Department of Children, Youth Justice and Multicultural Affairs & Cassidy
[2022] FedCFamC1F 823
Federal Circuit and Family Court of Australia
(DIVISION 1)
Department of Children, Youth Justice and Multicultural Affairs & Cassidy [2022] FedCFamC1F 823
File number(s): BRC 8868 of 2022 Judgment of: WILLIAMS J Date of judgment: 26 October 2022 Catchwords: FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where the mother retained the nine year old child from New Zealand – Where all jurisdictional facts were conceded except that the mother submits the father was not exercising rights of custody despite the child residing in New Zealand with the father for four years prior to his retention in Australia – Where the jurisdictional facts are satisfied to establish that the child was wrongfully retained from New Zealand – Regulatory exception – Grave risk argument – Where the mother asserted the father has neglected the child – Where the threshold is not met –
Where the mother has not discharged her onus – Child to return to New Zealand – Return order made – Where a delay of return was not granted.Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 111B
Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 15, 16
Cases cited: De L v Director General, NSW Department of Community Services (1996) 187 CLR 640
Director-General, Department of Communities, Child Safety and Disability Services & Pelt [2012] FamCA 343
DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401
HZ & State Central Authority [2006] FamCA 466
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145
Re F: Litigants in Person Guidelines (2001) FLC 93-072
State Central Authority & Sigouris [2007] FamCA 250
Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 21 October 2022 Place: Melbourne Counsel for the Applicant: Mr Selfridge Solicitor for the Applicant: McInnes Wilson Lawyers The Respondent: Self-represented ORDERS
BRC 8868 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS
Applicant
AND: MS CASSIDY
Respondent
order made by:
WILLIAMS J
DATE OF ORDER:
26 October 2022
THE COURT ORDERS THAT:
1.All existing Orders are discharged.
2.The child, X born 2013 (“the child”) be returned to New Zealand.
3.For the purposes of giving effect to this Order:
(a)The child leaves the Commonwealth of Australia on or before late 2022;
(b)The said child arrives in New Zealand on or before late 2022;
(c)Pending the child returning to New Zealand, the Respondent mother, Ms Cassidy born 1992, continue to be restrained and an injunction is hereby issued, restraining from removing or attempting to remove the child from the Commonwealth of Australia;
(d)Pending the child returning, the Respondent mother, Ms Cassidy born 1992 be restrained and an injunction issue restraining her from changing the child’s usual day to day residence from the premises where she and the child are currently residing namely, C Street, Suburb D in the State of Queensland;
(e)That subject to Order 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 mother, Ms Cassidy born 1992 and the child X born 2013, on the Family Law Watch list at all international departure points in Australia;
(f)That the child X born 2013, and the Respondent mother Ms Cassidy born 1992 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 Children, Youth Justice and Multicultural Affairs advising of the travel arrangements made for the child to return to New Zealand from 12.00am on the date nominated for the said travel in the letter;
(g)That 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 directed to take all necessary steps to give effect to these orders;
(h)That to facilitate the return of the child to New Zealand, Ms E, Department of Children, Youth Justice and Multicultural Affairs or her nominee be at liberty to release, all current passports relating to the child for the purposes of the child’s return to New Zealand; and release the Respondent mother’s passport to her or her nominee upon request;
(i)That liberty to apply be granted to the applicant to seek any further orders necessary to allow him or officers of the Department of Children, Youth Justice and Multicultural Affairs to make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this Order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Children Abduction Convention) Regulations 1986.
4.The Respondent mother do all acts and things required to cause the child to be booked on a flight to travel from Brisbane Airport to City F Airport within 24 hours of a return order being made, with the Respondent mother to be responsible for the costs of the flight noting that the Father has already contributed a sum of New Zealand currency and $80.00AUD towards the costs of the flight.
5.All other applications be dismissed.
6.There be liberty to apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Children, Youth Justice and Multicultural Affairs & Cassidy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
IntrOduction
This is an application by the Department of Children, Youth Justice and Multicultural Affairs (“the State Central Authority”) filed on 12 July 2022 seeking the return to New Zealand of the child, X born 2013, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
The respondent, Ms Cassidy, is the mother of the child. The requesting parent, Mr G who lives in New Zealand, is the father of the child.
The relevant regulations are made pursuant to s 111B of the Family Law Act1975 (Cth), to make such 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, which is generally referred to as the Hague Convention.
The Convention provides a framework for the prompt return of children, where it is alleged there has been a wrongful removal or retention of a child from his country of habitual residence. Both Australia and New Zealand are signatories to the Convention.
Upon establishment of the pre-requisites to a return order, the jurisdictional facts, as prescribed by reg 16(1A), there are limited circumstances or exceptions to return which may be relevant in response to an application to return the child to his/her country of habitual residence. Those regulatory exceptions must be read in the context of the fundamental obligation to return the child.
