DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & MCKANE

[2011] FamCA 798

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & MCKANE [2011] FamCA 798

FAMILY LAW – CHILDREN – Hague Convention – Whether reg 16(1A) satisfied – Whether onus discharged by State Central Authority – Whether Mother consented to or acquiesced in child’s removal

FAMILY LAW – CHILDREN – Hague Convention – Resolution of disputed issues of fact where parties refuse opportunity to cross-examine

FAMILY LAW – CHILDREN – Hague Convention – separation of siblings

Care of the Children Act 2004 (New Zealand)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

De L v Director-General & NSW, Department of Community Services & Anor (1996) 187 CLR 640, FLC 92-706
Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629
Director-General, Department of Child Safety v S (2005) FLC 93-249
Director-General, Department of Community Services v Crowe (1996) FLC 92-717
Harrison & Harris (2010) FLC 93-454
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Re AF (A Minor)(Child Abduction) [1992] 1 FLR 548
Re HB (Abduction: Child’s Objections) (1997) 1 FLR 392
Soysa & Commissioner of Police [2011] FamCAFC 39
Zotkiewicz v Commissioner of Police (No. 2) [2011] FamCAFC 147

APPLICANT: Director-General Department of Communities (Child Safety Services)

RESPONDENT: Mr McKane

FILE NUMBER: BRC 6461 of 2011

DATE DELIVERED: 18 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 13 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Green

SOLICITOR FOR THE APPLICANT: Crown Law

SOLICITOR FOR THE RESPONDENT: Williams Lawyers

Orders

1. That the child, B born … 1999, be returned to C country and for the purposes of giving effect to this order:

   (a)That the said child leave the Commonwealth of Australia on or before 28 October 2011;

   (b)That pending the said child, B born … 1999, returning to New Zealand, the respondent father, Mr McKane aka Mr D, continue to be restrained and an injunction is hereby issued, restraining him from removing or attempting to remove the said child from the Commonwealth of Australia;

   (c)That pending the return of the said child D born … 1999 to New Zealand, the respondent father, Mr McKane aka Mr D born … 2011, continue to be restrained and an injunction is hereby issued, restraining him from changing the residence of the said child B born … 1999, from the premises where Mr McKane aka Mr D and the said child are currently residing namely, E Street, Suburb F;

   (d)That subject to sub-paragraph (e) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent father, Mr McKane aka Mr D born … 1978 and the said child B born … 1999, on the All Ports Watch Alert System at all international departure points in Australia;

   (e)That the said children G born … 1997 and B born … 1999, and the respondent father, Mr McKane aka Mr D be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services, Department of Communities advising of the travel arrangements made for the said child to return to New Zealand, from 12.00 am on the date nominated for the said travel in the letter;

   (f)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;

   (g)That to facilitate the return of the said child B born … 1999 to New Zealand, Mr H, Department of Communities or his nominee be at liberty to release any current passport relating to the child for the purposes of the said child's return to New Zealand; and further, to release the respondent father’s passport and any passport of G born … 1997 to the father or his nominee upon request.

   (h)That paragraphs 1 and 2 of the orders of the Honourable Justice Kent made 4 August 2011 be discharged forthwith.

   (i)That the Director of Court Counselling arrange for a court counsellor (and it is requested the counsellor be Ms J) to meet with the child, for the purposes of discussing the Court’s decision to order his return to New Zealand, and so far as is appropriate in the view of the court counsellor so appointed, the reasons for the decision.

2. That the respondent father Mr McKane aka Mr D born … pay all the necessary expenses associated with returning the said child to New Zealand, including the cost of airfares and departure taxes (if any) for the said child to travel from Brisbane Airport to New Zealand, and in the event the respondent father fails or refuses to pay these expenses; the respondent father pay to the applicant the necessary expenses incurred by or on behalf of the applicant and Ms K, in returning the child to New Zealand, within two business days of the applicant making a written demand for reimbursement of the said expenses.

3. That all extant Applications be dismissed.

4. That there be liberty to apply.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6461 of 2011

Director-General Department of Communities (Child Safety Services)

Applicant

And

Mr McKane

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 25 July 2011, the Director General, Department of Communities (Child Safety Services), in her capacity as the State Central Authority under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) applied for final Orders that G, born in 1997 (“G”), and B, born in 1999 (“B”), be returned to the country of New Zealand.

2. The requesting person is the children’s mother, Ms K (“the Mother”), resident in New Zealand and the respondent to this application is the children’s father (“the Father”), resident in Brisbane, Australia.

3. When the matter came before me on 4 August 2011, I made various Orders, including Orders and directions as to the filing of material and the further hearing of the matter. Included in those Orders was an Order for a report to be prepared pursuant to reg 26 of the Regulations. I made that Order having in mind particularly the ages of G and B.

Background

1. The Father was born in City I, Country J, in 1978. He was originally known by the name Mr D, but he changed his name to Mr McKane in 2007.

2. The Mother was born in City I, Country J, in 1977.

3. The Mother and the Father married in 1997. G was born in 1997, and is thus almost 14 years of age. B was born in 1999, and has thus recently turned 12 years of age.

4. The Mother and the Father were living in City K, New Zealand when each of the children were born and they continued living in New Zealand until they separated in 2000. Upon separation, both children remained living with the Mother in New Zealand whilst the Father travelled first to Sydney, Australia, where he lived for one year before relocating to City L in the Country M in 2001.

5. It appears that in 2002, the Mother and the Father agreed that the children would visit the Father in the Country M for a period of three weeks. In the event, the children were not returned at the end of the three weeks and the Mother deposes that she was not aware of where the children were living for some twelve months.

6. In 2003, the Mother says that she was served with a divorce application from the Father providing an address in the Country M. The Father says the Mother always knew his location in the Country M. In any event, the Mother travelled from New Zealand to the Country M and located the boys and returned with them to New Zealand. No formal legal proceedings were necessary and the Father has acknowledged in his current affidavit evidence his “error in judgment” in retaining the children on that occasion.

7. Between 2003 and 2008, it appears that the children had very little contact with their father. During a visit to Australia in April 2009, the Mother had discussions with the Father about re-establishing contact between the Father and the children.

8. In September 2007, the Father returned to live in New Zealand, but in June 2008, moved to Brisbane, Australia, as he says, “…in search of a better job, life and still be close enough to the boys.” In April 2009, the Father and his then fiancée, and now wife, Ms N, moved to Brisbane and they have lived here ever since, with their child, O, being born here in 2010.

9. Between about 22 July 2009 until 10 February 2010, the children were living with the Mother and her now ex-husband in P Town, Australia. In early 2010, G was diagnosed with Type 1 diabetes. The fact that G suffers from this condition, requiring management, is relevant to disputed issues of fact between the parties, discussed further below, with respect to their respective versions of the agreement they reached for G to travel to Australia.

