Department of Communities and Clementine

Case •

[2010] FamCA 746

•

12 August 2010

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES & CLEMENTINE [2010] FamCA 746
FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application by Central Authority for return of child to New Zealand – Whether a retention – Whether acquiescence – Order made for return of child
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Department of Health and Community Services v Casse (1995) FLC 92-629
Director-General, Department of Families and BW (2003) FLC 93-150
MW and Director-General of the Department of Community Services [2008] HCA 12
Panayotides and Panayotides (1997) FLC 92-733
In re H & Anor (Minors) (Abduction: Custody Rights) [1991] 2 AC 476
In re H (Minors) (Abduction:  Acquiescence) (1998) AC 72
ReP (A Child) (Abduction: Custody Rights) (2004) EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293
APPLICANT: Director-General, Department of Communities as State Central Authority
RESPONDENT: Ms Clementine
FILE NUMBER: BRC 5489 of 2010
DATE DELIVERED: 12 August 2010
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O’Reilly J
HEARING DATE: 6 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Parrott
Crown Law
COUNSEL FOR THE RESPONDENT: Mr Edwards
SOLICITOR FOR THE RESPONDENT: Bradley Munt and Co

Orders

IT IS ORDERED

  1. The child S born … June 2007 be returned to New Zealand.

  2. The provisions in Annexure A prepared by the applicant apply to effect the return.

  3. The applicant has liberty to apply for further machinery orders as may be necessary to facilitate and ensure the return of the child.

  4. Paragraphs 1, 2, 4 and 5 of the orders made by the Honourable Justice O’Reilly on 5 July 2010 are discharged.

  5. All other applications in the matter are dismissed. 

Annexure A

  1. That the said child leave the Commonwealth of Australia on or before 9 September 2010.

  2. That pending the said child, S born … June 2007, returning to New Zealand, the respondent mother, Ms CLEMENTINE, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said child from the Commonwealth of Australia.

  3. That pending the return of the said child, S born … June 2007 to New Zealand, the respondent mother, Ms CLEMENTINE born … 1984, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said child, S born … June 2007, from the premises where Ms CLEMENTINE and the said child are currently residing namely, …  QLD.

  4. That subject to sub-paragraph (e) 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 CLEMENTINE born …1984 and the said child S born … June 2007, on the All Ports Watch Alert System at all international departure points in Australia.

  5. That the said child S born … June 2007, and the respondent mother, Ms CLEMENTINE be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services, Department of Communities advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter.

  6. That 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 these orders.

  7. That to facilitate the return of the said child, S born … June 2007 to New Zealand, Ms T, Department of Communities or her nominee be at liberty to release to the Respondent all current passports relating to the child for the purposes of the said child's return to New Zealand; and release the respondent mother’s passport to her or her nominee upon request.

  8. That the respondent mother, Ms CLEMENTINE, pay all the necessary expenses associated with returning the child to New Zealand, including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane Airport to New Zealand, and in the event the Respondent mother fails or refuses to pay these expenses; the respondent mother pay to the applicant the necessary expenses incurred by or on behalf of the applicant and the father, in returning the child to New Zealand, within two business days of the applicant making a written demand for reimbursement of the said expenses, unless the respondent mother satisfies the applicant that she does not have the capacity to make such reimbursement.

IT IS NOTED that publication of this judgment under the pseudonym Department of Communities & Clementine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5489 of 2010

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES

Applicant

And

MS CLEMENTINE

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application by the Director-General, Department of Communities under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) made pursuant to the Hague Convention for an order pursuant to Reg 15 of the Regulations that the child S born in June 2007 now three years be returned to New Zealand.

Issues

  1. The Central Authority, on behalf of the child’s father, alleges that the child was retained in Australia by Ms Clementine, the mother, on 27 December 2009 or alternatively 11 January 2010.

  2. Mr Parrot, Solicitor, for the Central Authority, and Mr Edwards of Counsel, for the mother, agreed for the purpose of these proceedings, and it was common ground that:

    ·the child is under the age of 16 years (Reg 16(1A)(a))

    ·the child habitually resided in New Zealand immediately before the alleged retention (Reg 16(1A)(b))

    ·the father had rights of custody in relation to the child under New Zealand law immediately before the alleged retention (Reg 16 (1A)(c))

    ·the alleged retention is in breach of the father’s rights of custody (Reg 16(1A)(d))

    ·at the time of the alleged retention the father was actually exercising the rights of custody or would have exercised those rights but for the alleged retention (Reg 16(1A)(e)).

  1. Mr Edwards submitted that in the particular circumstances of the case the mother did not “retain” the child in Australia but rather the father unilaterally “abandoned” the mother and the child in Australia during a holiday here, returning to New Zealand alone without the mother and the child with the knowledge that the mother did not have sufficient money to return to New Zealand with the child, so that the Convention does not apply.

  2. Mr Edwards submitted in the alternative that if there was a retention the father acquiesced in it: Reg 16(3)(a)(ii).

The structure of the regulations

  1. Regulation 16(1) provides that if the Central Authority satisfies the Court that the child’s removal was wrongful the Court must, subject to Reg 16(3), order the child’s return.

  2. Regulation 16(1A) provides that a removal is wrongful if each of the matters referred to in Reg 16(1A)(a) to (e) is established.  The Central Authority carries the onus of proof in relation to the matters referred to in Reg 16(1A).

  3. Regulation 16(3) provides a discretion pursuant to which the Court may refuse to order the return of the children if the mother establishes a matter in Reg 16(3), relevantly in this case Reg 16(3)(a)(ii).  The mother carries the onus of proof in relation to those matters.

