Department of Communities (Child Safety Services) and Barton

[2012] FamCA 68

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & BARTON [2012] FamCA 68

FAMILY LAW - CHILD ABDUCTION - Hague Convention - Where children brought to Australia from New Zealand by the Mother without the knowledge or consent of the Father - Where the defence of the Mother is only as to grave risk and the Father's exercise of his rights of custody prior to removal - Where neither defence is made out

Care of Children Act 2004 (NZ)
Family Law (Child Abduction) Regulations 1986 (Cth)
Hague Convention on the Civil Aspects of International Child Abduction

Director-General, Department of Community Services v Crowe (1996) FLC 92-717
DP v Commonwealth Central Authority (2001) FLC 93-081
Friedrich v Friedrich (1996) 78 F 3d 1060
Soysa & Commissioner of Police [2011] FamCAFC 3

APPLICANT:  Department of Communities (Child Safety Services)

RESPONDENT: Ms Barton

FILE NUMBER: BRC 11545 of 2011

DATE DELIVERED: 23 February 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 23 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Crown Law

SOLICITOR FOR THE RESPONDENT: Jones McCarthy

Orders

1. The orders made by the Honourable Justice Kent on 5 January 2012 be discharged.

2. The children, E Barton, born … May 2001, and J Barton, born … September 2003, be returned to the country of  New Zealand; and for the purposes of giving effect to this order:

(a)       That the said children, E Barton, born … May 2001, and J Barton, born … September 2003, leave the Commonwealth of Australia on or before 1 March 2012;

(b)       That the said children, E Barton, born … May 2001, and J Barton, born … September 200,3 arrive in New Zealand on or before 2 March 2012;

(c)       That pending the said children, returning to New Zealand, the respondent, Ms Barton, born … 1969, continue to be restrained and an injunction is hereby issued, restraining her from removing or attempting to remove the said children from the Commonwealth of Australia;

(d)       That pending the return of the said children, E Barton, born … May 2001, and J Barton, born … September 2003, to New Zealand, the respondent Ms Barton, born … 1969, continue to be restrained and an injunction is hereby issued, restraining her from changing the residence of the said children from the premises where the children and her are currently residing namely, the address known to the Department of Communities in Queensland, Australia;

(e)       That subject to sub-paragraph (f) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent, Ms Barton, born … 1969, and the said children, E Barton, born … May 2001, and J Barton, born … September 2003, on the All Ports Watch Alert System at all international departure points in Australia;

(f)       That the said children, E Barton, born … May 2001, and J Barton, born … September 2003, and the respondent, Ms Barton, born … 1969, 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 Unit, of the Department of Communities advising of the travel arrangements made for the said children to return to New Zealand from 12.00 am on the date nominated for the said travel in the letter;

(g)       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;

(h)       That to facilitate the return of the said children to New Zealand, Ms T, Department of Communities or her nominee be at liberty to release all current passports relating to the said children E Barton, born … May 2001, and J Barton, born … September 2003, for the purposes of the said children's return to New Zealand; and release all passports in relation to the respondent, Ms Barton, born … 1969, to her or her nominee upon request.

(i) That liberty to apply be granted to the applicant to seek any further orders necessary to allow her or officers of the Department of Communities to make such arrangements as are necessary to facilitate and ensure the return of the children in accordance with this order and pursuant to the Central Authority’s obligation under regulation 20 of the Family Law (Child Abduction Convention) Regulations 1986.

1. The respondent, Ms Barton, born …1969, book and pay all the necessary expenses associated with returning the said children, E Barton, born … May 2001, and J Barton, born … September 2003, to New Zealand, including the cost of airfares and departure taxes (if any) for the children to travel from Brisbane International Airport to New Zealand, and in the event the respondent fails or refuses to book and pay these expenses; the father, Mr Barton, born … 1963, be at liberty to book and pay for airfares for the said children’s return to New Zealand in compliance with this Order and the respondent, Ms Barton, born … 1969, pay to Mr Barton, born … 1963, the necessary expenses incurred by or on behalf of Mr Barton in returning the children to New Zealand within two business days of Mr Barton, born … 1963, making a written demand for reimbursement of the said expenses.

2. All other applications be dismissed.

3. There be liberty to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Communities (Child Safety Services) & Barton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11545 of 2011

Department of Communities (Child Safety Services)

Applicant

And

Ms Barton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By application filed on 21 December 2011, the Director-General, Department of Communities (Child Safety Services), in her capacity as the State Central Authority under the Family Law (Child Abduction) Regulations 1986 (Cth) (“the Regulations”), applied for final Orders including an Order that E Barton, born in May 2001, and J Barton, born in September 2003, be returned to the country of New Zealand.