10. In 2010, the Father’s son with his present wife, O, was born. The Mother has four other children aged between two and ten years who were children born to the relationship and marriage she had subsequent to the end of her relationship with the Father. The Mother describes her current occupation as “hospitality” employed by Q Pty Ltd, and her employment arises as a consideration amongst the disputed issues of fact discussed below as to the form of any operative agreements alleged by the parties respectively concerning arrangements for G and B.

11. It is not in issue between the parties that G travelled from New Zealand on 11 June 2010 and has lived in Brisbane with his father ever since. Thus, G had been living with his father in Australia for more than twelve months at the time of filing of the present application on 25 July 2011 although, as noted, the date of alleged wrongful retention nominated by the Applicant is 11 February 2011.

12. With respect to the child B, it is not in issue that B travelled from his mother and New Zealand to his father and Australia for a visit during the school holidays in September 2010 for two weeks. B then returned to New Zealand to complete his 2010 school year after the holidays.

13. B again travelled to the Father and Australia on 20 January 2011. The parties are in dispute as to the terms of the agreement pursuant to which B was to stay in Australia, and that dispute will be discussed further below.

14. The factual background to this application and the evidence relevant to G and B respectively, including for example, their distinct dates of travel, gives rise to distinctions making it convenient to deal separately with each child to some extent in determining this application.

G

1. As already noted, G was born in 1997 and will thus soon turn fourteen years of age.

2. The Central Authority contends that for the purpose of the Regulations, the date of G’s wrongful retention in Australia is 11 February 2011, being the date it is asserted by reference to the evidence of the requesting mother (by inference, on one of her versions discussed below) that both boys were due to return to New Zealand.

3. Regulation 16 provides the power to make a return order, and specifies the circumstances in which the Court must (subject to subregulation (3)) make a return order.

4. The application must be dismissed if the Applicant does not satisfy the Court that there has been a wrongful retention of the child: see reg 16A(1)(c) and (1A).

5. Pursuant to reg 16(1A)(b), a child’s retention in Australia is wrongful if the child habitually resided in a Convention country immediately before a child’s retention in Australia.

6. It is clear that the onus lies on the applicant to satisfy the Court of each of the elements of “wrongful” retention, as is clear from the words of reg 16. Thus, unless the Central Authority discharges its onus of proof to meet the requirements of each of the five paragraphs of reg 16(1A) the application fails. For present purposes, para (b) containing the habitual residence requirement with respect to G, is focussed upon because it is dispositive of the application as regards G.

7. LK v Director-General, Department of Community Services (2009) 237 CLR 582 (“LK”) is the most recent Convention case in which the High Court has discussed “habitual residence”. The High Court highlighted the significance of the conclusion that habitual residence is a question of fact, referring to the way the concept had replaced the more technical concept of domicile, and saying that this change, “…entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired.” (paragraph 24). The High Court also pointed out that even though it is a question of fact, “Some criteria must be engaged at some point in an enquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides, and whether residence at that place can be described as habitual.” (paragraph 22).

8. In LK, the High Court effectively adopted at para [44] the following statement from the New Zealand decision, Punter v Secretary for Justice [2007] 1 NZLR 40, that there should be a, “…broad factual enquiry…” and that:

   Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration… settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], ‘The underlying reality of the connection between the child and the particular state’.

9. The High Court observed in LK that in contrast to the law of domicile, “Considerations relevant to deciding when a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.”

10. Notably, LK involved a case where a mother came to Australia with the children, the husband consenting, intending to live with the children in Australia unless she became reconciled with her husband (in Israel), and after coming to Australia the mother took steps during a period of two months here to enrol the children in school here and make other, fixed, arrangements. The High Court held that at the end of the two month period, the children were no longer habitually resident in Israel (the High Court specifically found that the Court did not need to decide whether the children had acquired habitual residence in Australia). Having observed at paragraph [28] that whilst intention will usually be relevant to a consideration of where that person habitually resides, nevertheless intention is not to be given controlling weight. The High Court made the following further observations as to intention in LK:

    29. First, individuals do not always act with a clearly formed and singular view of what is intended (or hoped) that the future will hold. Their intentions may be ambiguous.

    …

    32. …because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.

    33. Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place, it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place.

    34. Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a Court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

    (emphasis added)

11. Relevant to the present case, it seems to me that the following are the critical  principles and statements of principle, as to the determination of habitual residence of a child which emerge from LK (supra):

    a)In a case of alleged wrongful retention, the absence of an agreed and singular purpose between the parents at the time of departure from the first country is not to be treated as deciding the question of habitual residence. First, because the question is not to be asked in relation to the time of the child’s departure (here 11 June 2010); it is to be asked in relation to the time of the allegedly wrongful retention (here 11 February 2011). But secondly, and more importantly, the intentions of the parents are not the only factors which bear upon whether, at the date of alleged wrongful retention, the child was habitually resident in the first country (paragraphs 20 and 48 of LK).

    b)In a case of alleged wrongful retention such as this, whether the child has become habitually resident in Australia as at the date of alleged wrongful retention need not be decided. Moreover, if habitual residence in the first country has ceased, the possibility that the child might again take up habitual residence in the first country does not deny that the child had ceased to be habitually resident there (paragraph 49 of LK).

    c)A person may abandon a place as the place of that person’s habitual residence without automatically becoming habitually resident in some other place (paragraphs 25 and 32 of LK).

    d)The search must be for where a person resides and whether residence at that place can be described as habitual (paragraph 22 of LK).

    e)There is no definition of the term “habitual residence” capable of universal application. “…application of the expression ‘habitual residence’ permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is said to be described as habitual… the pas and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.” (paragraph 23 of LK).

    f)“Use of ‘habitual residence’ in the Abduction Convention rather than domicile as the relevant connecting factor entails discarding notions like the revival of domicile of origin and the dependent domicile of a married woman which marked the English law of domicile. More importantly for present purposes, use of ‘habitual residence’ in preference to domicile entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired.” (paragraph 24 of LK).

    g)“When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman.” (paragraph 27 of LK).

    h)“…examination of a person’s intentions will usually be relevant to a consideration of where that person habitually resides… But unlike domicile, considerations relevant to deciding where a person is habitually residence are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight.” (paragraph 28 of LK).

    i)“…when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged. (emphasis added) (paragraph 34 of LK).

    j)“…to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of pre-determined weighting between them.” (paragraph 35 of LK).

    k)Enquiry into habitual residence is a broad factual enquiry. The search is for the connection between the child and the particular state. The question of habitual residence is to be decided by reference to all the circumstances of a particular case (paragraph 42 of LK).

    l)Attention is to be given to where the presence at a place has a degree of settled purpose from the child’s perspective (paragraph 45 of LK).

