DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & RALEIGH
[2011] FamCA 308
•29 April 2011
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & RALEIGH | [2011] FamCA 308 |
| FAMILY LAW - CHILD ABDUCTION – Hague Convention application – application brought by the Director-General of Communities seeking the return of the child to New Zealand – Where mother claims father acquiesced to her retaining the child in Australia – Where mother failed to adequately specify the evidence of the father’s alleged acquiescence - Where mother also claims the child would be exposed to a grave risk of physical or psychological harm if returned to New Zealand–– Where father has a criminal history – Where no evidence that the father has harmed the child - Whether the father acquiesced to the mother retaining the child in Australia – Whether the child would be exposed to a grave risk of physical or psychological harm if mother ordered to return the child to New Zealand – Child ordered to be returned to New Zealand | ||
| APPLICANT: | Department of Communities (Child Safety Services) | |
| RESPONDENT: | Ms Raleigh |
| FILE NUMBER: | BRC | 8147 | of | 2010 |
| DATE DELIVERED: | 29 April 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 14 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hogan of Counsel appearing for the Applicant |
| SOLICITOR FOR THE APPLICANT: | Crown Law |
| COUNSEL FOR THE RESPONDENT: | Mr Green of Counsel appearing for the Respondent Mother |
| SOLICITORS FOR THE RESPONDENT: | Parker Family Law |
Orders
The orders made by the Honourable Justice Murphy on 7 September 2010 be discharged.
The child, O born … January 2010, be returned to the country of New Zealand within twenty-eight (28) days of the date of this Order or such further time as the legal representatives for the Mother and Father may mutually agree.
To give effect to this Order:
(a) the Mother, Ms Raleigh born … book and pay all the necessary expenses associated with returning the child to New Zealand including the cost of airfares and departure taxes (if any) for the child to travel from Brisbane airport to New Zealand, within twenty-one (21) days of the date of this Order or such further time as the legal representatives for the Mother and Father may mutually agree;
(b) within twenty-four (24) hours of booking the airfares the Mother provide Ms B, Department of Communities with a copy of her travel itinerary;
(c) in the event that the Mother does not pay for the airfares or refuses to do so the father, Mr C, be at liberty to pay for the airfares for the Mother and child to return to New Zealand and that the Mother then pay to the Father the expenses incurred by him in the booking and paying for that travel;
(d) three (3) business days prior to the Mother’s scheduled departure, Ms B or a person nominated by her on behalf of the Department of Communities be at liberty to release to the Mother the passports of the Mother and child;
(e) the Marshal of the Family Court of Australia and all federal agents of the Australian Federal police and officers of the police forces and services of the various states and territories are empowered to give effect to this Order;
(f) upon receiving the travel itinerary for the Mother and child from the Department of Communities and no sooner than at midnight on the day prior to the Mother and child’s scheduled departure, the names of the Mother, Ms Raleigh born … and the child, O born … January 2010, be removed from the all ports watch alert system at all international departure points in Australia;
(g) the Applicant provide a copy of this Order to the Australian Federal police; and
(h) pending her departure from Australia pursuant to these Orders, the Mother be restrained and an injunction issue restraining the Mother from changing the said child’s usual day to day residence from the premises where she and the said child are currently residing, being an address known to the Central Authority.
Each party have liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Department of Communities (Child Safety Services) & Raleigh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC8147/2010
| Department of Communities (Child Safety Services) |
Applicant
And
| Ms Raleigh |
Respondent
REASONS FOR JUDGMENT
This is an application by the Director-General, Department of Communities in her capacity as the State Central Authority under the Family Law (Child Abduction) Convention Regulations 1986 for the return of the child, O born in January 2010 to New Zealand.
The requesting party is the child’s father, Mr C born in 1986, a resident of New Zealand. The Respondent to the application is the child’s mother, Ms Raleigh born in 1989.
The Respondent opposes the application on two grounds:
·Pursuant to Regulation 16(3)(a)(ii), the Father subsequently acquiesced to the child being retained in Australia; and
·Pursuant to Regulation 16(3)(b), there is a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
It is further submitted on behalf of the Respondent (case summary document page 4):
·In the event that the Court has a discretion under Regulation 16(5) to order the child’s return to New Zealand, the Court should decline to exercise that discretion and dismiss this application.
The discretion referred to at Regulation 16(5) is in the following terms:
“The Court is not precluded from making a return order for the child only because the matter mentioned in sub regulation (3) is established by a person opposing return.”
The discretion under Regulation 16(5) only becomes relevant if a finding has been made that grounds have been made out for acquiescence or grave risk. Even if such findings are made, the discretion provides the Court may, for a variety of reasons, still order the return of the child. One such reason, to be discussed later, is that this Court is satisfied that although for example the grave risk has been established, the Courts of the requesting country have a long standing reputation for being able to protect citizens, the subject of any such risk.
The discretion does not operate in reverse as may be interpreted from the pleading by the Respondent. If the exceptions pursuant to Regulation 16.3 are not made out, there is an obligation on the Court to order the return of the child. There is no question of a discretion arising to permit the Court to decline to order the return of the child absent a positive finding that the exceptions referred to in Regulation 16.3 have been established to the necessary standard of proof. It may be that I have misinterpreted Counsel’s written submissions in making these observations.