If the Court is satisfied on the requisite standard of proof that one or more of the regulatory exceptions to return are made out, then the court has a discretion to return the child. The matters relevant to the exercise of that discretion include some consideration of the best interests of the child: HZ & State Central Authority [2006] FamCA 466.
The Regulations provide as follows:
Reg 16 Obligation to make a return order
(1) If:
(a) an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under sub-regulation (1A);
the court must, subject to sub-regulation (3), make the order.
(1A)For sub-regulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a) the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s 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 the child’s 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:
(i)was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
(2) If:
(a) an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
(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.
(4)For the purposes of sub-regulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in sub-regulation (3) is established by a person opposing return.
The Regulations require that applications for return of children, when it is alleged that they have been wrongfully retained from their habitual residence, are dealt with expeditiously and as quickly as proper consideration of each matter permits (reg 15(2)).
In De L v Director General, NSW Department of Community Services (1996) 187 CLR 640, the High Court cautioned against the need for expedition resulting in insufficient hearing of issues in dispute. Some disputes are appropriate for summary determination and others require cross-examination.
The mother was self-represented at the trial. At the mention hearing on 9 August 2022, I urged the mother to seek legal representation and a notation was made that day that ‘the respondent has submitted an application to Legal Aid and is awaiting a response’. A further mention was conducted on 23 August 2022, whereby the mother was still self-represented and stated she was still in the process of seeking legal representation.
The mother wrote to my chambers on 12 October 2022, seeking leave to file her affidavit material on 19 October 2022, despite orders being in place for the filing of her affidavit material by 4.00pm on 4 October 2022. The State Central Authority did not consent to this extension of time. The mother also did not file an Outline of Case pursuant to Order 6 of the orders made on 23 August 2022, nor did the mother notify my chambers that she required the father to be available for cross-examination, pursuant to Notation C of those same orders.
The mother has been on notice of these proceedings since early August 2022 and has had approximately two and a half months until the trial to obtain legal representation. The mother advised the Court she was willing to represent herself on the day of the trial.
As the mother was self-represented, I advised her of the requisite matters, in accordance with the guidelines referred to in Re F: Litigants in Person Guidelines (2001) FLC 93-072. The Court offered to provide mother with a copy of the Family Law (Child Abduction Convention) Regulations 1986, which she accepted. Counsel for the applicant confirmed the mother had been served with a copy of the relevant regulations at the time of service of the initial application. I also provided the mother with procedural assistance during the running of the trial.
In this case, counsel for the State Central Authority cross-examined the mother and the mother cross-examined the father.
The State Central Authority asserts that the child has been wrongfully retained from New Zealand, in accordance with regs 16(1) and (1A), on the following basis:
(a)the application was made within one year of the child’s wrongful retention;
(b)the child is under the age of 16;
(c)the child was habitually resident in New Zealand as at the date of wrongful retention;
(d)the requesting parent, the father, has rights of custody in relation to the child, which he was exercising immediately prior to the child’s wrongful retention; and
(e)the wrongful retention of the child was in breach of the father’s rights of custody.
The State Central Authority bears the onus of proving the jurisdictional facts which establish that the retention was wrongful: DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401.
The mother relied upon the regulatory exception that there is a grave risk that returning the child to New Zealand would expose him to physical or psychological harm or otherwise place him in an intolerable situation (reg 16(3)(b)). The respondent mother bears the onus of proof to establish the regulatory exceptions to return.
The requisite standard of proof, as required by s 140 of the Evidence Act 1995 (Cth), is the balance of probabilities.
The State Central Authority relied upon the following documents:
(a)Form 2 Application and attachments filed on 12 July 2022;
(b)Affidavit of the father filed on 14 October 2022;
(c)Outline of Case document and written submissions filed on 14 October 2022.
The respondent relied upon the following documents:
(a)Form 2A and Cross Application filed on 17 September 2022;
(b)Affidavit of the mother filed on 18 October 2022.
Credit of Witnesses
The requesting father was cross-examined by the mother. He attempted to answer questions asked of him, but the cross-examination descended into an accusatory battle between the parents.
The mother was cross-examined by counsel for the applicant and she also attempted to directly answer questions. The ultimate disposition of the application was not dependent on findings of credibility of each witness as to disputed facts.
Background
The requesting father, aged 31 years, is a citizen of and resides in New Zealand. The respondent, aged 30, is the child’s biological mother and is a citizen of and resides in Australia.
The mother and father met in Australia in 2007 and commenced a relationship and cohabitation in 2008. In 2010, they moved to New Zealand for a nine month period prior to returning to Australia in 2011.
Upon the birth of the child in 2013 in Australia, the parents resided in the home of the maternal grandmother. The child is a New Zealand citizen.
In 2017, the mother and father separated in Brisbane, Australia and the father permanently returned to New Zealand without the child.
