Department of Communities (Child Safety Services) and Menzies

[2011] FamCA 390

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & MENZIES [2011] FamCA 390

FAMILY LAW - CHILD ABDUCTION – Hague Convention – Whether the children should be returned to New Zealand – Where the mother has a history of drug and alcohol related issues and did not complete the rehabilitation course she entered into – Where the evidence shows the mother has remained abstinent from drugs and alcohol since the rehabilitation course – Whether there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place the children in an intolerable situation – Court found that there is some risk but not a grave risk – Court did not find that the children have attained an age and a degree of maturity where it is appropriate to take account of the children’s views – Whether the retention of the children in Australia is wrongful – Court found that the retention was wrongful – Order that the children be returned to New Zealand.

Family Law Act – s 111B
Family Law (Child Abduction Convention) Regulations of 1986 (Cth) – reg 1A, reg 16, reg 14, reg 15, reg 16(1A), reg 16(3), reg 16(3B)

Director-General, Department of Community Services & Crowe (1996) FLC 92-717

APPLICANT: Department of Communities (Child Safety Services)

RESPONDENT: Ms Menzies

FILE NUMBER: BRC 2861 of 2011

DATE DELIVERED: 27 May 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Crown Law

COUNSEL FOR THE RESPONDENT: -

SOLICITOR FOR THE RESPONDENT: -

Orders

1. The orders made by the Honourable Justice Forrest on 13 April 2011 are discharged.

1. That the children, J born … August 1999 and M born … May 2001 (“the children”), be returned to the country of  New Zealand; and for the purposes of giving effect to this order:

(a)The said children leave the Commonwealth of Australia on or before Friday, 3 June 2011;

(b)The said children arrive in New Zealand on or before Saturday, 4 June 2011;

(c)Pending the said children returning to New Zealand, the respondent MS MENZIES born … 1951, 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)Pending the return of the said children to New Zealand, the respondent MS MENZIES born … 1951, 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, H address, in the State of Queensland, Australia;

(e)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 MENZIES born ... 1951, and the said children J born … August 1999 and M born … May 2001, on the All Ports Watch Alert System at all international departure points in Australia;

(f)That the said children J born … August 1999 and M born … May 2001, and the respondent MS MENZIES born … 1951 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 B, Department of Communities or her nominee be at liberty to release, all current passports relating to the said children J born … August 1999 and M born … May 2001 for the purposes of the said children's return to New Zealand; and release the respondent Ms Menzie’s passport to her or her nominee upon request.

(i)That the said children J born … August 1999 and M born … May 2001 attend upon the family consultant, Ms S, for the purpose of explaining this Order to the children.

(j)The respondent MS MENZIES born … 1951 is restrained from informing the said children J born … August 1999 and M born … May 2001, of the Court’s decision before Ms S is able to do so.

(k)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 applicant shall, before the said children J born … August 1999 and M born … May 2001, return to New Zealand, make contact with the New Zealand Department of Child, Youth and Family and draw to that department’s attention the evidence in this matter and also provide a copy of the Court’s reasons for judgment; and request that the New Zealand department provide assistance to the mother MS E born … 1970 in the parenting of the said children J born … August 1999 and M born … May 2001 upon their return to New Zealand, as in that department’s discretion.

2. The respondent MS MENZIES born … 1951, pay all the necessary expenses associated with returning the said children J born … August 1999 and M born … May 2001, 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 pay these expenses; the mother MS E born … 1970 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 MENZIES pay to the MS E born … 1970 the necessary expenses incurred by or on behalf of MS E, in returning the children to New Zealand, within two business days of  MS E born … 1970 making a written demand for reimbursement of the said expenses.

3. That all other applications be dismissed.

1. That there be liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2861 of 2011

Department of Communities (Child Safety Services) 

Applicant

And

Ms Menzies

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before me for determination today is an application that was filed on 30 March 2011 by the Director-General of the Department of Communities (Queensland) pursuant to the Family Law (Child Abduction Convention) Regulations 1986, otherwise known as the Hague Convention Regulations, consequential upon the signing by the Australian Government of the Convention on the Civil Aspects of International Child Abduction in 1980 at The Hague in the Netherlands, hence the name the Hague Convention.

2. The Family Law (Child Abduction Convention) Regulations of 1986 are made pursuant to section 111B of the Family Law Act that provides that the regulations may make provision, as is necessary or convenient, to enable the performance of the obligations of Australia under the Convention.

3. I will refer to the Family Law (Child Abduction Convention) Regulations of 1986 throughout the balance of this judgment as “the Regulations.”

4. The application that was filed by the Director-General of the Department of Communities that I have referred to is an application for an order that the two children, J, born in August 1999, who is therefore now 11, going on 12 years of age, and his younger brother, M, born on in May 2001, who is now just 10 years of age, be returned to their country of habitual residence, namely New Zealand.

5. The respondent to the application is the boys’ maternal grandmother, Ms Menzies.  The Director-General, Department of Communities, was represented in the hearing that took place before me yesterday, on Thursday, 26 May 2011, by counsel, namely Mr Linklater-Steele, and the respondent, the maternal grandmother, Ms Menzies, was unrepresented.

6. Regulation 1A of the Regulations previously referred to sets out what the purpose of the Regulations is. Firstly, it says that the purpose of the Regulations is to give effect to the obligations imposed by section 111B of the Family Law Act and, secondly, the regulations are intended to be construed:

   (a) having regard to the principles and objects mentioned in the preamble to and Article 1 of the Hague Convention; and

   (b) recognising, in accordance with the Hague Convention, that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence; and

   (c)recognising that the effective implementation of the Convention depends on the reciprocity and mutual respect between judicial or administrative authorities (as the case may be) of Convention countries.

7. Pursuant to Regulations 14 and 15, this Court may make return orders or any other orders that it considers appropriate to give effect to the obligations imposed on the Australian Government by the Convention.

