DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & DAJANI
[2020] FamCA 891
•22 October 2020
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF CHILD SAFETY, YOUTH & WOMEN & DAJANI | [2020] FamCA 891 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where the applicant alleges that the children were wrongfully retained by the mother in Australia and seeks their return to New Zealand – Where the mother alleges that the father either consented to their removal or has acquiesced to their retention – Where it is found that the father did not consent to the children’s removal or acquiesce to the children’s retention in Australia – Where a return order is made. |
| Convention on the Civil Aspects of International Child Abduction [1987] ATS 2 Family Law (Children Abduction Convention) Regulations 1986 (Cth) |
| De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 Department of Family and Community Services & Raelson [2014] FamCA 131 Department of Health and Community Services, State Central Authority & Casse (1995) FLC 92-629 DP v Commonwealth Central Authority (2001) 206 CLR 401 MW v Director-General, Department of Community Services (2008) 39 Fam LR 1 Wenceslas v Director-General, Dept of Community Services (2007) FLC 93-321 |
| APPLICANT: | Director General, Department of Child Safety, Youth & Women |
| RESPONDENT: | Ms Dajani |
| FILE NUMBER: | BRC | 10825 | of | 2020 |
| DATE DELIVERED: | 22 October 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 8 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shoebridge |
| SOLICITOR FOR THE APPLICANT: | McInnes Wilson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr McGregor |
| SOLICITOR FOR THE RESPONDENT: | Hartley Whitla Lawyers |
Order
All previous Orders be discharged.
The children, Y (a female) born … 2016 and Z (a female) born … 2018 (“the children”) be returned to New Zealand.
To give effect to paragraph (2):
(a) the children leave the Commonwealth of Australia on or before 29 November 2020; and
(b) the children arrive in New Zealand on or before 30 November 2020; and
(c) pending the children returning to New Zealand, the Respondent, Ms Dajani born … 1980, continue to be restrained and an injunction hereby issues 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 Dajani born … 1980 be restrained and an injunction hereby issues restraining her from changing the children’s usual day to day residence 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 3(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 Dajani, born … 1980, and the children Y (a female) born … 2016, and Z (a female) born … 2018, on the Family Law Watch list at all international departure points in Australia; and
(f) the names of the children and the Respondent be removed from the Family Law Watch list 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 12.00am on the date nominated for the said travel in the letter.
The Respondent shall do all acts and things necessary to effect the return of the children to New Zealand, including but not limited to:
(a) Forthwith make any necessary application to the Department of Home Affairs or other department as is necessary to enable herself and the children to obtain any exemptions required to depart the Commonwealth of Australia;
(b) Forthwith make any necessary application and/or complete any registration necessary for herself and the children to enter New Zealand and to comply with all quarantine requirements, including seeking an exemption of quarantine fees.
Upon receipt of evidence that the return flights for the children and Respondent to New Zealand have been booked and paid for, the solicitors for the Respondent, Hartley Whitla Lawyers, be at liberty to release to the Respondent all current passports relating to the children and her own passport for the purpose of the children’s return to New Zealand.
The Marshall 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 this Order.
Any outstanding applications be dismissed.
The Applicant be at liberty to apply on short notice to seek any further orders necessary to allow her 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 reg 20 of the Family Law (Children Abduction Convention) Regulations 1986 (Cth).
IT IS ORDERED BY CONSENT
This return Order is conditional upon the following:
(a) The father, Mr Landon (the father) paying for all flights to enable the Respondent and the children to travel from City D Airport to City E Airport, including domestic flights; and
(b) The father paying for any fees relating to mandatory quarantine requirements in New Zealand in respect of the Respondent and the children.
IT IS FURTHER ORDERED WITH THE CONSENT OF THE FATHER
In the event the mother informs the father that upon her return to New Zealand with the children she wishes to occupy the former matrimonial home at F Street, G Town in New Zealand, then the father shall forthwith vacate the said home until such time as an Order is made by a court in New Zealand or by written agreement between the father and the Respondent.
NOTATION
A.It is noted that the conditions to the return order set out in paragraph 9 of this Order are included with the consent of the Applicant Central Authority, the father and the Respondent mother.
B.It is further noted that the Respondent mother gave evidence that she would return to New Zealand with the children in circumstances where a return order is made.