  4. However, proof of a matter under Reg 16(3) does not have the effect that, without more, the Court will refuse to order the child’s return.  The discretion in Reg 16(3) is “unconfined except in so far as the subject matter and the scope and purpose of the [Regulations] enable it to be said that a particular consideration is extraneous”.  De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 661, per the majority.

  5. Regulation 16(5) provides what is sometimes called “the residual discretion”, namely that the Court is not precluded from making an order for the child’s return only because a matter in Reg 16(3) is established by the mother.

  6. Thus, Reg 16(5) makes clear that, even if the mother discharges the onus on her to prove (relevantly) one of the matters in Reg 16(3), it is open to the Court nonetheless to order the child’s return.

Background facts and factual contentions

  1. The mother and the father were both born in New Zealand.  They commenced a de facto relationship in New Zealand in September 2006.  They remained living together during their relationship until they separated in Australia on 27 December 2009.  During the course of the relationship the mother and the father and S lived in New Zealand, where they own a home.  The father is a contract builder, the mother a full time mother.

  2. The father and the mother and the child travelled to Australia on 19 December 2009.  The father returned to New Zealand on 27 December 2009.  The mother and the child remained in Australia and are still here.  The mother gave birth in Australia to their second child O in May 2010. 

Father’s contentions

  1. The father contends that the father and the mother initially had planned to travel to Australia in July 2009 for a holiday of about one or two weeks.  They purchased one way tickets with Emirates Airways as they were uncertain of their return date.  As events transpired they did not travel to Australia in July 2009.  They had been in Australia in August/September 2009 for the purpose of his doing some work on the mother’s sister’s house, but the visit then was not with any view of relocating to Australia.  The mother’s sister had paid for the return tickets on that occasion.  Whilst it is true that from time to time he and the mother discussed relocating to Australia this was not something to which at any stage he had committed.

  2. They decided to have a holiday in Australia at Christmas 2009 to spend time with the mother’s extended family.  They travelled here on the unused Emirates tickets.  They did not book a return flight as they were uncertain how long they would stay.  The father however had arranged contract work in New Zealand with a building company to commence on 11 January 2010 which necessitated the family’s return to New Zealand by, at the latest, that date.  They completed the Australia Entry Card and, to the best of his recollection, they both specified that the purpose of entry was for a holiday and the length of stay would be about 13 days.  No objection was taken to this evidence on behalf of the father on the basis that it was documentary hearsay.  Indeed, if such had been taken, the inherent difficulty in obtaining such a document from the Australian Government may have led, if the matter had been argued, to the best evidence rule being applied.  However, as objection was not taken the point is moot.

  3. In Australia, the father and the mother and the child spent the time in regional New South Wales with the mother’s extended family.  On the morning of 27 December 2009 there was an argument between the father and the mother’s mother, the maternal grandmother.  The father said to the mother to pack her bags because they were leaving and going back to New Zealand that day.  The mother and the father then had an argument during which the mother told the father to “fuck off, go home, it’s all over.”  The father had about $120 on him, which he gave the mother.

  4. The father’s parents had paid for the one way Emirates tickets.  On 24 December 2009 the father’s mother (his father having since passed away) gave the father NZD1000 to pay for the return tickets to New Zealand for the father and the mother and the child, which money was banked to the father’s bank account on that same date for that purpose.

  5. The father says that he left regional New South Wales in the heat of the moment, travelled by train to Sydney and flew home to New Zealand.

  6. He says that between then and late March 2010 he tried to resolve matters with the mother and entice her to “come home” with the child to New Zealand.  They had several telephone and text communications in which he says he was insistent that she and the child return to New Zealand, but that she refused, saying that if he wanted to be in a relationship with her and the child he had to pack up in New Zealand and come to Australia but that, in any event, she did not want the father to live with her and the child in Australia.  He says he regularly tried to convince the mother to return to New Zealand with the child and told her he would pay for the air tickets.  The mother, however, wanted the money put into her account which he did not do because he did not trust her to use it to purchase air tickets.

  7. The father visited the mother and the child in Australia between 18 and 21 March 2010 to further convince the mother to return with the child.  He said he thought he had a better chance of achieving that result if he talked to her in person or face to face rather than by telephone or text.  The visit was unsuccessful.  He said as to the 18-21 March visit “Again, my attempts at convincing [the mother] to return home with [the child] proved fruitless.”  Soon after his return to New Zealand on 21 March 2010, indeed in April 2010 he sought legal advice which resulted in his application pursuant to the Convention and the commencement of these proceedings on 15 June 2010.  Even between his return to New Zealand, however, and the obtaining of legal advice in April, he sent two further texts to the mother requesting return of the child, the content of which I will set out below.

  8. His case is that he and the mother left New Zealand on 19 December 2009 for the purpose of a holiday.  After the argument, he left, and the mother, without his consent, has retained the child in Australia since then, and subsequently, despite his requests, she has refused to return the child to New Zealand.  The father’s case is best summarised in his affidavit filed 15 June 2010 par 21:

    21.[S] left […], New Zealand, with my permission and approval.  [The mother] and I and [the child] left as a family for the purpose of spending a period of time over the Christmas holidays in Australia.  [The mother] has retained [the child] in Australia without my consent.  I seek the return of the child to […] New Zealand.

The mother’s contentions

  1. The mother said that she and the father for some time had been keen on the idea of relocating to Australia and investigated this, including in relation to work opportunities for the father.  They had visited Australia in August/ September 2009 for the purpose of his doing some work on the mother’s sister’s house but the visit then was not with any view of relocating to Australia.  The sister had paid for the return tickets to Australia.

  2. When she and the father arrived with the child in Australia on 19 December 2009 they did not have return tickets because they were thinking of living in Australia permanently although the father knew he had to go back to New Zealand to finish some jobs for his employer.  They discussed ways for her and the child to stay in Australia until he came back here.  Also, money would be saved by her and the child not returning to New Zealand but staying here until he returned.

