DEPARTMENT OF COMMUNITIES AND JUSTICE & OSMOND
[2020] FamCA 379
•25 May 2020
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF COMMUNITIES AND JUSTICE & OSMOND | [2020] FamCA 379 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where the child has been residing in Australia with the father for the past 10 months – Where the mother lives in New Zealand - Where the Central Authority brought an application for the return of the child to New Zealand pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – Where the child found to be wrongfully retained in Australia – Application for return granted – Child ordered to return to New Zealand. |
| CCH Australia, Australian Family Law & Practice, Volume I Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law Act 1975 (Cth) s 111B |
| Commonwealth Central Authority & Cavanaugh [2015] FamCA 1005 Cooper & Casey [1995] FamCA 2, (1995) FLC 92-575, 18 Fam LR 433 LK v Director-General, Department of Community Services (2009) 237 CLR 582 Punter v Secretary for Justice [2007] 1 NZLR 40 Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562 State Central Authority & Handbury [2019] FamCA 668 State Central Authority v McCall (1995) FLC 92-552 Zotkiwicz & Commissioner of Police (No. 2) (2011) FLC 93-472 |
| APPLICANT: | Department of Communities and Justice |
| RESPONDENT: | Mr Osmond |
| FILE NUMBER: | SYC | 8126 | of | 2019 |
| DATE DELIVERED: | 25 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 8, 9 April 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tockar |
| SOLICITOR FOR THE APPLICANT: | Department of Communities and Justice |
| COUNSEL FOR THE RESPONDENT: | Ms Cantrall |
| SOLICITOR FOR THE RESPONDENT: | Burke & Mangan |
Orders
The Central Authority and the father, Mr Osmond, make such arrangements as are necessary to cause the return of the child X (male) born … 2015 to New Zealand as soon as possible.
The mother, Ms Osmond, to pay the cost of the child’s airfare to New Zealand.
The Australian Federal Police, as soon as practicable, remove the name of child X (male) born … 2015 from the Family Law Watchlist in operation at all Australian international points of arrival and departure:
The Central Authority provide a sealed copy of these Orders to the Australian Federal Police.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities and Justice & Osmand has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8126 of 2019
| Department of Communities and Justice |
Applicant
And
| Mr Osmond |
Respondent
REASONS FOR JUDGMENT
The matter of Department of Communities and Justice & Osmond is an application brought by the Central Authority (“the Authority”) pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) as provided for in section 111B(1) of the Family Law Act 1975 (Cth) (“the Act”), commonly known as “Hague Convention proceedings,” seeking the return of the child, X, born in 2015, presently aged four and a half years old, to New Zealand.
The child, who is a New Zealand citizen, currently resides with his father in Australia and his mother resides in New Zealand.
The only basis upon which the father argues that the child ought not be returned to New Zealand, is that from 11 June 2019, the child’s habitual place of residence was Australia.
The father did not press that which he initially pleaded, namely that the mother had acquiesced to the child remaining in Australia, which was a second limb of his defence to this application.
The father argued that the Court must, as a finding of fact, determine the habitual place of residence of the child before Regulation 111 is enlivened. The father also argued that the Court would find that the child’s habitual place of residence is Australia, where he has been living for 10 months as at the hearing, and therefore, the Regulations would not be enlivened as the child is living in his habitual place of residence.
The argument for the Authority is that the child’s habitual place of residence was and continues to be New Zealand, where he was living before the arrival of himself and his mother to Australia on 6 May 2019.
DOCUMENTS RELIED UPON
The material read was as follows. For the mother:
a)Form 2 Application by the Authority, filed 29 November 2019;
b)Updated Affidavit of Ms D, filed 17 March 2020, including updating material attached to that Affidavit from the mother, Ms Osmond;
c)Affidavit of her father, Mr H, sworn 24 October 2019;
d)Affidavit of Ms H, the maternal step‑grandmother, sworn 24 October 2019;
e)Affidavit of Mr J, a minister of the K Town Church, affirmed on 15 October 2019;
f)Affidavit of Ms L, a barrister and solicitor of the High Court of New Zealand, in respect of the applicable New Zealand law, sworn 21 August 2019;
g)Affidavit of the mother, sworn 17 October 2019; and
h)The mother’s Affidavit in reply, sworn 13 March 2020.
For the father:
a)Form 4A Application, being an answer and cross‑application setting out the grounds upon which he resists the return of the child to New Zealand, filed 17 February 2020;
b)A statement of his father, Mr B Osmond, sworn 14 February 2020; and
c)His statement, attached to his Form 4A, consisting of a plethora of material.
I was also referred to the following material:
a)The father’s Application in a Case and his Affidavit attached to that Application, filed shortly prior to the hearing, where he sought an adjournment of these proceedings, which adjournment was refused;
b)A tender bundle attached to the father’s Affidavit consisting of a document called “Handwritten copy of Living Will Statement of Intent of Ms Osmond”; notes provided by Mr B Osmond on possible alternate accommodation for the mother, Ms Osmond; and an email to Mr B Osmond from Ms N on the possible alternate accommodation for the mother whilst in Australia; and
c)A typewritten document called “The Living Will Statement of Intent” by both himself and the mother.
No further material was tendered by the parties at the trial.
Mr Tockar of Counsel represented the Authority and Ms Cantrall of Counsel represented the father. A case outline was prepared by both Counsel in addition to the cross‑examination of the respective parties.
Only the mother and the father were cross‑examined. This matter was conducted by way of Microsoft Teams and Counsel for both the Authority and the father indicated they did not wish to cross‑examine the parties’ respective parents.
RELEVANT CHRONOLOGY AND EVIDENCE
The father was born in New Zealand in 1983, aged 37.
The mother was born in New Zealand in 1986, aged 33.
On 3 April 2001, a psychological report was conducted regarding psychological testing of the mother. The report found, as was apparent at the hearing, that the mother has, “low intellectual functioning (mild mental retardation)”, and is globally challenged. The report also found at that time that the mother exhibited a number of autistic features, but did not meet the autistic disorder threshold.
At trial and in her Affidavit, the mother was forthright in relation to her impaired intellectual functioning and agreed she has lived with this disability all her life. The evidence unchallenged was that her intellectual function would not change over the time. The mother says she has been diagnosed with a condition causing her to have learning difficulties and that this leads her trust people very easily. As the evidence unfolded, it is correct that the mother does easily trust people.
The parties commenced a relationship in 2013.
They were married in 2015.
X was born in New Zealand in 2015, currently aged four. He is a citizen of New Zealand and had lived there all his life until travelling to Australia with his mother on 6 May 2019.
In 2016, the mother and father moved to M Town, New Zealand, where the maternal grandparents, Mr H and Ms H, lived.