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 Dajani 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 10825 of 2020
| Director General, Department of Child Safety, Youth & Women |
Applicant
And
| Ms Dajani |
Respondent
REASONS FOR JUDGMENT
These proceedings concern an application for a return order[1] pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations provide the legislative framework pursuant to which Australia meets its obligations as a contracting state to the Convention on the Civil Aspects of International Child Abduction (“the Convention”).[2]
[1] As defined in regulation 2 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
[2] [1987] ATS 2.
This is not a hearing on the merits of a ‘custody or access’ case (to use the terminology in the Convention), but a hearing to determine the appropriate response to Australia’s obligations under the Convention. The best interests of the children are not the paramount consideration.[3]
[3] De L v Director-General, Department of Community Services (NSW) (1996) 187 CLR 640 at 658.
The Department of Child Safety, Youth and Women is a responsible Central Authority (“the applicant”) and entitled to bring the application on behalf of the requesting parent, Mr Landon (“the father”). The respondent to the application is Ms Dajani (“the mother”).
The applicant alleges that the children, Y aged 4 years and Z aged 2 years (“the children”), were wrongfully retained by the mother in Australia in April 2020 and seeks their return to New Zealand. The mother resists the making of a return order on the basis that the father consented to or acquiesced to the children leaving New Zealand on 19 July 2019 and remaining permanently in Australia.
The Convention
Before turning to the particular facts of this case, it is useful to reflect upon the purpose of the Convention. It is to ensure the prompt return of children who have been wrongfully removed from or retained in a convention country and to enable any dispute relating to the parenting of the children to be determined by the children’s country of habitual residence immediately prior to the wrongful removal or retention.[4]
[4] Ibid at 648-649.
The Regulations are intended to be construed:
(a)having regard to the principles and objects mentioned in the preamble to and Article 1 of the Convention; and
(b)recognising, in accordance with the Convention, that the appropriate forum for resolving disputes relating to a child's care, welfare and development is ordinarily the child's country of habitual residence; and
(c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of convention countries.[5]
[5] Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 1A.
If an application for a return order is made within one year[6] after the removal or retention of a child, and the removal or retention was wrongful within the meaning of the Regulations, the Court must, subject to certain exceptions, return the child to the convention country which was the child’s habitual residence immediately before the wrongful removal or retention (reg 16(1) of the Regulations). Even where one of the exceptions under reg 16(3) is established, the Court retains a residual discretion to nevertheless make a return order (reg 16(5)).
[6] If the application is filed more than one year after the day on which the child was first removed to, or retained in Australia the return order will still be made if certain conditions are established see Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(2).
The responsible Central Authority (defined in reg 2 of the Regulations) or Article 3 applicant (defined in reg 2) must satisfy the Court that the child’s removal to or retention in Australia was wrongful (reg 16(1)(c)). The removal or retention will be wrongful if the Court is satisfied of the following:
a)The child was under 16 years of age; and
b)The child habitually resided in a convention country immediately before their removal to, or retention in, Australia; and
c)The person, institution, or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before their removal to or retention in Australia; and
d)The child’s removal to or retention in Australia is in breach of those rights of custody; and
e)At the time of the child’s removal or retention, the person, institution or other body was actually exercising the rights of custody (either jointly or alone) or would have exercised those rights had the child not been removed or retained.[7]
[7] Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16(1A).
The person opposing the return bears the onus of establishing one of the exceptions set out in reg 16(3) of the Regulations[8] which are as follows:
[8] Ibid reg 16(3); DP v Commonwealth Central Authority (2001) 206 CLR 401 at 408, [9], 416–417, [39]–[41].
(a)the person, institution or other body seeking the child's return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
The summary nature of the hearing
Proceedings pursuant to the Convention are intended to be summary in nature because the merits of the parenting case are not being determined but rather, whether or not Australia’s obligations under the Convention are engaged.
In view of the limited purpose of the enquiry, it is not generally to be expected that witnesses will be cross-examined however, there will inevitably be cases where fulfilling the requirement of reg 15(2) of the Regulations for a “proper consideration of each matter” requires the granting of leave to cross-examine a witness. As the High Court of Australia observed in MW v Director-General, Department of Community Services:[9]
[9] (2008) 39 Fam LR 1 at 13–14, [46]–[50] (“MW”).
