Department of Family and Community Services and Cousins

[2016] FamCA 555

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & COUSINS [2016] FamCA 555

FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where an application is made for the return of two children to New Zealand – Where the mother relies upon Regulation 16(3)(b) to oppose the return of the children – Where the mother relies on nurse’s notes as a contemporaneous record to support her allegations of violence – Where there has not been any proper testing of the allegations made by the mother – Where the mother asserts that she has mental health issues but this evidence is untested – Where the mother asserts a return order would place her in an intolerable situation as she would have limited and uncertain supports available – Where there is evidence that the mother will be able to access support in New Zealand – Where the mother does not satisfy the threshold test of “grave risk” – Where orders are made to return the children to New Zealand – Where orders are made under Regulation 25A(1)(c) for the father to pay the costs of the mother and children’s travel back to New Zealand and pending further order in New Zealand to pay the costs of the mother’s reasonable accommodation in New Zealand

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Director-General, Department of Families and RSP (2003) FLC 93-152
DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401
Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001
In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517

Wolford and Attorney-General’s Department (Cth) [2014] FamCAFC 197

APPLICANT: Department of Family and Community Services

RESPONDENT: Ms Cousins

FILE NUMBER: SYC 3110 of 2016

DATE DELIVERED: 6 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 24 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE APPLICANT: Department of Family and Community Services

COUNSEL FOR THE RESPONDENT: Ms Lawson

SOLICITOR FOR THE RESPONDENT: Attwaters

Orders

Orders made 24 June 2016

1. The mother do all things and sign all documents that are necessary to return B (female) born … 2013 and C (Male) born … 2014 (the children) to New Zealand in the custody of the mother, upon the following conditions:

   1.1.Mr Cousins, the father supply to the applicant information that satisfies the applicant that the father has the ability to comply with orders 1.2 and 1.3;

   1.2.The father pay the costs of the travel back to New Zealand of the mother and the children;

   1.3.Pending any further order of a relevant court or authority in New Zealand, the father pay the costs of the mother’s reasonable accommodation PROVIDED that nothing in this condition would allow the father to nominate where the mother might live.

2. In order to facilitate order 1, orders 1, 2, 3 and 4 made 26 May 2016 are discharged.

3. In order to facilitate order 1, the applicant be at liberty to uplift the mother’s and children’s passports from the Registrar of the Family Court of Australia, Sydney.

4. Upon her return to New Zealand:

   4.1.Pending any further order of a relevant court or authority in New Zealand, the mother shall cause the passports and travel documents of the children to be lodged with lawyers in New Zealand nominated by the father in writing for safe keeping

   4.2.The mother shall be restrained from causing or permitting the removal of the children from New Zealand without the express written consent of both parents or an order of a relevant court or authority in New Zealand.

5. There be liberty to restore on 72 hours notice in relation to the implementation of these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3110  of 2016

Department of Family and Community Services

Applicant

And

Ms Cousins

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 24 June 2016 I made the orders set out above. I reserved my reasons which I now publish.

2. By September 2015 the mother was seriously thinking about going back to Australia with the children without telling the father and by December 2015 she had reached the conclusion that the father’s behaviour was such that she did not want to be subjected to it for the rest of her and the children’s lives. The mother procured the father’s consent to come to Australia to be with the maternal grandmother on the pretence of looking after her mother after she had an operation. The mother admits that when she secured that consent from the father to bring the children to Australia, he was totally unaware that she had formed the firm intention of not coming back.

3. The Secretary of the Department of Family and Community Services as Central Authority has filed an application on 19 May 2016, pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), seeking orders to ensure the return of the children, B, born in 2013 and C, born in 2014 (“the children”) to New Zealand.

4. The respondent is the children’s mother (“the mother”). The children’s father is Mr Cousins (“the father”).

DOCUMENTS RELIED UPON

1. The applicant relies upon the Application filed 19 May 2016 which attaches an affidavit of the father sworn 22 April 2016. The Department relies upon a further affidavit by the father filed 24 June 2016, an affidavit of his mother Ms D filed 24 June 2016 and an affidavit by James Guest (a New Zealand Barrister & Solicitor) filed 24 June 2016 who gives evidence about aspects of New Zealand law.