8. Regulation 16 imposes an obligation on this Court if it is satisfied by the applicant that the child’s or children’s removal to, or retention in, Australia was wrongful, that is, under subregulation (1A), of Regulation 16.  If the Court is satisfied that the children’s removal to, or retention in, Australia is wrongful under that subregulation (1A), then the Court must, subject to a discretion that is provided for in subregulation (3) that I will come to in due course, make the order to return the children to the country from whence they came.

9. Subregulation 16(1A) says this:

   For sub-regulation (1) a child’s removal to or retention in Australia is wrongful if

   (a)      the child was under 16; and

   (b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and

   (c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and

   (d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and

   (e)at the time of the child’s removal or retention, the person, institution or other body:

   (i)was actually exercising the rights of custody (either jointly or alone); or

   (ii)would have exercised those rights if the child had not been removed or retained.

10. Subregulation (3), the subregulation that confers a discretion on the court in certain circumstances, says that the court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes certain things.  I shall return to that and set those out later.

11. Now, in respect to the matter that is currently before the Court, as I have indicated, the respondent, Ms Menzies, is the maternal grandmother of the two children who are the subject of the application.  Ms Menzies was born in England in 1951 and is, therefore, as I calculate it, now 60 years of age.  For much of her adult life, at least to the best of my understanding, she lived in New Zealand.  Early in her adult life she was married to a Mr E and they had two daughters, P and V.  It is the second of those daughters, Ms V E, who is the mother of the two children who are the subject of these proceedings.

12. Ms Menzies and Mr E divorced in New Zealand in 1974.  At various times during the childhoods of P and V they were in the care of their mother, Ms Menzies, and subsequently in the care of their father, Mr E.

13. In 1994 Ms Menzies remarried, apparently in New Zealand, and she and her husband moved to Australia, more particularly far north Queensland, in early 1995.  On my understanding of the evidence, around that same time the mother of the two subject children, Ms E, married Mr W, a man of Maori extraction, in New Zealand.  I understand from the evidence that they have lived in or around the city of Auckland from that time, at least, until now.

14. The two subject children were born, as I have already stated, in 1999 and 2001 to the marriage of their parents, Ms E and Mr W.  It seems on the evidence, and I do not consider, as I see it, that this is significantly in dispute, that Ms Menzie’s relationship with her daughter, Ms E, was, as can be described mildly, a troublesome one for many years.

15. Ms Menzies told me from the bar table that in the year 2003, so, clearly at a time when she was living in far north Queensland with her husband and at a time when she must have been visiting her daughter, Ms E, and her family in New Zealand, she became somewhat worried by her daughter’s apparent “abuse” of alcohol; that term being mine, not Ms Menzies’s.  She, worried by her daughter’s abuse of alcohol, apparently contacted Mr E to bring it to his attention, but, according to Ms Menzies, her concerns, reported to Mr E, fell on apparent deaf ears.

16. On the evidence, the mother, Ms E, and her husband, Mr W, had lost their first baby at the age of about six months, apparently to congenital problems that that child was born with and did not survive.  According to Ms Menzies’s evidence, her daughter experienced some depression as a consequence of that.  That would not surprise me.  Nevertheless, she was able to, thereafter, devote herself to nursing studies, in which she qualified, as well as bringing the two subject boys into the world and parenting them.  She was, as it seems, functioning clearly well enough in those early years of the boys’ lives to get through her studies, as well as parent them through their infant years.

17. There is evidence by way of a letter from a doctor, who is in general practice in Auckland, a Dr L, a letter dated 7 May 2011, which is exhibit E to the affidavit of Ms E that was filed in these proceedings on 19 May 2011.  In that letter Dr L actually sets that she has been the general practitioner for the family of Ms E and her children since 1995.  Dr L is a doctor in Auckland, suggesting that the mother and the family have, as I said, lived in the Auckland area since, at least, 1995.  Dr L actually says in the early parts of that letter that she was in awe of the manner in which Ms E parented her first baby before it died and how she handled that and then how she parented the two boys thereafter.  I shall return to that letter in due course.

18. Ms S, who is a family consultant with the Family Court, prepared a report, pursuant to earlier orders made by me on an interim basis in this matter and that was made available just very shortly before the hearing, due to the time constraints involved, to the parties.  It was admitted into evidence and has been considered by me in the course of this hearing and the determination that I have made.  In that family report process, Ms S interviewed the two children, as well as the maternal grandmother.  She did not, unfortunately, as is the nature of such reporting process in matters like this, get to interview the mother of the children, Ms E.

19. However, according to the child J’s reporting to the family consultant, from around the time when he was about five or six years of age things started getting troublesome at home, most particularly between his parents, with them arguing and his mother beginning to abuse alcohol and, indeed, drugs.  I have to say, I will just remark at this point in time, that I am cautious about placing too much reliability on the accuracy of reporting of 11-year-old 11, nearly 12 year-old J to the family consultant about this when he is talking about something that he says he recalls from the time he was about five or six years of age.

20. Nevertheless, I do not doubt that indeed troubles began between his parents.  I do not doubt that he can at least recall troubles between his parents at that stage and that his mother was drinking and perhaps even involved in drugs as early as at that time.  Certainly, although there is no other evidence to support that, the maternal grandmother suggests, as I have said, that Ms E was indeed having trouble with alcohol as early as 2003 and that she has otherwise a lengthy history of drug and alcohol abuse.  I will return to some other evidence that the grandmother gives about that in due course.

21. Ms Menzies also told me from the bar table that her daughter, Ms E, and her family, including the boys, made many visits to Australia over the years, after the boys were born and after Ms Menzies and her husband had moved to Australia, which, of course, they did before the boys were even born.