  3. She said that following the disagreement in regional New South Wales on 27 December 2009 the father returned to New Zealand leaving her and the child with about $80, no return tickets for herself and the child and no money for return tickets and he made no “immediate” demand for the child’s return. 

  4. In subsequent conversations she told him she and the child were going to Brisbane to stay with her mother and her sister and the father raised no objection.  Subsequently, she saw a photograph of the father and a former girlfriend on Facebook and told the father that if he wanted her and the child, and the child soon to be born, as a family, he would have to come to Australia and get a job here “as we had planned” to which he said “Okay, I’ll do that” and asked her to arrange telephone contacts for building jobs which she did.

  5. She said that although the father initially was keen for her and the child to return to New Zealand, that is, after 27 December 2009, he knew that she might be able to find work for him in Australia and he said he could not leave New Zealand for three months because of the contract work.  She told him she would need the help of her mother and her sister with the new baby, and had placed S in preschool, so she wanted to stay here until he could join them because moving back to New Zealand and then coming back to Australia would be too disruptive for the child and they would be better saving the money to use it for homewares in Australia. 

  6. She said the father agreed that was a good idea because they could use the baby bonus available in Australia to help rent a home, and the father knew it was a condition for receipt of the baby bonus that the mother continue to live in Australia.  She said she told him it was better for them to have the baby in Australia and settle here “as we had intended when we left New Zealand.”

  7. The father came to Australia between 18 and 21 March and, at her request, brought all of the child’s clothes (except ones she had grown out of) and her car seat, plus all of the mother’s maternity clothes and all of her shoes.  While he was here, he made no demand that the mother and the child return with him and “accepted” that she and the child would stay in Australia, the new child would be born here and that he would come over when he could and live and work here (mother’s affidavit filed 19 July 2010, par 16).

  8. She agreed that the father was to return to New Zealand by 11 January 2010 for his contract work, but they had discussed “the ways she and the child could stay here while he went back to New Zealand to finish his jobs there.”  She says when the father left Australia on 27 December 2009 he had told her she could not have any of the NZD1000 airfare money his mother had lent them.  She said however that during the argument on the morning of 27 December 2009 the father had “demanded I get up and book tickets for us all to go back to New Zealand that day”, and that she had said she would not do that so he packed his things and left.  He returned an hour later for his passport.  He rang an hour later from Sydney airport saying he had a ticket and was returning to New Zealand. She agreed that they had several telephone and text communications. She says however she told the father she needed time because she “needed time to get my head around what he had just done” and the father “was okay with that.”

  9. She agrees the father offered to help pay for the airfares for herself and the child to return to New Zealand and she said $500 would be enough for the two airfares but he had said “No.”  (The father, it will be recalled, said he offered to purchase the tickets but not give the mother the money for them as he did not trust her to use it to purchase air tickets.)

  10. She admits that during the 18-21 March 2010 visit the father asked her to return with the child to New Zealand but she “wanted to keep to our original agreement to move to Australia” (mother’s affidavit filed 19 July 2010, par 19; cf same affidavit, par 16). 

  11. Much of the mother’s material relates to parenting issues rather than matters relating to the Central Authority’s application.  It is not necessary to refer to such evidence.

  12. The mother’s case is best summarised in her affidavit filed 19 July 2010 in relation to the father’s par 21, the mother’s response to which was:

    21.  This is not true.  [The father] completely abandoned [S] and me in Australia and gave us no money upon which to live, let alone fly to New Zealand.  He changed his mind when he had been in New Zealand for a few days and did ask us to return but refused to supply any funds to allow us to do so.  He then changed his mind again, telling me to stay here so that we could get the baby bonus and asked me to help him get a job over here.

  1. I have mentioned the mother’s evidence that the father made no “immediate” demand for the child’s return.  In a subsequent affidavit filed 6 August 2010 however the mother admitted that the father had telephoned her from a railway station on his way to Sydney “demanding that I come with him” (plainly enough, with the child also).

  2. In her same affidavit (par 3 iv) the mother said, perhaps unwittingly, “…later in the year when we decided to come over to Australia for Christmas...” (emphasis added)

Father’s response to mother’s contentions

  1. The father said it is “absolutely untrue” that he and the mother went to Australia on 19 December 2009 with the intention of living there permanently.  They had talked about returning to New Zealand on Saturday 9 January 2010 in time for him to start work on Monday 11 January 2010.  There was no talk about the mother and the child staying on in Brisbane until he returned at a later date.  In the conversations after he returned to New Zealand he asked the mother to return to New Zealand with the child and the mother flatly refused.  When she told him that after the break in regional New South Wales she would go to Brisbane with her mother and sister he said “No, come back to New Zealand.”

  2. Subsequently when the mother was insistent that he would have to move to Australia he was “prepared for her to make inquiries about jobs in Australia”. He said for a period of time “we tried to work stuff out between us” and “I was open minded about going to Australia” but “I wanted her to come home first, to sort out our relationship, and for us to consider all our options from New Zealand.”  He said “I always asked her to return [S] home” and that the baby bonus benefit was the mother’s idea not his.  When he visited between18-21 March 2010 he took the mother’s maternity clothing and shoes at her request and he took the car seat and some familiar toys for the child.  The reason for taking the car seat was because of Australian laws and he was concerned about the child’s safety.

  3. He said they own their family home in New Zealand which has a mortgage.  They have two vehicles, household chattels and furniture there.  When they came to Australia for the holiday they did not close bank accounts.  They were to return as a family unit by no later than 11 January 2010.