46.Cross-examination in interlocutory applications generally is not to be encouraged. But an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody). The oral evidence in that Convention application was heard over two days.
47.Regulation 15(2) obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".
48.The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
49.Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another. The references to "summary procedure" and to the dealing with applications on affidavit evidence and "in a summary manner" by the Full Court in In Marriage of Gazi are apt to mislead. This is particularly true of the statement in that case:
"The primary purpose of the Convention, the relevant legislation and regulations is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return to the country of their habitual residence of children who are wrongly removed or retained in another country in breach of rights of custody or access [sic] (see Convention, Arts 7 and 11, Family Law (Child Abduction Convention) Regulations, reg 19(1)). Accordingly, whilst there may be cases in which it is appropriate to allow cross-examination of deponents of affidavits, such cases would be rare. The majority of proceedings for the return of children, pursuant to the Convention, should be dealt with in a summary manner and cross-examination of deponents of affidavits would not be appropriate".
50.The danger in reading such remarks too literally (and without regard to the circumstances of each particular case) is apparent in situations such as that considered in the United States by the Court of Appeals for the Third Circuit in In re Application of Adan. An application by the father for the return of his child to Argentina was resisted on the grounds that he had not established his custody rights under the law of Argentina and there was grave risk there of harm to the child. After considering the cursory treatment by the United States District Court of the application, the Court of Appeals said:
"Although the Convention seeks to facilitate the prompt return of wrongfully removed children to their country of habitual residence, it does not condone deciding that a child is another country's problem and dumping her there, and nor do we."
No criticism of that degree is directed to the conduct of the present case, but In re Application of Adan provides a caution against inadequate, albeit prompt, disposition of return applications.
[footnotes omitted]
In the current case, given the nature of the factual dispute, the applicant and respondent were each granted leave to briefly cross-examine.
uncontentious facts
The following facts are uncontentious:
a)The application was filed within one year of the removal or retention;[10]
b)The children are under sixteen;
c)The children habitually resided in New Zealand immediately prior to their removal to or retention in Australia;
d)The father had rights of custody in relation to the children under the law of New Zealand immediately before their removal to or retention in Australia;
e)The children’s retention in Australia is in breach of those rights of custody;
f)At the time of the children’s removal to or retention in Australia, the father was actually exercising the rights of custody or would have exercised those rights had the children not been removed to or retained in Australia;
g)The father consented to the removal of the children from New Zealand on 19 July 2019 (but he contends their departure was to be for a temporary, although indefinite period); and
h)If a return order is made, the mother will return with the children.
[10] The mother’s initial contention that the application for a return order was not made within 12 months was abandoned.
Background
The father is 40 years of age and a New Zealand citizen. He works as a tradesman in New Zealand.
The mother is 40 years of age and an Australian citizen. She moved to New Zealand in 2010. The mother is currently unemployed but is qualified for work in a service industry. She has recently enrolled in a course of study.
The father and mother commenced a de facto relationship in New Zealand in 2012. The father contends that separation did not occur until April 2020, while the mother contends that separation occurred on 25 December 2019.
The parents have two children together, namely, Y born … 2016 and Z born … 2018. Both children were born in New Zealand and are New Zealand citizens.
Up until April 2020, the father transferred about $400 per week into the mother’s bank account in Australia. There is now a child support assessment in place that requires the father to pay child support of about $73 per week.
It is common ground that the mother has struggled with mental health issues and as a consequence, returned to Australia on two prior occasions for indefinite periods during the relationship. The first time was in May 2013 when she returned to Australia for a little less than a year and the second time in October 2017 when she returned to Australia with the child, Y, before returning to New Zealand in January 2018. During the 2013 trip, the mother rented a flat in Australia and worked in a service industry. It is not in contention that both trips were agreed to by the father and were intended to be temporary, although for an indefinite period.
On 5 May 2020, the father met with a lawyer in New Zealand and was informed of his rights under the Convention.
On 31 May 2020, the mother received a letter from the father’s New Zealand lawyer accusing her of being in Australia with the children without the father’s consent and requesting her to voluntarily return the children.