2. The requesting person is the children’s father, Mr Barton (“the Father”), born in the United Kingdom in 1963, who is resident in Auckland, New Zealand. The Respondent to this application is the children’s mother, Ms Barton (“the Mother”), born in Auckland, New Zealand, in 1969, who is currently resident on the Gold Coast.

3. In terms of brief background, the Father and the Mother married in 1990, separated on a final basis in July 2003, and divorced in 2006 in either January 2006, on the Father’s initial affidavit and the Mother’s affidavit filed 3 February 2012, or December 2006, on the Father’s affidavit filed 16 February 2012. Thus, the Mother was married to the Father during the period beginning with the conception and ending with the birth of each child respectively, which is relevant to New Zealand law, discussed further below.[1]

   [1] Care of Children Act 2004 (NZ).

4. Following the parties’ final separation, Orders were made by the consent of both parties, which were sealed in the Family Court at Waitakere in New Zealand on 16 January 2004. Those Orders, headed “Shared Care Arrangement”, appear as Annexure C to the Father’s affidavit filed in support of the Application. Those Orders provided for care and time arrangements for the children for each parent, but save for dealing with care arrangements in that context, did not otherwise deal with guardianship of the children under New Zealand law, discussed further in these Reasons.

5. There is a fundamental issue of disputed fact between the parties as to the reasons behind the children spending intermittent or inconsistent times visiting the Father. On the Mother’s case, the Father was inconsistent in facilitating or spending time with the children. On the Father’s case, the Mother would cease or prevent visits. For reasons which will become apparent, there is no forensic need for me to determine that issue.

6. Both parties agree that, as at October 2007, the children ceased visiting the Father. Again, the Father attributes this to escalating conflict between himself and the Mother, and the temporal connection between such conflict and the fact that the Mother had established a new relationship with a partner. For her part, the Mother attributes this to increasing inconsistency on the part of the Father, and the temporal connection between the Father having, by October 2007, established a relationship with his current wife.

7. Whilst the underlying cause may be in dispute, neither party disputes that between October 2007, when E and J were aged 5 years and 3 years respectively, and December 2007, when they were 7 years and 5 years of age respectively, the Father spent no time with the children. Moreover, the Father does not challenge the Mother’s evidence, in paragraph 16 of the Mother’s affidavit filed 3 February 2012, that in this period the Father made no attempt to keep in contact with the children at all, either in person or by telephone, letters, cards or e-mails.

8. Again, there is a factual dispute between the parties as to what occurred in December 2009. On the Mother’s case, the children wanted to see their father and she instigated efforts to achieve the children spending time with the Father.[2] On the Father’s case, he deposes to deciding in December 2009 that he wanted to see the children and therefore, “…recommenced efforts,” to see them.[3] I note that in responding to paragraphs 16, 17 and 18 of the Mother’s affidavit, the Father does not challenge the Mother’s evidence that in a telephone conversation with the Father, “I told him that the children really wanted to see him and spend regular time with him. He told me that his job required him to be on call every Saturday and therefore couldn’t have the children every second weekend,” and that following that telephone call, “…arrangements were made for [the father] to spend time with the children on Sunday 27 June,” and that in January 2010, the Mother was again, “…stressing that the children really needed their Father,” and that the Father saw the children on one day in each of February, March, May and June of 2010.

   [2] See paragraph 16 of the Mother’s affidavit filed 3 February 2012.

   [3] See paragraph 18 of the Father’s affidavit filed 16 February 2012.

9. In June 2010, the Mother filed an application with the Family Court in New Zealand seeking a review of the Orders made in 2004 earlier referred to. As to this, the Mother deposes, “I felt it was important for the children to maintain a relationship with the Father. I hoped that by filing an application, [the father] would become engaged in a process to this end.”

10. That led to a process culminating in a mediated agreement reflected in final consent parenting Orders which were sealed by the Family Court at Auckland on 21 March 2011 and are the currently operative Orders. Again, those Orders dealt with care and time arrangements, but other than providing for the Mother to have responsibility for providing, “…day to day care…” for the children and for, “…day to day living arrangements subject to any conditions stated in the Order,” again, that Order did not otherwise deal with guardianship of the children under New Zealand law, except for the provision as follows:

    If you are a guardian, unless your role or another guardian’s role is modified by a court order, you must act jointly (e.g. consulting, whenever practicable, with an aim of reaching agreement) when making guardianship decisions for a child.