In September 2018, the parents had a discussion about the father’s desire to remove himself to Australia where his family lived. The mother’s evidence was that she became concerned that X may be taken out of the country. The mother sought legal advice on 7 November 2018 due to her concerns of the father removing X.
On 9 November 2018, the father had absconded with X. The mother called the police and he was returned to his mother. It was the father’s evidence at trial that the police told him not to return to the home and at that date he determined he would remove himself to Australia as New Zealand held nothing for him. This this was the end of the relationship for him.
There was an argument between the parents as to whether X was diagnosed as autistic. It is clear from material produced by the mother that on 27 November 2018 at M Town Hospital, the paediatric medicine department confirmed that, “he (X) now has a formal diagnosis of Autistic Spectrum Disorder. Certainly today he displays classical features of Autistic Spectrum Disorder.” This diagnosis was not accepted by the father and he maintained this was not correct up to at least July 2019. The paternal grandfather, Mr B Osmond, talks about him being “supposedly” autistic. Although this is not a particularly relevant factor to the exercise of my discretion, it is indicative of their attitude to the mother and decisions of experts they do not agree with. These men would do well to read the expert’s report rather than maintain their ill-informed views.
On 29 November 2018, the mother makes an Application for urgent relief in the Family Court of New Zealand for Interim Parenting Orders, and an Order preventing the removal of X from New Zealand. It was clear in her material filed at that time that she wanted to remain in New Zealand did not intend to live anywhere else with the child. The father engaged in the New Zealand proceedings from Australia. He opposed the Orders sought by the mother and opined that that the child live with him.
During this time, the child was having face‑to‑face time with his father via Skype and the parents were also communicating from when he left New Zealand.
Of significance is the timing of the events after 15 January 2019. On that date, the Children’s Lawyer filed a Report in New Zealand confirming the mother would not agree to X travelling to Australia permanently or for contact visits and that the father’s proposal that he have full‑time care of the child in Australia was not supported by her.
Neither did the Children’s Lawyer support the father’s application that if he did not have full-time care of the child in Australia he be placed into foster care. It was noted by the Children’s Lawyer that the paternal grandfather’s attitude was that if custody was awarded to the mother this would consign X to a probable life as “white trash”. The upshot of the report is that the Children’s Lawyer did not support the father’s application that the child live with him in Australia and confirmed the reality that the child would remain in his mother’s care in New Zealand as he had been since the father abandoned him on 9 November 2018.
During the period 15 January 2019 to 3 May 2019, X continued to have Skype contact with his father. At this time, the parents were talking. The mother said that during these Skype conversations, the father told her he wished to reconcile and repair the marriage. The father said that it was the mother who told him she wanted to reconcile with him, leave Australia and get away from her family, particularly her stepmother, Ms H, who he alleged the mother believed was trying to take X from her.
In her Affidavit in these proceedings, the mother denied that she ever said she had concerns about the maternal grandmother trying to remove the child from her care. The mother says as a consequence of the father’s indication that he wanted to attempt to reconcile and repair the relationship, she determined to apply to the New Zealand Court to discharge the Order preventing X being removed from New Zealand and discharge the Interim Parenting Orders which were that she had sole parental responsibility and that the child live with her.
On 3 May 2019, the mother filed a Discontinuance Order, and it was clear in her material filed at that time that she extremely desirous of removing herself to Australia. From the mother’s Affidavit of 17 October 2019, it was clear she intended to live in Australia with X as indicated when she says, “My only focus was trying to repair my marriage with Mr Osmond”.
Similarly, in the mother’s Affidavit of 13 March 2020, filed in support of the discontinuance proceedings, she states at paragraph 23, “I decided to discontinue the parenting proceedings, because I truly believed that Mr Osmond was wanting to work on our marriage with me and become a family again”.
The maternal grandparents, via their statements, indicated they had no idea the mother had taken this step and that two weeks before she went to Australia, she cut off contact with them. It is clear that the mother left New Zealand without telling the child’s preschool, her social worker or members of her family that she had formed this intention. A series of text messages between the mother and the father about her moving to Australia was attached to the material.
On 6 May 2019, the mother and X travelled from New Zealand to Australia and were collected at the airport by the paternal grandparents. The arrangements at their home was that she would live at the paternal grandparents’ home, and she was given a bed in an area off the side of the lounge. X slept in his father’s room.
The mother’s evidence was that upon the father’s return from work at about 7:30pm, he did not acknowledge her. The father agreed that he attended to his son before he acknowledged the mother. It is clear that both passports of the mother and X were removed from her possession by the paternal grandfather at this time.
On 22 May 2019, a Paternity Report was obtained to establish X’s parentage. The mother says this was the paternal grandfather’s idea and she complied with this Order.
On 30 May 2019, the mother and father each signed a typed document at the K Town Local Court entitled “Statement of Intent,” dated 30 May 2019. These documents have no legal status in these proceedings, however, have been relied upon by each party for different purposes.
The father relies upon the document to indicate the mother’s intent, therefore well‑settled intention to remain in Australia, and if she could not remain in Australia, that X was to remain in Australia with his father, to be cared for by him. The father submits that this document is evidence to support an intentional change of the child’s habitual place of residence by the mother.
The mother relies upon the document as further evidence of the father’s plan to ensure she could not return with X to New Zealand, of her easily trusting others as she had little idea of that which she was signing.
The document states that the mother’s family was to have nothing whatsoever to do with the child, and that if either of the parents cannot care for the child, it is the paternal family who will care for X in Australia. This document, having no legal status, is nevertheless relevant in the exercise of my discretion and the outcome of the matter.
The mother agrees she wrote out in her own handwriting answers to questions which were written out for her by the father. The mother says she had no idea why she was writing these answers, or what the document meant until it was explained to her by a lawyer when these proceedings commenced.
On 2 June 2019, the parties attended upon Minister J at the K Town Church for marriage counselling. This was not successful. The mother’s case is the father had no intention to participate in counselling and that this process, like his plan for her to come to Australia to work on their relationship and be a family, was a façade. The mother said upon her arrival to Australia, that the father refused to communicate with her or even try to make the relationship work at any time.
On 10 June 2019, an allegation was made by the paternal grandparents that the mother assaulted X by pushing him by his shoulders to the ground and doing it with such force to hurt him. They allege she had seriously assaulted the child. In the interview with the police, the mother said that she had forced X onto the ground to take off his shoes, and she noted that the force used by her “was a kind of hard force”, however, “wasn’t that hard just a hard force,” and conceded that she probably used more force than was necessary.
The mother denied slapping the child on his leg when changing his nappy in the previous week, or scratching his face. However, a provisional Apprehended Domestic Violence Order was granted against the mother for the protection of the child, returnable before the K Town Local Court on 19 June 2019.