2. The mother relies upon an affidavit filed by her on 20 June 2016; an affidavit filed by her mother on 17 June 2016 and Exhibit 3 which was a statement given by the mother, with leave, during the hearing, relating to her mental status and health.

3. The mother also relies upon records maintained by the E Society (Exhibit 2) during multiple attendances by the mother upon them primarily for the purpose of them assisting her, as a mother with two very young children, to manage day to day issues concerning the children during their infancies.

4. The mother’s affidavit has been prepared by a lawyer who had available the documents produced by the E Society.

MATTERS CONCEDED AND THE MOTHER’S CONTENTIONS

1. The mother accepts that in respect of the criteria set out in Regulation 16(1A) of the Regulations:

   9.1.The children are under the age of 16;

   9.2.The children were habitually resident in New Zealand, a Convention country, immediately before their removal to and retention in Australia;

   9.3.The father had rights of custody in relation to the children under the law of New Zealand immediately before the children’s removal to and retention in Australia;

   9.4.The removal of the children to and the retention of the children in Australia is in breach of the father’s rights of custody;

   9.5.The father was actually exercising rights of custody at the time of the removal and would have continued to exercise rights of custody if not for the fact that the mother retained the children in Australia.

2. The mother relies upon Regulation 16(3)(b) of the Regulations which is in the following terms:

   (3) A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

   …

   (b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation

3. Further, upon that ground being made out, the mother requests that the court exercise its discretion and decline to order the return of the children to New Zealand.

SHORT BACKGROUND

1. The mother was born in 1982 in Australia.

2. The father was born in 1983 in New Zealand.

3. The mother and father met in 2003 and commenced cohabitation in early 2005. They were married in 2008 in Australia.

4. There are two children of the marriage, B, born in 2013 (aged 3) in F Town NSW, and C, born in 2014 (aged 18 months) in G Town, New Zealand.

5. In early 2014 the parents made the decision to move to New Zealand. In April/May 2014 they relocated to H Town, New Zealand.

6. On 24 February 2016 the mother left New Zealand with the children. Since this time, they have resided with her mother (“the maternal grandmother”) at I Street, J Town NSW.

NATURE OF THE HEARING

1. This matter was determined on the documents detailed above. I was assisted by written case outlines provided by both the Central Authority and the mother. The father was not present during the hearing and for reasons that were not explained, was not available on the telephone to listen to the proceedings. There was no cross examination of any of the witnesses nor did I have any expert report, either in relation to the relationships of the children with each of their parents or in relation to the mother’s mental status and treatment. The comments I make of allegations made by the mother about family violence need to be read on the basis that there has not been any proper testing of the allegations which the mother makes.

THE LAW

1. The plurality in DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 206 CLR 401 (Gaudron, Gummow and Hayne JJ) said at [41] to [45]:

   [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, 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 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 inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.

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

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

   [44] These considerations, however, do not warrant a conclusion that reg 16(3)(b) is to be given a “narrow” rather than a “broad” construction. There is, in these circumstances, no evident choice to be made between a “narrow” and “broad” construction of the regulation. If that is what is meant by saying that it is to be given a “narrow construction” it must be rejected. The exception is to be given the meaning its words require.

   [45] That is not to say, however, that reg 16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Regulation 16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return. (Footnotes omitted)

2. In Director-General, Department of Families and RSP (2003) FLC 93-152, the Full Court considered whether or not these statements by the High Court altered what a previous Full Court had said about the interpretation of Regulation 16(3)(b) of the Regulations in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 at 77,159 which was in the following terms:

   31. The need to consider ... the following comments made by the Full Court in Gsponer v Director-General, Department of Community Services (VIC) (1989) FLC 92-001 at 77,159:

   “In our view the three categories are to be read separately and to that extent we agree with the submissions of senior counsel for the wife. However it needs to be emphasised that there must be a ‘grave risk’ of the occurrence of one or more of such events. Further, it is impossible to ignore the existence of the words ‘or otherwise’. The consequence of those words is to link the quality which each of the first two categories must have to the emphatic words which describe the third category (‘an intolerable situation’). That is, it is not the grave risk of any physical or psychological harm which would satisfy the first two aspects of this subparagraph. The physical or psychological harm in question must be of a substantial or weighty kind.