1. In LK (supra), the High Court observed (at paragraph 25) by reference to the authors there cited, “Yet it may be accepted that, ‘habitual residence, consistent with the purpose of its use, identifies the center of a person’s personal and family life as disclosed by the facts of the individual’s activities.’” Further (at paragraph 27), the High Court observed, “When speaking of the habitual residence of a child, it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. …”

2. There is an obvious distinction between this case and those cases where, initially, both parents are living together with their children in a country of origin and one parent then travels with the child to a different country. Here, the parties have finally separated as long ago as the year 2000 and the Father had established himself as a resident of Brisbane, Australia, from June 2008; has re-married and has a child of that relationship. G travelled here on 11 June 2010. It must also be borne in mind that in LK (supra), where the Court made various references to “young children”, the four subject children there were aged between fifteen months and eight years. G will soon turn fourteen years of age.

3. In these circumstances, and having regard to the Father’s version of events, it seems to me that the purpose of the parents in G travelling here included G receiving his Father’s assistance in dealing with his diabetes, both in a physical and an emotional sense, and for G to be under the care and control of his father to address his behavioural issues.

4. In circumstances where G came to Australia on 11 June 2010, and has lived in his Father’s care here ever since and has been enrolled in, and attended, school here since, Mr Green of Counsel for the Central Authority acknowledged (correctly in my view) the difficulty the Central Authority faced on the question of habitual residence if the Court was not comfortably satisfied that the agreement pertaining to G’s travel here is that contended for by the requesting mother, as opposed to the version of the Father.

5. In her affidavit affirmed on 7 June 2011, filed in support of the Application initiating these proceedings, the Mother deposes, relevant to G’s travel to Australia, as follows:

   8. The respondent then had little or no contact with the boys for several years, re-establishing contact with them when he returned to New Zealand in 2008.

   9. Contact again fell off when he relocated to Australia, and it was only when I was in Australia seeing a relative of mine that he re-established the connection. This was in about April 2009.

   10. Discussions occurred between the respondent and myself late last year about him again spending a period of time with the boys. Accordingly, it was agreed that my older son would travel to Australia to spend some months with him towards the end of last year and that my younger son could join both of them subsequently. The arrangement was always that this was a temporary visit and that the children would be returned when I requested this to happen. It was always understood that the boys would be returning to continue their schooling in New Zealand.

   11. Accordingly, [G], my oldest child, travelled to Australia in late June/early July 2010. As discussed, the arrangement was that he would spend some time getting to know his father again, but would be returned when I requested this.

   12. It was always my intention that the children would be returned to New Zealand in early 2011. [G] in particular is commencing high school, and accordingly I took steps to enrol him in school for the 2011 year.

6. Some important observations need to be made about this version of the Mother. First, the purport of this version is that the “visit” was in the context of G having “contact” with his father. There is no mention of G’s diabetes condition or the need for assistance with its management, nor is there any suggestion of the Father actively managing G’s behaviour in a more general sense.

7. Second, the Mother expresses statements amounting to statements of conclusion about allegedly agreed arrangements, rather than providing the Court with evidence of the detail of communication between the parties and I am referring in particular to the assertions in paragraph 10, “The arrangement was always that this was a temporary visit and that the children would be returned when I requested this to happen. It was always understood that the boys would be returning to continue their schooling in New Zealand.”

8. Third, the above statements of conclusion do not even identify a specific date upon which the return was to occur; in paragraph 11, the Mother suggests that the return, “would be…when I requested this”; and it is important to note that in paragraph 12, the Mother deposes, “It was always my intention that the children would be returning to [Country] C in early 2011…”

9. Leaving aside for the moment the feature that they are statements of conclusion rather than fact, the references “spend some months with him” and “temporary visit” and “the children would be returned when I requested this to happen” in paragraph 10; the reference “but would be returned when I requested this” in paragraph 11; when read with paragraph 12 commencing, “It was always my intention that the children would be returned to New Zealand in early 2011,” could hardly be described as compelling evidence of a clear and unequivocal agreement, the terms of which are certain and identifiable. In particular, the first sentence of paragraph 12 leaves open the conclusion that what the Mother may or may not have had in her own mind was not communicated to the Father and hence could not form part of any “meeting of their minds”.

10. In his affidavit in response filed on 19 August 2011, the respondent Father relevantly deposes as follows:

    30. …We spoke again and she agreed the boys would come for a visit during the school holidays in June 2010. I was very happy. After the birth of our son [O] in May 2010, [Ms K] called me and requested to send [G] over first because she couldn’t control him and she was unavailable to assist with the management of his diabetes due to her travelling frequently for work. She also agreed the boys shouldn’t be separated for long and she’ll send over [B] subsequently. I was ecstatic to finally have the boys but no discussion or agreement was made for [G] to return to New Zealand.

    …

    32. In response to paragraph 12 of [Ms K’s] affidavit, I say, there was no discussion for [G] to return to New Zealand and his enrolment to a high school in New Zealand, [Ms K] never mentioned this…

11. Importantly, on the Father’s version as referred to, one motivation for G being sent to the Father was management of his diabetes and another motivation was “control” of G. It will be remembered that neither of these were raised in the first affidavit of the Mother earlier referred to.

12. The Mother responded to the Father’s affidavit in a further affidavit filed 7 September 2011. Relevantly, paragraph 5 of that affidavit is as follows:

    5. It is correct that my oldest son was diagnosed with Type 1 Diabetes towards the beginning of last year and that he was finding the required treatment (injecting himself with insulin) difficult. It is also correct this was one of the reasons that I thought him spending a period of time with his father would be helpful. The theory was that he would learn some skills concerning the management of his diabetes and also re-establish a connection with his dad. It was never, however, supposed to be a permanent arrangement.

    (emphasis added)

13. As to the question of G’s behaviour or the need for better control over him, the Mother’s further affidavit relevantly contains the following:

    Difficulty with my parenting

    14. I note the suggestion that I was having difficulty parenting [G] in particular due to my work commitments. I find this a very offensive comment and record among other things that I have been the sole provider for these children basically since the applicant left (other than the period when they were in the [Country M]) and the applicant has never had a difficulty with this previously. Though I am a working single mother which can make life difficult my work is such that I would perhaps be away for one night each 3 months – though I do occasionally have early morning starts.

    15. I live however close to my mother and 2 sisters. They (together with my nephews and nieces reside in 2 adjoining homes in [R Street, City K] – perhaps one minutes (sic) drive from where I live.

    16. The children would spend perhaps 2-3 nights a week in my former family home – an arrangement they seemed to thrive with.

    Behavioural problems

    17. I note there are references to behavioural problems with G prior to him departing. This is simply incorrect. He was unhappy about the requirements that were imposed on him on his being diagnosed with diabetes and as mentioned it is correct that one of the reasons for him spending some time with his father was for him to settle into routines with the diabetes treatment. It was not a case of him not being manageable in New Zealand and it was always my intention he be returned.