On 10 June 2019, it is recorded as follows:
Police have insufficient evidence to proceed with charges for any person. There is a concern that Ms Osmond may overreact to a situation and could pose a risk to X. However, the motivations of Ms Q, Mr Osmond and Mr B Osmond may be influenced by impending family law court proceedings. Police are seeking an ADVO with standard conditions to protect X at this time as an appropriate measure. It is clear that Ms Osmond is struggling and needs support from services.
It was further noted in the Police Report that:
The force alleged by both grandparents was described as being enough to cause a serious injury. It is clear that the child is not suffering any type of injury.
Mr Osmond was a very unimpressive witness and seemed confused and conflicted with the information he was providing police.
The father and his parents told the mother to remove herself and leave their home, asserting that due to the ADVO and information they had received from Child Protection she could not live at the home with the child.
The mother lived at C Group from 11 June 2019 until her return to New Zealand on 25 June 2019.
On 11 June 2019, the father drove the mother to K Town Library. He left her there and did not return.
The mother says Minister J, from the K Town Church, saw her sitting at bus stop crying and assisted her to find emergency accommodation.
Minister J's Affidavit reads, seminally, as follows:
I found Ms Osmond sitting outside K Town Library crying with nowhere to go and not knowing what to do. She was abandoned without any money, paperwork or arrangements for alternate accommodation.
Later that afternoon, the mother asserts that the father came back to the library and threw her suitcases and belongings on the footpath. Only with Minister J’s assistance was the mother able to secure short term accommodation with C Group.
The mother says there was contact between the father and C Group, where he said he would pay for a one way airline ticket for the mother to leave the country. This did not eventuate.
The father attached to his exhibits, the efforts he and his father made to secure accommodation for this homeless, penniless, intellectually impaired foreign national and mother of his son, which is as follows:
I spoke to a person at Child Services Ms R. Ms N, a woman from the church, told the father via an email that there are options: P Family Services, P Community Services and told him.
If you go to the police and if she’s a threat, she may be able to access the P service tonight. Call them and tell them she has been in custody earlier today. See if they can help. Otherwise, go through emergency or request a mental assessment.
I find on that evidence there was no assistance rendered by the father or his family to assist this young woman, the mother of his son.
On 11 June 2019, the father writes to the mother via text message:
Go to C Group to find accommodation. You’re not legally allowed to live near us now. The one way offer stands for 48 hours.
The mother responds:
Thanks for dumping me on the street. Trying to work our marriage out and this is what I get.
The father:
We have been advised by Child Services that you cannot share the same house as X. We had to choose between you or X staying here.
The mother contends that since that date, 11 June 2019, X has been wrongfully retained in Australia as her intention to permanently live with the child in Australia was conditional upon the parties attempting a reconciliation of their marriage and living together as a family.
On 19 June 2019, ADVO proceedings against the mother were dismissed at K Town Local Court.
On 21 June 2019, the mother saw X for an hour at the K Town Church. She asked for her son to be returned to her, stating that the child was distressed and did not wish to leave her.
On 25 June 2019, the mother returned to New Zealand without X and the Authority’s argument is, from that date, X has been wrongfully retained in Australia by his father. The mother’s one way ticket to New Zealand was paid for by C Group, not the father. X currently lives with his father and paternal grandparents in K Town.
On 29 June 2019, a Form 2A was filed in the Family Court of Australia by the Central Authority for the return of the child to New Zealand.
On 9 December 2019, Orders were made by Justice Henderson restraining the father from removing the child from Australia and placing the father’s name and the child’s name of the Airport Watch List.
On 17 December 2019, Orders were made by Justice Henderson listing the matte for Final Hearing on 8 and 9 April 2020.
On 17 December 2019, a Form 4A Answer and Cross Application was filed by the father.
On 14 March 2020, the Authority filed material in Response to the father.
THE LAW
Regulation 16(1) of the Regulations provides that:
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 subsection (1A);
the Court must, subject to sub-regulation (3), make the order.
This is not a wrongful removal matter, rather an allegation of wrongful retention.
In order to enliven the power to make a return Order, it is necessary to establish that the child’s retention in Australia was wrongful pursuant to Regulation 16(1)(c).
Regulation 16(1A) of the Regulations provides that:
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 that 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 rights of custody, jointly or alone; or
(ii) would have exercised those rights if the child had not been removed or retained.
Regulation 16(3) provides for circumstances where the Court can refuse to make a return order, even if Regulation 16(1) has been enlivened:
(3) A court may refuse to make an order under subregulation (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.
The father claims the mother consented/acquiesced to the child remaining in Australia consistent with her clear intention to live in Australia as at 6 May 2019.
It is agreed that the child is under 16.
The mother claims that:
a)X habitually resided in New Zealand, a Convention country, before his retention in Australia.
b)She had discontinued the New Zealand proceedings which had given her custody of the child and Orders not permitting the child to be removed from New Zealand to enable her to travel to Australia with the child to repair her marriage and live as a family.
c)She had rights of custody in relation to the child at the time of his retention in Australia.
d)At the time of the retention of the child she would have exercised her rights of custody and would have removed X from Australia to New Zealand when she flew back and assumed his care as she had done since the parties had separated the previous year in November 2018.
e)That the mother has not either consented to nor acquiesced to the child being retained in Australia.
EVIDENCE TO SUPPORT THE PARTIES’ CONTENTIONS
There is no doubt the mother had a well‑settled intention at the time she left New Zealand for Australia, that she and X would live in Australia with the father and, as she said in her Affidavit, they would “live again as a family”. That is a clear intention of the mother and it was a well‑settled intention, with no end date. This was something she desired to do and set about achieving that, without the knowledge of her family and hiding from them what she was doing.
There is no argument that there is a grave risk of harm to the child in his returning to New Zealand. Although the father raised that that as an issue initially he has abandoned that ground at the trial.
This is not a parenting matter per se involving a question of where it is in a child’s best interest to live. This is an application for return of a child under the Hague Convention principles and the consequent law.
I accept that the child has now been living in Australia for 10 months, the question of whether he is now well settled in is a matter for determination by the Court and the following is relevant to that determination.
The question for me is whether the child was still habitually resident in New Zealand at the time of his retention in Australia.
At the time the mother says he was wrongfully retained, X had been living in Australia for a period of five weeks. He had been living with his mother and father at the home of the paternal grandparents until the father and his parents had ejected the mother from their home by way of dumping her outside the library at K Town on 11 June 2019.
The onus of establishing that the retention is unlawful rests with the Authority. Establishing a discretionary ground for declining to order the return of the child, lies upon the person opposing the return, in this case the father. However, the father does not raise any of the available defences to his return rather that prima facie, he is and was, as at 11 June 2019, habitually resident in Australia.