The Respondent seeks orders as set out in her case summary document filed by leave on the 26 October 2010:
·Dismissing the Applicant’s application;
·Discharging the interim injunction presently in place pursuant to the Order of Murphy J made 7 September 2010; and
·For the return of her and O’s passport to her.
The matter was before the Court on 26 October 2010. At that time written submissions were received on behalf of both the Applicant and the Respondent. It was apparent at that time that full details of the Father’s criminal history in New Zealand were not available. For reasons given on the 9 December 2010, I acceded to an application by the Applicant for an adjournment to allow additional material to be placed before the Court.
Material Filed Since Last Hearing
The following material has been filed since the last hearing:
·Affidavit of Joan Key sworn 26 January 2011 – Ms Key is a barrister and solicitor of the High Court of New Zealand. Annexures “A” to “H” inclusive set out the summary of facts for a series of offences committed by the requesting parent between August 2003 and March 2010.
·Affidavit of the Respondent sworn 7 March 2011 and filed 15 March 2011, setting out text messages exchanged between the parties in the period 30 December 2010 through to 28 January 2011 – it is submitted these text messages constitute further acquiescence on the part of the Father.
·Affidavit of the Father sworn 7 April 2011 and filed 8 April 2011 being in response to the Respondent’s affidavit of the 7 March 2011.
On the 14 April 2011, the matter has once again, proceeded before me to a hearing on the papers. In making a determination on the papers, it is necessary for the Court to form some preliminary view on the question of credibility of the parents.
On behalf of the Applicant five affidavits have been sworn on the following dates:
·Father (1) 12 July 2010 (annexed to the form 2 application initiating proceedings filed in the Court on 30 August 2010).
·Father (2) sworn 11 October 2010.
·Father (3) sworn 26 October 2010.
·Father (4) sworn 3 November 2010.
·Father (5) sworn 7 April 2011.
I find that in a number of important aspects the Father has placed misleading information before the Court. In his first affidavit at paragraph 6 he notes:
“6.I have a history of minor criminal offending which may impact on my ability to travel to Australia.”
This claim is repeated by the Father in his affidavit sworn the 11 October 2010 (paragraphs 7 and 11). It is further repeated in the third affidavit sworn
the 26 October 2010 at paragraph 7 and repeated by necessary implication in his final affidavit sworn 7 April 2011 (paragraph 7):
“7.If [the mother] stays on in Australia with [O] then I fear I will never see [O] again.”
There is no evidence in any of the five affidavits filed by the Father that he has made even the most perfunctory of enquiries to ascertain whether he is at liberty to enter this country. A perusal of the criminal history, which has now been fully particularised, would indicate that it is unlikely he would be restricted from entry to this country. Another reason advanced by the Father why he cannot travel to Australia is that he has another daughter in New Zealand whom he sees on a regular basis. His affidavit evidence was that on average he sees this child one day a week. I would not see that this factor would preclude him from visiting the child, the subject of these proceedings, in Australia. It is much more likely that the reason the Father has made no attempt to visit [O] in Australia at any time since May last year, is that he has unpaid fines in New Zealand and New Zealand law prevents a citizen leaving the country until all fines have been paid.
In his third affidavit at paragraph 2 he deposes:
“2.I have not had criminal convictions nor been involved in any criminal activities since before the birth of my elder daughter, [S], two years ago.” [S was born in April 2008]
The latest affidavit of Joan Key filed on 26 January 2011 indicates the following convictions in recent times by the Father:
DateNature of Offence
25 February 2010 Drug charges – bongs were found in the
search of the home after police executed a search warrant.
Annexure “A” to Joan Key’s affidavit sworn 1 November 2010 is a document headed “Criminal Convictions Report”. It reveals a conviction on the
25 March 2010 for these drug charges.
There was an earlier conviction on the 10 June 2009 for driving a motor vehicle whilst disqualified. On the 18 June 2009 a conviction was recorded, a fine was imposed and a further period of disqualification was ordered.
There was a further offence committed on the 27 December 2008 for being a learner driver unaccompanied by an overseer. On the 11 March 2009 he was convicted for this offence and a period of disqualification imposed. The records indicate he has 29 previous offences for driving without an overseer.
On perusal of his criminal record the comment could be made the Father appears to have no respect for the law. Such an observation is reinforced by the fact that at times when he has been sentenced to periods of community service, he appears not to have performed the periods of community service and ultimately served a period of imprisonment.
Evidence of Acquiescence
In her first affidavit filed 1 October 2010 the Respondent at paragraphs 47 and 48 had noted:
“47.In July 2010 [the father] sent me a text and told me that he wasn’t going to go through the Courts anymore. He also said, “I’ll leave yous [sic] alone now, keep [O] safe”.
48.[The father] subsequently texted me with his lawyer’s phone number wanting me to call her and tell her that he did not want to go through with the courts and ask her to call him. I refused to call and told [the father] that that was something he had to do.”
In paragraph 13 of his second affidavit the Father makes the following observation as to this evidence:
“13.I agree that I did send the Respondent that message. I was distraught at the time and she had been “working” on me. I felt powerless and desperate. The Respondent had told me more than ten times that she was going to come back to New Zealand. She also said that she wanted me to come over and be with her and [O]. I could not because otherwise I would “lose” my other daughter in New Zealand. I deny sending a text asking her to ring my lawyer. I understand that my lawyer has never received any such communication from the Respondent. As I recall I did say that I would ring my lawyer although I never did. At the time I was upset and not thinking straight. There had been heaps of text messages and telephone calls between the Respondent and me.”