22. The evidence also establishes that in 2008, or thereabouts, the maternal grandmother, on a trip to New Zealand, apparently when visiting Ms E’s home, became concerned about the deteriorating state of the household, made comments, which no doubt upset her daughter or apparently upset her daughter and, according to the maternal grandmother, the relationship between her and her daughter and her daughter’s husband broke down to such an extent that the grandmother was excluded from the home and communication between the two, that is, the maternal grandmother and Ms E, effectively broke down.

23. The grandmother’s evidence is that there was no real communication or relationship contact, between her and Ms E between 2008 until the middle of 2010.  However, the grandmother said, at least from the bar table, that she would call during those years to speak to the boys and that she would do so knowing that the young child, M, had a propensity to answer the phone, to be the first one to answer the phone, and that she would get to speak to him at least.  I do not know that I understood it correctly, but I expect that what she was attempting to convey was that she would get to speak to both the boys on such an occasion.  In fact, she went as far as saying that the boys would report to her during that period, on such calls, that their mother was in the bedroom asleep.

24. I consider the maternal grandmother was trying to convey to the Court that she at least continued a relationship of sorts with her two grandsons during that period when her relationship with her own daughter appeared to be estranged.  The extent to which that actually happened, I am not able to determine.  I do not reject the grandmother’s assertions in that regard, although again I must say I place cautious weight upon them and accept that perhaps there may have been in the grandmother’s own mind, potentially, unconscious exaggeration of the amount of contact that she actually had with the boys during that period.

25. One thing is clear though, and this is very relevant ultimately to the determination that I have to make.  The respondent maternal grandmother conceded from the bar table that she had no cause to ever call, and I just go back and say, in fact, she had no cause to even consider ever calling the New Zealand child welfare department.  That child welfare department is apparently called Child Youth Family Services or CYFS, and I shall refer to it as such in the balance of my judgment.  That, in my view, is a fairly relevant piece of material that Ms Menzies put before the Court, albeit from the bar table.

26. Notwithstanding her concerns that began as early as 2003, that escalated to 2008 to a point where she took a stand that led to her estrangement from her daughter and exclusion from her daughter’s life, and although she was not in communication with her daughter she was in communication with her grandsons, apparently between 2008 and 2010, speaking to them and even being told that their mother was asleep in the bedroom, at no point did she even consider contacting the New Zealand department of child welfare, let alone ever actually decide that there were grounds to cause her to call them and ask them to go and check up on the wellbeing of her grandchildren.

1. Neither was there any apparent motivation, before the middle of 2010, for her to go across to New Zealand and take any steps to check on the wellbeing of her grandchildren herself or, indeed, take any steps to cause others to do so, or to take any steps in a New Zealand court.

2. These proceedings have their actual genesis in 2010.  Early in 2010 Mr W and Ms E actually did come to the attention of the New Zealand Police.  Evidence before me establishes that New Zealand Police records show that in the early part of 2010, on a couple of occasions, two or three it may very well have been, police were called to the residence of the family in response to complaints of domestic violence and, indeed, I think, maybe even a call from Ms E herself.

3. Now, the records that have been put before me, attached to an affidavit of Ms E, show that the police actually did record that there were two children in the household.  They show that because there seems to be some immediate or automatic cross-referencing between the New Zealand Police and the CYFS when the police are called out to a domestic violence situation and they observe children in the household.

4. The CYFS records that have been put before the Court, attached to Ms E’s affidavit, essentially in response to assertions made by the maternal grandmother in her affidavits of evidence, show that the department was, indeed, informed by the police that there were two children in this household and I shall return to that.  I will just say at this stage the CYFS records before the Court do not make it clear to me whether there was any investigation actually done by the department, or CYFS, at the time they were notified about the domestic violence.  It does not appear that the CYFS people considered there was any real need to do so.

5. Early in June 2010, Mr W called the maternal grandmother, telling her that he was worried about the boys and the adequacy of the boys’ care in the care of their mother.  Indeed, at that time, he had just been released from a prison, apparently consequent upon the violence he had instigated against Ms E, but I am not quite sure of that, and he was actually in a Salvation Army drug rehabilitation unit himself.  He clearly told the respondent maternal grandmother about Ms E taking drugs and having difficulties in her own care and personal consideration and was impaired in her parenting capacities at the time.  He suggested, no doubt, that Ms Menzies might want to consider going across to New Zealand from Australia to help out.

6. The evidence establishes that on 2 July the maternal grandmother did fly across to New Zealand and on 3 July she went around to the mother’s home to be confronted with, on her evidence, a fairly disturbing scene.  Of that, there does not seem to be any doubt.  Although there is dispute about the extent to which she was incapacitated at the time and the extent to which the house was in a state of squalor, as asserted by the maternal grandmother, it is quite clear that there is no dispute that the mother was, indeed, in a fairly incapacitated state, having regard to her own health and that the house was in such a state the maternal grandmother was, rightfully, concerned about the wellbeing of the boys, who were there in the sole care of their mother at the time.

7. The mother, Ms E, suffers from serious type 1 diabetes and at that time she was, quite clearly, not in control of her condition.  She was seriously dehydrated, having neglected her condition, due to her abuse of methamphetamines and alcohol.  Ms Menzies called an ambulance and the ambulance took Ms E to hospital, where she was admitted and hospitalised overnight.  Her condition was stabilised and she was reviewed and she was released from that hospitalisation the next day.

8. The respondent maternal grandmother says that the doctor and social worker at the hospital actually disclosed to the maternal grandmother that the mother had had several previous admissions to hospital that were drug and alcohol related.  There is a serious factual dispute about this, which is seemingly difficult to resolve on the evidence, particularly where there is no cross-examination in these summary hearings that Hague Convention proceedings traditionally are.