The law is clear. The point in time at which a Court assesses whether there was a wrongful retention, is at the date of the alleged wrongful retention, and that date is 11 June 2019, when the mother was thrown out of the paternal grandparents’ home.
The determination of the issue of wrongful detention is a question of fact, not an artificial legal construct, and all of the factors surrounding the circumstances of the moving party, the other party, and the child must be assessed by the Court. (see State Central Authority v McCall (“McCall”)).[1]
[1]State Central Authority v McCall (1995) FLC 92-552 at [81,523].
The decision of the House of Lords in Re J (A Minor) (Abductions: Custody Rights)[2], enunciated two alternative legal and practical situations young children such as X might find themselves. The first is where the child is in the custody of just one parent, and the second is when the child is in custody of both parents.
[2] Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562.
The mother says, at the time of X’s wrongful retention, he was in the custody of both of them. They were living at his parents’ home and each were caring for the child. The father was working; the mother was caring for the child during the day. That situation drastically changed when the mother was ejected from the father’s home and dumped outside the library in K Town.
If a child is in the custody of two people, CCH Australia, Australian Family Law & Practice, Volume I, at [18.271],[3] states:
The basic rules enunciated by the House of Lords are as follows:
If a young child is in the custody of just one person, the child’s country of habitual residence is ordinarily the same as this person’s. A sole custodial parent can, accordingly, change the child’s country of habitual residence along with his or her own.
[3] CCH Australia, Australian Family Law & Practice, Volume I, at [18.271]
This is what the father says the mother did by coming to Australia with her well‑settled intention.
However:
If a young child is in the custody of two people the child’s country of habitual residence is ordinarily that of the couple. They can then change the children’s country of habitual residence together along with their own, but not unilaterally.[4]
[4] Above, note 3.
This is the situation the mother asserts was in play at the time of the wrongful retention.
CCH goes on:
It stands to reason that the Convention could not operate where one parent would be able unilaterally to change the habitual residence of a child, because the whole purpose of the Convention is to stop parents doing just that. It follows from what has just been said that if just one of the two parents with custody of a child abandons or changes his or her country of habitual residence, taking the child away at the same time, the child’s country of habitual residence ordinarily remains that of the person who has been left behind. [5]
[5] Above, note 3.
It is the father’s case that upon the mother’s arrival in Australia, instantly she and the child’s habitual place of residence changed from New Zealand to Australia, given her stated intention to him and to the New Zealand Courts in her Affidavit filed in support of her discontinuance proceedings.
I find the mother’s intention to come to Australia and remain in Australia, as is so often the case in other matters, was not that stark or simple. Her decision was based upon important considerations and conditions to her. These important considerations were an integral part of and operated upon the mother’s intention to come to Australia. Foremost and of most importance to the mother as set out in her Affidavit to the New Zealand Courts, was to be reunited with her family in Australia.
This is a constant theme of the mother throughout the emails between the parents.
The mother’s intention was not simply, “I will come to Australia”. Her intention to come to Australia with the child cannot be severed from her intention, desire and need to be reunited with her family in Australia.
The father supports her intention as a permanent intention as she sold her goods or gave them away, closed off her lease, and it is correct that there was a degree of permanency in her decision. The mother obtained a passport for herself and the child and had photographs taken; all matters that required effort on her part and indicate permanency in her intention.
The father says that the mother had another reason to come to Australia namely to escape her family. This is set out in the text messages between the parents just before she left New Zealand and in her “Living Will Statement of Intent.” Namely, that that she was concerned her parents were going to take X off her, she had an abusive childhood and did not want her son to live in that environment.
ASSESSING THE MOTHER’S ACTIONS PRIOR TO MOVING TO AUSTRALIA
The mother agreed that she and the father made a decision to try and reconcile in Australia and that she went to the considerable effort of obtaining a passport for herself and X including obtaining photographs. The mother agreed she had a firm desire to leave New Zealand and start a new life in Australia, and a keen desire to go to Australia and live there with the father.
Going now to the text messages between the parents around the time of the mother preparing to leave New Zealand.
These messages appear at pages 51 onwards in the mother's Affidavit of 17 October 2019.
On 3 May 2019, he mother sends the following text messages to the father:
I don't want to be in M Town anymore ok.
I need to get out here.
I have had enough of being here.
I just want to get out of here ok.
I need someone to travel with me i'm too stressed out to travel alone.
The father:
You can't keep playing both sides. You have to commit one way or the other.
The mother:
I want to be with u (sic).
The father:
I will need to know in the next 20 minutes.
The mother:
Booking changed.
You should get an email with the new tickets.
The father:
Remember if anyone asks your (sic) going on a church outing.
Don't tell anyone, other than your (sic) friend…. Or you will see Ms H at the airport trying to stop you.
Can you check and see if there are any red flags on X pass port (sic).
The mother:
Ok. There wasn’t any last week.
The father:
Can you double check.
The mother:
Will do.
The father:
How are you feeling?
Ms Osmond:
Good.
The father:
Just move everything into the shed. Don't advertise your (sic) going anywhere.
Only talk to me, X and that one friend who's taking you to the airport.
The father:
Only take carry on.
Just the cloths documents your army cap your glasses (sic).
Put what you can in a small bag.
Leave the clothes behind.
It's X's future on the line.
Explain to this friend's brother you may lose X if you don't get up there. Hurry up. You've got 20 minutes left to change the flight.
These are the frantic conversations about how the mother was to get to the airport, change flights, the cost to change flights, time pressures, et cetera.
The father:
You have a very bad habbit (sic) of trusting the wrong people”. This was a prescient comment by him.
The mother:
Can't trust anyone anymore. This was a prescient comment by the mother.
The mother:
What time do I have to be up to catch the plane?
What do I do with all the stuff in the house?
The father:
You put all that in the garage yesterday.
The mother:
It's too heavy for me to put in the garage.
The father:
Then you have to leave it.
The mother:
Then I'll lose my bond and I'll get a bad refrence (sic).
The father:
You don't need a reference. It will already be a bad one. Ms H's mitts are all over it.
After encouraging the mother to leave her goods and only take a small bag, the father had the audacity to comment in his Affidavit that he was surprised she arrived with such a small bag of clothes and only one toy for her son when he had told her to travel in this fashion.
The mother:
Love you.
On 5 May 2019, as they are arriving at the airport, the mother sends the following text messages to the father:
Did you get email... I love you honey bunny xoxo... You are the best husband ever… Love you honey bunny you are the best. X loves you too (sic).
These text messages and her Affidavit filed in New Zealand for the discontinuance proceedings are consistent. I find this Affidavit carries considerable weight in relation to the determination of well-settled intention and intention general. At paragraphs one to six of the mother’s Affidavit dated 3 May 2019:
I am the Applicant in these proceedings.
I am seeking to discontinue my applications for a Parenting Order and Non‑Removal Order filed on 28 November 2018.