  4. He denies that he abandoned the mother on 27 December 2009.  He said that on that date on his way to the airport he telephoned the mother asking her whether she wanted to work with him to sort out their lives and she kept saying “No, fuck off, go home, it’s all over”, and that he kept asking her if she wanted him to return to the house in regional New South Wales and she made it very clear that she did not want him there.

  5. He denied “changing his mind” and agreeing that the mother and the child would stay in Australia so that she could get the baby bonus, and denied agreeing that he would join her in Australia, these being discussions only.

Other evidence

  1. The maternal grandmother, the mother’s mother, said that on the morning of 27 December 2009 the father “stormed out”, threw $80 at her feet and said “[the mother] and [S] are your problem, I’m not interested in them.”

  2. During a telephone conversation in February 2010 the father acknowledged to her that the mother and the child and the unborn baby “were better in Australia because he could not afford to keep them”, made no suggestion that the mother and the child should return to New Zealand “before he was able to come over permanently” and acknowledged that the mother staying here would be good because of the baby bonus with a new child which would be a “great help to them to get started here.”

  3. She referred to several earlier conversations in mid 2009 about the father wanting to relocate to Australia to “make a fresh start” and spoke favourably of the family moving out to and living in Australia.  She concluded:

    10.I have no doubt at all that both before Christmas last year and after his return to New Zealand following the disagreement between him and [the mother], [the father’s] intention was to live and work in Australia, for [the mother] to have their new baby in Australia and to use the baby bonus as a stepping stone to help them get started.

  4. The father acknowledged that he may have said to the maternal grandmother that it might be better living in Australia but “I was not saying that I would necessarily do that.”

  5. He denied par 10 of the maternal grandmother’s affidavit.

  6. The paternal grandmother, the father’s mother, said that on 19 December 2009 she visited the father’s and the mother’s home to say goodbye and wish them a good holiday.  There was no mention of their not coming back.  She gave the child kisses and said “Have a good holiday, see you in a few weeks.” 

Extraneous documentary evidence

Text messages

  1. The mother relies on text messages sent by the father on 10 and 18 January 2010.  It is convenient to set them out in the context of the mother’s affidavit filed 6 August 2010:

    5.On 10.01.2010 he sent me a text message at 2.12 pm asking me to call him.

    6.The next text came at 16.01.10 at 1.34 am “Please pick up the ph or call me” followed by a further text at 1.52 am “Please call me […] we need to talk and sort it oot about [S] and us”.

    7.At 1.54 am he texted me “Please call “I can’t take much more I am getting help like u asked I have seen a councler like u wanted I love u both feel it’s only one way if you don’t love me or want to sort us out tell me and I wil leave u all alone and let u get on with your life” and at 1.57 am he texted me “if u want to live in Oz let me no ok”.

    8.To complete the series of texts of that morning he sent me a text at 2.06 am “please call my cell in the morning as I need to no what’s happening and how [S] is I love u both lots I would never sell [S] stuff […] I want us to be a family again” and at 2.52 am a text “I LOVE U I LOVE [S] REMEMBER THAT”.

    9.I received no further texts until18.01.10 at 7.20 am “Good morning […] I am sorry for every wrong doin I have done and the way I have treated and pain I must have caused you I wish I could turn back the clock but I can’t all I can do is keep telling u how sorry I am I still love u both but don’t know how much more of this I can take as miss u both very much I am trying to stay positive and I understand u need to blow off steam xxoo”.

    10.I did not text any reply to these texts.  I still have on my phone the texts that he sent me…

  2. The father relies on text messages he sent the mother on 27 March 2010 and 10 April 2010, which were after his 18-21 March 2010 visit.  These are:

    27/03/10 11.30 am

    Hay how r u [S] did u both have a good sleep hope [S] is feelin better  I miss u both please look at comin home I will pay for your tickets home it sux not been able to c [S]

    10/04/10 7.23 pm

    Hello just got home it was a lon day at Wk just got them paintings that [S] and I did thank u it made me cry I miss and love [S] so much please bring her home […].

Facebook entries

  1. The following Facebook entries by the mother seem relevant.

    22 February 2010

    …i have made the decision to stay in aussie…

    27 February 2010

    …was just ment 2 have extended holiday after [the father] abandened us at lest till fares were cheap…

Approach to the evidence

  1. I will turn now to the authorities as to the approach I am required to take in relation to this matter, with particular regard to the recent decision of the High Court of Australia in MW and Director-General of the Department of Community Services [2008] HCA 12, 28 March 2008. In that case, the majority (Gummow, Heydon and Crennan JJ) at [36]-[50] made powerful observation as to the task of a judge in determining matters arising under the Convention involving disputed matters of fact. In particular, their Honours said that although the Family Court of Australia, in Hague Convention matters, is required to act promptly “Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another”. See at [49]. Their Honours said that although in some past cases the despatch of Hague Convention matters has been described as a “summary procedure”, or to be dealt with “in a summary manner”, such references are “apt to mislead”, and cautioned against “inadequate, albeit prompt, disposition of return applications”. See also at [49]. Specifically, their Honours said that, if necessary, even “at the initiative of the Family Court itself”, proceedings may be required to be adjourned for the “prompt provision of more adequate affidavit evidence”: [44]; and that although cross-examination in interlocutory applications generally is not to be encouraged, an application under Reg 16 is a “special type of proceeding” which is “apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country”: [44]; [46]. Their Honours were critical of any “textual analysis” of affidavit material, at first instance, in cases where adjournment of a matter may allow the provision of more adequate affidavit material, or cross-examination: [44].

  2. At the hearing, neither Mr Parrott, for the Central Authority, nor Mr Edwards for the mother, sought to cross-examine each other’s deponents, despite opportunity to do so. 