9. The grandmother says in her evidence that the social worker told her that the police had not reported that there were children in the home when they had been called out to the home for domestic violence incidents at the home.  The grandmother gives that evidence apparently as explanation for why, she says, there was no CYFS involvement that she can point to over the long history of time that she says the mother had a lengthy history of drug and alcohol abuse that incapacitated her from parenting appropriately and that that is the explanation for why there were no records of such intervention.

10. I do find that somewhat difficult to accept given, firstly, the mother absolutely denies the assertion by the grandmother that there were many admissions to hospital for drug and alcohol related issues, pointing to the fact that, if there had been, she would have had trouble with her nursing profession eligibility much earlier than she actually did in the middle of 2010 and, secondly, because it is clear to me, on the evidence, that police records reveal the extent of police involvement in the household to be only on those two or three occasions that I referred to in early 2010 and that there was in fact notification to CYFS by the police that there were children in the household and, contrary to the assertion, hearsay albeit that it is, made by the respondent grandmother, that the social worker told her about.

11. The mother, in her own evidence, effectively asserts that it was really this one admission in 2010, caused by her dehydration apparently, that resulted in information about her drug abuse being communicated, by ethical professional obligations on those who were treating her, to the professional body overseeing the eligibility of the mother to continue doing nursing practice.  The evidence is that the mother was forced to resign her position as a nurse and she says that that was something she chose to do when she had other options because she chose to enrol in a drug and alcohol rehabilitation program that was some three to four months in duration and, given that that was the course she chose to do, that she was given no other real option, other than to resign, do the rehabilitation course and later reapply for her position.

12. There does not seem to be any dispute that, after the mother’s discharge from the hospital the day after her one night admission, that she then went back to caring for the two subject children for almost two weeks, whilst the respondent maternal grandmother remained in the Auckland area and was in negotiations, if I can describe them as that, with the maternal grandfather, Mr E, the paternal grandparents, namely the Ws, and, variously, the mother and the father of the two boys, about the future arrangements for the care of these two boys.

13. It seems that it at least was agreed, if I can describe it as that, between the mother and the father and Ms Menzies that Ms Menzies would take the children with her from Auckland back to her home in far north Queensland and care for them for a temporary period of time to allow the two parents to “get their acts together”, if I can use that colloquial description, to actually, in the mother’s case, get into the rehabilitation program that she was planning to undertake and, in the father’s case, a similar thing, but a different program.

14. It is also clear - and this is quite a relevant point, I say at this stage - it is also clear, on the evidence, that Ms E and Mr W separated.  Ms E terminated the relationship with Mr W at this time in July of 2010, separated from him, and it is clear that their house, the house that they were living in at the time when Ms Menzies went across, has since been sold via a negotiated property settlement and, to this point in time, there has been no reconciliation of their relationship and it seems, on the evidence, there is not likely to be.

15. The maternal grandmother was able to obtain, and apparently thought it was necessary to obtain, from each of the parents, before she was able to get passports for the boys and able to take them from the country, brief documents that they signed, in which they effectively are said to confer or authorise the maternal grandmother to be a guardian of these two boys.  These two documents have been placed into evidence.  The one signed by the father said that they could go with the grandmother and stay with her and he consented to her having guardianship rights over the children until 7 October 2010, whereupon it was to be reviewed.  The other one, signed by the mother, said a similar thing, save that it did not mention 7 October.  It simply said until the mother’s medical issues were resolved.

16. Let there be no doubt, I make no finding that the parents actually surrendered what at law in New Zealand are their joint guardianship rights to the maternal grandmother by those documents and I find that, although they may have somehow consented to or authorised the grandmother to have some guardianship rights in respect of these children, I do not find that they actually surrendered the guardianship rights that they had, as a matter of law, in New Zealand, as the parents of these two boys.

17. Interestingly, the respondent maternal grandmother throughout the proceedings, indeed, on the first return date in April and during the hearing yesterday, was eagre to accentuate the fact that she has never intended and does not intend to have these boys indefinitely or permanently in her care.  She was keen to impress upon the Court that, in a way, it is a burden for her that, at this stage of her life, she does not really need.

18. Clearly, the original agreement that was entered into with her and the two parents was temporary and was meant to be temporary.  Indeed, the father, but, more importantly, the mother clearly had expectations that the children would be returned to New Zealand fairly soon after they come over.  The mother’s expectation clearly was the children would be returned to New Zealand when she had completed her course of drug and alcohol rehabilitation, which she commenced in September, at which time she was expecting to be finishing sometime in or around January/February of 2011.  That was already envisaged apparently when she agreed to the arrangement with her mother and so that was effectively her expectation at the time that the care of her children by her mother was only going to be temporary.

19. However, if I can just turn to a document that is attached as exhibit A to the affidavit of the mother that was sworn on 20 December 2010 and which is attached to the application in form 2 that was filed on 30 March 2011.  That is a document that the respondent maternal grandmother sent - it looks like it is by email - to the father, Mr W, as early as Monday, September 13, 2010, even before the date of 7 October, which was the date upon which she and Mr W had agreed that the boys’ care would be reviewed, at which time the rights of caring for the boys that were conferred on the grandmother, by the father at least, were said to end.

20. This document that was sent by Ms Menzies to Mr W is headed Parental Conditions for Children J and M and then sets out a number of conditions and ends with the maternal grandmother saying these are requirements that the maternal grandmother was placing upon Mr W, in which she also said:

    Terms and conditions will be addressed to [Ms E], on the completion of her rehab program at [G Facility] in January 2011, regarding the care of these children.

    Under which she then says:

    These conditions are essential and not negotiable.

    She goes on to say:

    When the conditions are met by [Mr W] and endorsed by the appropriate authority, it is then the return of the children will be considered.

21. It was clear then that the maternal grandmother was taking a very forceful and strong view, perhaps appropriate in respect to the care of her grandchildren, but as to how and when these children were going to be returned and it was clear that she considered it was going to be at her sole determination.