   This accords with the views of the Court of Appeal in Re A (supra), where at p. 372, Nourse LJ said this:

   ‘I agree with Mr Singer, who appears for the father, that not only must the risk be a weighty one, but it must be one of substantial, and not trivial, psychological harm. That, as it seems to me is the effect of the words 'or otherwise place the child in an intolerable situation'. It is unnecessary to speculate whether the ejusdem generis rule ought to be applied to the wording of an international convention having the force of law in this country. Assuming that it ought not, I nevertheless think that the force of those strong words cannot be ignored in deciding the degree of psychological harm which is in view.’”

3. The Full Court in RSP concluded:

   34. We consider that little is to be gained by endeavouring to establish whether statements concerning the application of reg 16(3)(b) by the Full Court of this Court which pre-date JLM continue to have validity. In our opinion, the necessary guidance in relation to the application of reg 16(3)(b) is to be found in the paragraphs just quoted from JLM.  [namely [41] – [45]].

4. Counsel for the Central Authority referred to the decision of Wolford and Attorney-General’s Department (Cth) [2014] FamCAFC 197 in which the Full Court discussed with apparent approval the trial judge’s reliance upon In Re E (Children) (Abduction: Custody Appeal) [2011] 4 All ER 517, a decision of the Supreme Court of the United Kingdom in 2011. The Full Court said:

   57. Reliant on In Re E at [33] the primary judge correctly proceeded on the basis that the predicted risk “… must have reached such a level of seriousness as to be characterised as ‘grave,’” and, from the same passage that although the word “grave” characterises the risk rather than the harm, “there is in ordinary language a link between the two.”   It is useful that we now set out in full that paragraph and the following paragraph of In Re E:

   [33] Second, the risk to the child must be 'grave'. It is not enough, as it is in other contexts such as asylum, that the risk be 'real'. It must have reached such a level of seriousness as to be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as 'grave' while a higher level of risk might be required for other less serious forms of harm.

   [34] Third, the words 'physical or psychological harm' are not qualified. However, they do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation' (our emphasis). As was said in Re D [2007] 1 All ER 783 at [52], ' "Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate" '. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. [Mr R] accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

THE MOTHER’S MENTAL STATUS

1. I do not have any evidence from any medical practitioner who has treated the mother. When the mother was in New Zealand she did not have a psychiatrist. She saw local doctors who provided her with prescriptions for Zoloft.

2. The mother gave evidence that she has previously been diagnosed with obsessive compulsive disorder. She reports her main symptoms are a repetitive thought pattern which is usually about negative things or things that she fears.

3. The mother also reported that she had been previously diagnosed with anxiety and depression. The mother says that her symptoms get worse when she is tired or stressed.

4. In around 2002/2003, the mother, who was then about 20 years of age, was admitted to the K Unit as an involuntary patient following an episode where she had self-harmed by slitting her arms. She also reports that she was hearing voices at that time. She had a second admission to K Unit arising from a bad reaction to medication after first being admitted to F Town Hospital. The two admissions were within weeks of one another. This was the time that she was first prescribed Zoloft at a rate of 200mg a day. The mother was also prescribed anti-psychotic medication for approximately two years.

5. The mother saw Dr L (a psychiatrist) for approximately 10 years. Her frequency in seeing Dr L varied over that period, initially being weekly for a period of between six months and a year and then fortnightly and eventually monthly. There were no significant periods during that span of 10 years that she did not see Dr L. She stopped seeing Dr L shortly before she, the father and B moved to New Zealand in April/May 2014.

6. When the mother returned to Australia for a holiday in July/August 2015, she again saw Dr L who provided her with a further prescription for Zoloft.

7. The mother’s dose of Zoloft increased from 200mg to 250mg shortly after the birth of B in 2013. The mother is currently taking 250mg of Zoloft daily.

THE MOTHER’S ALLEGATION OF FAMILY VIOLENCE, THE E NOTES AND THE FATHER’S RESPONSE

1. At [13] of her affidavit, the mother alleges:

   [The father] directed some form of abuse or intimidation or violence towards me or the children virtually every day since the time we commenced living in [H Town].