14. It is notable that it is only when she was confronted by the Husband’s version concerning G’s diabetes condition being motivation in part for what occurred, the Mother agreed with that. In my view that is a fairly fundamental proposition within the Father’s version of events. As to behavioural issues concerning G, or “control” over him, it can be seen from the Mother’s response affidavit that she rejects, unequivocally, any and all propositions by the Father to the effect that there were any relevant difficulties in G’s behaviour or her capacity to manage or control G’s behaviour more generally.

15. However, corroboration of the Father’s version on this aspect is provided in the regulation 26 report of Ms J, annexed to Ms J’s affidavit filed 2 September 2011.

16. Commencing at paragraph 9 of Ms J’s report, she records details of her interview with G on 29 August 2011. Paragraphs 11 and 12 of that report are as follows:

    11. [G] reported that he had been living with his father was about a year. He claimed that it was his understanding that it was an agreement between his mother and father and recounted that his mother rang his father; “to see whether we could live with him and then she asked us and we said yes. Then she said she would send me first.” [G] was asked why he thought he might have been sent first. [G] replied; “Cos no one could control me over there… I ran away a lot.”

    12. [G] further explained that; “we get dropped off at Nana’s when Mum goes to work. Mum’s away a lot because she’s [in the service industry]… I didn’t like the people living there.” (at Nana’s) when asked about the people at his Nana’s, [G] stated his “Aunties and their kids.” He further stated that he would often run away or just walk around the streets when; “they (the Aunties) gave me a hiding.” (Mr (sic) [K] reported that her mother owns two houses next to one another. One of [Ms K’s] sisters lives in the house next door with her six children, and another sister and her 5 children reside in the other house along with the maternal grandmother.)

17. It is readily apparent from G’s own report to Ms J that there were relevant behavioural issues of G, including his own acknowledgement that he would, “often run away”. Further, paragraph 14 of Ms J’s report links, by G’s own report, the difficulties with his diabetes condition and G’s reaction and ability to cope with the fact that he suffers this condition.

18. It is also instructive that from G’s report to Ms J as recorded in paragraph 11 of the report referred to above, there is no suggestion that G was of the understanding to the effect that the living arrangements with his father were temporary. To the contrary, G’s version reflects permanency.

19. The date of 11 February 2011 selected as the “relevant date” by the Central Authority, as the date by which both boys were due to return to New Zealand, seems to have been arrived at by reference to paragraph 14 of the Mother’s first affidavit referenced to the three week period after B travelled to Australia. Evidence establishes that B travelled to Australia on 20 January 2011 and thus the three week period referred to elapsed on 10 February 2011.

20. However, in paragraph 14 of her first affidavit, the Mother refers to B travelling to Australia, “in February of this year”. Moreover, at paragraph 15 of the same affidavit, the Mother asserts, “in late February/early March I requested that both children be returned in accordance with our arrangement.” That is, of course, inconsistent with a due return date of 10 or 11 February 2011.

21. Paragraph 6 of the Initiating Application refers to the children being “retained on or about late February or early March 2011” and in the further particulars in that paragraph it is provided, “in or about late February 2011, the Mother requested that the subject children be returned to New Zealand.” That paragraph concludes, “The children had been retained from mid-March in breach of the rights of the Mother…”

22. Even in her second affidavit in response to the Father’s affidavit, the Mother’s conclusion at paragraph 46 is expressed in these terms, “…it was plain that [G] would be there until he was requested back, and the latest this would be would be early 2011 for him to recommence schooling in New Zealand. …”

23. A further difficulty with the Mother’s affidavit evidence relates to the contents of her affidavit in reply as set out in paragraph 41 above. Bearing in mind that the Mother is there responding to the Father’s affidavit in which (at paragraphs 6, 18 and 30b) the Father raises issues about the Mother’s unavailability or absences due to her employment, paragraphs 14 to 16 of the Mother’s affidavit seem to contain an internal inconsistency. In paragraph 14, the Mother suggests that she is only absent for one night each three months, and that she “occasionally” has early morning starts. Paragraph 16 then refers to the children spending “2-3 nights a week” in the maternal grandmother’s home. Further, when interviewed by Ms J for the reg 26 report, Ms J records at paragraph 4 of her report, “…[Ms K] reported that she is employed with [Q Pty Ltd] … and is away overnight approximately three nights a week.” Whilst these apparent inconsistencies may have been capable of ready explanation, there is none before me, and I highlight them as to the reliance that can be placed on the Mother’s evidence in the context of the further discussion below.

24. At the outset of the hearing of this matter, given the fundamental issues of disputed fact central to the agreement alleged by the Mother, and mindful of what the Full Court of this Court recently had to say in Zotkiewicz v Commissioner of Police (No. 2) [2011] FamCAFC 147 delivered on 13 April 2011 as to cross-examination, to resolve factual disputes, I invited both Counsel for the Central Authority and the solicitor who appeared for the Father to undertake cross-examination in an attempt to resolve these factual issues.

25. The transcript of the proceedings will reflect that the invitation went further than simply asking the parties to consider this aspect. I believe the transcript will reflect that I made it clear to the parties that I saw this case as one requiring cross-examination for these fundamental factual issues to be resolved by the Court. I also referred to the feature that, in circumstances where the Central Authority bore the onus of proof on the requirements of reg 16, whilst the Father bore the onus of proof on issues of consent or acquiescence, it may impact on the Court’s findings as to discharge of these respective onuses if the opportunity to cross-examine was declined.

26. Whilst the Central Authority was initially uncertain as to the availability of the requesting mother to be available by cross-examination, it became clear during the course of the hearing that arrangements could be made for her to be available by telephone. The Father was present in court and was obviously available for cross-examination.

27. Despite this aspect being squarely raised by me, and indeed that the invitation to cross-examine might more aptly be described as a request by the Court that cross-examination be undertaken to resolve the factual issues (as the transcript will reflect), neither the Central Authority nor the Father acceded to the Court’s request.

28. Against that background, it seems to me that in circumstances where the Central Authority bears the onus of proof on the issue of habitual residence of G as at 11 February 2011 and Counsel for the Central Authority acknowledged (correctly in my view) difficulties for the Central Authority in discharging that onus if the Court were not satisfied that any agreement between the parties was as alleged by the Mother rather than the Father, I do not consider I can readily reject the Father’s version of events on this issue and prefer the Mother’s version. In Zotkiewicz & Commissioner of Police (No. 2) (supra), the Full Court (May, Thackray and Moncrieff JJ) addressed the question of how factual disputes in applications of this type are to be resolved. Noting that, historically, applications under the Convention were dealt with on affidavit evidence alone and referring to policy reasons for this as identified in previous Full Court authority, the Full Court then noted, at paragraph 88:

    88. However, the High Court has now made clear on a number of occasions that it should not be assumed that all applications under the Convention will be dealt with “on the papers”. The potential consequences of a return order are serious for both the child and the parent who removed the child (commonly the primary carer). It is therefore important that applications are determined by a principled adjudication of factual differences, rather than by glossing over differences, or determining the dispute by reference to less controversial matters.