22. Now, the mother, as I said, went into a rehabilitation program, called G Facility, in Auckland, in New Zealand, in September, and was apparently communicating with her mother, the grandmother, and the two boys in Australia during the early stages of that, telling her mother how tough a program it was and how emotionally confronting it was, but how she was committed to it and wanting to recover and clearly wanting to recover so that she could take up again the role of parenting the two boys that she clearly loved doing.  Clearly, her feelings towards the boys; that she was missing them, very attached to them, loving them and looking forward to their return to New Zealand, are obvious from the letters that she wrote that the maternal grandmother has actually exhibited and put into evidence.

23. Indeed, the mother put into evidence a letter that she got from M, the youngest boy, soon after he had come to Australia, in which he was clearly expressing his love for, and the degree to which he was missing, his mother at that point in time.

24. Now, the mother did not complete the full duration of the rehabilitation course that she entered into at G Facility and that seems to be a major cause of concern for Ms Menzies, and perhaps rightly so, but I am not sure that I can find as such on the evidence.

25. The mother’s evidence is that she began experiencing some real difficulties in the management of her acute diabetes, where she was not, and understandably so, allowed to have her syringes and her medical equipment and medicine - insulin, I presume it was - with her in her room overnight at the residential premises for the drug and alcohol rehabilitation program and she suffered some hypoglycemic episodes.  Apparently, it caused her acute stress and in mid November, after having been in the course for about two months,  about eight or nine weeks, it seems, on the evidence that is attached to the mother’s affidavit, by way of a letter from the people who run the program at G Facility, she, in consultation with the management, or the people running the program, checked herself out of the facility and then moved in with her father in a suburb of Auckland.

26. Now, there is a letter, as I say, that is attached to the mother’s affidavit from the G Facility people, which confirms that and supports and confirms the mother’s evidence that it was because of health reasons that she moved out and the letter goes on to say that the mother needs to continue to address her drug and alcohol addiction by accessing appropriate counselling and support services which, in my mind, sounds absolutely correct and appropriate.

27. It seems though that the grandmother has taken serious issue with the mother having checked out of the facility early and it is one of the grounds that causes her to consider that there is a very high risk, and that it is highly likely, that the mother will relapse into her drug addiction in such a way that would again incapacitate her from parenting if the boys were returned to her care.  I shall return to that later.

28. There is a dispute about what really happened next and this is in respect of the issue of the children’s return to New Zealand or not and their retention in Australia.  The maternal grandmother’s evidence is that the father rang her and asked her if she would be able to keep the boys for a full 12 months and the maternal grandmother says that she then had some conversation with her daughter about that and that her daughter simply said something like, “Well, I would like them to be home sooner than that,” and the maternal grandmother’s evidence is effectively that it never went much beyond that.

29. I must say this evidence is contradicted by the evidence of the daughter herself and, indeed, her father, Mr E.  The daughter says that her mother, in a telephone conversation that they had in late November, simply told her that she was going to keep the children for another 12 months and the daughter said, “No, no, I want them to come home sooner than that,” and the maternal grandmother simply said, “No, that is not going to happen,” and they reached a stalemate and the daughter said, “Well, I want them to come home,” and effectively said - the evidence before me seems to be that the mother said, “Well, I will be coming to get them if you do not send them home,” and made it clear that she wanted them sent back in no uncertain terms, or, that she wanted them to be returned to New Zealand, in no uncertain terms.  That is the extent of the dispute.

30. Now, it is somewhat difficult in these Hague Convention matters to determine where truth lies when there are completely inconsistent versions of facts as between respondents, who are before the court, and an applicant parent who is in this case only three hours by plane away, but across a fairly significant space of water and not here to be cross-examined.  The conventional means of hearing these matters is by summary procedure and it is only in rare circumstances that parties get to be cross-examined.  It is against this background that this Court nevertheless has to do its best on the evidence that is before it, considering it all, weighing it all up and doing its best to determine just where the truth is more likely to lie.

31. Now, in this particular case there is some evidence that causes me to have little doubt really that the mother made it clear to the maternal grandmother that she was wanting the boys to be returned to her at the end of November and that is this.  Firstly, the mother’s father, Mr E, deposes to hearing the conversations at the time and being aware that the maternal grandmother had made it clear that she was not going to return the children, even though the mother was asking for it.  Of course, the maternal grandmother says, “Well, you would not believe him,” and she submitted to me that there was a great deal of the evidence of Mr E, her former husband from many years ago, that I would not accept, although she did not put to me any real sound forensic basis as to why I would not accept it and it became clear to me that the old enmities that existed once between Ms Menzies and Mr E still lie deep down in the relationship between them.

32. But not just because Mr E says he heard it do I believe it.  What then happened was that Ms E went off and saw solicitors and caused these proceedings to be commenced, swearing all her affidavits, absolutely consistent with having told her mother, the respondent maternal grandmother, that she wanted the children returned to New Zealand, and absolutely consistent with an understanding, on her part, that her mother, the maternal grandmother, was not going to return them.

33. Not only that though, there is some other evidence.  There is evidence that Ms E attaches to her affidavit, the last one that she filed - I think it was 19 May 2011 - of the departmental records, that is, CYFS records, in New Zealand that show that at around this time, in late November, there was communication, apparently for the first time ever, as I understand it, between someone in Australia and the department in New Zealand, perhaps through the Queensland Department of Community Services.  The evidence establishes some communication between the two departments, and the evidence at least clearly establishes that the maternal grandmother was complaining or concerned about the prospect of the mother taking the children back into her care and one of the things that she was concerned about was that the mother had said she was going to come to Australia and take the children back.

34. That is inconsistent with the grandmother’s version of evidence given in the Court and I ultimately, with respect to the maternal grandmother, accept that the mother did make it clear to her that she was requiring the children to be returned to her in late November and that the grandmother simply refused to do that.  Now, ultimately, I conclude that that was the retention by the grandmother of these two children that founds the application and that is asserted to be the wrongful retention, which I will come to.