11. I note in passing that that provision in the Order reflects in similar terms the relevant provision of the New Zealand legislation. Notably, that Order also contained under the heading, “Variation or Discharge of this Order” the following:

    Any person affected by this order, or a person acting for a child who is the subject of this order, may apply to the court to vary or discharge this order.

12. There is also a note to that Order as follows:

    This order may include terms of an agreement between parents or guardians of a child relating to:

    (a)the role of providing day to day care for the child; or

    (b)contact with the child; or

    (c)the upbringing of the child; or

    (d)any combination (a)-(c).

13. Under that note, there is also the provision:

    If you or another party or parties to the order are unable to agree about how to exercise guardianship, or you are in dispute arising from one of you contravening or appearing to contravene the order, you may request the court to arrange counselling for you to assist in resolving the dispute.

14. Following that Order, and in accordance with its terms, it is not in issue that the Father spent time with the children in each of March, April and May 2011. It is also not in issue that on 12 June 2011, the children were unwell and therefore that visit did not proceed. The Mother refers in paragraph 26 of her affidavit to an offer of make-up time not taken up by the Father for reasons he expresses, but notably it seems to me that one could infer that but for the children being unwell on 12 June 2011, the visit would have taken place. Both parties agree that the 26 June visit occurred. Again, on 10 July 2011, the children were unwell, and again it can be inferred that but for that, the visit would have occurred. The 24 July 2011 visit did not happen in circumstances where the Mother took a skiing holiday on the occasion of that visit. There is some dispute on the evidence before me as to whether that was a matter for dispute between the parties or whether the Father consented to that occurring, but it seems to me, in circumstances where, but for that holiday, the inference is that the Father would have had the time on 24 July 2011.

15. On 14 August, in unfortunate circumstances addressed by both parties in their affidavits, the visit did not take place in circumstances where the Father’s wife, and their child were both sick. That culminated apparently in E sending the message reflecting a choice by the children not to spend time with the Father on that day. On 28 August 2011, the visit did not occur because again E advised that she had made a decision not to come. Again on 11 September 2011, it seems that the children, or at least E, expressed to the Father the view that she was not going to attend the contact.

16. In paragraph 40 of her affidavit filed 3 February 2012, the Mother confirms that, in relation to 11 September, the children did not spend time with their Father, she says because they did not want to spend time with him. She deposes that, to the best of her knowledge, “[The father] made no attempt to encourage the children to visit,” but notably, the affidavit is silent as to whether such encouragement came from the Mother. The visit for 25 September 2011 did not occur because the Mother had travelled to Australia for a holiday. I should note, in relation to those holiday periods referred to, that there was a provision in the Order of 21 March 2011 specifically providing for the Mother not to make arrangements when the children would be due to be spending time with the Father.

17. The Mother’s visit to Australia was between 25 September and 8 October 2011. The children thus returned from that holiday on 8 October 2011. They were due to spend time with the Father the next day, that is, Sunday 9 October 2011. However, the Mother deposes that it was the children who did not want to spend time with the Father for that visit. That led to the Father sending an e-mail to both children, copied to the Mother, in the following terms:

    We are very disappointed that for the second visit in the row you have not arrived or had the courtesy to let us know that you are not coming. We will no longer expect to see you on the second and fourth Sundays of each month and if you wish to see us at any time you will have to contact us to make arrangements which will depend on our availability. As always, you are free to phone or e-mail us whenever you want to.

18. That e-mail, in its full terms, is annexed as “SAB 3” to the Mother’s affidavit filed 3 February 2012. On 27 October 2011, the Mother, without notice or express consent of the Father, relocated herself and the children to Australia.

19. On this application, there are a number of elements which are not in issue, particularly by reference to reg 16(1A) of the Regulations. That is, it is not in issue that both children are under the age of 16 years, it is not in issue that, immediately before 27 October 2011, when the Mother acted to relocate to Australia, that the children were habitually resident in New Zealand. It is also not in issue that the Father possessed rights of custody under New Zealand law at the time of that event.