1. The parties commenced living in H Town in April/May 2014.

2. Exhibit 2 was two bundles of documents from the E Society (“the E notes”), one in relation to B and the other in relation to C. The documents record the mother’s attendance upon a family nurse (“the E nurse”) between October 2014 to February 2016 (for B) and December 2014 to March 2016 (for C).

3. I accept that the E notes are an accurate contemporaneous record of what the mother was saying to the E nurse on the dates recorded in the documents. The E notes were used as the basis for the preparation of the mother’s affidavit. Much of what is in the mother’s affidavit is consistent with what she told the E nurse from time to time.

4. The mother’s allegation of some form of abuse, intimidation or violence virtually every day from April/May 2014 is not born out by what the mother has said to the E nurse between October 2014 and February 2015. While the mother’s first allegation of abuse in February 2015 is contemporaneously recorded in the E notes, (as is her second allegation in April 2015) the more serious allegations of abuse, intimidation or violence made by the mother do not appear in the E notes until after a time at which she had made the decision to return to Australia.

5. The mother’s first attendance on the E nurse was on 6 October 2014. The document makes clear that the parents were living at the paternal grandmother’s home at that time. The record indicates that the mother underwent a “Family violence screen” where the outcome was recorded as “not disclosed”. The document records that the mother has an obsessive compulsive disorder which is medicated and she also suffers from anxiety. Under “Family Health Determinants” was recorded “good support but ‘pushy’”. A similar record was noted on 15 October 2014 that the mother was on medication which helped her OCD which manifests as anxiety; that she was pregnant and feeling some anxiety as a result of pressure from living with in-laws.

6. An attendance on the E nurse on 3 November 2014 records that there were marital problems. The note also indicates that the mother “feels trapped has no friends and no one to support her”. Similarly on 10 November 2014, the E notes indicate that the mother recently shifted houses. There is also another reference to “marital issues”.

7. The E notes dated 6 January 2015 indicate that the father was working long hours. At this time C was two weeks old. The next attendance on 3 February 2015 noted that the father was unsupportive and the mother had no supports locally. However, the record on 10 February 2015 makes no negative comment about the father or the support the mother has available. It states that the mother is “slowly building up ‘friend-base’”. The notes of 24 February 2015 again record that the father worked long hours but that the mother was “starting to meet people”.

8. The first specific allegation of abuse against the father made by the mother in her affidavit is in February 2015, during a time that the family was residing with the paternal grandmother and her husband. The mother says that she handed C to the father. C was crying and the father said to the mother, “You fucking have him, he’s a shit of a kid”. The father denies saying those words. In the E notes dated 3 February 2015 it is recorded that the mother said she “gave C to [the father] to hold while [she] went to the toilet – C cried – got back to get him and [the father] said “you fucking have him – he’s a shit of a kid”. In the same record it states that the mother says she believes the father hates C and that he doesn’t say anything good about him. It indicates the mother said, “C doesn’t even like going to him. B is the same.” The notes also state, “Relationship concerns – no support in NZ.” The record states that the mother has anxiety and relationship issues. There is a note that the mother intended to go to Australia on 23 March for a six week period.

9. In the E notes of 10 February 2015 the mother records that the father said “I hate him (referring to C) – he’s a sook.”

10. On 16 February 2015 the E notes record C as being unsettled and the mother as being tired but record her family health determinants strengths as “some support”. In the notes from 23 February 2015 it is recorded that the mother receives support from her sister-in-law.

11. The E notes of 24 February 2015 record that C has reflux that continues to be an issue and that the mother has anxiety and relationship issues.

12. On 9 March 2015 the E notes record “not disclosed” under “Family violence screen”.

13. The mother says that in April 2015, while they were still residing with the paternal grandmother, C was “grizzling in his cot” one night and the father said to her words to the effect of, “You know you could put a pillow over his head and tell people that he died in his sleep”. The husband denies saying these words or words to this effect. He says, “That allegation is an easy one to make and a difficult one to refute”. The E notes dated 14 April 2015 also record that the family was staying with the in-laws while a new kitchen was being installed in their home. The notes state, “Last night when [C] was crying [the father] said to [the mother] “why don’t you just put a pillow over his face to stop him from crying?”” The E notes also report that the mother “feels unsupported and ‘got at’”.