1. Now, the other evidence that is before me that is ultimately relevant is that the maternal grandfather, Mr E, who is an accountant apparently, at least I gleaned from the evidence and remarks from the bar table of the maternal grandmother, as well as his own evidence, is apparently reasonably successful, at least financially, or has been reasonably successful, at least financially.  He apparently, around September 2010, settled on the purchase of a house in what is described as a reasonably nice suburb in Auckland.  I have seen photographs of it and, although the grandmother was a bit critical of it, or not complimentary of the house, from the photographs, it seems a reasonable looking house, comfortable enough.  He bought that and settled on that sometime in September and the mother has been living with him in that residence since she discharged herself from G Facility in mid November.

2. She has apparently in her possession now some $60,000 that she obtained from the property settlement on the sale of the former house that she and Mr W owned jointly and the intention is for her to live with her father with the boys, if they are returned to New Zealand, for some time, until they really get back on their feet, with the support of the maternal grandfather, after which they will rent a place in the vicinity to where the grandfather’s home currently is.

3. The evidence is that the mother has remained abstinent from drugs and alcohol since she came out of G Facility.  At least that is her evidence and, frankly, with all due respect to the maternal grandmother, I do not have evidence before me to suggest that that is wrong or that proves that that is wrong.

4. The mother says that she has been attending and getting support from Narcotics Anonymous and counselling support.  She has, indeed, been attending her GP and she has put into evidence documents that evidence three urine drug screening tests, conducted in February, May and April respectively, all of which were negative and showed no traces of any drugs in her system, most particularly methamphetamines in respect of which she had the addiction problem.

5. Her evidence in that regard is supported totally by her father and, although Ms Menzies again is quite critical and derisive of Mr E and his evidence,  apart from Ms Menzies criticising it and deriding it and telling me that it is not true, there really is not any other evidence before me that allows me to find that it is not true, or would cause me to find or believe that it is not true, or that would cause me to find or believe that Ms E’s evidence is not true.  Her evidence is quite clearly supported by her doctor’s evidence, who appears to have been looking after her in recent months.

6. So, on the evidence, it seems to me that I have to be satisfied and, indeed, I am satisfied that, since the incident where Ms E became so incapacitated in early July of 2010 that caused her mother to be brought to New Zealand by her husband, caused her to be admitted to hospital and then brought about the decision to resign from her nursing position and undertake the rehabilitation, Ms E has been abstinent since then.  I do not have any evidence to the contrary.  That is a period of nearly 12 months.

7. Ms E’s evidence is that she is working with the nursing professional oversight body to get her nursing career back on track.  Her evidence is that she accepts that her marriage with Mr W and the domestic violence that she was suffering in that marriage and the unhappiness that that brought to her was one of the essential causes or catalysts for her deteriorating drug and alcohol problem and she asserts that now she is determined to be separated from him and stay separated from him and keep her life on track.  The evidence is she is attending church and bible study as well and, again, in that regard I heard no criticism, complaints or derision from Ms Menzies in respect of that to suggest that it’s not happening or that it is not genuine.  So there is cause to consider that, indeed, there are very positive signs for the wellbeing of Ms E.

8. There is in my opinion, another factual circumstance that is of relevance is this.  When the matter was first mentioned before me, Ms Menzies told me that she had already booked and paid for a holiday for herself and the two boys to go to Singapore, leaving on Tuesday, the 31st day of May, which is next week.  She said that the boys were very much looking forward to that trip and very excited about it.  I have no doubt about that, none whatsoever.

9. Indeed, Ms Menzie’s statements in that regard, and my feelings about that are supported by the evidence of Ms S in her report, where she talks about the boys being very, very excited about the prospect of going to Singapore for a holiday that includes a trip to Universal Studios in Singapore and most upset about the notion of missing that trip, which would be a likely outcome of a successful application being maintained in this Court by the Director-General.  Notwithstanding the fact that I hoped that some negotiated resolution of the issue might be able to be facilitated, which led to the boys being able to go on that trip to Singapore with their grandmother, one way or another, that was not able to be done.

10. Now, having discussed all those facts, I now turn to consideration of the evidence, as against the Regulations.  Now, in respect of regulation 16(1A),  firstly, there is absolutely no dispute these two children are under 16 years of age.  Secondly, there is no dispute, and it is conceded by the grandmother, that the children were habitually resident in New Zealand, which is a Convention country, immediately before they were retained in Australia, that is, the relevant time being at the end of November 2010.

11. There is no doubt and no dispute that the mother had rights of custody in relation to the children under the laws of New Zealand, the country in which the children habitually resided immediately before they were retained in Australia.  She never surrendered those.  She had them at the time.  Indeed, although there was some factual dispute about it and some apparent dispute on the part of the maternal grandmother about this, I find that the dispute is baseless and that the children’s retention in Australia is in breach of those rights of custody and I also find that at the time of that wrongful retention that the mother was actually exercising her rights of custody, or would have exercised those rights of custody if they had not been retained.

12. I refer to and rely upon the decision of the Full Court of the Family Court in the matter of Director-General, Department of Community Services and Crowe, which is reported at (1996) FLC 92-717, where the factual circumstances being considered by the court in that case were on all fours with the facts in this case, including grandparents in Australia caring temporarily for New Zealand children, who then retained them against the request or wishes of the parents back in New Zealand to send them home, where the Full Court determined that such a retention was wrongful under the Regulations.

13. So I have no difficulty in this case finding that the maternal grandmother’s retention of these children at the end of November 2011 was wrongful.  I hasten to say, I do not make a finding attributing ill motive or bad motive to the grandmother.  I find that she has acted out of genuine interest and concern and love for her two grandchildren and that that is what has been motivating her all the way through these proceedings.

