children's return to New Zealand.
[15] Regulation 16(3) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[16] Regulation 16(5) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
What must the Respondent establish and does the evidence establish it?
The Respondent seeks that the Application is dismissed on the basis that:
a)the father subsequently acquiesced in the children being retained in Australia;[17] or
b)there is a grave risk that the children's return to New Zealand will expose them to physical or psychological harm, or otherwise place them in an intolerable situation;[18] or
c)the children object to being returned to New Zealand.[19]
[17] Regulation 16(3)(a)(ii) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[18] Regulation 16(3)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[19] Regulation 16(3)(c) Family Law (Child Abduction Convention) Regulations1986 (Cth).
Did the father acquiesce to the children being retained in Australia?
I have already expressed my acceptance of the father’s evidence about the content of the conversations he had with the children in late August 2018.[20]
[20] See paragraphs 40 and 41.
I am not persuaded that the accounts provided by each child to Dr M on 27 August 2018 are necessarily inconsistent with that provided by the father during his cross-examination, especially given that I accept that it is much more likely than not that the children miss their mother and likely would prefer to return to living primarily with her, as they had done before her relocation to Australia in May 2017.
Even if I am wrong in arriving at this conclusion and the father in fact told X that, if they (the children) wanted to live in Australia it was fine by him and in fact told Y that if they did not want to go back to Australia they did not have to go, I am not persuaded that, in making such comments in the context in which they were made, the father intended to manifest an intention not to insist upon a right to the summary return of the children to New Zealand or not to continue to seek the immediate return of the children to that country - especially when his subsequent conduct in continuing to participate in these proceedings is completely counter to the propositions the children reported to Dr M.
Consequently, I am not persuaded that the Respondent has discharged the onus of establishing that the father acquiesced in the children’s retention in Australia.
The “grave risk” exception
The Respondent contends that there is a grave risk that the return of the children to New Zealand will expose them to physical or psychological harm, or otherwise place them in an intolerable situation.[21]
[21] Regulation 16(3)(b) Family Law (Child Abduction Convention) Regulations 1986 (Cth).
In DP v Commonwealth Central Authority[22], the plurality (Gaudron, Gummow and Hayne JJ) said:
41. In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed”. Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
42. Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description “grave”. Leaving aside the reference to “intolerable situation”, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
43. Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
44. These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.
45. That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return.
(Footnotes omitted)
[22] (2001) 206 CLR 401; see also: Director-General, Department of Families v RSP (2003) FLC 93-152; Wolford v Attorney-General’s Department (Cth) [2014] FamCAFC 197.
The Respondent's evidence about those matters relied upon as providing the basis for her position that grave risk exists may be summarised as follows:
a)the assertion that Y had been hit by the father’s wife when the father was away at a conference; and
b)that the father’s wife picks on Y and demeans him and throws his clothes around and the children were exposed to fighting between their father and his wife when each person was drunk; and
c)that X had threatened self-harm and to run away if returned to New Zealand; and
d)preferential treatment is given by the father and his wife to his wife’s daughter (Ms L); and
e)Y had been placed on a diet by his father and the children were only given vegetables to eat when Ms L decided that she was going to be a vegetarian and then a vegan; and
f)that X was not allowed to mow the lawn for pocket-money but Ms L was given $50.00 to do so; and
g)the children feel uncomfortable moving to live with their father and his wife and are sent to their rooms and have been threatened to be whacked with the belt; and
h)the children’s emotional and physical/nurture needs are not being met; and
i)the father has failed to support the children in their relationship with the Respondent following her decision to relocate to live in Australia in May 2017 – a complaint which must be considered in the context that it is accepted that the parents co-operated in the children spending time with their mother in Australia during the June/July 2017 and December 2017/January 2018 school holiday periods and that such time occurred in the absence of any Order mandating the same.
These allegations are the subject of contest and the father denies that the children’s needs are not met when under his care. Nothing in the father’s evidence is inherently unbelievable; nothing he said during his cross-examination persuaded me that I should not accept his explanations and accounts of the matters complained of.
I consider that, even if the matters reported by the Respondent as having been reported to her by the children were made out, they are not such as to persuade me that the risk to which the children would be exposed if returned to New Zealand is such that it should properly be classified as "grave". I arrive at the same conclusion about the risks identified by Dr M in his report, noting the father’s evidence, which I accept, about the manner in which he intends to manage the children’s return to his care if a return order is made. There is no evidence to suggest that the father has ever been the subject of any adverse report to the New Zealand child protection authorities or that the children have previously been engaged by that entity at any time.
Whatever the father’s behaviour toward the children after the parental separation, it was not such as to preclude them from spending time with him in accordance with the orders made by the appropriate New Zealand Court in 2010 and April 2015; further, his behaviour and that of his wife toward the children was not such as to prevent the Respondent from choosing to relocate to Australia in May 2017, with the consequence that the children lived in that household until she determined not to return them to New Zealand at the end of April 2018.