14. On 5 April 2015, while the family was staying at the paternal grandmother’s holiday home, the mother says that the paternal grandmother took it upon herself to toilet train B by repeatedly taking off her nappy and placing her on the toilet. B was not toilet trained at this stage and when the paternal grandmother did this she heard B say, “I don’t want to”. Over the same weekend, the mother heard the father say to B at least twice (although she says he had said this on many prior occasions), words to the effect of, “If you poo your pants I will take you outside and hose you off”. At one stage, B did dirty her underpants and was not wearing a nappy. The mother says the father then took B outside and told her he would hose her off. The mother intervened.  The father denies ever hosing B down or “engaging in any other washing ritual that could be mistaken for that”. He says, “It is possible that I jokingly said that I might do that, but there was nothing threatening or intimidating about that. It follows, but I make it quite specific, that I did not go through the preliminary steps of doing such a thing, nor that I have caused [B] distress through anything to do with “hosing down””. The allegation of the father “hosing down” B is not recorded in the E notes until 11 January 2016 (after the mother had decided to bring the children to Australia without telling the father).

15. One morning in May 2015, at about 3:00am, the mother says the following occurred. B awoke and was crying and calling out. The father went to attend to her. B continued to cry and call out leading to the father throwing open B’s bedroom door which struck the wall. The mother then heard the father yelling, “You want to fucking get up, you can fucking get up now and stay up. Fucking get into the lounge room”. The father and B then came into the lounge room, where the mother was breastfeeding C, and the father proceeded to throw B’s nappy onto the couch next to the mother. He then picked up B from behind with one of his hands grasping her neck from behind and the other arm beneath her. B was thrashing about in the father’s arms. The mother then said to the father, “Give me my fucking child now” and he thrust B at her. The father than said words to the effect of, “She’s a fucking little bitch” and then went back to the main bedroom. The mother says she reported this incident to the E nurse. This could be the incident that is recorded in the E notes on 1 December 2015 (again a date by which time the mother had decided to leave).

16. In the middle of 2015, the mother says the following occurred. One night B kept getting out of bed and each time she went to the lounge room where the parents were. The father returned B to her bedroom (after the mother had made a couple of unsuccessful attempts) but she reappeared to which the father said “Get back to fucking bed”. The father walked towards B and said “If you’re not going to stay in your fucking bed I’m going to take you out into the backyard and hose you”. He then picked her up and walked outside to the backyard. The mother says that B was crying and distressed and yelled “Mummy” several times. The mother followed them outside and said to the father “You can’t fucking do that” to which he responded, “Well she should’ve fucking stayed in her bed”. The mother says she reported this incident to the E nurse.

17. The E notes of 9 June 2015 record the maternal grandmother to have said to the mother that B should be toilet trained by now. The notes of the same date also record the “beautiful” interaction between the mother and C and that her General Practitioner had praised her.

18. The E notes dated 22 June 2015 indicate that there were marital problems and that the father said to B “I didn’t want kids”. The notes record that the mother was stressed and very tired but her parent/child interaction was “beautiful”. It is noted that the mother intended to go back to Australia with the children to spend time with her own mother in July for about six weeks. The notes also record that the kitchen was complete and the family had moved back to their home.

19. The E notes of 29 June 2015 record that the mother had “good supports”.

20. On 28 September 2015 the mother is noted in the E notes to say that “[the father] can be a bully. I don’t believe he would hurt me physically or the children.” There is reference to “verbal family violence and stress in relationship”. The document records that it was suggested to the mother that she and the father should attend couples counselling but the mother stated that the father would not go. Again there is an entry “Family violence screen: not disclosed”. Under the heading “Health promotion recommendations, why & where”, there is the entry “Women’s refuge & escape plans discussed”. The notes state, “mother aware of ways to remove herself and protect her children from abusive situation”. Under the heading “Expected Outcomes” it says “[the mother] will look at her options and may go back to Australia without telling [the father] – her mother has saved money to help her”.

21. The E notes dated 20 October 2015 record that the mother felt she was under a lot of pressure to keep the children asleep and happy so that the father doesn’t get angry and that the father gets angry if B wakes up at night. It also noted that the father has said “She’s (in reference to [B]) a fucking bitch”. The notes state that the father “speaks unlovingly about C e.g. “He’s a little shit.””