14. I then have to consider, as the grandmother asks me to and puts forward as part of her case, that, indeed, the discretion that subregulation (3) makes available to the Court, in respect of the return order, is then available to me.  So far, of course, having found that all of the prerequisites in subregulation 16 (1A) are met, I must order the children to be returned.  That mandatory requirement upon me to send the children back is, of course, as I have said, subject to a discretion that is available to me if the respondent is able to satisfy me, that is, the onus of proof is on her, as I indicated to her during the course of the hearing, and she must put evidence before me and point to evidence that is before me that satisfies me that the grounds upon which the discretion emerges in subreg 16(3) are actually available to me.

15. There are two of those grounds that the maternal grandmother points to and seeks to rely upon.  Firstly, there is that which is set out in subregulation 16(3)(b), namely that there is a grave risk that the return under the Convention would expose those children to physical or psychological harm or otherwise place the children in an intolerable situation.  Now, the grandmother effectively says it is the likelihood of the mother relapsing into her drug and alcohol addiction that exposes the children to grave risk of physical or psychological harm or otherwise places them in an intolerable situation if they are returned by me to New Zealand.

16. Now, I have discussed the facts of the case, as the evidence presents to me, as I am satisfied of, and I say that I have had regard to the affidavit of the family consultant, Ms S, when determining this.  I add, when I asked Ms Menzies to make her submissions as to the matters that would cause me to find that this grave risk existed, she emphasised the lengthy history of the mother’s drug and alcohol problems.  Indeed, as I have already said, I am not entirely convinced that the lengthy history that the grandmother refers to is actually as significant or as bad as the grandmother would hope that I would find, even though I accept that she probably believes that it is.

17. I have to say I do not see that the evidence establishes that the lengthy history is as serious or productive of problems for the mother as the grandmother would have me accept.  Indeed, I have seen evidence that the mother put before the Court from the principal of the school that the two boys were attending up until the time of being brought to Australia by their grandmother in July of last year.  Whilst the principal does acknowledge that the school was starting to have some concerns about the boys at around the time when the boys’ father called the grandmother and asked her to come across, so the middle of 2010, which seems explicable in the circumstances, the report otherwise is glowing in respect of the boys and suggests no problem with their attendance at the school, suggests no noted problems with their development, their educational development, their sporting development or their social development.

18. If the mother’s problems had been as bad as the grandmother seems to want me to find, I do not accept that the school’s report about the boys, their performance at school, educationally, culturally, sporting-wise, attendance-wise, personality-wise and the like, would be reported in the terms that it was in that report.

19. Similarly, I do not accept that the boys would not have come to the attention of the department, the CYFS, in New Zealand earlier than they did.  I find that, had there been a lengthy history of this sort of trouble, they would have most likely come to the attention of the department and the mother would have also had problems with her professional nursing regulation much earlier than she did.

20. So I do not accept that the problems were as significant over a long period of time as they apparently became in July of last year.  It is not be considered that I am underplaying the significance of a drug and alcohol addiction on the part of a parent of young children and the nature in which their parenting capacities can be impaired, but in this case the evidence is just not there for me to find that it was, prior to the middle of 2010, impaired in the way that the grandmother would have me believe.

21. She might point to the evidence of Ms S’s reporting of what the boys have said to her, but again, in all the circumstances, I have to regard that with some careful consideration and caution, particularly in respect of the fact that it is now nearly 10 months that the boys have been in their grandmother’s care and her feelings about her daughter are absolutely clear in the circumstances of this case, as is the fact that she has conveyed those feelings to the boys and many of those feelings have actually been adopted by the boys, making it extremely difficult for anyone, like Ms S or me, interpreting Ms S’s reporting, to determine how much of what the boys are said to have expressed emanates from their own true personal feelings or comes from influence or having been convinced or persuaded by their grandmother to feel that way about their mother.

22. The evidence of Ms S that perhaps gives some support to the maternal grandmother’s position is in paragraph 56 of her report where she says:

    If the children return to New Zealand to live with their mother and their mother has not overcome her alcohol and drug addictions and/or relapses in the future, then the children are, of course, at further risk of emotional and physical harm.

23. I accept that.  There is no doubt about that.  If the children are returned to New Zealand and their mother does relapse, then no doubt they are at some further risk of emotional and physical harm.  But that is not the test here.  The test is not whether there is some risk that if they are returned they will be exposed to physical or psychological harm.

24. The test is, and it is a test where the obligation is upon the respondent to convince me that I would be satisfied that the standard is met, whether 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.  So the sort of physical and psychological harm has to be on the level of intolerable and, frankly, any psychological harm or physical harm to these children has to be regarded as intolerable.  No one should tolerate it, but there has to be a grave risk that the return would expose them to that.

25. I am concerned that there is a risk on all of the evidence, simply because of the fact that the mother did have a significant problem attributable to her abuse of alcohol and drugs in the middle of last year.  But whilst I am satisfied that there is some risk that these children will be exposed to some problems in the future if their mother does not stay on the straight and narrow, I cannot, on the evidence, determine that that is a grave risk.  I cannot say that the risk of the mother relapsing is so high, on all the evidence that is before me, that I would not order that these children be returned to New Zealand, where they have habitually lived in the care of their mother.

26. Next, the maternal grandmother points to one more of the matters under subreg 16(3) that gives rise, if it is found to be proven, to a discretion on my part, that is, the one that is available in sub (c).  That is, if each of the following applies, namely:

    (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 view.

