Department Of Communities and Compton

[2010] FamCA 711

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES & COMPTON [2010] FamCA 711

FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Application on behalf of the father by the Director-General of the Department of Communities for the return of the child to New Zealand pursuant to the Hague Convention – Where the child is subject to joint guardianship of the mother and the father pursuant to section 17(3) of the Care of Children Act – Whether the father consented to the removal of the child from his habitual place of residence to Australia – Where evidence of Facebook communications between the parents clearly and unequivocally indicated that the child is to stay with the mother – No wrongful retention of the child – Application dismissed.

Care of Children Act 2004

M v M (2005) NZFLR 67

Re K (abduction:  consent)  [1997] 2 FRL 212.

APPLICANT: Director-General, Department of Communities as State Central Authority

RESPONDENT: Ms Compton

FILE NUMBER: BRC 4226 of 2010

DATE DELIVERED: 6 AUGUST 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: BELL J

HEARING DATE: 20 JULY 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MR PARROTT

COUNSEL FOR THE RESPONDENT: MR MCGREGOR

SOLICITOR FOR THE RESPONDENT: Ms D.A. Hewitt, Solicitor, of Bridges Family Law Specialists

Orders

1. That paragraphs 1, 2, 4 and 5 of the Minutes of Consent of the orders of the Honourable Justice Murphy made 17 May 2010 be discharged forthwith.

2. That Ms T, Department of Communities or her nominee be at liberty to release any passports held in relation to the child D born … August 1994 and the Respondent Mother to the Respondent Mother Ms Compton or her nominee.

3. That all other Applications be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4226  of 2010

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES 

Applicant

And

MS COMPTON

Respondent

REASONS FOR JUDGMENT

1. The Director-General, Department of Communities, is the Applicant in this matter.  D, who was born in August 1994 is the subject child and the mother is Ms Compton.  The Father, Mr H, the Applicant, seeks through the Authority an order for the return of the aforesaid child to New Zealand and relies upon the provisions of the Hague Convention.

2. As is usual, I have had supplied by Mr Parrott of the Applicant, Director-General, a full and in-depth case summation in which he sets out the various powers of this Court under the terms of the Hague Convention and regulations therein and submits the following that the child is subject to joint guardianship of the mother and the father pursuant to the provisions of the Care of Children Act 2004. 

3. Section 17 of that Act inter alia says:

   Child’s father and mother usually joint guardians

   (3)If a child is conceived before the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither:

   (a)married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child;  nor

   (b)living with the father of the child as a de factor partner at the time the child was born.

4. It appears, and it is not controverted, that the father and the mother were living in a de facto relationship between 1990 to 1996.  The child was born in August 1994.  He is the child of that relationship and the father is, as I find, a joint guardian pursuant to section 17(3) of the Care of Children Act.  As guardians, the father and the mother have the duties, powers, rights and responsibility of a guardian which include the right to make decisions regarding the important matters affecting the child – see section 16 of the Care of the Children Act 2004 which also includes the changes to the child’s place of residence.

5. It would appear quite clearly, and I do not believe that McGregor of Counsel on behalf of the mother has taken any point to the contrary, that the duties, rights, powers and responsibilities referred to here and before come within the definition of rights of custody.  Consequently, the father would prima facie have a right of custody to the child.  This appears to be further enforced by an Order made at the Family Court of New Zealand on 22 March 2004 when the father was given the care of the child at all such times other than specified holiday times.

6. It is submitted by Parrott that the father, therefore, had the right to determine the child’s place of residence at all relevant times.  The Consent Order is Annexure A to the Application Initiating Proceedings.  I must confess that I am somewhat confused as to this Order and I incorporate the Order made in the Family Court of New Zealand on 30 August 1994 and it says inter alia:

   (a)With the exception of the Christmas school holidays [the mother] will care for [the child] during each school holiday from the first Saturday following the end of the school term until the Friday of the second week of the holidays.

   (b)The Christmas holiday arrangements will alternate between [the mother] and [the father].

7. Thereafter there were further orders for care of the child for weekends, Christmas and the Order appears to have a sunset provision in that there is no further order in relation to any times other than Christmas holidays after 2006.  Sub-order (e) indicates as follows:

   (e)The following Christmas holidays will alternate between the parties as set out above.

   And this is blank.  The costs of transport were to be shared and the final order:

   (g)[The child] will be in [the father’s] care at all other times.