The mother’s lawyer responded on 9 June 2020 refuting the unlawful removal or retention of the children and offering to negotiate the children’s future time with the father.
The father signed the application for the return of the children under the Convention on 3 July 2020 and proceedings were commenced on 12 August 2020.
The matter was first mentioned in this Court on 20 August 2020 and set down for this hearing.
Issue for determination
As the facts creating an obligation to return the children as set out in reg 16(1) are not in issue, the only questions for determination are whether the mother has established an exception (as defined in reg 16(3)) to the making of a mandatory return order and, even if she has, whether the Court should nevertheless make a return order (reg 16(5)).
Unfortunately, like so many matters that come before this Court pursuant to the Convention, the evidence relied upon by each party strays into areas that are irrelevant to the matters the Court has to determine. It would be of great assistance to the Court if the Central Authority (which is generally represented in this State by the same lawyer) could take greater control of the content of the material filed in support of an application (particularly the material filed after the initial application).
Before turning to consider the evidence and submissions relied upon by the mother, I set out below the legal principles relevant to the issues in contention.
applicable legal principles – Consent and Acquiescence
The Full Court in Wencelas and Director-General, Department of Community Services[11] (May and Thackray JJ) observed that consent and acquiescence are two distinct notions but both involve the state of mind of the person seeking the return of the child. Consent concerns the state of mind of the left behind parent before the child was removed to, or retained in Australia. Acquiescence concerns their state of mind after the removal or retention.[12] Further, while the consent of the left behind parent may be inferred from conduct, the consent must be “real” and “unequivocal” and the evidence relied upon to support such an inference must be “clear and cogent”.[13]
[11]Wenceslas v Director-General, Dept of Community Services (2007) FLC 93-321 (“Wenceslas”). This case was the subject of special leave to appeal to the High Court where the majority allowed the appeal on the basis that the Central Authority had failed to establish that the father was a guardian of the child and could determine the child’s residence (at 27, [115]). The appellant did not contend on appeal that the father had consented to or acquiesced to the child’s removal or retention.
[12] Ibid at 81,557–81,558, [246].
[13] Ibid 81,560, [264].
The principles relating to acquiescence were helpfully summarised by Kent J in Department of Family and Community Services & Raelson as follows:[14]
a)The onus of establishing acquiescence rests upon the respondent. Acquiescence must be proven by clear and cogent evidence.
b)The right to which acquiescence is directed is the right of the applicant parent to the immediate return of the children. It is not acquiescence in the child or children remaining permanently in the forum that needs to be established.
c)Acquiescence operates to effectively estop the applicant parent from demanding the immediate return of the child or is to be seen as waiver by the applicant parent of the right to immediate return.
d)The applicant parent must be shown to have the subjective intention not to insist upon a right to summary return. If that subjective intention is not established it is only if the words or actions of the applicant parent clearly and unequivocally show, and have lead (sic) the respondent parent to believe, that the applicant parent is not asserting or going to assert a right to summary return, and are inconsistent with such return, that acquiescence is established.
e)Words or conduct of the applicant parent (including passive inaction over time where action ought be expected) have the potential to inform the enquiry as to acquiescence in two ways. First, and most commonly, the court infers from the words or conduct (or both) that the applicant parent had the requisite subjection (sic) intention despite later claims by the applicant parent as to his or her intentions being otherwise. In so doing the court is determining as a fact that the applicant parent had the requisite subjective intention. Second, and perhaps less commonly, the words or conduct (or both) of the applicant parent may be sufficiently clear and unequivocal as to demonstrate that the other parent was lead (sic) to believe that the applicant parent was not going to insist upon summary return. Later claims that the applicant parent always secretly intended to seek summary return, even if true, will not displace acquiescence in those circumstances.
f)In both categories of case the context or contextual matters surrounding the words or the conduct may be important considerations in determining that clear and unequivocal acquiescence is established.
g)Acquiescence, once established is irrevocable. To conclude otherwise would render the acquiescence exception illusory because it will only arise when the applicant parent, who has previously acquiesced, has changed his or her mind and seeks immediate return. Prompt attempts to displace or withdraw acquiescence might be relevant to the court’s exercise of discretion, as might be the reasons for those attempts and indeed the consequences of acquiescence, but acquiescence once established cannot be revoked.