Further Evidence of Acquiescence Detailed in Respondent’s Affidavit Sworn 7 March 2011
In her affidavit sworn 7 March 2011 the Respondent says at paragraph 2:
“2.As I had not communicated with [the father] for a little while, I sent a text message to him on 30 December 2010 informing him how [O] was doing and how she was developing.”
There is no elaboration by the Respondent on what additional text messages or other forms of communication may have been sent or received in the intervening period up to the 30 December 2010, other than those previously noted in the affidavit material.
At paragraph 3 of the same affidavit the Respondent says she did not retain copies in the memory of her mobile phone of the messages she sent to the Father.
At paragraphs 4 and 5 she deposes:
“4.I have saved some but not all of the text messages that I have received from [the father] in the period between 30 December 2010 and 28 January 2011.
5.When I have not saved the text message from [the father], I have set out the message’s content as I recall it.”
In her affidavit she does not seek to classify which text messages from the Father have been transcribed from the mobile phone’s memory and which were her own recollection at some later unspecified point in time.
Where the text message is in typical abbreviated text message format, Counsel for the Respondent submitted it could be inferred these were recorded from the mobile phone’s memory. I accept there is some merit in this approach but it would have been preferable for the Respondent herself to have undertaken the task rather then asking the Court to rely on supposition.
Of the class of unidentified text messages not retained in the mobile phone’s memory, there is no attempt to clarify when she first recalled each such message. Was it at the time the message was received, or the following day or at the time of swearing her affidavit on the 7 March 2011, over 60 days after the messages were received?
At paragraph 8 she deposes:
“8.Between the 31 December 2010 and the 20 January 2011 [the father] texted me a number of times telling me that he had tried to make contact with his lawyer however he could not reach her and had left a message.”
Again there is no specificity detailing how many messages were received from the Father or the context in which the messages were received.
At paragraph 9 she sets out her recollection of a series of messages exchanged on the 20 January 2011.
At paragraph 11 she summarises text messages received from the Father on the 21 January 2011 in the following terms:
“11.In reply [the father] texted me saying that he had got hold of his lawyer. He also said I might have to drop the protection order. I might have to go back to New Zealand to do the agreement so we could talk about it with [O’s] lawyer. He also said we can do it by fax.”
I digress to note that at paragraph 5 of his affidavit sworn on the 7 April 2011 in response to the Respondent’s affidavit, the Father deposes:
“5.I did not have any funds on my cell phone to telephone my lawyers until 21 January 2011. At that stage I received advice that [the mother] (and [O]) needed to come back to New Zealand first before the terms of an ongoing arrangement for the care/contact of [O] could be arranged and formalised by court order which, if need be, could be enforced in Australia.”
This paragraph does not differ greatly from the Respondent’s account, the effect of which appears to be that any agreement that had been reached would not be effective until she returned to New Zealand with the child and the agreement formalised by a court order in New Zealand.
Father’s Affidavit Sworn on 7 April 2011
At paragraph 3 of his affidavit the Father notes:
“3.I firstly confirm that [the mother] and I did exchange a number of text messages on and after 30 December 2010. However, I am unable to confirm whether [the mother] has accurately set out the exchange of texts between us. This is due to my own cell phone having limited memory capacity and to my own inability to remember recent events.”
There is no elaboration by the Father or the lawyer, who presumably was drafting the document, why the Father could not have used a pen or pencil and a sheet of paper to record the text messages at the time. There is no elucidation or elaboration on his “inability to remember recent events”.
It would seem on the Respondent’s worst case scenario, she has been able to remember the gist of the text messages over whatever period it was that she first made a note of those that are not in the mobile phone’s memory bank. So far as the passage in paragraph 5 of his affidavit, previously quoted, that he did not have any funds on his cell phone to telephone his lawyer until the
21 January 2011, there is no explanation why he could not simply have made a call from a land line or from a public phone or purchased a stamp and written a letter to his solicitor, who is in a town in reasonably close proximity. There is no explanation why he did not drive the relatively short distance to the solicitor’s office.
The lack of detail provided is pronounced on both sides, but is far more stark at all levels in the Father’s case.
The question arose as to the onus of proof and whether there should have been an application to cross examine the Respondent.
For the Respondent it was submitted that her affidavit material spoke for itself and if there was to be any challenge to its accuracy or weight, because of any delay in recording the substance of the text messages to writing, an application could have been made to cross examine her as she was in Court.
For the Central Authority it was submitted that the onus of proof rested on the Respondent to establish acquiescence and, in the circumstances, the obligation was on her to clarify her evidence by setting out with full particulars when she had first made a note of these messages.
On balance, I am of the view that the Respondent has not satisfied the onus that is placed upon her. It was well within her power to set out with much greater specificity all of the communications passing between the parties which were relevant including the messages that she was forwarding. It would not have been difficult for her to detail when it was exactly that she committed the text messages to writing when those same text messages had not been saved into the memory of the phone. There is no explanation why the memory of her mobile phone should have such little capacity in that it was unable to save a series of text messages. There is no corroboration of anybody being shown the text messages.
There is evidence from the Respondent that the Father during the period of cohabitation was in the habit of smoking cannabis each day, which might explain his inability to remember recent events, particularly if such practice has continued to the present time.