The Respondent, Mr Osmond, and I have now reconciled … and I will be relocating to City S in Australia.
Mr Osmond has received employment in City S and once these proceedings are finalised, we will be moving.
While Mr Osmond is working, I will continue my role caring for X.
At the moment, I am looking for an education centre for X, which specialises in autistic children. Mr Osmond and his parents all now accept that X has autism. In particular, now that Mr Osmond's parents have spoken to X online they have seen for themselves that he is autistic.
A lot of the bad blood between Mr Osmond's family and I has been caused by my stepmother. Now this has been revealed, Mr Osmond's family and I have been able to speak and clear the air.
I read the last sentence as Mr Osmond and his family revealing to her in some way that her stepmother was the cause of problems between she and Mr Osmond's family, and that getting away from her would solve the mothers’ issues and protect the child.
Continuing from paragraphs seven to 11:
I have also made contact with a church in City S who offer play groups for children and parent adult groups. They are based in the city and if our accommodation is not too far in the distance, the church will help us to find closer churches that offer the same services.
In my application for parenting order, I have said that Mr Osmond has very low‑level parenting and is not able to parent any child. I do not believe these are concerns anymore.
Mr Osmond has agreed to undertake a parenting course with me and to step up as a father and have a more hands on role with X.
I am seeking to move to City S as soon as possible so that my family and I can be reunited.
This Affidavit sets out the mother’s intention clearly and its basis. The mother does not describe fears of her stepmother taking the child away. These fears only arise in text messages between Mr Osmond and the mother. The mother was clear that she and Mr Osmond were going to be reunited as a family and they were going to start a new life in City S, a possibility which the father must have convinced her of, yet none of these wishes and desires eventuated and had reconciled. The mother agreed this is how she felt at this time and she had every intention to move to Australia.
The text messages show an easily influenced young woman, desperate to be reunited with her husband and willing to do everything he asked of her, to achieve her goal of being reunited as a family in Australia.
It is apparent that the father set about influencing the mother to travel with the child to Australia as he knew she was desperate to be with him. The father agreed the mother is easily influenced and this was a part of his evidence when he sought to adjourn the proceedings. He did not want anyone in the room with her whilst giving evidence because she is easily influenced.
The father encouraged the mother to:
a)Keep hers and X’s removal to Australia a secret from her family;
b)Obtain passports for she and X;
c)Leave without telling anyone but her one friend who was to take her to the airport;
d)That this was about the child’s safety and his future life;
e)Not to tell anybody;
f)Telling her how to pack, what to pack, to only take a small amount, leave the rest of she and the child’s clothes and belongings; and
g)That he would provide an additional flight ticket for her when she missed her first flight to Australia.
The mother carried out all these actions, and they were not easy to do. The mother complied entirely with his requests to remove herself and the child to Australia, including only packing one small bag.
The father let the mother believe what she told him she wanted, “to be living with my family in Australia.”
The father by his actions used the mother’s clear desire, need and intention to be reunited with him as husband and wife and live with their son as a family. He used the mother’s needs and her belief in him to assist, procure, encourage, entice and help her to leave New Zealand with their son, a country where she had not only had the benefit of her family, but had had the benefit of Interim Orders for sole parental responsibility and custody.
From the get go, it is clear from his conduct and actions, the father had no intention to resume his relationship with the mother. What he wanted was his son to live with him in Australia, a position the New Zealand Courts did not agree with. This was the father’s alternate way of securing his son’s custody, using the mother’s clear affection for him and desire to be a family.
Upon arrival in Australia, the parents were not reunited by staying in the same bedroom. There was one attempt at marriage counselling and I accept what the mother said that the father made no effort to engage in that process.
The father perpetrated upon the mother the very same actions he complains of that occurred to him in New Zealand. His evidence when he retained the child on 9 June 2018 and the police recovered and returned the child to the mother, he felt he had nothing in New Zealand. He was told not to return to the home and he left New Zealand to be with his family in Australia. He was, effectively, thrown out on the street.
This is precisely what the father and his family perpetrated upon the mother when she came to Australia. The mother and the child arrived in the country, the airfares being paid for by the father, encouragement for her to not tell her own parents or her friends of her intention. They do not sleep together or even share a bedroom. Within five weeks she is thrown out onto the street without the child, using the spurious allegations made by the paternal grandparents that the mother has assaulted the child, which allegations were dismissed.
The mother is thrown out of the home and left on her own in a foreign country with no job, no income, no clothing, and most particularly, without her son. The father agreed with this in cross-examination.
There was no effort taken by the paternal family to assist the mother to live in Australia. Rather, Minister J carried this out with the help of C Group.
I do not accept evidence from the father that the mother did not seek to have the child returned to her care. This is incorrect as is clear from the following text messages.
On 11 June 2019, the date the mother was left in the main street of K Town, the mother sends the following messages to the father:
We’re (sic) are you?
Are you at the park?
Been to all the places.
Got a DR appointment for 4.15 today.
The father responds:
Go to mission (sic) Australia and find accommodation as you are legally not allowed to live near us now.
That was the help the father and his family rendered to the mother at this very difficult time when she had been thrown out of their home. The mother says:
Will need my ID and stuff for the dr.
The father:
The one-way offer stands for 48 hours.
The mother at 2.44 pm, 11 June 2019, sends the following:
Thanks for dumping me on the street… trying to work our marriage out and this is what I get.
U know I want to be with u (sic).
That's why I came over here...to get away from my family…I don't want anything to do with my family any more (sic)…U (sic) are the only one I want to be with...I have told u (sic)…I want to be with u (sic)…I'm getting the help I need for our family…I will be around to get X...Can I talk to X, please? …U (sic) have lied to me. I am allowed near X…Got all the information in black and white.
I'm not (abandoning) my son. I have every right to see him, as do u (sic).
The father:
We have been advised by Child Services that you cannot share the same house as X. We had to choose between you and X staying here.
The mother:
I am aloud (sic) to see X as I have spoken to them too…There is nothing stopping me seeing my son. X needs both his parents and I'm not giving up on that I made a promise to him and I'm keeping that promise to him…Got legal advice about how I go about stopping my family in New Zealand to stop interfering they will end up losing their house and everything they own…Can you bring X to the park?
The father:
I've been waiting at the park for over an hour with your electric blanket etc. Going home as X needs a change and a sleep. I will contact you with an alternate.
The father's material sets out messages from the mother to him begging him to see the child. On 14 June 2019, the mother sends the following text message:
…I’m at the park when is a good time to see X…Need to talk to u (sic).
18 June 2019:
When can I come and see X?
19 June 2019:
Hi. Can we please talk…Need to talk to u (sic)...Can I have X the night? Are you free tomorrow…Is X around?