22. The E notes of 1 December 2015 indicate that the mother is exhausted and unhappy and wants to go to Australia in March and not return. It states, “This entire visit was spent supporting [the mother] and listening to her story. She is constantly being put down by [the father]. B woke one evening from her sleep – [the father] went in to her – pulled her out of bed saying – “Well if you don’t want to sleep fucking get up then””. The mother says the father “swears at [the mother] and the children and calls them names “bitch” “sissy””. The mother is recorded to have said that the father “forces [B] to give her (sic) a kiss, laughing at her.” The note records that as an intervention the mother was provided “links to community support – women’s refuge”.

23. The E notes of 14 December 2015 record that on Saturday mornings for one hour the father has the children (apparently when the mother did an activity). The notes indicate that there is family stress and that the relationship is not thriving but that the mother had some support.

24. On 22 December 2015 the E notes record that the mother was anxious because the father was about to have 18 days off and the mother had multiple anxieties. The notes record that the mother was aware of community support and a women’s refuge.

25. On 26 December 2015 the mother says the following occurred. On their way inside the house one evening, B said more than once that she wanted to get into the stroller. The mother observed the father to kick the stroller into the garden in B’s presence and then said to her, “Here, you can have the fucking stroller”. B then began crying. Shortly after this, the mother says that the father came in from outside and as he walked past her in the kitchen, he pushed his right shoulder and right arm into her in the vicinity of her right shoulder and right arm. He did so with sufficient force to cause her to lose her balance momentarily. As he did this he said words to the effect of, “I’d like to fucking punch you in the head”. This incident is not reported in the E notes until 11 January 2016 however, the mother did not attend upon the E nurse from 22 December 2015 until this date.

26. In early to mid-January 2016, the mother says that the father fed B food that was too hot causing her to cry and wet herself to which the father said “That’s fucking disgusting. You’re too old for that shit”. The father then said to the mother words to the effect of, “Put her to fucking bed. She can go without tea”. The mother responded, “Mind your own fucking business, she’s only little”.

27. The E notes dated 11 January 2016 state the following:

    “[B] was toilet trained by force at the crib. I knew it would happen.” “[The father] told [B] he would take her outside and hose her down if she poo’s her pants.” “He has elbowed [B] and told her she’s a f…ing bitch.” “[The father] has told [B] often that he loves her more than [C].” Both children witnessed [the father] kicking the stroller into the garden in anger and then come inside and told [the mother] “I wish I could belt your head in”. Both children heard this. “[The father] often calls [C] “a fu…ing sook”. “[The father] blames me for everything and is a good Dad in front of people and family”. “[B] has told me out of the blue twice now – “I don’t like Daddy now”. [The mother] says she is going back to Aussie in March – has had advice from [Ms M] (lawyer). Will go over on the pretence of looking after her mother after she has ankle operation, but not coming back. We talked about Women’s Refuge and I gave her info on this.

28. On 17 January 2016 the mother says that the following occurred. The family drove to see a car and aviation display being held 30 minutes north of H Town. The mother gave the children small pieces of pinwheel pastry to eat. She kept turning around to ensure C was not choking on the food. The father asked her what she was doing and she explained that she didn’t want C to choke to which she says the father responded, “Why not? I do”. The father says that he is “shocked and dumbfounded” by this allegation.

29. On 2 February 2016 the mother says the following occurred. The father was changing B’s clothes but she was not cooperating with him. The mother heard him say to B words to the effect of, “Do you want a throat punch?” She says that he “had a practice of motioning as if to punch either [B] or I by him making a fist with his hand and making a punching movement and bringing his fist right up close to or even touching the face or throat of [B] or I”. The father denies ever threatening a “throat punch”. He says this is not a phrase he would use. He denies “making a fist with my hand or making a punching movement in a threatening kind of way.” The mother says she reported this incident to the E nurse. There is however no record in the E notes of the mother ever mentioning this type of threat being made by the father towards her at any time.