The Father notes at paragraphs 4 and 5 of his last affidavit:
“4.I confirm that [the mother] initiated the texting on
30 December 2011 [sic]. At that time I was despondent as I had not heard anything further since I had attended on my lawyer to sign my affidavit of 30 November 2011 [sic]. These proceedings have been so long and drawn out that I have lost hope of seeing my daughter again. [The mother] offered to do a deal whereby she would come over to New Zealand and bring our daughter [O] to me about four times a year for two to three weeks each time.[previously quoted]
5.I did not have any funds on my cell phone to telephone my lawyer until 21 January 2011. At that stage I received advice that
[the mother] (and [O]) needed to come back to New Zealand first before the terms of an ongoing arrangement for the care/contact of [O] could be arranged and formalised by a court order which, if need be, could be enforced in Australia.”The accuracy of the legal advice, given in these terms to the Father would have to be open to serious question.
The Father further notes at paragraphs 6 and 7:
“6.After the 21 January 2011 I told [the mother] that she had to come back to New Zealand so we could get an agreement done – so I could have contact with [O]. She told me then that her lawyer had said to her that she did not have to come back. I felt betrayed by [the mother] and that she had “set me up” with her text messages.
7.I wish to be very clear that I want [O] to be returned to New Zealand so that I can see her again and can make arrangements with [the mother] for ongoing contact with her. If [the mother] stays on in Australia with [O] then I fear I will never see [O] again. I cannot trust [the mother] to commit to my ongoing contact with [O] unless she first returns to New Zealand.”
For reasons previously given, I place no reliance on the credibility of the statement made by the Father in paragraph 7 of his fear that he will never see his child again.
It would be a simple matter for the parties to enter into consent orders to be registered in both Australia and New Zealand, which would allow the Respondent to return with the child to New Zealand or for the Father to see the child in Australia.
There are existing proceedings in New Zealand which would permit this to be done or an application could be filed in this Court. It seems to be more a case of the Father’s impecuniosity and/or non-payment of fines for various criminal offences which precludes him from having ongoing contact to the present time with the child. Where the Father says he has been in employment, one would have to seriously question his commitment to the child that such contact has not taken place to date.
Law to be Applied
The Court has had the benefit of three lots of submissions from each Counsel. The first submissions were written submissions produced at the time of the hearing on the 26 October 2010. The submissions by Counsel for the Director-General extend over 21 pages. Not to be outdone, the submissions by Counsel for the Respondent extend over some 41 pages.
A transcript has been obtained which covers the oral submissions made to the Court on the 26 October 2010. Further submissions were made at the adjourned hearing on the 14 April 2011 and a transcript has been obtained of the submissions made on that date.
Summary of Written Submissions By Applicant’s Counsel
At page 8 of the submissions for the Applicant, Counsel makes reference to the judgment of Kirby J at paragraph 141 in the determination of DJL v The CentralAuthority [2000] HCA 17. His Honour there observed:
“…the expressed exceptions to the order for return are deliberately narrow. Australian courts must faithfully observe these rules even as they are entitled to expect that the courts of other countries will do where demand is made for the return of the child abducted from Australia.”
At page 14 of her submissions in dealing with the issue of acquiescence as being an exception to the normal rule for the return of the child, Counsel for the Applicant submits:
“…that the following principles can be drawn from the authorities:
a.In determining whether a parent could be said to have acquiesced in the unlawful removal or retention of a child by the other parent, each case has to be considered on its own facts;
[Police Commissioner of South Australia v Temple [1993] FLC 92-365 at page 79828]
b. Acquiescence can be either:
i.Active acceptance signified either by express words of consent (in which case there has to be clear and unequivocal words or, by conduct (and the other party has to believe that there has been an acceptance), or by conduct inconsistent with an intention by the aggrieved parent to insist on legal rights and consistent only with an acceptance of the status quo;
ii.Passive acquiescence – inferred from silence and inactivity for a sufficient period in circumstances where different conduct is to be expected on the part of the aggrieved parent.”
At paragraph 24 on page 14 Counsel submits:
“24.It is also submitted that whether there has been acquiescence for the purpose of the convention and regulations is a question of fact - concern [sic] solely with a person’s state of mind; acquiescence is an entirely subjective state unconcerned with the outside world’s perception of that person’s intentions.”
At paragraphs 25, 26 and 27 Counsel submits:
“25.In assessing and determining the matter on this question of fact, it is submitted that the Court would attach significant weight to the contemporaneous words and actions of the wronged parent rather than bare assertions in evidence of intention.
26.It is also submitted that acquiescence for the purpose of the Regulations must be clear, total and unqualified and it is not sufficient that acquiescence be qualified in the same way.
27. It follows, it is submitted therefore, that acquiescence concerns a resolved state of mind – it cannot without more be deduced from a single, isolated statement or a statement made on the spur of moment.”
[Director-General, Department of Child Safety v S (2005) FLC 93-249]
At this point in time the only claim of acquiescence was based on a single text message forwarded in July 2010 some time after a series of abusive and threatening text messages had been forwarded on the 1 July 2010.
The evidence indicates also that the application in form 2 initiating the proceedings had been signed by the Father on the 12 July 2010, being the same date that he filed an affidavit in support of the application.