8. “Care” does not seem to be a word which is used in the Care of Children Act 2004.  I therefore, as I have said and indicated, am somewhat at a loss as to understand how it can be submitted by Mr Parrott that the father has the right to determine residence (supported as he is by the opinion of an affidavit of Paul Reid dated 15 April 2010 and is, as I understand, annexed to the application – see at page 56.  Mr Reid, a Barrister and Solicitor of the High Court of New Zealand sets out that he is a Barrister and Solicitor practising as a partner of a firm in New Zealand.  He has had 15 years experience practising law and he is conversant with the principles of New Zealand Law in relation to guardianship and the care of children).

9. I note that he refers to guardianship and the care of children as two separate headings.  I say in passing that nowhere is it suggested by anybody that this Court has other than jurisdiction to return the child, should all the necessary matters be found, to New Zealand.  I need not go into any of the law relative to that in detail.  Mr Reid’s opinion becomes, insofar as the question of guardianship is concerned, pertinent as at paragraph 13 wherein in his view he is quite clear that section 17 of the Care of Children Act 2004indicates that the mother and the father are usually joint guardians.

10. There must, in my opinion, therefore be some intervention by a Court or some other means (e.g. Consent) whereby the joint guardianship of the parties is severed.  Reid seems to agree in paragraph 16 that the father and the mother are joint guardians of D under section 17(1) of the Act but at paragraph 18 of that opinion, he indicates that in his opinion:

    It is clear from section 16 of the Act that, as [D’s] guardian, [the father] has the right to determine his place of residence (section 16(1)(c) and section 16(2)(b)).  As such, under New Zealand law, [the father] has rights of custody in respect of [the child] under section 97(b) of the Act.

11. I do not think at any time has it been submitted by McGregor of Counsel for the mother that the father does not have rights of custody and being a joint guardian I would have thought that that is the case.  At paragraph 21 of his opinion he says:

    As such, my opinion is that [the father] was exercising his rights of custody at the time of retention in Australia.

12. As a result of what has fallen from there, and I think it was conceded by McGregor, the question of right of custody is not concerning for the Court.  It is conceded that the father has a right of custody and that if other matters are shown he has the right to have the child returned to New Zealand. 

13. What are the facts?  It appears that it is not contradicted that it was by consent that the child came to Australia for the purpose of annual holidays in or about mid-December 2009 for an agreed period.  It was the agreement, and this is once again not in dispute, that the child would spend one half of the school holidays with his mother and that it was expected he would return to New Zealand in or about mid-January 2010.

14. But in or about January 2010, the mother was contacted by the father and who indicated that he was upset and shocked and had found that the child had been selling family items and smoking cannabis.  This caused him a degree of concern, and as appears from the mother’s allegations, it was indicated by the father that the child, she says, should live with her indefinitely.  The father indicates that it was for only a period.  I must make it clear that insofar as the transcripts of Facebook communications, which is “HMG2” to the affidavit of the mother filed 14 July 2010, appears to me to support what is alleged by the mother.

15. In particular I refer to the transcripts of communications dated 26 January at 12:24 in which:

    “This is [the father] here now!, stop talking to my wife in that manner!  You don’t know what [D] has been doing here for you to judge our decision not to have him back in our house anymore (my underlining).  You need to ask him the reasons why, for which he will probably lie to you as he has been doing to us here. 

    Up to a week ago we always intended to have him back until we received information about his drug dealings, and the consistant stealing and selling of family property to fund this problem. 

    And as for his education, due to his constant bad behaviour in his classes throughout the year we have had to save his ass many times or they were going to fail him.  In the end “he” has to make the right choices. 

    Maybe aussie will be the right place for him to be at this stage of his life, away from the bad peers influencing his choices.  He is a follower and not a leader. 

    To get his school information his new school will contact his old school, that is usually how it goes. 

    As for who [D] is in contact with, that is a choice that he must make without any influence. 

    Contact referring to [D] will be strictly between you and I.

16. This was, once again, reinforced by words very similar in a further Facebook which was dated 26 January 13:02.  From those Facebook communications, it appears to me that it cannot be argued that the following is an interpretation of it:

    (1)They had intended to have him back (after the school holidays) until they received information about his drug dealings.

    (2)The father did not want the child back in his house any more.

    (3)They recognised that he was to be enrolled at a school here in Australia and they informed the Mother that in their opinion the new school would contact his old school.

17. It appears to me totally unequivocal that the father wanted the child to remain in Australia for an indefinite period.  The mother, as I understand however, says that in her view the father has indicated that the child was to remain there indefinitely.  The father denies this in his affidavit and says that he did initially indicate that he wanted the child to stay in Australia because he was hurt and confused concerning the cannabis matter.  However, on or about 10 February 2010, and this looms large, he again contacted the mother and asked that the child be returned to New Zealand in March 2010.