    89. The potential importance of cross-examination in ensuring a principled adjudication of Convention matters was most recently reiterated by the High Court in LK (at 590, [15]), where it was said that the requirement for applications to be ‘dealt with expeditiously does not yield any general, let alone inflexible, rule prohibiting cross-examination of the opponents of affidavits filed in support of or opposition to the application.’

29. The Full Court also considered the decision of the High Court in De L v Director-General & NSW, Department of Community Services & Anor (1996) 187 CLR 640 and the more recent decision of the Full Court of this Court in Harrison & Harris (2010) FLC 93-454. At paragraph 94, the Full Court noted:

    94. In many cases, the court will be able to deal with the matter adequately on the basis of affidavit evidence – looking to the common ground, noting the areas of conflict and weighing the probabilities. However, there are a range of cases where such an approach will be inadequate. In those cases, failure to test controversial evidence in the time-honoured way, or otherwise taking steps to resolve evidentiary conflict, will lead to a flawed outcome. The result on appeal in such cases, unless a re-hearing is directed, will usually be the dismissal of the case of the party who carried the burden of proof.

30. The Full Court approved by adoption (at paragraph 95) the following remarks of Butler-Sloss LJ in Re AF (A Minor)(Child Abduction) [1992] 1 FLR 548 at 553-554:

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

1. Applying those principles to the present case, I find that given the nature of the Mother’s affidavit evidence in terms of expressing conclusions rather than facts on the crucial question of discussions and agreement with respect to G; the inconsistencies between the Mother’s first affidavit and her second affidavit as referred to (once the Mother was confronted with the Father’s version); some apparent internal inconsistencies in the Mother’s affidavit evidence and that evidence and her recorded report to Ms J; the corroboration of the Father’s version by the contents of the reg 26 report in the respects identified below and sourced to G himself; the evidence as to G’s own views contained in the reg 26 report and as reflected in Exhibit 1 referred to below; all lead me to the conclusion that the Mother’s version as to the agreement she contends for with respect to G is inherently improbable, or at least unreliable such that it cannot be preferred to that of the Father, having regard to where the onus of proof lies.

2. Even if those conclusions or some of them be wrong, I do not consider that the Central Authority discharges the onus of proof that it bears on the question of habitual residence when consideration is given to the results of the broad factual inquiry in this case. Before turning to the detail of that, I record that I accept the Father’s version that there was no discussion or agreement between the parents that G would be returning to New Zealand as more likely than not.

3. The Mother suggests that when G travelled to Australia, most of his chattels remained in New Zealand and she refers to the fact that G’s half-siblings remain in New Zealand; and the fact that she had enrolled him in school in New Zealand for the 2011 year. However, as can be seen from the Father’s version of events, as at March 2010, the Mother appeared to be reluctant about the issue of the children spending time with him, yet it is clear that that position subsequently changed. On her affidavits, the Mother gives no detail of when G was enrolled to attend school in New Zealand in 2011. There is no evidence upon which I can be satisfied that the enrolment of G to attend school in New Zealand in 2011 by the Mother post-dated or was consistent with the motivations that operated, as discussed above, resulting in G’s travel to Australia in June 2010.

4. Those issues aside, as part of the broad factual enquiry in determining habitual residence, it seems to me that the following facts have particular resonance:

   a)Exhibit 1 in these proceedings is the incoming passenger card for G when he travelled to Australia on 11 June 2010, which was part of the records subpoenaed from the Department of Immigration and Citizenship. It would appear that the card is completed by G, or at least signed by him. Relevantly, in answer to the question, “Do you intend to live in Australia for the next twelve months?”, the option “Yes” is ticked. On the same document, the further options given include:

   i)Migrating permanently to Australia;

   ii)Visitor or temporary entrant;

   iii)Resident returning to Australia.

   Option (i) nominating permanent migration to Australia has been ticked. Whether completed by the Father and signed by G or whether completed and signed by G, the passenger card completed in this form as at 11 June 2010 when it is dated, and declared to be true, correct and complete, is inconsistent with any version of the agreement as alleged by the Mother.

   b)From when G arrived in Brisbane on 11 June 2010, he was enrolled in the S School, where he has attended ever since. The reg 26 report of Ms J addresses in some detail G’s reflections on his school life here as compared with his school performance in New Zealand, relevant to assessing the degree of connection of G to Australia or the loss of connection of G to New Zealand, relevant to assessing the degree of connection of G to Australia or the loss of connection of G to New Zealand;

   c)The Father moved to Brisbane, Australia, in June 2008 and has lived here ever since (paragraph 25 of the Father’s affidavit). Soon after, his partner Ms N, joined him, and the Father and Ms N married in 2011. Their child O was born in 2010. Thus, as at June 2010, there cannot be any doubt that the Father was settled and resident in Brisbane, as was known by the Mother. There is no suggestion the Father was contemplating any return to New Zealand at any material time.

   d)Commencing from the time G travelled to Brisbane in June 2010, the Mother has been paying child support. Thus, since June 2010, G has been in the primary care of his father (resident in Australia), assisted in that care by his wife Ms N as part of their family unit including their child Mr.

   e)The applicant relies upon the affidavits of Ms T and Ms U, both sisters of the Mother, in support of the application. Both of those affidavits solely address issues concerning B. In effect, they are relied upon to support the proposition that when B travelled to Australia it was only intended that he would be away from New Zealand for three weeks. For present purposes, there is relevantly no such evidence before the Court concerning G. The evidence before me is replete with references to the involvement of extended family members and no evidence sourced from the Mother’s side along the lines referred to here with respect to B exists with respect to G.

   f)Taken from the reg 26 report of Ms J, it cannot be concluded that, as an overall observation, G, approaching fourteen years of age when interviewed on 29 August 2011, expressed views motivated by any animosity towards his mother. To the contrary, statements made by G as recorded by Ms J reflect his affection for and empathy towards his mother. In that context, G’s own understanding of what he thought was an agreement between his parents is recorded in paragraph 11 of the reg 26 report. According to G, this commences with the Mother requesting of the Father by telephone, “…to see whether we could live with him and then she asked us and we said yes. Then she said she would send me first.”

   g)Paragraph 13 of the reg 26 report specifically refers to G’s involvement at school in Australia; paragraph 14 refers to the feature that G claimed that he did not see a doctor or a counsellor about his condition on a regular basis when he was in New Zealand, but has been seeing a doctor and a counsellor regularly since he has been in Australia.

   h)Paragraph 15 records G’s positive reaction to having counselling in adjusting to his diabetic condition. There is nothing in the reg 26 report which reflects from G any perception that when he came to Australia, this was for a temporary visit. To the contrary, consistent with Exhibit 1, G appears plainly to have been of the view that he was coming to Australia to live with his father.