Grave Risk of Exposing the Child to Physical or Psychological Harm or Otherwise Placing the Child in an Intolerable Situation – Regulation 16(3)(b) – Applicant’s Submissions
In canvassing this aspect of the exceptions to the standard rule, Counsel quoted from a New Zealand decision of Judge Doogue in VP v A [Child Abduction] [2005] NZFLR 817 where his Honour at paragraph 85 noted:
“…
(i)The focus is on the children’s situation, not that of the respondent. The issue is not whether the mother would be exposed to physical or psychological harm but whether the children would be exposed to physical or psychological harm or would otherwise be placed in an intolerable situation.
(ii)It is not the return to the applicant that must pose the risk but rather the return to the country (in this case the Netherlands).
(iii)The respondent must demonstrate why the legal system and other agencies available in the Netherlands cannot be trusted to safeguard the interests of the children.
(iv)The risk of the physical or psychological harm must be substantial or severe.
(v)The harm that is likely to be done must be more than the damage that is the natural consequence of the disruption of the children’s lives of the removal and return.
(vi)The respondent cannot create a situation of potential physical harm and then rely on it to prevent the return of the children.
(vii)There is a presumption in favour of the children’s return and the onus of discharging the presumption is very high.”
At paragraphs 33 and 34 of her submissions Counsel for the Applicant observed:
“33.It is submitted that the Court would not be persuaded by the evidence before it (remembering the Respondent bears the onus of proof) that a return to New Zealand would place the child at grave risk or exposure to physical or psychological harm or would otherwise place her in an intolerable situation.
34. The mother has obtained a Protection Order in New Zealand. She has, it is submitted, available to her, therefore, the protection afforded to her by that order.”
At paragraph 37 of her submissions Counsel quoted from a decision of the Full Court in Gsponer v Director General, Department Community Services, Victoria (1989) FLC 92-001 where the Court observed:
“There is no reason why this Court should not assume that once the child is so returned, the Courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed the entry by Australia to this convention with other countries may justify the assumption that the Australian Government is satisfied to that effect.”
At paragraph 39 Counsel quoted from the Full Court decision in the matter of Murray v Director, Family Services, ACT [1993] FLC 92-416 where the Full Court observed (at page 88259):
“It would be presumptuous and offensive in the extreme, for a Court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand courts or that relevant New Zealand authorities would not enforce protection orders which are made by the court.”
Counsel for the Respondent challenged that the statements by the respective Full Courts in Gsponer’s case and Murray’s case were good law in light of the observations by the High Court in DP v Commonwealth Central Authority [2001] HCA 39 (previously quoted).
In his submissions, Counsel for the Respondent at page 13 cited paragraph 39 of the High Court’s determination in the following terms:
“39.Automatic return of the child to the place of habitual residence in such a case may not be a desirable outcome for that child. If it would expose the child to a grave risk of physical or psychological harm, or an intolerable situation, the discretion to refuse to make an order for a return is enlivened. It is for the Australian Court to decide whether return would expose the child to that risk. Of course it must be recalled that the onus of proof lies on the party opposing the return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that enquiry. Often enough the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent Judicial proceedings in the country of return. But, it is important to notice that this answer has two parts; first, that there will be Judicial proceedings in the country of return and, second, that the fear and harm which is alleged can be a matter relevant to those proceedings. Both parts of that answer are important if it is to meet a contention that return will expose the child to a grave risk of harm.”
At paragraph 41 of the judgment under the subheading “Narrow Construction?” the Court observed:
“41.In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a “strong line of authority both within and out of Australia, but that the Reg 16(3)(b) and (d) exceptions are to be narrowly construed. Exactly what is meant by saying that Reg 16(3)(b) is to be narrowly construed is not self evident. On its face Reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in “an intolerable situation”. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing the return raises the exception, a Court cannot avoid making that prediction by repeating that it is not for the Courts of the country to which or in which a child has been removed or retained to enquire into the best interests of the child. The exception requires Courts to make the kind of enquiry and prediction that will inevitably involve some consideration of the interests of the child.”
If the submission by Counsel for the Respondent is that this decision does not entitle this Court to have regard to the legal system operating in New Zealand, I respectfully disagree. If there was evidence that the Courts of New Zealand have been unable to protect litigants, the subject of protection orders, or that the police or other civilian authorities likewise are unable to afford adequate protection that would be a relevant consideration. Absent specific allegations to this effect, this Court is entitled to infer that the Courts of New Zealand will act in aid of a litigant, the subject of a protection order, in the event there is any evidence that there is concern of a breach of the terms of such order.
Respondent’s Written Submissions Filed by Leave
26 October 2010
At page 5 of his written submissions, Counsel for the Respondent cited the decision In re: F [1995] 3 All E.R. 641 where Butler-Sloss LJ stated at page 647:
“…The Judge accepted the evidence adduced by the wife but concluded that its totality did not meet the high test of intolerability required to establish article 13(b). …”
At paragraph 14 of his submissions Counsel quoted from the judgment of Lord Browne-Wilkinson In re: H (Minors) (Abduction:Acquiescence) [1998] A.C.72 at page 87:
“…In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world’s perception of his intentions…
Once it is established that the question of acquiescence depends upon the subjective intentions of the wronged parent, it is clear that the question is a pure question of fact to be determined by the trial judge on the, perhaps limited, material before him.
…In reaching conclusions of fact, judges always, and rightly, pay more attention to outward conduct than to possibly self-serving evidence of undisclosed intentions. But in so doing the Judge is finding the actual facts. He can infer the actual subjective intention from the outward and visible acts of the wronged parents. That is quiet a different matter from imputing to the wronged parent an intention which he did not, in fact, possess.