[14] [2014] FamCA 131 at [100] by reference to the principles expressed in the following cases: Re H (Abduction: Acquiescence) [1998] 2 AC 72; Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 per Lindenmayer J; Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106 (EWCA); Kilah v Director-General, Department of Community Services (2008) FLC 93-373 per Bryant CJ, Coleman and Thackray JJ; Police Commissioner of South Australia v Temple (1993) FLC 92-365; Laing v Central Authority (1996) 24 Fam LR 555.
I would only add to this list the observation made by Kay J in Department of Health and Community Services, State Central Authority & Casse[15] that “there cannot be true acquiescence where the parties are in a state of confusion and emotional turmoil”.
[15] (1995) FLC 92-629 at 82,311 adopting Stewart-Smith LJ in Re: A (Abduction: Custody Rights) (1992) Fam 106 at 121.
The mother’s case
As the mother bears the onus of establishing an exception to the mandatory return order, I will consider the evidence relied upon by her first.
The mother contends that the father consented to her relocating permanently to Australia with the children without condition and relies upon the following evidence:
a)In 2018, her relationship with the father had been on again off again and for a number of reasons, including the weather and her mental health, the mother told the father she wanted to move back to Australia with the children and he said “Just go if that’s what you want. I’m not stopping you”;
b)Over the following six months she and the father “engaged in constructive conversation about the children and I relocating to Australia and how we could make things work”;
c)The conversation “turned into one about us all relocating as a family and buying a home around City D” and the father “enthusiastically talked about purchasing a property [in Australia]” and about a “great Kindy and school for Y” (the father contends that any discussion about buying a home in Australia was in the context of it being a holiday home and in support of this contention he exhibits a text message from the mother to a friend wherein she said – “If we can buy that house I can leave for winter every year I will be happy.”);
d)Definitely by early May 2019 “we had agreed that the children and I would move to Australia and [the father] would follow, after he had completed the home renovations. We were to then sell the home and buy one [in Australia]. I was going to rent a home, in the meantime and [the father] was going to visit each three months”;
e)Her father changed his flights from Australia to New Zealand (he was initially coming for a visit) so that he could help the mother fly back to Australia with the children;
f)The mother openly told friends and family that she was moving back to Australia with the children;
g)She started to sell furniture;
h)She gave away “a lot of the children’s winter clothes”;
i)She told her hairdressing clients and suppliers that she was relocating to Australia with the children and sold all of the business furniture and stock;
j)On 17 May 2019, the mother purchased one way tickets for herself and the children to Australia;
k)On 19 July 2019, the father signed a tenancy application form naming the father as the primary tenant and including the words “moving to Aus” in response to a question on the form (the mother concedes the form had been filled in by her and that the father signed it on the day of her departure);
l)On 5 June 2019, the mother paid the airline for excess luggage;
m)On 2 July 2019, she and the father went to see her accountant who was instructed to finalise her business accounts and the father, the accountant, and the mother talked openly about the mother “permanently returning to Australia, with the children”;
n)She and the father talked about her buying a car in Australia with her tax refund;
o)On 5 July 2019, she posted a notice on her Facebook page that she was relocating permanently to Australia with the children;
p)The father followed her on Facebook;
q)On 12 July 2019, she went to a farewell dinner organised by a mutual friend;
r)Upon the arrival of her father, and over the following four days, she and the father talked with her father about her relocation to Australia with the children and when asked by her father what he really thought about the mother and children relocating the father said “I just want [them] to be happy”;
s)On 18 July 2019, she sold her car; and
t)On 19 July 2019, the father drove the mother and the children to the airport with four large suitcases, one small carry on suitcase and three bags.
The mother says that on 15 September 2019, the father told her that he was “reconsidering that agreement” and that she told him that she had no intention of maintaining a long distance relationship and if he did not move, she would end their relationship.
The mother argues that, consistent with their agreement that he would visit every three months until he moved to Australia, the father visited Australia on 20 September 2019 and stayed with the mother and children and helped the mother buy furniture for the children’s rooms and also bought the mother a television and a “sound bar”. He visited Australia again on 24 December 2019 and when he returned to New Zealand on 6 January 2020, he said he would return to Australia in April 2020.