27. Now, interestingly, and relevantly, of course, there are two children in this case.  One of them is 11, almost 12, that is J, and one is 10, just 10, that is M.  I have to consider both of those boys.  In respect of J, clearly, both the maternal grandmother, quite strongly so, and Ms S, say that J does not want to go back to New Zealand that he objects to being returned.  Does the child’s objection show a strength of feeling beyond the mere expressions of a preference or of ordinary wishes?  I find that it probably does.  Has he attained an age and a degree of maturity at which it is appropriate to take account of his views?  Well, in that regard, in paragraph 52, of her report Ms S says:

    His ability to convey thoughts and to reflect on his thoughts and emotions showed a level of maturity that is, at the very least, congruent with his age.  [J] understands this situation and the possibility of returning to New Zealand and is desperate to have his views considered in the determination of his care arrangements.

28. She goes on to say:

    …[J’s] level of cognitive and emotional development, strong feelings and views, it is likely that his current stress would be exacerbated if he felt his views were not taken into consideration.

29. However, does he object to being returned to New Zealand in the relevant sense or is it that he is just objecting to being returned to his mother at this particular point?  The relevant sense is does he object to going back to New Zealand, full stop.  Well, in that regard I noticed in the report that he is reported to have said to Ms S, interestingly, something fairly similar to what his grandmother has been saying.  Paragraph 28:

    “I told her” (that is his mother) “to send a signed letter by her doctor and a blood test and then I will go home.”

30. So it does not seem that he is actually objecting to going home to New Zealand.  He is just objecting to going back to his mother until he, and/or his grandmother perhaps, are satisfied that she is well enough or clear enough of her drug addiction to have him.  In that regard, although I accept that J has had a lot of experience living with his mother, all of his childhood to date, and all of the impacts that that has had upon his emotions and his current decision-making, he has been now with his grandmother for 10 months and there is no doubt about the strength of her feeling towards her daughter, towards her ex-husband and towards the notion of these boys being returned to New Zealand.  She made that absolutely clear and I have no doubt that the strength of her feelings has been conveyed to the boys. 

31. There is no doubt - and a lot of this I base on Ms Menzie’s own presentation and remarks to me, but also Ms S’s reporting in her report - that the boys have attached themselves quite strongly to their grandmother since they have been here and appropriately so.  She has been a great source of support, encouragement, love and stability for them in what became, in the middle of last year at least, fairly turbulent, unstable times, where their mother was no doubt unavailable emotionally for the boys and may very well have been, according to Ms S’s report, for a long time.  I am just not satisfied that this - well, one of the things that worries me here is that the boys both know about the trip to Singapore, are both excited about it and both very worried about missing out on that trip.  Apparently that is a strong factor in motivating them to say they do not want to go back to New Zealand.  The family consultant’s report at least confirms that.

32. I am really not satisfied, to what I regard as the requisite degree, that each of those requirements or prerequisites is satisfied in respect of J.  I am not satisfied that he really objects to being returned in the relevant sense and for the right reasons.  His objection probably does show a strength of feeling beyond mere expression of a preference or of ordinary wishes, but I am not satisfied of all these things as a combination, or that really he has reached an age and a degree of maturity where he could soundly think about all of the things, other than in black and white terms, with all due respect to the maternal grandmother, and consider his position overall as to what is best for him in the long run.

33. So in respect of both of these boys, most definitely in respect of the second one, M, I find that the requirements are not satisfied.  I say, just as an aside there, with respect to M, I do not find that M has attained an age and a degree of maturity at which it is at all appropriate to take account of his views and certainly the reporting by Ms S makes it clear that J was primarily thinking about the trip to Singapore next week, which appears to have had an unfortunate impact in this case.  In summary, I find that this particular prerequisites to the emergence of the discretion, in respect of both boys, has not been satisfied.

1. If I am wrong in respect of J, then I say this.  Even if I found that J objects to being returned in the relevant sense, that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and that he has attained an age and a degree of maturity at which it is appropriate to take account of his view, I nevertheless would not exercise the discretion not to return the boys to New Zealand because there are two boys to consider and because I determine that in this case any dispute between the maternal grandmother and the mother about the immediate, short term, medium term and long term care of these boys should take place, if it is going to take place in a litigated fashion, in New Zealand.

2. I am satisfied that the mother appears to have reached that fork in the road that people often reach, who have been subjected to drug and alcohol addiction.  I appreciate that the battle to overcome such an addiction is difficult and that moving out of a rehab program that she moved into may have been a setback in that battle, but I do not consider that it was a defeat, on the evidence that is before me I am satisfied that the mother is working seriously hard towards getting her life back on track, with the support of her father and without the undue interference or bad influence of Mr W around.

3. Now, these boys need the love and support of their mother in their lives.  If it has not been as good as it should have been in recent years, now is not the time to continue to break it and, even if it is, then that ought to be determined by a court of law in New Zealand and not here in Australia.

4. So, even if I am wrong in saying that the discretion does not arise, and it does, I exercise my discretion, in all the circumstances of this case, by ordering to return the boys to New Zealand and that is what I do.

5. Accordingly, I will make orders and do make orders in terms of the draft that was submitted to me by counsel for the Director-General, Department of Communities, yesterday.

6. This is now in 2(a), “Friday, 3 June 2011” and “that the said children arrive in New Zealand on or before Saturday, 4 June 2011”.  All the rest will stay the same.  2(i) that the said children, J, born in  August 1999, and M, born in May 2001, attend upon the family consultant - I will write in there Ms S - for the purpose of her explaining this order to the children.

7. That next one that is currently (j) will not be (j).  It will be (k) and a new (j) in there will be that the respondent is restrained from informing the said children of the Court’s decision to return them to New Zealand before Ms S is able to do so.

8. Now, I am also going to make another order, and it will be (4), and (4) and (5) will then become (5) and (6), that the applicant shall, before the said children are returned to New Zealand, make contact with the Child Youth Family Services and draw to that department’s attention the evidence in this matter and also provide a copy of my reasons for judgment and request the department to provide assistance to the mother, Ms E, in parenting the said children, upon their return to New Zealand, as in that department’s discretion.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 May 2011.

Associate: 

Date:  1 June 2011