Although each case will depend on its own circumstances, I would suggest judges should be slow to infer an intention to acquiescence from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child…”
Later in the judgment his Lordship observed when dealing with the exception:
“The Exception
It is a feature of all developed systems of law that there are circumstances in which party, A, has so conducted himself as to mislead the other party B, as to the true state of the facts. In such a case A is not allowed to assert the true facts against B.
It follows that there may be cases in which the wronged parent has so conducted himself as to lead the abducting parent to believe that the wronged parent is not going to insist on the summary return of the child.
However, in my judgment these will be strictly exceptional cases.
My Lords, in my judgment these exceptional circumstances can only arise where the words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child; they must be wholly inconsistent with the request for the summary return of the child...”
At page 90 his Lordship observed:
“…(4)There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”
At paragraph 15 Counsel for the Respondent summarises the situation in the following terms:
“15. The test fundamentally is in two parts:
i. Whether as a matter of fact, the person did acquiesce, and if not:
ii.Does the case fall within the exception i.e. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”
The written submissions at this stage related solely to the text message of July 2010 in the following terms:
“I’ll leave yous alone now, keep [O] safe.”
Counsel drew attention to the Father’s explanation that he was “distraught” and felt “powerless and desperate”. I note that in paragraph 47 of his affidavit the Father deposed:
“47.The Respondent had told me more than ten times that she was going to come back to New Zealand.”
In the present case it is important to look at the totality of the factual situation, and that is the course that I propose to adopt. It is artificial to be looking at one communication of acquiescence when on the 31 December 2010 there were a series of messages to that effect.
Oral Submissions Made 26 October 2010
I shall only briefly touch on the oral submissions made on the
26 October 2010, as they have effectively been superseded by the submissions made on the 14 April 2011, with the fresh evidence that has been placed before the Court as at that date.
It is noted that each Counsel at the later hearing sought to adopt the submissions made at the earlier hearing, and it was for that reason that I requested a transcript be prepared.
Oral Submissions by Counsel for the Director-General, Department of Communities (Child Safety Services) of
26 October 2010
In the course of her submissions Counsel noted that in response to a claim that the child was at a grave risk of physical or psychological harm or would otherwise be placed in an intolerable position the following factors were relevant:
·The Respondent had invoked the jurisdiction of the New Zealand
Courts by way of a protection order which had been made but also an interim order for the child to be in her primary care with
supervised time to the Father. It was contended that it would be unlikely that she would be agreeing to supervised time to the Fatherif there was such a grave risk to the child emanating from that
quarter.
·In relation to the series of threatening text messages sent by the
Father to the Respondent on the 1 July 2010, as particularlised by her in paragraph 129 of the affidavit filed on the 1 October 2010, the observation was made that all of the text messages were sent on the one day and it is difficult to be too judgmental of the text messages of the Father when there is no context given to same by disclosure of what the responses were to any one or more of the messages. Whilst the observation could be made that the content of the text messages by the Father was regrettable and could well be the subject of criticism, there is nothing to indicate that each individual message was the totality of that message nor what was the response from the Respondent.
In relation to the text message detailed in paragraph 47 of this affidavit where she deposes that in July 2010:
“[The father] sent me a text message and told me that he wasn’t going to go through the courts anymore. He also said, “I’ll leave yous alone now, keep [O] safe”.”
the following points were made by Counsel:
·There is no indication what date in July such an important message
was sent.
·There is no context given – were the words set out in paragraph 47
the totality of the message?
·Counsel pointed out that the words:
“…I’ll leave yous alone now, keep [O] safe”.”
could be equally consistent with a variation of a form of saying goodbye. No explanation is given why the important first part could not have been given in direct speech.
There is no evidence that this text message was shown to any members of her family, any friends or most importantly, a legal representative who would have been able to depose to seeing such a phone message in its entirety in the memory of the mobile phone.
A concession was made by Counsel for the Respondent that the message had been on an old phone which had since been replaced and therefore could not be produced into evidence. Why the message bank could not have been copied prior to disposal of the old phone was not explained.
Importantly, Counsel submitted that there was no evidence that at any time the Respondent reacted in any way to the so called acquiescence, such as by signing a long term lease, obtaining a job, instituting proceedings in this jurisdiction to have the matters resolved, seeking resolution of the proceedings in New Zealand or entering into a relationship. There is nothing to indicate that she has in any way acted to her detriment by committing to a long term stay in this country.
Counsel at transcript page 22, refers to the substratum of evidence that it was evident that the parties were in argument as between themselves throughout the relationship and after the relationship terminated, but the Respondent had, with the Father’s knowledge, obtained a passport. There is evidence from the Respondent’s affidavit (paragraph 130) of a friendly telephone conversation in September 2010. It was submitted the fact that they were still able to converse on the telephone was inconsistent with a finding of grave risk.
At transcript page 23, Counsel submitted that there was no evidence that any of the threats that had been made against family had ever been put into action in any manner.
It was argued that the Respondent would have the benefit of the New Zealand legal system to protect her and in addition, has family support available, not merely in the country but in the adjoining district to where it is likely she would be returning.
There is evidence that she would be entitled to social security type benefits, if required.