On 21 June 2019, the mother sends the following email to the father:
I would like X tomorrow night please.
On 22 June 2019:
When’s a good time to come get X?...Please advise where to pick X up from please…I will be having X tonight as I have a right too (sic) where is the best place to pick him up from?
23 June:
Is X there, so I can talk to him?
U do not have the right to take X from me as he is both our son… and I have not started legal action as X needs both his (parents), whether you like it or not…Is X okay…What's your contact address…I have a right to have X…He's my son.
The father's response:
No. You cannot have X overnight. Under NSW Law, the child has the right to safety first and foremost. There is still an active interim AVO against you. The magistrate could have given you access rights but did not.
You are also not permitted to harass me or my parents. The number of demands to have X overnight is excessive. Your church friends had just started legal action. Your solicitor should have explained what you can and cannot do. What exactly do you want to talk to me about? On Friday, Dad and I were threatened. I am not interested in continuing discussions about you and me. There is no legal requirement for you to see X face to face. The contact in public places you have so far is because I was being nice. Note the wording of the AVO does not give me confidence that you should even have that. I will have to get clarification from my solicitors as to what contact the AVO actually allows.
This is not the conduct or actions of someone who wanted a reconciliation or was focused on the child, and supports the mother's position that the father groomed her to come to Australia under a misapprehension as to his intention of reconciliation, a matter he had no intention of pursuing.
It is correct that the mother did not contact the father or tell him she had returned to New Zealand for some time, nor contact the child for his birthday or at Christmas. However, this is not evidence of abandonment in these circumstances and is perhaps, rather a consequence of her intellectual disabilities. The mother was clear to the father when she was abandoned on 11 June 2019:
I'm not abandoning my son. I have every right to see him, as do u (sic).
The father agreed that he knew the mother well enough to know she is easily influenced and I find he used that vulnerability to retain his son.
The father's emails to the mother are offensive and indicate the mother was in an intolerable and very difficult position whilst living in Australia. On 23 July 2019, he writes:
Yes, you did bring X over. You were concerned for his safety in New Zealand and announced we'd reconciled and were moving over here. You never even asked permission to move into my parents (sic) house, or asked me if I still wanted to be your husband. You asked for options IF you decided to come over.
My parents made 2 (sic) rules: 1) no violence and 2) no lying. You said you understood. You broke both. In that you were living in their house at the time, they did have a legal right to have input on who does or does not enter their home. Please note that you, your family and representatives are not welcome at my parents (sic) or any other family properties/locations. The police will be called if you trespass.
The father, consistent with his behaviour in grooming the mother to come to Australia, endeavoured to set the mother up on many occasions. For example, at page 58 of the father's Affidavit of support, he writes the following on the mother’s Facebook wall on 30 June 2019:
Hi, I’m taking X to the park at 4pm today, you can meet us there? Thank you for telling me you have a new “boyfriend” in your life. I am pleased that you are moving on with your life. I will be too, so I suggest we get a divorce, as soon as possible, so we are both free to move on.
The mother denied she had a new boyfriend and I accept this evidence.
The emails written by the paternal grandfather to the mother are disgraceful. On 27 July 2019, the paternal grandfather emailed the mother the following:
I am concerned with your constant demands for attention and only thinking of yourself.
Given your admissions of tendency to self-harm, constant abusive nature and language…the language you and your family use in the video call to X on the 21 June 2019, all of which any reasonable person (and certainly anyone with even basic childcare and nursing qualifications) knows this is highly likely to cause a long-term upset and (psychological) harm to X. I am of the opinion you are still in need of help for all your mental and physical conditions that we discussed as being diagnosed in NZ before you came over.
The only ray of light was your admission of violence to X and apology (which was recorded on dashcam) and your second apology to Ms Q, this shows, you know, that your behaviour was not acceptable. When brought into account with your violence/domestic abuse towards Mr Osmond since you were married should indicate to you that you have a growing problem that needs to be addressed.
Under Australian law, X has the right to safety, first and foremost. Then he has a right to know both his families. It took approximately three days since your last video call before he decided to settle down. He has also been showing signs of emotional damage associated with things said and done by “Mummy”.
The fact that the child is upset is hardly surprising given he had been taken from his mother, his primary carer, since birth, yet the paternal grandfather shows no understanding that the child was missing his mother and would behave in this fashion:
We do not consider the mental trauma you have put him through is acceptable and have the natural wish to protect him from any further damage. Until you can behave like a loving mother, rather than expressing ownership “rights” over your child, you are not a positive influence on his development.
Until such time we can see you have addressed these problems and have produced documented records you have received treatment and a laboratory test that show you take your prescribed medication, your contact with X will be subject to Court order. These concerns will be raised with the Family Court of Australia, along with whatever such actions Mr Osmond is pursuing.
Mr B Osmond is sorely incorrect in his view that he has any rights in relation to this child. What his odious emails to the mother reveal is the intolerable environment that this young, vulnerable woman came into upon her arrival in Australia.
The father's Affidavit of 30 May 2019 makes derogatory comments about the maternal grandmother and maternal family. At pages six and seven of his Affidavit:
Ms H claimed to be a qualified health professional and was allowed to diagnose people, but only has basic qualifications, which is, apparently, mainly cleaning and lifting patients.
The maternal grandmother would always refuse to help Ms Osmond…
The maternal grandmother would only offer help if it benefit herself.
The maternal grandparents would not give him money (he was working in New Zealand).
The maternal grandmother would peer in at the property her and Ms Osmond shared every hour of the day. It is difficult to understand how the father knew this if he was working.
The maternal grandmother would go to the childcare centre every hour of the day. They had to change his day care centre due to her interference but she found out where it was and continued to disrupt his learning.
The father allegedly found the maternal grandmother in his bedroom, going through his wallet and phone.
The father logged onto her phone once and she said she has a special relationship with X, but she is his stepmother of him. There is no natural relationship.
She demanded proof that the father was the child's father. Yet he and his parents did so of the mother, as did he and his parents and unlike the father the mother complied.
The father was pressed on the “special relationship” at trial and agreed he believed it was a sexual.
Reading his letter of 13 July 2019 to the mother:
I have serious concerns for his safety, both short term and long term if you are in physical contact with him. You have advised me of serious and systematic child abuse by multiple members of your family. I will not put X in harms (sic) way because you think you have more rights than X.
I will need to see some evidence of your long term commitment to fixing yourself up before I consider you to be anything but a threat to his physical, mental, social and educational well-being.
CASE LAW
Going to the law and the principles surrounding these matters.
There are a plethora of decisions on this issue, including as follows; Cooper & Casey;[6] DeLewinski v Department of Community Services;[7] Department of Health and Community Services & Casse;[8] and LK v Director‑General, Department of Community Services[9] (“LK”).