  3. The matter thus falls to be determined on the papers.

  4. In Panayotides and Panayotides (1997) FLC 92-733 at 83,897 the Full Court of the Family Court of Australia (by implication) approved the following approach, where there is conflict in the evidence in Convention proceedings, and where usually issues must be determined on the papers, namely that it is appropriate (1) to look at the versions of each party; (2) to find the common ground; (3) to note the areas of conflict; (4) to look to the inherent probabilities; and (5) concerning the intent of the parties, where this is a matter of some conjecture, to look at the conduct of the parties and to any documentary or corroborative evidence which may help to determine that issue.

  5. In ReP (A Child) (Abduction: Custody Rights) (2004) EWCA Civ 971; 2004 All ER (D) 520; 2005 Fam 293, the English Court of Appeal said, as to the proper approach in resolving disputed matters of fact in Convention matters:

    20 The law is well settled.  In In reF (A Minor) (Child Abduction) [1992] 1 FLR 548, 553-554 Butler-Sloss LJ said:

    If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence?  It may turn out not to be crucial to the decision, thus not requiring a determination.  If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side.  That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent.  Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it.  If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case. (emphasis added)

    In ReF (A Minor) (Child Abduction): (Custody Rights Abroad) [1995] Fam 224, 232 she added:

    Admission of oral evidence in Convention cases should be allowed sparingly.  If the issues between the parties cannot be resolved on affidavit the article 13(b) criteria will not have been established.  The child is returned pursuant to article 12 and it will be for the court of habitual residence to determine the disputed issues with the opportunity to hear oral evidence and the parties cross-examined.  (emphasis added)

Was there a retention? 

  1. Mr Edwards submitted that “retain” is an active verb and the mother took no action.  He submitted that there was no retention, rather, the mother and the child were abandoned in Australia by the father who chose to fly alone to New Zealand without them and in the knowledge that the mother did not have money for return air tickets for herself and the child to New Zealand.

  2. I do not accept this submission. 

  3. In my view, there is a “retention” within the meaning of the Convention as soon as there is the expiry of any agreed period of time outside the State of the child’s habitual residence and the child is not returned to that State at the expiry of that time:  In re H & Anor (Minors)(Abduction: Custody Rights) [1991] 2 AC 476 (HL) at 500B-C, discussed in Director-General, Department of Families and BW (2003) FLC 93-150, which I will set out.

    31.Reg (3)(2) defines ``retention of a child'' by reference to a breach of the rights of custody of a person, actually exercised at the time of the retention, or which would have been exercised but for the retention.

    32. The effect of the definition is that there can be no retention until there is an actual breach of another's rights of custody. Significantly, reg 3(2) does not speak of threatened retention, but of actual retention.

    33. Where a child is taken to another country for an agreed period of time, it would appear that there can be no retention until the expiry of that period of time. In Murray v Director, Family Services, ACT (1993) FLC ¶92-416 (FC) Nicholson CJ and Fogarty J (with whom Finn J agreed) at 80,252-80,253 accepted the submission of the Solicitor-General for the Commonwealth that ``removal'' and ``retention'' are alternative and discrete events. Their Honours referred with approval to the speech of Lord Brandon in Re H & Anor (Minors) [1991] 2 AC 476 (HL) at 500B-C:

    ``... For the purposes of the Convention, removal occurs when a child, which has previously been in the state of its habitual residence, is taken away across the frontier of that state, whereas retention occurs where a child, which has previously been for a limited period of time outside the state of its habitual residence, is not returned to that state on the expiry of such limited period...''

    34. The Full Court in Murray went on to observe at 80,253 that the Travaux Preparatoires to the Convention, para 108, provided:

    ``... The fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of its habitual residence.''

    35. However, in Murray, the Full Court was not expressly dealing with the question of whether retention may occur otherwise than by a failure to return a child upon the expiry of an agreed period.

    36. In Artso and Artso (1995) FLC ¶92-566 Mushin J said at 81,638:

    ``... At the moment that the husband refused the wife permission to return the children to their country of habitual residence, he was wrongfully retaining them contrary to the provisions of the Convention.''

    37. However, as I read that decision, it is not authority for the proposition that, where a child is taken to another country for an agreed period of time, retention can occur on the date on which the parent with the child in the other country threatens not to return the child at the end of the agreed period of time. Mushin J's statement must be read in the context of the facts of that case. The habitual residence of the children was England. The husband and the wife came with the children to Australia on the basis of an agreement that they would stay for at least one year (father's version) or that they would stay for up to one year (mother's version). Shortly after the arrival in Australia the parents separated and the mother decided that she wished to take the children back to England. The father refused permission. Mushin J preferred the mother's version of the agreement, deciding that the father's refusal amounted to a retention. Alternatively, he found that if the father's version of the agreement was correct, the moment the marriage broke down the agreement between the parties was at an end. It was in this context that Mushin J made the observation set out above. Mushin J was not in that case dealing with the circumstance of a child taken out of a country of habitual residence for an agreed (in the sense of fixed) period of time. Thus, the date of the refusal to permit return to the country of habitual residence was found by Mushin J to be the date of retention, because there had been no actual fixed or agreed date of return.

    38. There is no reason in this case, nor authority to support the proposition, that the Court should find that the retention occurred on the date on which the mother told the father that she would not return the child. According to the agreement, the child was not due to be returned until 20 January 2002. Despite the mother's earlier threats, she was entitled to retain the child until 20 January 2002. There was therefore no wrongful retention until 21 January 2002.

    39. It follows that the Director-General has proved, and I find, that the date of retention was 21 January 2002, being the day following the agreed date for the return of the child.

  4. I accept, thus, the submission of the central authority (written submissions par 33) that:

    33.  In summary, a retention can occur:

    (a)when the child comes to another country for a limited period of time, at the end of that limited period, without further demand;  and/or

    (b)when the child leaves the country of its habitual place of residence to go to another country temporarily, when a demand for the return of that child is made.