5. Remembering that it is not necessary to make a positive finding that G became habitually resident in Australia in order to conclude that habitual residence in New Zealand ceased or did not exist at the relevant date (LK (supra)), I note that in discussing LK (supra), the Full Court in Zotkiewicz (supra) noted, at paragraph 74, that the Full Court did not discern from anything said in LK that there had been any departure in Australia from the proposition that in order to find someone is habitually resident in a place, they must generally have lived there for, “an appreciable period”. From paragraphs 75 to 82, the Full Court provide in their judgment a helpful analysis of this aspect. In this case, it is important to recognise that G came to Australia on 11 June 2010 and there can be no doubt that he was resident in Australia for an “appreciable period” within the meaning of that term as discussed by the Full Court prior to the date of alleged wrongful retention.

6. At paragraph 78, the Full Court noted:

   78. We also accept that merely because the purpose of an international relocation may be to allow parents to work on their relationships, does not mean their purpose in relocating cannot be regarded as ‘settled’. Re B is an example of one such case. …

7. By analogy, it seems to me that here, the settled purpose of the parents was for G to travel to Australia and live here for a number of reasons. One may have been for him to have an opportunity to re-establish his relationship with the Father, but importantly, the Father was to take an active role with G in the management of his diabetes condition and the management of his behaviour when it seems that the Mother was not, by reason of her employment, readily available for those purposes. Further to that, G commenced to receive counselling and other medical treatment for his condition here, as opposed to the absence of that in New Zealand.

8. I find that the Central Authority has not discharged the onus of proof which it bears with respect to reg 16(1A)(b). The Central Authority has not satisfied the Court that as at 11 February 2011, or immediately before that date, G habitually resided in New Zealand. I find that G’s habitual residence in New Zealand ceased upon or soon after his departure from New Zealand to live in Australia with his father and the Father’s family on 11 June 2010.

9. Given these findings, the application with respect to G must be dismissed.

B

1. Given the foregoing discussion, it is convenient to firstly deal with the question of habitual residence so far as B is concerned. It may be observed at the outset that a fundamentally different factual matrix presents with respect to B as compared with G, as discussed above.

2. In paragraph 6 of the Initiating Application filed 8 September 2011, after dealing with facts alleged specifically with respect to G, there is the following:

   The mother and father also discussed sometime in 2010, the prospect of the child [B] also travelling to Australia at some point to spend time with his father. At a point prior to mid-late January 2011, the mother and father agreed that [B] would travel to Australia to spend three weeks with his father and brother following which both of [G] and [B] would return to New Zealand.

   In accordance with this agreement, [B] travelled to Australia on or about 20 January 2011.

3. Exhibit 2 in these proceedings is the incoming passenger card for B with respect to his travel on 20 January 2011, obtained as part of the documents produced under subpoena from the Department of Immigration and Citizenship. In the course of the hearing, in circumstances where the signature for the declaration part of that document appeared to be identical to the Mother’s signature on other documents, I raised with the parties whether or not it was accepted that this was the Mother’s signature. In the absence of evidence to the contrary, or indeed any submissions to the contrary, I find that the declaration was signed by the Mother.

4. Relevantly, and in comparison to Exhibit 1, which is the equivalent document with respect to G for his travel in June 2010, in answer to the question, “Do you intend to live in Australia for the next 12 months?”, the option “No” has been ticked. Whereas on G’s document, the option “Migrating permanently to Australia” has been ticked, the card for B selects the option “visitor or temporary entrant” and within that option, the response to “your intended length of stay in Australia” is given as “1 month”; New Zealand is identified as “your country of residence” and, in response to, “your main reason for coming to Australia”, out of options including “education” (there are eight available options), the option of “holiday” has been selected.

5. Notably, whereas on G’s card (Exhibit 1) the Father is nominated as the emergency contact on the card, in respect of B (Exhibit 2), the Mother’s e-mail address is given in the emergency contact details section.

6. Paragraphs 13 and 14 of the Mother’s affidavit filed in support of the application are as follows:

   13. Originally, [B] was reluctant to travel to Australia to spend time with his father and his brother, but he finally agreed to do so in early 2011.

   14. Accordingly, in February this year he also travelled to Australia. The arrangement was that he would be spending three weeks with his father and brother and then returning.

7. The Mother’s version of some reluctance on the part of B travelling to Australia as well as the proposition that it was a three week holiday is corroborated by the witness, Ms T, a sister of the Mother whose affidavit was filed on 8 September 2011. Ms T deposes:

   2. I recall on one occasion watching [B] cry because he did not wish to go to Australia. This incident occurred at my mother’s home in [R Street]. I was present with both my sister [Ms K] and her other children. From memory, this occurred in late (probably December) 2010.

   3. I clearly recall [Ms K] saying to [B] that he would only be going for about three weeks.

8. Likewise, the affidavit of another sister of the Mother, Ms U, filed 8 September 2011, provides corroboration for the Mother’s version and indeed is evidence that from B’s own point of view, it was his own understanding that his travel to Australia was for a period of three weeks.

9. Paragraph 22 of the reg 26 report simply contains:

   22. [B] was asked to talk about his understanding about how/why he came to be living with his father. [B] explained: “My Mum said I could come over, so I hopped on a plane, I started school, and I stayed.”

10. The disjunctive nature of the statement by B infers that the decision to stay in Australia may have occurred some time after he travelled here. Put another way, there is nothing in B’s own version to suggest that, prior to or upon leaving New Zealand on 20 January 2011, he thought he was coming permanently to Australia or for longer than the three week period identified by the Mother.

11. In paragraphs 10 and 11 of the Father’s affidavit attached to his answer and cross-application filed 19 August 2011, the Father refers to the fact that B “visited” for two weeks during the September 2010 school holidays and then returned to New Zealand to complete his year 6 school year. The Father asserts that the Mother and he agreed that B would commence the year 7 school year in Brisbane and return to live with the Father and G in January 2011. Notably, nowhere does the Father suggest, even on his own version, that B’s relocation to live with the Father was to be permanent. Indeed, when interviewed by Ms J for the reg 26 report, the Father suggests that he was of the understanding that B would be living with him “for at least twelve months”.

12. As at the relevant date of alleged wrongful retention, B had been in Australia for only three weeks. None of the factors discussed in some detail above with respect to G apply to B. I refer in particular to the fact that it is clear that with respect to G, there were elements of his behaviour and his medical condition which motivated both parents in the Father’s involvement by G being sent to live with the Father here. The contents of Exhibit 1 compared with Exhibit 2 provide a stark contrast.