Further, it seems likely that the behaviours complained of either did not happen until after the end of December 2017 or were not seen by the children as warranting a complaint to their mother until the April 2018 school holidays because, given her actions at the end of April 2018, it is unlikely the mother would have returned the children to their father’s care as she did at the beginning of February 2018 (after they had spent about one month with her during the end of year school holiday period) if she had known of the same.
As I have already noted, the Respondent previously contacted the school at which the youngest child attended to raise her concerns about him. When the school responded, on 7 August 2017, the Respondent was told that the child’s teacher thought him settled and making consistent progress across all curriculum areas; she was also told that her concerns about the children’s care and protection were best deal with through her own lawyer or via contact with Mr J (the Ministry for Vulnerable Children): despite being made aware of this as a process open to her, the Respondent’s evidence is that she then decided not to take the concerns she then had to that entity.
I consider the ability to make contact with the children’s school and receive information from them and the ability to contact the relevant New Zealand Department charged with the protection of children is further evidence of the existence of processes that ameliorate any risk to the children consequent upon a return to New Zealand to the extent that I am not persuaded that it is properly classified as "grave”.
Further, as authority such as In the marriage of Murray and Tam; Director, Family Services (ACT)[23] and Cooper v Casey[24] have noted, it would be presumptuous in the extreme for this Court to conclude that the relevant New Zealand authorities would not enforce protection orders made there by the Courts, or that, if moved by either the Respondent, the father or the relevant child protection authorities, the Courts in that country would not act to protect the children.
[23](1993) FLC 92-416 per Nicholson CJ and Fogarty J (with whom Finn J agreed on the relevant point at 80,259).
[24](1995) FLC 92-575 at 81,698.
Having taken all of the evidence before me into account and 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 there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm, or otherwise place them in an intolerable situation.
Do the children object to being returned to New Zealand?
In order to establish this exception, the Respondent must establish that the children object to being returned to New Zealand and that their objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes, and that they have each attained an age and a degree of maturity at which it is appropriate to take into account of their views.
As noted earlier, the children were interviewed by Dr M on 27 August 2018. At that time X had not long turned 13 years of age and Y was about eight and a half years of age.
According to the report, the Respondent thought the children strongly objected to returning to New Zealand because of concerns with their father’s living arrangements since she moved to Australia in May 2017. As already noted, such concerns did not find any expression until April 2018, despite the children spending time with their mother in Australia during the 2017 mid-year school holiday period and the school holiday period at the end of 2017.
I note that X told Dr M that he enjoyed living in Australia with the Respondent; he said he had enjoyed school in New Zealand and missed friends he had there, but had made new friends here. He reported that his father ignored that he and his brother did not like doing some things he made them do; he reported that his father blocked them from having contact with the Respondent after she moved to live in Australia (although this is not consistent with their holiday visits). He said it was his decision to tell his mother in April 2018 about his feelings about not wanting to return to New Zealand. He reported that his father’s wife was very mean to his brother; argued with his father a lot; smacked his brother once and threw his belongings around a lot; favoured her own daughter and did not care about him and his brother at all (something about which his father was unable to do anything). He said his father treated his wife’s daughter more favourably than his own children and dismissed their feelings. He complained that the father did not give his sons an extra blanket in winter and punished them in this manner for complaining about this.
When asked how he would feel if he was asked to return to New Zealand, X also told the Family Consultant, that he would be very upset: he would not go to school; not be able to do anything and would stay in his room because he was so upset; he would “probably” run away because “they” (presumably, his father and his father’s wife) did not treat them well; he would not have any contact with his Respondent and would “probably” not see her for years. The Family Consultant reported that his demeanour was “sullen” when he made these comments.
X’s comments to Dr M need also to be considered in light of his undated correspondence directed to the Court.[25] In this he wrote of Y being smacked by his father’s wife when his father was at a conference; that his father had threatened Y with a belt (a matter the father denies) and that his father’s wife threw Y’s “stuff” around because he was slow going to the car. He said that the children had waited to tell their story to their mother when they went to Australia because they didn’t think anyone would believe them. Again, I note that they had spent time with their mother in Australia on two occasions before their April 2018 visit.
[25]Respondent’s affidavit filed 1 August 2018, Annexure E.
In what I regard as the most telling aspect of his correspondence, X ended his communication to the Court with the following statement: “We have always lived with our mum until she left and it has been hard living with other people.”
This statement and what I regard as its clear conveyance of a wish (or preference) to remain living with his mother (as opposed to an objection to returning to New Zealand) and the likely impact of the same on the comments he made to Dr M when interviewed is yet another aspect of the evidence which received no discussion or analysis in Dr M’s report.