  5. I find, on all of the evidence, that the mother and the father had agreed to visit Australia for a holiday between 19 December 2009 and at the latest 11 January 2010 and that they would return to New Zealand as a family unit by that date. 

  6. The circumstance that they did not as at 19 December 2010 have prepaid return tickets is satisfactorily explained on the father’s evidence, which I accept.  He had, however, arranged money for the return tickets, which was in his bank account by 24 December 2009.  The mother’s case that their arrival on 19 December 2009 was pursuant to an agreement made between the father and her that she and the child would remain in Australia by way of permanent relocation with the father to follow as soon as his work commitments in New Zealand were completed is implausible and inherently improbable on the evidence and inconsistent with the circumstance that there is no evidence that they had made arrangements even for the mother’s and the child’s clothing and personal effects to come to Australia for any such purpose, nor made plans in relation to their home, vehicles and chattels in New Zealand.  On the contrary, even the mother’s maternity clothes, she being pregnant, and her shoes were left in New Zealand, as were the child’s car seat and familiar toys.  The absence of evidence that any arrangements for transit of such items were in place as at 19 December 2009 is inconsistent with the mother’s contention that as at that date there was a planned permanent relocation by the mother and the child with the father soon to follow.

  7. Moreover one would expect that if such agreement had been in place the paternal grandmother would have known about it, and would not have said to the child on 19 December 2009 “see you in a few weeks.” 

  8. The destination in Australia was regional New South Wales, whereas the mother and her sister live near Brisbane, in a different State altogether.  It appears that the mother’s mother also was on the holiday in regional New South Wales.  In all respects, it was a holiday destination, with no plans, as I find, that the mother and the child on conclusion of the holiday to come to live with the mother’s mother near Brisbane, nor any suggestion that the mother’s mother would move to regional New South Wales or, indeed, that the mother and the child would stay in regional New South Wales.

  1. The mother’s own evidence is telling, in her affidavit filed 6 August 2010 (par 3 iv) to which I will again refer “…later in the year we decided to come over to Australia for Christmas…”. (emphasis added)

  2. Whilst it is plain that from time to time throughout 2009 the mother and the father discussed relocating to Australia there is no suggestion by the mother that on 27 December 2009 when the father demanded that she return to New Zealand with him on that day (her affidavit filed 6 August 2010 par 3 ii) that she said to the effect “Why would I do that?  We have agreed that I am staying here.”  Moreover, her Facebook entry 22 February 2010 records as I have said “i have made the decision to stay in aussie” which indicates a unilateral decision not a prior agreement with the father.  Further her entry 27 February 2010 “was just ment 2 have extended holiday after [the father] abandened us at lest till fares were cheap” seems to be an admission by her that indeed the departure from New Zealand and arrival in Australia were for the purpose of a holiday.

  3. The position is thus not only that on all of the evidence the mother’s case that there was an agreement for herself and the child to relocate to Australia permanently as at 19 December 2009 is implausible and inherently improbable such that I am entitled to reject it (Panayotides, above), but also the disputed non oral evidence of the father and the mother is such that the independent extraneous evidence supports the father’s case that the purpose of the travel was a holiday in Australia, such that the family unit was to return to New Zealand by no later than 11 January 2010, and inconsistent with the mother’s case of an agreed permanent relocation by her and the child then with the father to follow shortly afterwards.

  4. Mr Parrott submitted that because the mother and the father did not have a specific date fixed for the return to New Zealand it is open to me to find that the retention occurred on 27 December 2009, being the date of the father’s demand that the mother return the child to New Zealand and the date of her refusal to do so.  Whilst this finding arguably is open on the evidence the circumstance that the parties had an agreed finite date 11 January 2010 causes me to prefer to view the case as one in which the retention occurred on that date.

  5. Accordingly, I find on the evidence that the mother retained the child in Australia on 11 January 2010, that being the expiry of the limited period of time the parties agreed that the child would be out of the State of her habitual residence:  BW above [at 32].

Acquiescence

Principles

  1. In Department of Health and Community Services v Casse (1995) FLC 92-629 at 82, 311, Kay J said:

    …In my view there cannot be true acquiescence where the parties are in a state of confusion and emotional turmoil (as identified by Stewart-Smith LJ in Re: A (Abduction:  Custody Rights) (1992) Fam 106 at 121.

    Being hopeful of a reconciliation in this case the husband was prepared to pamper the wife’s demands over the weeks following 27 March.  The wife’s counsel was unable to point to any conduct on his behalf after that time which could clearly and unequivocally amount to an acquiescence by him…

  2. In In re H (Minors) (Abduction:  Acquiescence) (1998) AC 72, Lord Browne-Wilkinson, with agreement by their other lordships, said at 87-90:

    …The authorities disclose a variety of approaches to the meaning of the word "acquiescence" in article 13 of the Convention and it is desirable that your Lordships should attempt to state the principles to be adopted. There are three related questions which have to be considered, viz.: (1) Does "acquiescence" in article 13 connote the actual state of mind of the wronged parent or the state of his mind as it is perceived to be by the other parent having regard only to the outward behaviour of the wronged parent? (2) Is acquiescence a question of fact or of law? (3) If acquiescence is a subjective question of fact, are there circumstances in which the wronged parent is precluded from demonstrating his true intentions?

    Is acquiescence subjective or objective?