13. On all of the evidence, taking into account the Father’s version, I am satisfied that the Central Authority discharges the onus of proof borne in that as at 11 February 2011, I am satisfied that B remained habitually resident in New Zealand.

14. In summary, on the broad factual enquiry as to B’s habitual residence, the following facts have particular resonance:

    a)Exhibit 2, the contents of B’s incoming passenger card, corroborates the Mother’s version that only a temporary visit for a holiday was in contemplation when B travelled to Australia on 20 January 2011. Moreover, the contents can be readily contrasted with the equivalent document with respect to G in Exhibit 1;

    b)Likewise, the affidavit evidence of each of Ms T and Ms U, unchallenged by the Father, provides further such corroboration;

    c)B’s own version, recorded at paragraph 22 of the reg 26 report as outlined above, does not establish that when he left New Zealand, B thought or knew that he would be living permanently in Australia (and even on the Father’s version, it is not established that permanent relocation was even discussed, let alone agreed);

    d)B was in Australia for only three weeks prior to the date of alleged wrongful retention on 11 January 2011, and even on the Father’s version, the Mother was thereafter requesting his return (on the Mother’s version, the Father was not readily contactable earlier);

    e)Having visited in the September 2010 holiday period for a short-term (two week) period, B returned to New Zealand to complete his 2010 school year, and the travel on 20 January 2010 was again in a holiday period;

15. Overall on the evidence as a whole, it seems more likely than not that what was contemplated for B was a three week visit to Australia when he left New Zealand on 20 January 2011.

16. I therefore find that immediately prior to 11 February 2011 (the expiration of the three-week period from 20 January 2011), B was habitually resident in New Zealand.

17. Taking into account this conclusion as to B’s habitual residence, it is established by evidence before me, or is not in issue that:

    a)B is under sixteen years of age (reg 16(1A)(a));

    b)New Zealand is a Convention country (reg 16(1A)(b));

    c)B habitually resided in New Zealand before his retention in Australia at the expiration of three (3) weeks from 20 January 2011 i.e. 10 February 2011 (reg 16(1A)(b)).

18. This leaves for consideration each of the requirements in reg 16(1A)(c), (d) and (e). The respondent’s Answer filed 19 August 2011, in paragraphs 4, 5 and 6, acknowledges that the Mother had “rights of custody” (within the meaning of that term as used in the Regulations) under the law of New Zealand (or at the least does not put that requirement in issue) given the contents of those paragraphs, read in the context of the decisions of the Full Court of this Court in Director-General, Department of Community Services v Crowe (1996) FLC 92-717 and Soysa & Commissioner of Police [2011] FamCAFC 39.

19. In Crowe’s case (supra), the Full Court considered an appeal by the Central Authority against an order whereby a trial judge dismissed the Central Authority’s application to return a child to New Zealand pursuant to the Regulations. In that case, the mother had asked the paternal grandparents to care for the child during the period in which she was suffering from depression. Thereafter, according to the grandparents, the mother saw the child infrequently. Subsequently, the grandparents and the child came to Australia from New Zealand for a holiday. The grandparents and child were due to return to New Zealand on a specific date, but then informed the mother they would not be returning until a significant time later. Thereafter, the father arrived in Australia and it was decided by he and the grandparents that they would remain in Australia with the child. The trial judge refused to make an order returning the child to New Zealand.

20. The Full Court held that in order to determine, for the purposes of the Regulations, whether a person has rights of custody in relation to a child who, immediately before his or her retention, was habitually resident in a convention country other than Australia (in that case, as here, New Zealand) regard must be had to the law of that other Convention country at the relevant time. Further, the Full Court held that the retention of the child in Australia interfered with the rights of the Mother in that she was thus prevented from exercising her rights as a guardian in New Zealand. The Mother had rights of custody according to New Zealand law immediately before the child’s retention. The rights of custody were held to be rights of custody within the meaning of the Regulations.

21. In Crowe’s case, as here, both the mother and father had the right to determine the place of residence of the child pursuant to New Zealand law. The exercise of that right by the Father does not bring to an end the independent and separate right of the Mother. In Crowe’s case, it was held that the retention in Australia interfered with the Mother’s right of custody and it was beyond doubt on the evidence that the Mother would have exercised that right but for the retention. That conclusion is likewise reached here by parity of reasoning.

1. It would appear that in paragraphs 4 and 5 of his Answer filed 19 August 2011, the Father purports that in pursuance of his rights as a guardian of B under New Zealand law (the Care of the Children Act 2004 (New Zealand)), he has determined, as is his right as guardian of B, where B lives. However, it is plain from Crowe’s case that where more than one person possesses rights of custody in relation to a child, the exercise of rights of custody by one person possessing those rights may at the same time breach the rights of custody possessed by the other person likewise possessed of rights of custody.

2. On all of the evidence, I am thus satisfied that the Central Authority has, with respect to B, discharged the onus of proof which it bears with respect to each of the requirements of reg 16(1A) of the regulations. It is thus established that B’s retention in Australia is wrongful and the Court must, subject to subregulation (3), make a return order.

Subregulation 16(3)

1. By his Answer and Cross-Application filed 19 August 2011, the Father pleads, in paragraph 6:

   6. That the Mother consented and/or acquiesced to the children and/or [G] born … 1997 and/or [B] born … 1999 living in Australia with the Respondent Father.

2. The Father also relies upon the affidavit and reg 26 report of Ms J to establish that B objects to being returned to New Zealand within the meaning of reg 16(3)(c).

3. The opening words of reg 16(3) make it clear that the person opposing return bears the onus of establishing one or more of the grounds: De L v Director-General NSW Department of Community Services (1996) 187 CLR 640. In that case, Kirby J observed, “Clearly, the purpose of the amendment to reg 16(3) was to cast on the ‘person opposing return’ the obligation of establishing the application on one or more of the exceptions.”

4. As to consent or acquiescence, and the onus of proof borne by the Father, I repeat that the Father chose not to cross-examine the Mother on disputed issues of fact. By parity of reasoning as detailed above with respect to the onus of proof borne by the Central Authority, in circumstances where the Father bears the onus of proof with respect to these exceptions, the same outcome must follow. I cannot readily reject the Mother’s version and prefer the Father’s evidence.

5. In any event, I have set out above in discussing the question of habitual residence of G the important distinctions that exist with respect to B. Those same distinctions, or at least some of them, are relevant to consent or acquiescence.

6. The Mother’s version with respect to B does not leave open anything like the inconsistencies that attend her evidence with respect to G as discussed above. There is corroboration of the Mother’s version with respect to B provided by her two sisters in the affidavits they have provided as earlier referred to. Exhibit 2 is likewise an important document and I have already discussed B’s own version of things as recorded in the reg 26 report.