Dr M reported that Y was “aggressive” and used an angry tone when he complained that he (and not his father’s wife’s 18-year-old daughter) had to do chores. He complained that his father banned him from doing things he liked and insisted that he do things he did not like (like hiking); he complained his father called him fat and told him he needed to lose weight and that he had not let them speak with the Respondent - by either changing the subject or taking them out somewhere.
When asked how he would feel if he was asked to return to New Zealand, Y said “not want to”. He also said he was worried about his father being very angry and the father’s wife smacking him with a belt; he was concerned his father would punish him and ban him from doing his favourite activities.
Given the matters which were not the subject of discussion in his report, I decline to accept Dr M’s opinion that the children’s reasons for, or about, objecting to returning to New Zealand are objections to returning to New Zealand (as opposed to objections to leaving their mother’s care to return to their father’s care) or that such objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes. I also decline to accept his opinion and/or conclusion that the children’s objections to returning to New Zealand do not reflect a mere preference of parents. I consider the last sentence of X’s correspondence to the Court to be particularly pertinent to this conclusion.
Whilst Dr M assessed X as thinking independently and as being of an age and having a degree of maturity where it is appropriate to take his wishes into account, the absence of any expressed consideration of the manner in which the Respondent’s comments about Australian Border Force (as discussed earlier) may have influenced such “independent” thinking causes me to be circumspect about this aspect of the report as well. I certainly accept that, given his age, it is appropriate that X’s views are taken into account and I have done so.
Whilst Dr M assessed eight-year-old Y’s views as “meaningful”, he did not specifically opine that the child had attained an age and had a degree of maturity at which it is appropriate to take his views into account. I have, though, deliberately recorded that I am aware of the views the younger child expressed to Dr M.
I am not persuaded that either of the children object to being returned to New Zealand. 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. Further, insofar as Y is concerned, any objection to returning to New Zealand that he has voiced is, in my view, particularly no more than an assertion of preference or wish, and does not demonstrate a strength of feeling beyond a mere expression of a preference or an ordinary wish.
Consequently, I am not persuaded that the Respondent has established this exception to the mandatory return of the children to New Zealand.
Would the children’s return to New Zealand not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms?[26]
[26] Regulation 16(3)(d) Family Law (Child Abduction Convention) Regulations1986 (Cth).
No detailed submission was made by the Respondent that this exception is established on the evidence before the Court. In Director-General, Department of Families, Youth and Community Care v Bennett[27] the Full Court of this Court[28] noted that this exception is extremely narrow.[29]
[27] (2000) FLC 93-011
[28] Kay, Coleman and Barlow JJ.
[29] At p.87,232 – 87,235.
I am not persuaded that the return of the children to New Zealand is in breach of any fundamental principle of Australia relating to the protection of human rights and fundamental freedoms. Consequently, this exception is not made out.
It follows that I am mandated by the Regulations to order the return of the children to New Zealand.
Exercise of discretion
As noted earlier, the Court is only called on to consider the exercise of discretion in favour of refusing to make an order for the return of children if a Respondent establishes an exception under the Regulations.
In case I am wrong in the conclusions I have reached that the Respondent has failed to establish the exceptions sought to be established, had I been called upon to exercise the discretion,[30] 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.
[30] De L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640 at 661; State Central Authority v DB [2002] FamCA 804, per Kay J; HZ v State Central Authority (2006) FLC 93-264; Harries v Harries (2011) 45 Fam LR 598.
I have reached this conclusion because I consider that:
a)as the children had lived in New Zealand for all of their lives until mid-April 2018, including for periods after the parental separation, that country provides the more suitable forum for the determination of their future care arrangements; and
b)the return of the children to New Zealand will return them to the parenting regime which had been implemented from about May 2017, when the Respondent moved to live in Australia and they moved to live primarily with their father; and
c)the return of the children to New Zealand will return them to known environs; and
d)there is nothing in the evidence to suggest that the Respondent would be unable to again instigate proceedings for appropriate parenting orders in New Zealand, as has previously occurred; and
e)given the similarities in law between New Zealand and Australia, whatever determination is arrived at for the children's future parenting arrangements, it is one which will involve a determination of whatever parenting arrangement is in their best interests; and
f)the purpose and underlying philosophy of the Convention would, in my view, be significantly at risk of frustration if a return order were not made in the circumstances of this case.
Final Conclusions
Given that the object of the Convention is to secure the prompt return of children, and that these children were wrongfully retained in Australia after the April 2018 school holiday period, with consequent disruption to their previous lives in New Zealand – including their engagement in the education system in New Zealand and their living arrangements with their father following the Respondent’s relocation to Australia in May 2017 – I consider that they should be returned to New Zealand as soon as practicable.
This will enable the children to recommence their previous participation in the New Zealand education system and to resume their previous relationships with persons in that country, including their father.
For the reasons outlined above, I am satisfied that a return order should be made in the terms set out at the commencement of these Reasons.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 September 2018.
Associate:
Date: 11 September 2018
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