18. The mother, at that stage, refused to do so and this is the date alleged by the father as to the date of retention in Australia and a wrongful retention.  A matter which I consider is of primary importance in this application is to decide whether in fact, the father, Mr H, consented to the removal of the child from his habitual place of residence to Australia.  It is quite clear on the evidence before me, and it is not cavilled with by the father, that he did consent to the child being removed from New Zealand to Australia but that he says that the removal being with his consent that he impliedly retained the right to demand the return of the child at such a time when he desired.

19. The question of credit has not, to any great extent, been raised in this matter insofar as the relevant regulation is concerned I refer to Regulation 16(3)(a)(ii) in that it applies to where a person has consented to and/or subsequently acquiesced to the children being removed to Australia.

20. It cannot be argued by the father that he other than consented to the child being removed for the purposes of, initially as he says, for Christmas holidays.

21. Thereafter it is not and cannot be in dispute taking into consideration those matters to which I have referred to in “HMG2” that in fact he acquiesced in the child remaining in Australia for a longer period.  I refer to page 37 of the submissions of Mr Parrott when he refers to M v M (2005) NZFLR 67 where Somerville J sets out, which Parrott considers is a useful summary, of a recent decision in relation to this.  It is as follows:

    It is accepted that the onus of proof is on Ms M [the Respondent] to establish that this defence exists.  If that is established then the issue for me becomes a matter of return.

    It is not necessary for the parties to have consent in writing and in this case there is not a consent in writing.

    There is however the argument that the consent must be real, positive and unequivocal and that was out by His Honour Justice Hale in an English House of Lords case in the Family Division.  Re K (abduction:  consent)  [1997] 2 FRL 212.

22. I am of the view that the consent needs to be real, positive and unequivocal and indicate that those who seek to prove that the party opposing the child’s continued residence in Australia acquiesced or consented to the child’s stay.  There must be evidence which is clear compelling.

23. What could be more clear and compelling but that the father’s concession that the child came with his consent but for a limited period.  Secondly, that the Facebook matters to which I have here and before referred to on two occasions, clearly and unequivocally indicate that the child is to stay with the mother because of the reasons set out therein.

24. Can he after consenting to the child get into the position of saying “I consented, yes, but I am now withdrawing my consent and want him to return”?  They being joint guardians, I am of the opinion and I think it is quite clear that both parties have a right to decide important matters of the child particularly in relation to their residence.  It is submitted on behalf of the father that he has the right to determine the child’s residence because of a care order.

25. I cannot accept that.  As I have said, the word “care” as used in the Consent Order of 2004 does not appear to me to apply in the Act to questions of guardianship and if, in fact, it was intended that the statutory joint guardianship to the Act was to be severed, I would have thought it would have been absolutely essential for such severance to be part of the Order of the Court and it is not the case here – see sections 28(1)(d), 29, 31, 35(4) of the Care of Children Act 2004. 

26. Can it be said that a person who is entitled to Joint Guardianship be entitled to consent or acquiesce in a child changing their habitual place of residence and then change their mind to the person and the child to whom the child’s residence has been transferred has the power to rearrange the child’s affairs (e.g. schooling) with confidence that absent consent or Order of the Court where such arrangements will be complied with.

27. I do not believe, as I have said before, that the father has the unilateral right to withdraw his acquiescence or consent.

28. In those circumstances, I am satisfied that there still is in existence a statutory joint guardianship which entitles the parties to discuss with or determine the habitual residence of the child.  I would have thought also, since I am of that opinion, that the father’s consenting to the removal of the child for a continuous period of at least 12 months would, in my opinion, indicate that he has consented to the child’s habitual residence in New Zealand being transferred for that period, at least 12 months, to Australia.

29. If I accept the wife’s submission that the father indicated that the child was to come and live with him indefinitely, clearly that habitual residence of the child has been waived and his habitual residence here in Australia, in effect, by consent.  How can the father argue contrary to what has been set out in the Facebook transcript to which I have referred wherein he says that “you don’t know what [D] has been doing here for you to judge our decision not to have him back in our house any more” (my underlining).

30. Therefore I am satisfied that notwithstanding the father has a right of custody in the child; that he is the joint guardian of the child pursuant to the statute, he has consented to the child being removed to Australia.  Notwithstanding his demand on or about 10 March 2010 for the return of the child, the child’s habitual residence is in Australia;  that he consented to such habitual residence being changed from New Zealand to Australia and that there was no wrongful retention of the child notwithstanding the demand of the father pursuant to his 10 March 2010 demand.

31. The application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  9 August 2010