If the mother fails to establish consent, she relies upon the following evidence to establish the father’s acquiescence to her not returning the children to New Zealand.
When the father again travelled to Australia on 24 December 2019, the mother says he told her he wanted to end the relationship and did not think it was worth staying together. (While the mother goes on to say that the father in fact ended the relationship, she does not disclose what the father actually said. The father concedes he said to the mother’s brother-in-law that he did not want a long distance relationship, but he denies he ended the relationship on 25 December 2019 as alleged by the mother. It is common ground that whatever was said on 25 December 2019, the father continued to sleep in the same bed as the mother and attended family gatherings with the mother until he left Australia on 6 January 2020.)
Sometime after the father’s return to New Zealand, the father’s mother (whom the mother says the father was estranged from) told the mother that the father had plans to have an extended holiday, maybe up to a year, in the USA and Country K. The mother says the father confirmed that he intended taking a long holiday of up to six months. The father denies this and says he was considering a two or three week holiday.
The mother agrees that despite the father ending the relationship on 25 December 2019 (on her case), she and the father continued to talk on the telephone and exchange messages until February 2020 when the mother says the father “blocked” her and she responded by sending hostile and abusive messages due to her “struggling with depression”.
On 19 March 2020, the father “unblocked” the mother and sent her a “birthday wish”. The mother says that she and the father “maintained civil communications” for a while thereafter but she “was in no way under any belief that we had reconciled”.
The mother says that she commenced dating another man towards the end of March 2020 and when the father found out he stopped responding to her messages. He did send the following message sometime later:
I have sorted my problems, which was to walk away from the only problem in my life in the past months and year's (sic) which was you. As much as it hurt never see my girls grow up … I will move on from this and end up with someone decent and have another family with someone stable and rational.
In communications about her remaining belongings in New Zealand the father wrote:
I’m not hording (sic) shit, your (sic) not welcome back here, I will see the girls next year when the boarders (sic) open. I will give the stuff to whoever (sic) wants it.
In further messages on 20 April 2020 the father said:
You are not coming back here ever, you are not welcome to set foot here, end of story. I can drop your bag of stuff to them
…
... when you left it was a one way thing
…
I will come over next year when the boarders (sic) open for a visit when direct flights start again
…
Wont (sic) be back at Christmas, and you coming back is not even up for discussion
That was a one way decision to leave. I was even looking at moving over a
while back, glad I had people talk me out of it.
On 22 April 2020, the father sent the following message:
You didn't answer because you were hanging out with new guy. Nice you got some stranger hanging around my kids.
…
You can do the whole thing on your own. Good luck.
On 24 April 2020, the father apologised to the mother and told her he loved her and asked her to go back to New Zealand. The mother refused.
On 25 April 2020, the father asked the mother to return to New Zealand and be his wife.
On the 26 April 2020, the father wrote a further message:
I would love to marry you and raise our kids together ... I actually have nothing left in this life of importance without my girls and you. I was fucking devastated you had been sleeping with someone so quickly and have someone around our kids.
…
I can never come back from this.
On 27 April 2020, the father wrote:
Ok you will never hear from me again.
…
I am done with this life.
The mother contends that the father was threatening to take his own life.
During video calls with the children, the mother says the father repeatedly threatened her with legal action. On 6 May 2020, the father wrote a further message:
I really need your lawyer details please. I'm not trying to uplift the kids or cause any trouble as we already have an agreement ... After this is done I am happy to leave you alone and only ever talk about something that effects (sic) our children. Can you please do this.
On 15 June 2020, the mother says that the father asked her during a telephone call if she would let Y live with him in New Zealand. She told him the children would stay together and with her.
The mother argues that it is significant in establishing the father’s acquiescence that the father did not request the return of the children between the date he ended the relationship on 25 December 2019 and his lawyer’s letter in May 2020.
The Applicant’s response
The father denies that he consented to the removal or retention of the children in Australia in breach of his “custody” rights. He contends that he and the mother agreed that the mother and the children would travel to Australia for a temporary stay from 19 July 2019 so that the mother could spend time with her family and improve her mental health and happiness.