In early 2018, the Department of Child Safety, Youth and Women removed the child from the care of the mother following an incident between herself and the child. The father subsequently travelled to Australia and the child was placed in his care in early 2018. The child returned to New Zealand with his father in mid-2018, where he remained until April 2022.
In early 2022, there was agreement between the parents for the child to travel to Australia to visit the mother and extended family in the upcoming school holidays. Shortly after the child’s arrival, the mother notified the father via text message of her unilateral desire for the child to remain in Australia with her. In mid-2022, the father, after making efforts for the child’s return, ultimately returned to New Zealand without the child and shortly thereafter commenced the application for the return of the child on 19 May 2022. The father’s evidence for returning to New Zealand alone was due to having a return flight booked for himself and not having the financial means to remain in Australia.
On 12 July 2022, the Form 2 Initiating Application was filed by the State Central Authority.
A mediation was conducted by the International Social Service on 5–6 September 2022.
In late 2022, the father provided a sum of New Zealand currency and $80AUD to the mother, which the applicant submits was as a result of the agreement between the parties that each be responsible for half the return airfare costs of the child to New Zealand.
The father submits that the mother has not facilitated electronic communication between the child and the father since 27 July 2022.
Jurisdictional facts
I will address the issue of jurisdictional facts required to establish that the child was wrongfully retained in Australia.
The following jurisdictional facts were conceded by the mother:
(a)the child born 2013 is under the age of 16 years (reg 16(1A)(a));
(b)New Zealand is a convention country (reg 16(1A)(b));
(c)the child was habitually resident in New Zealand on or about early 2022, the date he physically flew out of New Zealand bound for Australia (reg 16(1A)(c));
(d)the requesting parent, the child’s father, possesses rights of custody in respect of the child (reg 16(1A)(d)).
The mother did not concede the father was exercising rights of custody as at the date of retention (reg 16(1A)(e)). Her submissions were unclear and she conflated this issue with the future parenting arrangements for the child.
Counsel for the applicant submitted:
(a)whether the father was exercising rights of custody in respect of the child should not be contentious because the child had been in his care in New Zealand since mid-2018 until he arrived with his father for a holiday in Australia in early 2022;
(b)the father’s first affidavit sworn 19 May 2022 at paragraph 40 deposes to him exercising rights of custody, and he was not challenged about that in cross-examination;
(c)the affidavit of Ms H, Barrister and Solicitor of the High Court of New Zealand, sworn 19 May 2022 deposed to the father’s rights of custody pursuant to the relevant New Zealand legislation, and there was no challenge to her evidence.
I accept the submissions of counsel for the applicant and the evidence of Ms H and find that the father has rights of custody in terms of the New Zealand legislation, those rights are rights of custody for the purposes of the relevant regulations, and that the father was exercising his rights of custody at all relevant times. It is difficult to contemplate that he was not exercising rights of custody as at early 2022 when the child had lived with him in New Zealand since mid‑2018.
Because of my finding that at the relevant time the father was exercising rights of custody and in the light of the mother’s concession of all other jurisdictional facts, I find the retention of the child in Australia at the relevant date was wrongful.
There was no dispute that the application had been filed within one year after the day on which the child was retained in Australia (reg 16(1)(b)).
Regulatory exceptions to return
Having determined the child was wrongfully retained in Australia, I will now address the exception to return raised by the mother, namely 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 (reg 16(3)(b)).
Grave risk of physical or psychological harm or placing the child in an intolerable situation (reg 16(3)(b))
Relevant legal principles
The leading authority in Australia pertaining to this regulatory exception is DP v. Commonwealth Central Authority; JLM v. Director–General, NSW Department of Community Services (2001) 206 CLR 401 (“DP”) Gaudron, Gummow and Hayne JJ stated [39]:
39.… Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry…
…
41.… 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 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.
In DP at paragraph [130], his Honour Justice Kirby, in a dissenting judgment stated:
… Inevitably…the application of the exception provided for in reg 16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law…It should not therefore be surprising that they (the exceptions) have only been invoked successfully in comparatively rare instances.
Further, at paragraph [132], his Honour Justice Kirby considered the language used in reg 16(3)(b) and said:
The adoption of the word “grave” to qualify “risk” plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not “grave”) risk of the kinds of harm contemplated. Similarly, the use of the word “otherwise” in reg 16(3)(b) indicates that the types of “physical or psychological harm” referred to must also be such as to place the child concerned in an “intolerable situation”. Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was “intolerable … extreme and compelling”, will invite the application of the exception.
(Citations omitted).
In Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154, the Court of Appeal stated that:
…There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which may be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence”
In State Central Authority & Sigouris [2007] FamCA 250, Bennett J said at [79]:
In order for the respondent mother to make out the exception under Regulation 16(3)(b) of the regulations (Article 13(b) of the Convention), it is necessary to establish at the risk of exposure to physical or psychological harm or the children being placed in an intolerable situation in the event of their return to Greece forthwith is not only very real but “grave”.