[6] Cooper & Casey [1995] FamCA 2, (1995) FLC 92-575, 18 Fam LR 433.
[7]DeLewinski v Department of Community Services (1997) FLC 92-737.
[8] Department of Health and Community Services v Casse [1995] FamCA 70, (1995) FLC 92-629, 19 Fam LR 474.
[9] LK v Director-General, Department of Community Services (2009) 237 CLR 582.
In LK,[10] the High Court noted:
It may be accepted that the general rule is that neither parent can unilaterally change the place of habitual residence.
[10]Above, note 9.
Time spent by a child in a country is not the determinant of habitual residence. In Zotkiewicz & Commissioner of Police,[11] this principle was explained as follows:
We do not discern from anything said in LK that there has been any departure in Australia from the proposition that in order to find someone is habitually resident in a place they must generally have lived there for an appreciable period.
[11]Zotkiwicz & Commissioner of Police (No. 2) (2011) FLC 93-472.
In relation to purpose and intention, it was made clear in LK[12] that:
The intention is not to be given a controlling weight per se, but it is highly relevant to examine the intention as to where that person habitually resides to make that determination.
Where a child habitually resides cannot be confined to the intention of the parent who has day‑to‑day control. It would usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a Court order) would be necessary. But again, if it becomes necessary to examine the intention of the parents, the possibility of ambiguity or uncertainty on the part of one or both must be acknowledged.
[12] Above, note 9.
The reality is that it was the father who initially abandoned the child in his place of habitual residence, New Zealand, when he departed to Australia in November 2018. When the mother commenced legal proceedings to ensure that she had custodial rights of the child in New Zealand, and the father’s case that the child live with him in Australia was not supported in the New Zealand Courts, I find that the father set about on a course of conduct to entice the mother to Australia so that his son would be living in Australia with him.
It was between January 2019 and 3 May 2019, the mother, who had custody of the child, was encouraged by the father and did form an intention to remove the child from New Zealand so that she could to live in Australia where the father lived and her desire to “live as family” could occur. This desire could only happen in Australia as the father was not returning to New Zealand.
The mother’s intention would not have crystallised unless it was encouraged by the father. The father knew full well that the mother was desirous of resuming her relationship with him. No one could be in any doubt from reading her emails, and he did nothing to dissuade her that this would not be the case.
Rather, he did everything in his power to ensure the mother removed the child from New Zealand, his habitual place of residence, to Australia, then set about ensuring the child remained in his sole care and his custody, and did so by way of an ADVO Order which was ultimately dismissed. Given the mother’s intellectual disability and easy trusting of others, coupled with her clear affection for the father, the father’s conduct is egregious.
At the time the mother removed herself to New Zealand in late June 2019, both parents had an equal right to fix the child’s place of residence. There were no extant Orders and there was, clearly, a genuine difference in their respective intentions in relation to their son. The mother, as I see the evidence, clearly wanted the child to return with her to New Zealand and the father wanted him to remain in Australia.
The mother did not, by returning to New Zealand, acquiesce to the child remaining here as she had no alternative but to return home. The mother did not have his passport; that was held by the paternal grandfather. I reject the father and paternal grandfather’s evidence that they would have given X’s passport to the mother. I reject their evidence that she did not ask for it or refused to accept it.
The father said he would have given the passport to the mother. At the trial, he was asked:
Would you have let the mother remove the child to New Zealand when you gave her the passport?
The father’s response:
No, I would not.
I accept Mr Tockar’s submission that there is no utility in handing a passport to a parent if they were not intending on letting them remove the child to another country. I find the mother’s argument that she sought the passport and was not given it, but was given her own passport, to be far more believable than the concocted story of the father and the paternal grandfather.
The mother was encouraged to leave Australia. After all, her passport had been returned to her, a one way airfare offered to be paid for her, and the father was clear she was to have no time with the child without him also being present. The mother had no option but to return to New Zealand and the father did not permit her to return with the child.
The mother had nothing in Australia. All she had in Australia was her relationship with the father and that had been the basis of her initial intention to remove herself and her son from New Zealand. Otherwise, this country held nothing for her. Similarly for the father, when his relationship with the mother was over, he abandoned the child in New Zealand because that country held nothing for him. The difference is, the mother did not abandon the child in Australia. She had no option but to leave without her son.
The father did not have the right to fix the child’s place of residence as at 11 June 2019, as the child had been in their joint custody until such time as the father left her in the street in K Town.
The Court must engage in a broad factual inquiry in relation to these matters. In Punter v Secretary for Justice,[13] a decision of the New Zealand Court approved by the High Court in LK,[14] the Court said:
Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of a stay in a state, the purpose of the stay, the strength of ties to the state, and to any other state (both in the past and currently), the degree of assimilation into the state including living and schooling arrangements, and cultural, and social and economic integration. In this catalogue, SK & KP[15] held that settled purpose (and with young children the settled purpose of the parents) is important, but not necessarily decisive. It should not override what McGrath J called the underlying reality of the connection between the child and the particular state.
[13]Punter v Secretary for Justice [2007] 1 NZLR 40.
[14] Above, note 9.
[15]SK v KP [2005] 3 NZLR 590.
As at 11 June 2019, X had virtually no connection with Australia, other than that his father and paternal grandparents lived there. His connection for the entirety of his life, other than a period of four to five weeks, had been New Zealand, and it is clear from the emails, text messages, and the mother’s plaintive cries to spend time and see her son, that her intention was X be with her.
There was much made of the fact that whilst the mother was in Australia, she attended a first aid course, tried to get a job, and that this conduct in some way indicates a well‑settled intention by her to live in Australia. The mother was in Australia for a period of perhaps seven weeks before she left. I reject that evidence. The mother was living on charity through C Group, she was not caring for her son as she always had, and she was merely doing what she could to fill in time before she returned to New Zealand.
The facts for X are vastly different to the facts in Commonwealth Central Authority & Cavanaugh.[16] In that matter, the parents had, together, physically moved to Finland; established one residence then another; discussed permanently living there; the children were at school learning the Finnish language; the father was learning the Finnish language; the mother was employed; the children engaged in extracurricular activities; the children were receiving benefits, one of the children was disabled and receiving a disability benefit; the mother had friends and family nearby, including the maternal grandmother and cousins; and the children had Finnish citizenship. At the time of the wrongful removal, the family had been living in Finland for over nine months.
[16] Commonwealth Central Authority & Cavanaugh [2015] FamCA 1005.
None of this applies to X, other than that he had lived, as at 11 June 2019, for five weeks with his parents and grandparents in Australia for the first time.
I accept Ms Cantrall’s submission that if I Order the return of the child to New Zealand, the child will not necessarily be placed in the mother’s care, as I can only Order a return to New Zealand. The submission is that even if I find that his habitual place of residence is New Zealand, this fact may enliven my discretion to refuse to order a return.