    In English law, the concept of acquiescence occurs in many different contexts: waiver, election, laches, estoppel, etc. As Hoffmann L.J. demonstrated in In re S. (Minors) (Abduction: Acquiescence) [1995] 1 F.L.R. 716 , what constitutes acquiescence under English law varies according to the context in which it is found. …

    In my view these English law concepts have no direct application to the proper construction of article 13 of the Convention. …

    What then does article 13 mean by "acquiescence?" In my view, article 13 is looking to the subjective state of mind of the wronged parent. Has he in fact consented to the continued presence of the children in the jurisdiction to which they have been abducted? This is the approach adopted by Neill L.J. in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819 and by Millett L.J. in In re R. (Child Abduction: Acquiescence) [1995] 1 F.L.R. 716. In my judgment it accords with the ordinary meaning of the word "acquiescence" in this context. In ordinary litigation between two parties it is the facts known to both parties which are relevant. But in ordinary speech a person would not be said to have consented or acquiesced if that was not in fact his state of mind whether communicated or not.

    I am encouraged to find that this is also the view reflected in decisions in other jurisdictions. In the French Cour de Cassation Case no. 228 of 16 July 1992, X v. X, Bulletin des arrêts de la Cour de Cassation, Chambres Civiles, p. 151 the court, whilst accepting that acquiescence could be inferred from conduct, held that acquiescence could not be inferred simply from the wronged parent having concurred in a temporary arrangement with a view to arriving at an amicable solution: the court was looking to the actual intention of the parent. The District Court of Massachusetts in Wanninger v. Wanninger (1994) 850 F.Supp. 78 concentrated on the actual intention of the wronged German parent despite his visiting the mother in the United States (to which the children had been abducted) to seek a reconciliation. In Friedrich v. Friedrich (1996) 78 F.3d 1060 the Court of Appeals of the Sixth Circuit adopted a similar approach.

    In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world's perception of his intentions.

    Is acquiescence a question of fact or law?

    Once it is established that the question of acquiescence depends upon the subjective intentions of the wronged parent, it is clear that the question is a pure question of fact to be determined by the trial judge on the, perhaps limited, material before him.

    In the process of this fact-finding operation, the judge, as a matter of ordinary judicial common sense, is likely to attach more weight to the express words or conduct of the wronged parent than to his subsequent evidence as to his state of mind. In reaching conclusions of fact, judges always, and rightly, pay more attention to outward conduct than to possibly self-serving evidence of undisclosed intentions. But in so doing the judge is finding the actual facts. He can infer the actual subjective intention from the outward and visible acts of the wronged parents. That is quite a different matter from imputing to the wronged parent an intention which he did not, in fact, possess.

    Although each case will depend on its own circumstances, I would suggest judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child. The Convention places weight on the desirability of negotiating a voluntary return of the child: see article 7(c) and article 10 . I disagree with the footnote to the judgment of Waite L.J. if it is intended to provide guidance to judges in their fact-finding role. Attempts to produce a resolution of problems by negotiation or through religious or other advisers do not, to my mind, normally connote an intention to accept the status quo if those attempts fail. It is for the judge, in all the circumstances of the case, to attach such weight as he thinks fit to such factors in reaching his finding as to the state of mind of the wronged parent. This was the approach adopted by the French Cour de Cassation in the case, X v. X, to which I have referred.

    Finally, it should always be borne in mind that under article 13 the burden of proving that the wronged parent has consented to or acquiesced in the abduction is on the abducting parent who is resisting the summary return of the child. This placing of the burden of proof on the abducting parent is designed to ensure that the underlying purpose of the Convention is carried out, viz., the child is to be summarily returned to its country of habitual residence unless the abductor can prove that the other parent has in effect consented to the removal of the child.

    The exception

    It is a feature of all developed systems of law that there are circumstances in which one party, A, has so conducted himself as to mislead the other party, B, as to the true state of the facts. In such a case A is not allowed subsequently to assert the true facts as against B. In English law, this is typically represented by the law of estoppel but I am not suggesting that the rules of English law as to estoppel should be imported into the Convention. What is important is the general principle to be found in all developed systems of law.

    It follows that there may be cases in which the wronged parent has so conducted himself as to lead the abducting parent to believe that the wronged parent is not going to insist on the summary return of the child. Thus the wronged parent may sign a formal agreement that the child is to remain in the country to which he has been abducted. Again, he may take an active part in proceedings in the country to which the child has been abducted to determine the long-term future of the child. No developed system of justice would permit the wronged parent in such circumstances to go back on the stance which he has, to the knowledge of the other parent, unequivocally adopted: to do so would be unjust.

    Therefore in my judgment there are cases (of which In re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 F.L.R. 682 is one) in which the wronged parent, knowing of his rights, has so conducted himself vis-à-vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children. However, in my judgment these will be strictly exceptional cases. In the ordinary case behaviour of that kind will be likely to lead the judge to a finding that the actual intention of the wronged parent was indeed to acquiesce in the wrongful removal. It is only in cases where the judge is satisfied that the wronged parent did not, in fact, acquiesce but his outward behaviour demonstrated the contrary that this exceptional case arises.

    My Lords, in my judgment these exceptional circumstances can only arise where the words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child: they must be wholly inconsistent with a request for the summary return of the child. Such clear and unequivocal conduct is not normally to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children. Still less is it to be found in a request for access showing the wronged parent's desire to preserve contact with the child, in negotiations for the voluntary return of the child, or in the parent pursuing the dictates of his religious beliefs.

    …The important factor to emphasise is that the wronged parent who has in fact never acquiesced is not to lose his right to the summary return of his children except by words or actions which unequivocally demonstrate that he was not insisting on the summary return of the child.

    Summary

    To bring these strands together, in my view the applicable principles are as follows. (1) For the purposes of article 13 of the Convention, the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind. As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819, 838: "the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact." (2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. (3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. (4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced. (emphasis added)

The submissions

  1. Mr Edwards submitted that once acquiescence is demonstrated, it cannot subsequently be retracted.  I accept that submission. 