20. What is in issue, in terms of the Regulations, was whether the children’s removal to Australia was in breach of the Father’s rights of custody in the circumstances referred to of the Father’s e-mail of 9 October 2011, and whether, at the time of the children’s removal, the Father was actually exercising rights of custody, or would have exercised those rights if the children had not been removed or retained. In terms of subparagraph (3) of reg 16, the Mother raises that the Father was not actually exercising rights of custody when the children were removed to Australia, and would not have exercised those rights if that removal had not occurred. Moreover, the Mother most recently in an affidavit filed yesterday, posited the defence of grave risk; namely, that the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.

21. Regulation 4 of the Regulations contains the definition of “rights of custody” and relevantly for present purposes, that definition includes, in subparagraph (2), rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child. Subparagraph (3) refers to those rights arising by operation of law or by reason of judicial or administrative decision or by reason of agreement.

22. The court has, in support of the application, the affidavit of Ms Parsons, dated 28 November 2011 and filed in support of the application filed 21 December 2011. Ms Parsons is a barrister and solicitor having eighteen years’ experience in family law in New Zealand. Her evidence is not challenged by the Mother, either by way of competing expert evidence or otherwise. Ms Parsons sets out the relevant provisions of the New Zealand legislation, being the Care of Children Act 2004 (NZ). Plainly enough, on that legislation, which is a matter of fact to be determined by me, and it is New Zealand law to which I must have regard on the authorities such as Director-General, Department of Community Services v Crowe (1996) FLC 92-717 (“Crowe”), the Mother and the Father were joint guardians of the children, pursuant to the relevant law, and that position is not disturbed by either of the Orders I have earlier referred to, and indeed the second of those Orders in the paragraph I have referred to expresses in a slightly different way the exercise of guardianship provided for in New Zealand legislation. Notably both the definition of “guardianship” and the exercise of rights of guardianship under the New Zealand law are non-exhaustive definitions. Plainly enough, the rights that the parties both possess included the right to determine where the children live and other, major decisions concerning the children’s welfare.

23. It seems to me that it is beyond doubt that the expressed right to choose where the children live is possessed by the parents jointly, and whilst the Mother may have purported to exercise that right as an exercise of her right of guardianship, it at the same time offended the Father’s rights. The Mother was bound both by the New Zealand legislation, and by the Orders made as recently as March 2011, to consult the Father with respect to such a major decision. Even if I put the Father’s e-mail of 9 October 2011 at its highest, and even for the sake of the argument, adopt the Mother’s approach that that amounted to the Father abandoning his rights to spend time with the children, about which I will say more shortly, I do not see how on any view or interpretation of that e-mail, it follows that the Father thereby abandoned the other rights of custody he possessed, and in particular the right in terms of major decisions concerning the children.

1. It seems to me that if the Mother truly and fairly believed that the Father was abandoning all rights with respect to the children, it would have been a simple matter for her to simply notify him of her plans, in the expectation that he would raise no objection. I infer from the fact that she did not do so, the suspicion at least by the Mother, if not the belief, that the Father would indeed have something to say about her plans. Notably, the Mother’s own affidavit confirms that she was pursuing attempts on 6 January 2012 in relation to matters of child support. Whilst the obligation to pay child support arises presumably by reason of the child support legislation in New Zealand, it may also be noted that within the meaning of “rights of guardianship” as defined in New Zealand law, there are both benefits, in terms of rights and powers, and obligations, in terms of duties and responsibilities. It seems to me that it would be somewhat inconsistent of the Mother to suggest that the Father had abandoned all rights of custody in relation to the children, while at the same time assuming that his obligation consistent with his rights of guardianship to see the children provided for in terms of child support, should be exercised.

2. A number of decisions have been referred to me in the course of argument. In particular, the decisions in Soysa & Commissioner of Police [2011] FamCAFC 3 (“Soysa”), Crowe and Friedrich, which Mr Dodd for the Mother seeks to distinguish from the present case in terms of the Father, on his argument, having abandoned his rights of custody. However, it seems to me that it is plain enough on all of the authorities that a Court must be satisfied of words or conduct sufficient to make it unequivocal that a party has abandoned all rights of custody, and there is limited scope for the application of that test on all of the decided authorities. Whilst there are differences in the facts of each of Soysa, Crowe and Friedrich v Friedrich (1996) 78 F 3d 1060 from those of the present case, that theme is repeated. Whilst Mr Dodd refers to Crowe as being a case where the dispossessed mother wrote some letters complaining about holiday time in another country interfering with her rights to spend time with the children, that plainly enough is in the context of a very long period under review, something like six years, when such correspondence was obviously relevant to a determination of whether there had been abandonment.