It is common ground that the mother had twice before returned to Australia for this very purpose and had returned to New Zealand on each occasion. The first occasion was for nearly a year from May 2013 and the second occasion occurred in October 2017 when the mother went to Australia with the child, Y, and returned to New Zealand in January 2018. The father spent Christmas 2017 in Australia with them.
The father agrees that, prior to the mother’s 19 July 2019 departure, it was agreed that he would meet up with the mother and children in Australia for Christmas but contends that the mother and children were to return home to New Zealand by March 2020, and certainly within 12 months of leaving. Consistent with this agreement, the father says the mother booked a local venue in New Zealand to celebrate their joint birthday party in March 2020. (The mother says she had intended to come back just for the party but cancelled the booking in January 2020).
The father says that during his visit to Australia in December 2019, the mother told him she wanted to come back to New Zealand but because of her mental health it was agreed that she would stay in Australia for a further interim period to ensure she adequately addressed her mental health before returning to New Zealand.
The father contends that consistent with the mother’s two previous returns to Australia, he and the mother maintained their relationship and communicated often until it became apparent that the mother had met someone else and told the father that she did not intend on returning to New Zealand. The father says this happened in the period between 16 and 23 April 2020.
In support of his view that the trip to Australia was supposed to be temporary, the father points to the following evidence:
a)The mother left the bulk of her belongings in New Zealand including her dog, sentimental items inherited from her grandparents, many of the children’s clothes and many of her own clothes;
b)The children’s bedrooms were left completely intact ready for their return including toys on shelves, cupboards substantially full of clothes, shoe racks with numerous pairs of shoes, bedding on the beds (the photographs exhibited to the father’s affidavit corroborate this evidence);
c)Contrary to the mother’s evidence that she sold all of her business furniture and stock, the father exhibits a photograph of her premises with furniture still in place (the mother conceded during cross-examination that she had in fact only sold one item of furniture. The mother sought to explain the inconsistency in her evidence by suggesting that she did not sell other items because they were white and had stains on them);
d)The mother left her tools of trade in New Zealand (the mother conceded during cross-examination that she had done so but suggested it was because she did not intend to work in Australia and further that the father needed to use some of the tools);
e)The children remain enrolled with the local medical centre in New Zealand;
f)Various text messages from the mother including the following:
i)11 October 2019: I will come back at the end of my lease if we get married;
ii)12 October 2019: I’m thinking about maybe moving back later and moving to [L Town] or [City M], [City N] but not sure where;
iii)26 November 2019: … I miss my dog my couch my bed linen my things I left everything;
iv)13 February 2019: make sure you water blabe (sic) ok inside and outside garden;
v)20 April 2020: You told me you would never leave [New Zealand], never live in Aus blah blah I got sick of fighting about it, I waited 7 years for a fucking fire. …
vi)30 April 2020: Just funny how the payments stopped when I said I didn’t want to come back;
g)A neighbour in New Zealand, Ms O, deposes to a conversation with the mother prior to her departure on 19 July 2019 wherein the mother said that the father would “never remember to water the plants” and that they would “all probably be dead by the time they got back”;
h)A close friend of both parents in New Zealand, Ms H, deposes to a conversation with the mother prior to her departure on 19 July 2019 wherein the mother said she was “heading over for a visit to her family in Australia and it was going to be a long one” and that she was selling her car because she “was planning to upgrade cars anyway when [she] returned home [to New Zealand] because she wanted a bigger one for the girls”. During a conversation with the mother after leaving New Zealand, the mother said she could “force [the father] to move [to Australia] because [she] was there now and [the father] really loved her and would have to move over as it was the only way of seeing the girls”;
i)The father’s sister, Ms J, deposes to a conversation with the mother prior to her departure on 19 July 2019 wherein the mother declined to sell her an item of furniture from Y’s room saying that she needed it on her return from Australia;
j)The mother’s accountant, in a letter dated 17 August 2020, denies the mother’s evidence that the father and mother discussed her permanent move to Australia saying, “my recollection was that it was acknowledged between the two of them that [the mother] and the children were returning to live in Australia, for the foreseeable future”. He goes on to deny any conversation he had with the mother where the word “permanently” was used;
k)In early 2020, the father contends that the mother asked him not to rent out her business premises (located at their home) because she would need it upon her return;
l)On 6 January 2020, the father says that the mother told him that Y said she wanted to go home and he said to the mother that he thought it was time for them to come home but the mother said she needed more time.