Oral Submissions by Counsel for the Respondent of
26 October 2010
In the course of oral submissions on the “grave risk” exception, Counsel made specific reference to four separate incidents as follows:
i.the driving incident where the Father was said to have driven in a wild fashion;
ii.the incident where the Father was yelling at the Respondent saying he wanted to hit her;
iii.the violent irrational reaction of the Father when the Respondent purchased the wrong brand of cigarettes; and
iv.there was a violent argument where the Father waved his fist in the face of the Respondent.
In the transcript of 26 October 2010 (page 30) Counsel for the Respondent submitted that:
“…the distinction between passive and active acquiescence was no longer relevant in light of the determination by the House of Lords in the decision Re: H (previously cited). As a number of decisions in this jurisdiction have elected to follow the principles enunciated by the House of Lords.”
I do not need to consider the accuracy of this submission as the acquiescence in this case is particularised simply as a series of text messages on a telephone. There is no claim of an oral communication in telephone conversations although some such telephone conversations did appear to take place. There is no evidence of emails passing between the parties. There is no communication between the respective lawyers in any form which would establish the acquiescence. It would seem that the acquiescence is said to have been active in that it consisted of a series of text messages, the first being on an unknown date in July 2010, a series of text messages (not wholly disclosed) on the
31 December 2010, which text messages appear to constitute a written conversation carried on between the parties over an unspecified period of time on that date. There was then the further text messages on or about the
20 January 2011 as particularised in the latest affidavit by the Respondent.
There has never been a claim that the Father’s conduct amounts to passive acquiescence, nor could such a pleading be made out on the available evidence. The Respondent left the jurisdiction in May 2010. The application had been signed in July 2010 and the proceedings were before the Court in September/October 2010 and then further adjourned to the hearing in April 2011.
I do not need to consider this aspect further.
Oral Submissions by Counsel for the Applicant of 14 April 2011
A short form summary of Counsel’s submissions on this date would indicate the following points were made:
·It was the Respondent who instigated the communication on the 30
December 2010.
·The criminal history that has now been provided is not at the
serious end of the spectrum by any means. There are substantial
periods of time when there was no criminal activity. Many of the offences particularised are at the lower end of the range.
·He has never been sentenced to imprisonment although he has
actually served imprisonment for failing to pay fines or carry out orders for community service.
·There is no evidence of any complaint of domestic violence.
·On the issue of acquiescence, stress was placed on the unreliability
of the presentation of the Respondent’s version of the text
messages.
Counsel noted in relation to the communication of December 2010:
“It strikes a core blow really at the issue of whether your Honour could be persuaded there is a grave risk that the Mother clearly instigates the communication that she sets out and puts in the affidavit from it would seem, her recall.”
There were suggestions that the Father was prima facie in breach of the protection order in communicating with the Respondent by telephone and text in the manner he did, particularly on the 1 July 2010. However, I accept the force that the Respondent’s affidavit of 15 March 2011 casts new light on the ability of the parties to communicate. It is not the conduct of someone who is in great fear of the Father that there should be communications in such terms with promises of travelling to New Zealand to allow the Father to see the child, provided arrangements could be made for the passports to be released.
Submissions by Counsel for the Respondent of 14 April
2011
I have had the benefit of re-reading the transcript of the 26 October 2010 and the 14 April 2011 and I am satisfied that the further oral submissions by Counsel for the Respondent on the 14 April 2011 adequately summarised the submissions previously made in October of last year.
It was submitted that the Court would accept the Respondent’s evidence that she had been the primary care giver of the child and it was further submitted (transcript page 21) that the Court should accept her evidence that the Father took little interest in the child when she returned to the household after a brief period of separation.
It was further submitted that generally the Court would accept the Respondent’s evidence as being more credible than that given by the Father, in particular, that he did damage furniture and punch or kick a hole in the wall of the residence in which they resided, and that he did wave his fist in her face as she claimed.
Prior to the commencement of the hearing on the 14 April 2011, I had prepared what I referred to as a translation of the text messages so that they could be read in plain English.
After an adjournment, Counsel for the Respondent handed up an amended translation. There appeared to be no dissent from Counsel for the Applicant that this was an intelligible version of the text messages particularised in the Respondent’s latest affidavit.
Counsel referred to the recent decision of the Full Court (Byrant CJ, Finn and Boland JJ) handed down on the 5 November 2010 in the matter of Harris v Harris dismissing an appeal from Ryan J where her Honour had declined to order the return of the subject child to Norway, on the basis that the evidence revealed the child would be subjected to an intolerable situation. Her Honour’s reasons related to the vulnerable financial position where the Mother would be, additionally, without emotional support.
I note that special leave was sought to appeal this decision to the High Court and recently the High Court has declined to grant special leave.
I have had regard to the passages to which I was referred in the Full Court’s determination.
Counsel submitted that overall the picture of the Father is of a man unconstrained by social rules or Court orders and he:
“…essentially does what he wants.”
[Transcript page 39]
In discussing the financial situation of the Respondent (transcript page 41), Counsel addressed the fact that it is unlikely that the Father will be able to provide any form of financial support in the event the Mother returns. I note that the Respondent gives her occupation as home duties in the two affidavits she has filed in these proceedings. She has placed no evidence before the Court of how she is supported at the present time, but an inference could be drawn that she is in receipt of social security benefits in this country. There is no evidence to compare the respective entitlements of social security payments in New Zealand as against payments in this country. I do not accept that the Respondent would face the same emotional insecurity as the Mother in Harris’ case if ordered to return to New Zealand, as she would have the benefit of relatives that she could turn to.