3. In this case, on the history, there have been long periods when contact or time has not been spent by the Father with the children. The Mother would say the Court should rely upon that and that finally the Father had come to the position on 9 October 2011 that he was abandoning his rights. The contrary view of that evidence is that the background shows that there have been periods when the Father has not spent time with the children, as long as two years, but time has subsequently been resumed in circumstances where the Father has participated, if not pursued, in mediations and reaching agreement on consent Orders to that effect. Against a background where there are periods of that length, it seems to me that it is improbable that the Mother would expect that from the e-mail of 9 October 0211, given the history I have referred to in terms of the then-relatively recent Order made in New Zealand and the relatively recent visits, some of which did not occur by reasons other than the Father’s conduct, it could be said that the 9 October 2011 e-mail was to be construed in that way.

4. In any event, on any reading of the 9 October 2011 e-mail, I cannot be satisfied that that amounted to an unequivocal abandonment by the Father of his rights of custody otherwise. For those reasons, I am not satisfied of the Mother’s defence to the Orders sought in terms of the exercise of rights of custody.

5. As to the grave risk exception agitated for by the Mother, that exception was analysed at some length in DP v Commonwealth Central Authority (2001) FLC 93-081 (“DP”), in the High Court. Whilst the High Court, it can be said, was critical in that decision of reading down the relevant provision too narrowly, the High Court noted at paragraph 42 in relation to the prediction about the future, having noted the burden of proof is on the person opposing return, the following:

   42. Necessarily, there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required. What is required is persuasion that there is a risk that warrants the qualitative description of “grave”. Leaving aside the reference to intolerable situation” and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur; it extends to a risk that return would expose the child to harm.

   43. Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that the Court will not be persuaded of that without some clear and compelling evidence. The bare assertion by the person opposing return of fears for the child may well not be sufficient to persuade the Court that there is a real risk of exposure to harm.

6. The first point to note about the defence raised by the Mother is that it seems to have been raised for the first time yesterday, in circumstances in which she had earlier filed an affidavit on 3 February 2012. That aspect aside, it is to be noted that the return is to New Zealand, the country of the Mother’s birth and where she has lived for most of her life and where the children have lived for their lives. I have already noted that the Mother has pursued child support from the Father, so I can infer there are methods of securing financial support from the Father in New Zealand.

7. The Mother had the financial capacity to travel to Australia she says on a holiday on 25 September 2011 until 8 October 2011. Whilst I can accept that the Mother has limited funds, it seems to me that her evidence, as a whole, in the affidavit filed yesterday, is not sufficiently persuasive that whatever risk lies in the return to New Zealand amounts to grave risk in the terms expressed in the Regulations as refined and referred to by the decision of the High Court in DP (supra). It may be true that the Mother may, as she deposes, have to resort to emergency housing, at least initially, but that also demonstrates the point that such housing apparently is available in New Zealand. It may also mean that there is a change of the children’s schooling because of the school they previously attended in Auckland being a”, “…privately funded…” state school.

8. Whilst I can accept that the Mother may also have difficulties in terms of obtaining employment if compelled to return, there is no solid evidence put before me by the Mother, beyond assertions of her precise financial position; or of her employment history in New Zealand; other than the assertion she had difficulties recently in obtaining a position. No evidence of her income in the position she held as she refers to at X Insurance in New Zealand and the like is provided.

9. In those circumstances, I am not persuaded that the evidence advanced by the Mother satisfies the definition of grave risk within the meaning of the subsection.

10. The Mother advances the proposition that if a return Order is to be made, that rather than a return as proposed by the Applicant that the Order be made for the return on or before 1 March 2012, that time be extended until 6 April 2012. Plainly enough, in the absence of evidence of the kind referred to by the Mother as to precisely her current financial circumstances and the like, it is difficult to be persuaded that the Order should be delayed, and in any event, having regard to the purpose and the effect of the Convention, the return of the children should be facilitated as soon as possible. I note that the corollary of their earlier return means that the Mother can pursue whatever efforts she needs to pursue in New Zealand with respect to parenting arrangements and her own financial arrangements vis-à-vis the Father.

11. Finally, I simply record that Hague Convention proceedings are essentially forum proceedings. They are not about parenting Orders in the best interests of children. There are limited matters the Court is entitled to take into account so far as what might be described as parenting issues in terms of determining a return Order.

12. In all the circumstances, I therefore make the Orders made available in draft form by the Applicant which I now initial and place with the file.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 23 February 2012.

Associate: 

Date:  27 February 2012