On 8 February 2020, the mother told the father’s sister that she had arranged to see a psychiatrist and had booked 15 sessions. The father contends that this information was consistent with the mother’s statement to him in December 2019 that she needed more time in Australia to address her mental health issues.
Between 16 and 23 April 2020, the mother told the father that she had met someone and would not be returning to New Zealand. He then asked if she would send Y back but the mother refused.
The father consulted a lawyer on 5 May 2020 and says he became aware for the first time of his rights to insist on the return of the children under the Convention. His lawyer wrote to the mother on 28 May 2020 requesting the immediate return of the children to New Zealand.
On 15 June 2020, the father contends that the mother agreed to return. The mother rejects this contention.
The father commenced proceedings under the Convention on 12 August 2020.
Discussion
I must be satisfied that the father’s consent was “real” and “unequivocal” and that evidence of his consent is “clear and cogent”. The evidence falls far short of establishing the father’s consent to removal or retention. In the circumstances of this case, there was nothing unusual in the mother spending time in Australia for extended periods. She had done so twice before and accounts for her buying one way flights and leaving behind precious items, her hairdressing tools of trade, substantial quantities of clothing for herself and the children, and leaving the children’s rooms intact.
Counsel for the mother quite rightly concedes that most, if not all, of the evidence relied upon by the mother to establish the father’s consent to her permanent removal of the children from New Zealand is equally consistent with a temporary removal for an indefinite period.
Tellingly, the only evidence that might be considered to be from an independent person, namely the accountant, disputes the mother’s evidence that there was any mention of her move to Australia being permanent. I note also that two of the mother’s text messages to the father are inconsistent with her contention that the father consented to her permanent relocation to Australia. On 12 October 2019, the mother said she was considering moving back to New Zealand “later” which I infer refers to later than had been agreed, and on 20 April 2020 the mother said “You told me you would never leave [New Zealand].” The father also sent a text message to the mother on 20 April 2020 in which he said “I was even thinking of moving over” which, in my view, is inconsistent with the mother’s evidence that the agreement included the father relocating to Australia once the renovations were completed.
Likewise, there is nothing clear and unequivocal about the father’s words or conduct which would support a finding that he had acquiesced. Even if the father had said he wanted to end the relationship in December 2019, the parties continued to communicate about their relationship with the father even asking the mother to marry him. It seems to me that the relationship was on again off again. The exchange of messages between the parents demonstrate an ongoing state of “confusion and emotional turmoil” e.g. one minute they were abusing each other and the next they were expressing undying love. Even on the mother’s own evidence the father requested the mother to return to New Zealand on 24 and 25 April 2020 (I reject any contention that the father intended for the children not to return). The father acted promptly upon becoming aware of his rights to request an immediate return of the children to New Zealand.
Conclusion
The applicant has established the wrongful retention of the children in Australia within the meaning of reg 16(1). The mother has failed to establish the exception to the mandatory return of the children within reg 16(3)(a)(ii).
Accordingly, the children will be returned to New Zealand.
The father agrees to pay for all flights to enable the mother and children to return to New Zealand, and to pay any fees associated with any mandatory quarantine that may arise because of the restrictions still in place due to the COVID-19 pandemic. The mother will also need to apply to the Australian Department of Home Affairs or other department as necessary for permission to leave Australia and perhaps also to authorities in New Zealand to re-enter.
The father also agrees to vacate the home in which he and the mother and children lived prior to the mother’s departure from New Zealand, pending the parenting proceedings coming before a Court in New Zealand. The mother seeks alternative conditions requiring the father to pay any debt she may incur for the early termination of her housing tenancy in Australia, and for ongoing financial support upon her return to New Zealand. Such conditions are not agreed to by the father and, absent agreement, I was not taken to any power or authority that would permit me to impose such conditions. It does not seem to me that such conditions are necessary “to give effect to the Convention” (reg 15) and, accordingly, I will not include them. Even if I could be persuaded that I had the power to impose the conditions sought, the mother’s counsel concedes that there is no evidence before me about the financial consequences to the mother of a return order.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 22 October 2020.
Associate:
Date: 22.10.2020
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