7. I am not satisfied that the Father has discharged the onus of proof he bears with respect to the exceptions of consent or acquiescence. I accept the approach to the issue of onus of proof discussed by O’Reilly J in Director-General, Department of Child Safety v S (2005) FLC 93-249. As to acquiescence, it is clearly established that a Court needs to find the existence of clear and unequivocal words and conduct which could properly be interpreted as acquiescence: Department of Community Services v Crowe (1996) FLC 92-717 and Department of Health and Community Services, State Central Authority v Casse (1995) FLC 92-629.

8. As noted, the Father relies upon the reg 26 report of Ms J to establish that B objects to return within the meaning of reg 16(3)(c).

9. Early in these reasons, I recorded that at the first return date of this application, I ordered a reg 26 report, having regard to the ages of G and B. That was raised by the Court at the first hearing and the Father then agreed that a reg 26 report ought be obtained. However, it is to be noted that in the Father’s Answer and Cross-Application filed on 19 August 2011, this exception is not raised by him, either in his pleading or in his affidavit.

10. Moreover, the Father does not otherwise offer any evidence that B objects to returning to New Zealand.

11. The Mother deposes that B was particularly reluctant to travel to Australia (paragraph 6 of Mother’s affidavit filed 7 September 2011). Ms T deposes to observing B crying and stating that he did not wish to go to Australia. Ms U deposes to B stating that he was going to Australia for three weeks and he, “…would be back because he missed all his cousins who are here in New Zealand.”

12. Whilst Ms J expresses in her report her opinion that B holds views and feelings beyond mere expression of a preference or of an ordinary wish, it is important to take into account her full opinion, where she concludes:

    38. While I have had children remonstrate their objections to being returned more strongly than perhaps [G] and [B] did in their interviews, I attribute this to their somewhat placid and well-mannered natures and indeed unfamiliarity to the process of being interviewed. It is, however, my opinion that both [G] and [B], never-the-less (sic) expressed views and feelings beyond a mere expression of a preference or of an ordinary wish. It is further my opinion that [G] and [B] have attained an age and a degree of maturity at which it is appropriate to take account of their views.

13. Paragraph 25 of that report records that when the prospect of returning to New Zealand was raised with him, B lowered his head, became quiet, and stated he would, “…feel quite sad…” if he had to return to New Zealand. Importantly, B is also recorded as stating that if he did have to return, he predicts he would want to come back and live with the Father because he would miss his father a lot. Importantly, when asked if he missed his mother, B replied:

    I’m not exactly homesick, but I do miss my family over there, but I will really miss my dad more.

14. On a full reading of the reg 26 report, it does not appear that B identified or described characteristics about a return to New Zealand that upset him. It would appear that his desire to remain in Australia is a result of weighing up which parent he will miss more, in circumstances where at the time of the reg 26 report he had obviously been living with the Father for some eight months.

15. It is apparent that when B was living in New Zealand (given the evidence I have referred to), he was expressing views of reluctance to leave New Zealand or to travel to Australia. Conversely, after being in Australia for some months prior to the interview with Ms J, he was expressing views to the converse, but nothing in his expression of views would indicate some firm “objection” as such to return.

16. In De L v Director-General NSW Department of Community Services (supra), the High Court, as to the word “objects”, stated:

    …there is no particular reason why reg 16(3)(c) should be construed by any strict or narrow reading of a phrase expressed in broad English terms, such as ‘the child objects to being returned’. The term is, ‘objects’. No form of words has been employed which would supply, as a relevant criterion, the expression of a wish or preference or of vehement opposition.

17. The High Court clarified the subject-matter of the child’s objection. It quoted with apparent approval English decisions to the effect that the return to which the child’s objection is to be considered is that which would otherwise be ordered under the Convention, viz.:

    An immediate return to the country from which it was wrongfully removed, so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live. There is nothing in the provisions of Art 13 to make it appropriate to consider whether the child objects to returning in any circumstances.

18. In Crowe’s case (supra), the Full Court said:

    The relevant objection is an objection to being returned to the country of habitual residence for the purpose of the Regulations, not to live with a particular parent. There may be cases where these two matters are so linked that they cannot be separated, but this is not such a case.

19. Paragraph 25 of Ms J’s report is as follows:

    25. [B] lowered his head and his voice became quiet when he reflected on how he would feel if he had to return to New Zealand and he stated that he would feel; “quite sad.” He further stated that; “I will want to come back and live with Dad. I will miss Dad a lot.” [B] was asked if he missed his mother, he replied; “I’m not exactly homesick, but I do miss my family over there, but I will really miss my Dad more.” He said he would be hoping that his father gets permission for him and his brother to come back and live with their father in Australia. [B] said he would like to go back and visit his mother and family during the holidays.

20. It would seem that in that extract, B was contemplating the prospect of returning to New Zealand and there expresses the hope that the Father would get permission for he and his brother, “…to come back and live with their father in Australia.” I do not read in that extract B then and in that context expressing the relevant objection to the prospect of being returned to New Zealand for the question of whether or not his father secures the permission he refers to then being dealt with.

21. I am therefore not satisfied that the Father has discharged the onus of proof which he bears with respect to this exception.

22. In any event, even if it could be concluded that B objects in the relevant sense, there is obviously a residual discretion in this Court as to whether or not to make a return order in these circumstances. In this context, as the Central Authority correctly submits, the purpose and intent of the Convention looms particularly large in cases where children come to a country for a visit (see Re HB (Abduction: Child’s Objections) (1997) 1 FLR 392 at 399), and this is particularly relevant in B’s case.

23. In my view, the purpose and intent of the Convention “tips the scales” in favouring an order for return of B to New Zealand.

24. I am mindful that reg 1A(2)(b) expresses the intention that the Regulations are to be construed, “…recognising, in accordance with the 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,”; that in circumstances where G remains in Australia and B is returned to New Zealand, there is a separation of these siblings and the prospect of proceedings in both Australia and New Zealand to resolve their parenting arrangements.

25. However, I note that, by their own conduct, the parties did not place any particular significance upon the feature that G and B would be separated for a significant period of time by virtue of the discrete arrangements for each child (on either party’s version).

26. I am also mindful of the feature that the return of B is to New Zealand, as opposed to a Convention country more geographically remote from Australia.

27. I am further mindful of the comity of laws between Australia and New Zealand as reflected by many provisions within the Family Law Act 1975 (Cth) itself and, for example, the Trans-Tasman Proceedings Act 2010 (Cth). It seems to me that in these circumstances, the prospects of separation of siblings and proceedings in both Australia and New Zealand would not dictate a refusal to exercise discretion to make a return order even if the exception of objection had been made out.

28. For these reasons, I make Orders in terms of the Orders set out at the commencement of these reasons.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 October 2011.

Associate: 

Date:  18 October 2011