I reject that submission. Given that the mother obtained in a contested proceedings Interim Parenting Orders in 2018, I do not see that in the return of this child to New Zealand would make matters different. I do not see that this possible uncertainty enlivens my discretion not to Order his return, if I find his habitual place of residence is New Zealand.
There is no doubt that the mother came to Australia voluntarily and she had a well-settled intention to live in Australia at that time, wanting a reconciliation between she and the father so that she could live with her family in Australia. The father had no such intention, and although he did not mislead the mother by telling her he did have such an intention, he did nothing to let her know what his real intention was. There was not one step taken by him that was genuine in these circumstances. Indeed, to the contrary.
I accept the argument of Mr Tockar that the agreement between the parties for the mother to come to Australia on about 3 or 4 May 2019 was fatally flawed. This agreement is very different to agreements between parents, for example, who agree to come to a country for two years for the purposes of one of the parent's work. Even though the intention is that parents come to a foreign country for the purposes of work for a period of time, that does not mean it cannot be regarded as a well settled intention. The matter of Zotkiewicz[17] is authority for that principle.
[17] Above, note 11.
Similarly, if one party is reluctant to agree to move to a new jurisdiction, has misgivings about the marital relationship, taken evidence about a divorce, et cetera, this also does not mean they will not acquire a new place of habitual residence.
Here, the mother had no reluctance. She had no misgivings. She was under the apprehension that she would, by coming to Australia, have her family reunited, and that apprehension was fostered by the father. There was never any suggestion this would not occur and his advice to her of how to sneak out of the country, to not tell anyone, "Do not tell your friends," and that if she did not do this, X's future was at stake. This was a blatant encouragement to the mother that in coming to Australia she would reunite her family and protect her son when both premises were false.
As the mother was under a misapprehension regarding the father's intention and what would happen to her in Australia, that is, no genuine attempt was made at all to repair their relationship she agreed to something without the full facts or full knowledge. She believed what the father had let her believe, that there was a good reason for her to come to Australia to repair their marriage and as the father put into her head, protect the child from her stepmother.
In LK[18], the High Court said as follows at [49]:
Where, as here, the parents' intentions at the time of departure from Israel were expressed conditionally (to live in Australia unless) and the mother took the steps she did, both before and after arrival in Australia, to establish a new and permanent home for the children in Australia, it should have been found that the children were not habitually resident in Israel in July 2006.
[18] Above, note 9.
Here however, the mother here took no steps to establish a new and permanent home for X in Australia. She had no means to do so. She lived in the home of the father and his parents, from which she was ejected on 11 June 2019 on a spurious complaint being made.
In light of all the above facts, I find that the child's habitual place of residence did not change upon his consensual removal from New Zealand to Australia by his mother, even though she expressed a well‑and‑settled intention to live in Australia, due to the fact that the premise upon which she came to this country, the premises upon which she had formed her well-settled intent, to live in Australia as a family, was a fiction.
I accept there were other reasons expressed by her for leaving New Zealand, namely that her stepmother could not then take the child from her. However, her prime reason set out in her Affidavit in the New Zealand proceedings to discontinue proceedings, was to live as a family in Australia, an intention the father never had.
The father agreed that the actions and the circumstances the mother found herself in in Australia were not conducive to a reconciliation. Namely:
a)sleeping in a separate room off a dining room;
b)the child sleeping with the father;
c)the father failing to acknowledge her when she first arrived in Australia;
d)seeking of a DNA test of the child;
e)one attempt at marriage counselling;
f)have the mother charged with an ADVO, which was dismissed by the Court; and
g)ejecting her from the home and leaving her on the street to fare for herself within five weeks of her arriving in Australia.
These are not the actions of a person who had an intention to reconcile their relationship.
The mother's concerns that her parents were trying to remove X from her care was not supported by any evidence. The mother had the benefit of an Order that the child remain in her sole custody. Where that idea came from is perhaps food for thought for another day. However, as the father said in the adjournment application, and as he agreed, the mother is easily influenced. The mother would be particularly susceptible to his influence as she was wanting to reconcile with him.
Justice Bennett in State Central Authority & Handbury (“Handbury”)[19] set out some principles to have regard to in these matters, and those principles are as follows.
a)A child should have one place of habitual residence. When a child gains a new habitual residence, the child loses the old one.
b)Children do not lose their habitual residence immediately upon removal from a jurisdiction, even where there is a settled intention that they will no longer live there.
c)The deeper the child's integration in the old state probably the less fast the child's integration in the new state.
d)The greater the amount of adult pre-planning of the move, including pre‑arrangements for the child's day to day life in the new state, probably the faster the child's integration will be.
e)There can be a composite consideration of all circumstances in the new environment and a mirror image, in the old environment in order to determine whether there has been a shift in habitual residence.
[19]State Central Authority & Handbury [2019] FamCA 668.
This child is not as deeply integrated in Australian society as he was in New Zealand society. He is four and a half. He has lived in Australia for 10 months and in New Zealand for four years.
The father submitted that the mother planned to stay in Australia as she researched day care centres for him. This is correct and is consistent with her capacity to provide for the needs of the child. She sourced preschools that would assist with autism, similar to the preschool he had been attending in New Zealand. I do not accept that this fact indicates a well settled intention or supports a deep integration of the child in Australia. It does, however, indicate how committed the mother was to making her relationship with the father work an integral and non-severable part of her intention to live in Australia with her son. I note he attends preschool but not one of the preschools the mother selected. The child’s integration in Australia is in its infancy.
There is little other indicia of pre-planning or integration by the mother of the child into Australia. There was no new residence that the parties themselves set up together. The mother arrived at his parents’ home and was placed in a veranda room off the dining room with X living in the bedroom with his father. The mother was effectively excluded, as best the father and his family could, from caring for her son, as she had done since his birth.
The mother and her family were described by the paternal grandfather and in the report of the child’s lawyer in New Zealand as follows:
X will be assigned to a life of white trash if he lives with his mother.
Consistent with that sentiment, upon the mother and child arriving in Australia, the father and his family set out on a course of conduct to separate this vulnerable woman from her child. In these circumstances, it is patently clear that the child has been wrongfully retained in Australia as:
a)The mother did not abandon, acquiesce or agree to his remaining in Australia without her at any time;
b)The child was in his parents’ joint custody as at 11 June 2019; and
c)The father was unable to unilaterally change his habitual place of residence on these facts and has sought so to do.
For all the above reasons, I find the child has been wrongfully retained in Australia and is to be returned to New Zealand as soon as possible.
I certify that the preceding two-hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 25 May 2020.
Associate:
Date: 25 May 2020
Key Legal Topics
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Family Law
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Administrative Law
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Jurisdiction
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Procedural Fairness
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