Reasons for Declining to Find Exceptions Under Regulation 16(3) Established
Acquiescence
I accept the pronouncements referred to in the course of submissions that a Judge should be slow to infer acquiescence from attempts by the wronged parent to effect reconciliation or to reach an agreed voluntary return of the abducted child.
The first claim of acquiescence arises from a single text message in July 2010 at a time when other text messages were being sent quite inconsistent with a finding of acquiescence. The application in form 2 and accompanying affidavit were signed in mid-July 2010. The matter was before the Court in September 2010 when directions were made for the listing of this matter. All of these events are quite inconsistent with the belief that a finding that on one occasion in July 2010 there had been clear, total, unqualified and unequivocal acceptance of the Respondent’s conduct.
I am not satisfied the communications of the 31 December 2010 and those in January 2011 could be interpreted as clear, total, unqualified and unequivocal acquiescence.
My reason for so concluding is the failure of the Respondent to detail the whole of the relevant communications rather then providing summaries or selected passages. There is also force in the submission by Counsel for the Applicant that the belief of the Respondent that from his perspective the case had been fought and lost is inconsistent with acquiescence.
I was referred to the decision of Department of Communities v Clementine [2010] FamCA 746 a decision of O’Reilly J. It was submitted that in that determination her Honour found that once acquiescence had been established it could not be withdrawn.
I do not wish to engage in semantics, but it is a question of fact in each case whether the so called acquiescence was unequivocal if shortly after it was given, a contrary view was expressed and effectively the acquiescence was withdrawn.
In any event, even if I was prepared to find there was “true acquiescence”, in the exercise of my discretion pursuant to Regulation 16(5), I would still order the return of the child because the surrounding circumstances reveal a high level of ambivalence at all times when the parties were communicating on this issue.
Credibility
Even allowing for the inconsistencies in the Father’s evidence as previously detailed. At this point in time I am unable to resolve other areas of conflicting accounts of the events. It would not be appropriate for me to do so when the Courts of New Zealand are seized with the determination of these proceedings. Even if it was permissible for me to do so, I can simply state I do not know where the truth lies. Did the Father damage furniture and punch or kick a hole in the wall? Did he wave his fist centimetres from the Respondent’s face? I cannot say.
In relation to the allegations of threatened violence, I simply observe there is no evidence that at any time there has been harm to the child, or indeed the older child that the Father says that he sees on a regular basis. There is no evidence of any serious actual violence to an adult other then a common assault with his fists when a group of males that he was associated with accosted another group in the unlikely setting outside the local court house.
There is no evidence that the parties intend to reside together and accordingly the child would not be subjected to psychological disturbance by being exposed to conflict. Handovers can usually be regulated in such a manner that the parties do not communicate with each other.
I accept the submissions that the criminal history of the Father reveals a person unconstrained by social rules or court orders who:
“…essentially does what he wants.”
[Transcript page 39]
Having made that observation I note that the nature of the breaches, although persistent and not excusable, tend to be on the lower side of the scale of seriousness. So far as the possible future breach of the protection order, there is no indication that the Courts of New Zealand or the police force of New Zealand cannot offer adequate protection. I would equate the ability of the Courts and the police to offer similar protection to what could be offered in this country in the event that the Father was to visit Australia to see the child.
Grave Risk
As previously noted, I was urged to accept the Mother’s account that she was the primary care giver and that the Father took no interest in the child when she returned to the home. I could simply observe that even if I accepted the Mother’s evidence at its highest, it is hardly a basis for a finding that the child would be exposed to physical or psychological harm.
I am unable on the material to find a grave risk of physical or psychological harm. I am unable on the material to find a grave risk of an intolerable situation such as found by Ryan J in the decision of Harris v Harris, previously referred to.
Residual Discretion
I have noted previously that even in the event that a finding of acquiescence could be made, the level of uncertainty surrounding it would bring into play the terms of Regulation 16(5) that a Court would order the return of the child to New Zealand notwithstanding that there had been acquiescence for a brief period of time. I am not prepared to find that there is any grave risk from any of the conduct detailed in the evidence which could not be adequately guarded against by the authorities in New Zealand.
Settlement Proposals
There is evidence from the text messages that the parties have had a broad agreement which shows promise that ultimately the matter could be resolved as between themselves.
As I will be ordering the return of the child, in terms to be set out in the orders, the involvement of the Central Authority ceases.
It is the responsibility of the respective solicitors of the parties in New Zealand and Australia to liaise to see if some compromise could be reached to have the least adverse impact on the parties’ child.
It is not a matter that involves this Court as the ruling for return has been made but it seems to me that some good will on the part of each parent should see the matter resolved.
Terms of the Orders
Counsel for the Respondent indicated that he would not be seeking an order for the payment of $3,000 or any lesser sum as security for the Respondent’s return to New Zealand.
There was argument as to the period of time the Respondent should be given to prepare for the return of the child. For the Respondent it was sought that
30 days should be allowed. Counsel for the Applicant submitted 14 days was an appropriate time, in view of the delays which have occurred.
Whilst I appreciate that the convention normally provides for the speedy resolution of these matters where I have made observations of the desirability of the parties being given an opportunity to settle out of Court, it is more appropriate that a period of 28 days be given to allow the Respondent to put her affairs in order and, more importantly, for the respective legal representatives to have the opportunity to see if the matter can be resolved by agreement.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 29 April 2011.
Associate:
Date: 29 April 2011
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