Discussion
In support of her grave risk contention, the mother submitted:
(a)she believed the father and the maternal grandmother were on drugs;
(b)the father had neglected the child, specifically he had failed to obtain treatment for the child’s infected tooth, the child’s shoes had a cigarette burn, the child’s clothes were size 8 when he was a size 12, he had nits upon his arrival in Australia and although he had suffered asthma since a baby, he had not been provided with an asthma puffer;
(c)prior to early 2022 there had been no face-to-face contact between the mother and the child for nearly four years and the father had failed to maintain the child’s maternal relationship;
(d)she was remorseful for her previous conduct which resulted in the removal of the child from her and since that time she had secured a stable home and had two children who were in her care, without incident or involvement of child protection.
Counsel for the applicant submitted:
(a)the allegation the father and paternal grandmother were using drugs was made for the first time during submissions and was not raised in the mother’s affidavit and no weight should be accorded to the bare assertion;
(b)the allegations of neglect do not meet the grave risk threshold and should be considered in the context of the negotiations between the parents for the return of the child, which are referred to subsequently;
(c)as at 7 October 2022 there were discussions between the parents to return the child to New Zealand, including sharing the costs of airfares for a return flight and the mother agreed with that exchange;
(d)the mother did not abide with an agreement reached and withdrew her consent to the return of the child;
(e)if the mother were bona fide about the grave risk facing the child, she would not have conceded the prior return of the child;
(f)the mother’s submissions as to grave risk which refer to her lack of time with the child during the past four years and her remorse are relevant to a future parenting dispute and not the issue of grave risk.
I agree with and accept the submissions of counsel for the applicant. Whilst concerning and highly pertinent to a future parenting dispute, the allegations of neglect are not clear and compelling evidence of grave risk so as to meet the required threshold of reg 16(3)(b). The assertions of drug use by the father and maternal grandmother, are bare assertions made by the mother at the eleventh hour, in circumstances where she was previously prepared to return the child to the father’s care in New Zealand, and should not be accorded any weight.
The mother has not met the evidentiary onus and the regulatory exception of grave risk must fail. I do not need to consider the circumstances in which my discretion to return is enlivened. Accordingly, I will make orders providing for the return of the child.
The final issue addressed in submissions was the cost of the child’s return airfares. The mother submitted if a return order were made, then the cost of the child’s airfares should be shared equally between the parties. Counsel for the applicant also agreed that the costs of return should be shared equally by the parents, however the father had already paid his share of the airfares. Paragraphs 10 to 13 of the father’s second affidavit filed on 14 October 2022 demonstrate on 7 October 2022, the father paid $680 to the mother’s bank account in anticipation of his half share of return flights for the child. The mother did not make any submissions contradicting that evidence.
Additionally, counsel for the applicant drew my attention to an email forwarded to my associate and the mother on the morning of the trial providing details of available flights to New Zealand from Tuesday, 25 October 2022 until Saturday, 12 November 2022. It was submitted the flight on a chosen date in 2022 was the cheapest flight available, the child should depart on that date and the mother should be responsible for payment of the flight because the father had already paid funds to her on 7 October 2022.
The mother, at the conclusion of her submissions, further submitted the child’s return should be delayed until the conclusion of the current school term so that the child would return to New Zealand in December 2022.
The issue of delay to a return order if no exception to return has been established, was considered in Director-General, Department of Communities, Child Safety and Disability Services & Pelt [2012] FamCA 343 and in particular the comments made at [58].
The facts of that case involved two children from New Zealand who had been brought to Australia by their mother, with the agreement of the father following the Christchurch earthquake in June 2011. The agreement between the parties was that the children travelled from New Zealand in July 2011 and were to return to New Zealand by January 2012. The mother reneged on that agreement and retained the children in Australia.
The eventual dispute between the parties was whether the children should be returned to New Zealand forthwith or whether, as submitted by the mother, the return should be delayed for a couple of months, to enable the children to complete their schooling. The immediate return of the children was ordered.
I do not intend to delay the return of the child to New Zealand as requested by the mother. There is no reason why the child could not immediately resume the school he attended prior to his retention in Australia, and intend doing so would provide him with an opportunity to resume his normal school routine and settle in, prior to the long summer holidays. Such an order complies with the mandatory nature of the obligation to return (reg 16(1)).
Neither party made submissions about whether the child should be accompanied or whether he was capable of flying as an unaccompanied minor. In the absence of submissions to the contrary, I assume the child is capable of flying to New Zealand as an unaccompanied minor.
I will make orders as submitted by the applicant providing for the child to be returned to New Zealand in late 2022 and for the mother to be responsible for the costs of the flight.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 26 October 2022
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