  2. He relied on four categories of evidence as amounting to acquiescence.

  3. First, the father’s conduct in leaving Australia and leaving the child behind with the mother knowing that the mother had said she would not return with the child to New Zealand was an act of acquiescence.  This was no “heat of the moment” decision because although he left regional New South Wales in the heat of the moment he had time to “cool down” on the train trip from regional New South Wales to Sydney, some 100 kilometres, and indeed also at Sydney airport before purchasing his tickets to New Zealand and departing Australia.

  4. Secondly, the father’s text messages 10 and 18 January 2010, in particular:

    10/01/10 1.54 am (NZ time)

    if u don’t love or want to sort us out tell me and I will leave u all alone and let u get on with your life.

    10/01/10 1.57 am (NZ time)

    if u want to live in Oz let me no ok.

  5. It was put that in the text message 18 January 2010 earlier set out, the acquiescence shown in the two text messages 10 January 2010 had not been “retracted” and that if the two text messages 10 January 2010 had been in the heat of the moment there had been a long time for that to quell between then and 18 January 2010.

  6. Thirdly, the father’s non provision of return air tickets to the mother or money for her to purchase tickets amounted to acquiescence;  and even if the father did not want to give her money for the tickets for the reason he stated, he could have provided pre purchased tickets to her.  Further, his demands for the mother to return with the child to New Zealand were “empty demands” because after purchasing his own return ticket on 20 December 2010 which cost $375, and other charges shown on his bank statement, there was insufficient for him to purchase tickets for the mother and the child.  (This submission was shown during argument to be unfounded, the mother, herself, asserting that one way tickets for herself and the child would have cost less than $500, presumably by advance purchase).

  7. Fourthly, in March 2010 the father brought to Australia clothes and shoes for the mother and the child’s car seat and toys.

  8. Mr Parrott submitted as to these matters (1) that the father’s conduct in leaving Australia on 27 December 2009 cannot amount to acquiescence because on the same day he demanded that the mother and the child go with him, and telephoned from the railway station on the same day repeating the same demand, such that he cannot be interpreted as consenting on that day to the continued presence of the child in Australia, and that in any event the circumstances of his departure, both from regional New South Wales, and then Sydney, on that day were emotional; (2) that the text messages 10 January 2010 in their full context not only were in the early hours of the morning but plainly demonstrated emotional turmoil and a “wronged parent” trying to arrive at an amicable solution; (3) that I should accept the father’s evidence that he was not prepared to give money to the mother to purchase air tickets because he did not trust her to use the money for that purpose, and that inferentially there was no point in his purchasing air tickets for the mother and the child because she said she would not return; and (4) that I should accept the father’s evidence as to the reason why in March 2010 he brought the mother’s maternity clothes and shoes to Australia and the child’s car seat and toys and, moreover, his evidence that his failure on that visit to convince the mother to return to New Zealand with the child led then to his final realisation or conclusion that his own efforts to negotiate with the mother to convince her to return to New Zealand were now fruitless such that promptly he then sought legal advice in April 2010 to institute these proceedings, having in the meantime sent, as a last effort, the two emails 27 March and 10 April 2010.

Finding

  1. I accept Mr Parrott’s submissions as to these matters. 

  2. Further, I accept Mr Parrott’s submissions (written submissions par 102):

    102.It is submitted that on any view of the evidence it is not open to find that the words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child from the first demand for the return of the child on 27 December 2009, to the ongoing telephone calls and text messages, to the bringing of this application.

  3. In this vein it is plain to me, on the evidence, that for the full period 27 December 2009 until 21 March 2010 when the father concluded it was fruitless for him to continue to negotiate with the mother, repeatedly he asked her to return with the child to New Zealand and was met with refusal, such that his last resort has become this application.  The father’s many demands to the mother to return the child, even on her own affidavit evidence, show that it is not possible for her to have concluded, at any stage, that he acquiesced in fact to her retention of the child in Australia or that he led her to believe that he would not assert his right to summary return of the child (the “exception” referred to in In re H).  In particular in this regard I would refer to the mother’s evidence that “initially” the father was keen to have her return with the child to New Zealand and that even after she had placed the child in preschool she told him it would be “too disruptive” for the child to return to New Zealand inferring that she was well aware he was continuing to insist that such occur whereas she was continuing to insist that they would be better off if he moved to Australia.  The mother’s evidence thus announced a concession as to the father’s continued requests to return the child to New Zealand.

  4. On all of the evidence, I am unable to identify any conduct on the part of the father amounting subjectively to acquiescence, nor to any circumstance that such can be inferred from his conduct, nor that there were any circumstances of words or actions that could have led the mother to believe that he was not continuing to assert his right to have the child returned to New Zealand (the “exception”).  In particular, this is a case in which the caution stated by Lord Browne-Wilkinson in  In re H is apt:

    Although each case will depend on its own circumstances I would suggest judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child.

  1. In my view, the expression “heat of the moment” is not a literal but descriptive expression.  It is plain that the mother and the father were in emotional turmoil in the circumstances of their separation on 27 December 2009 being utterly unexpected when they travelled to Australia on 19 December 2009 for a happy Christmas holiday time with the mother’s extended family, and that the father’s communications show continued emotional turmoil until the date of this application, in the manner already described, in the context of efforts of reconciliation or resolution of the dispute without recourse to the Court.

Conclusion

  1. The mother has failed to discharge the onus on her of proving that the father acquiesced in her retention of the child in Australia.

  2. Accordingly, the child must be returned to New Zealand and I will so order.

  3. After the child’s return to New Zealand, it will be a matter for the mother to apply to the courts in New Zealand if she wishes to relocate to Australia with the child or, indeed, now the two children. 

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:     

Date:              25 August 2010

Actions
Download as PDF Download as Word Document