30. On the weekend of 13 and 14 February 2016 the mother says the following occurred. B asked the mother to make her a Milo before she went to bed. The father, who had a different method for preparing Milo to the mother, went to the kitchen to boil the kettle to make the Milo. He said to B, “You’re an ungrateful little cunt. You either drink what I make you or you go without”. The mother said to him that he couldn’t speak to her like that to which he responded “I can speak to her however I fucking want”. The mother responded, “No you can’t, that’s abuse.” By the time the kettle had boiled, the father picked it up and held it out towards the mother at or above the level of her head and said, “No, abuse would be throwing this boiling water over your head.” The mother said to him, “Do that and you’ll end up in gaol” to which he replied, “Who me? I wouldn’t do that. You’re the mental one”. The argument continued and the mother said to the father, “You’re not being a very good father”. After she said this, the father came up to her and bent over so that their foreheads were in close proximity. She says that she felt the pressure of his head against hers. The father said to the mother, “I’d like to fucking head-butt you”. B was present during this incident. The mother then said to him, “That’s it, I’m leaving, I’m taking the kids and going”. She began packings things for the children and the father said to her “Good, fuck off”. In the end she did not leave but the parties slept separately. The father denies ever acting “in any way from which she could infer a threat that I would throw boiling water over her … I deny threatening her around the same time with a “head butt”.” In the E notes dated 23 February 2016 it is recorded that the father threatened to put boiling water over the mother’s head. This report was made by the mother after she had decided to leave New Zealand with the children and after the mother had received legal advice about that intention.

31. On 21 February 2016 the mother and father had a barbeque dinner at their house with the paternal family. Prior to the dinner, at about 1:00pm or 2:00pm, B was outside playing with her bike (which the mother says was metal). At one stage the mother says that B ran inside hysterically crying “daddy broke my bike”. The mother went outside and asked the father if he broke B’s bike to which he responded, “Yes, I told her to fucking move it and she didn’t move it.” The following day the mother located the bike in the garage and observed that it was broken into a number of pieces. The father denies “deliberately breaking B’s bike”. He says that the bike was plastic and B was pushing it into his legs as he was standing at the barbeque. He then picked the bike up and threw it across the lawn and it broke but “did not smash into bits.” The father says this is “an example of something that has been badly exaggerated”. The incident is recorded in the E notes on 23 February 2016.

32. The mother says that the following events also occurred on 21 February 2016. The mother observed the father to consume a number of stubbies of beer at the barbeque. At about 9:30pm the paternal family had left and the mother noticed that the father was “unsteady on his feet, he smelled strongly of alcohol, and his eyes were bloodshot”. The parents had an argument in the lounge room while the children were present. The father walked towards the mother and came right up to her face. He said to her, “You know I’m bigger than you, don’t you?” to which the mother replied, “You don’t scare me … not now, not ever”. The father then head butted the mother. The father then picked up the mother and put her over his right shoulder. His right shoulder was in her stomach just under her ribs causing her to have difficulty breathing. The mother managed to demand that he put her down which he eventually did. He then took hold of both of the mother’s ankles with both of his hands and dragged her a couple of metres along the floor on her back from approximately the middle of the lounge room towards the kitchen so that her dress progressively raised up to the level of her breasts so her torso and lower body were exposed. She said to the father, “Stop, … you’re hurting me”. He then let go of her ankles and the mother eventually got to her feet. The father says that this incident refers to a game of “play fighting” that “sometimes happened.” He says “it was just rough and tumble with the children. I may have picked [the mother] up, but there was no distress involved. I do however deny dragging her by the ankles across the floor. I deny that she was scared.”

1. On 23 February 2016, the mother attended on the E nurse and the following was noted:

   [The mother] and both children leave to go to Australia tomorrow (24.2.16), to live with [the mother’s] mother. No return ticket. [The father] is unaware that they will not be returning to [H Town] in 2 wks (as he thinks). [The father’s] behaviour has got worse over the last few weeks. “He smashed [B’]s bike in front of her ([B]) cause it was in the way”. “Twice he has eyeballed me in a threatening manner by putting his forehead to mine and nose to nose – one time he said he would put boiling water over my head”. “He told [B] he would lock her bedroom door if she gets up in the night. [The mother] says she is worried for the kids. Women’s refuge G Town – Ms M (lawyer) have been advising [the mother]. I spoke to [the mother’s] mother on the phone and she will contact women’s refuge in Australia and the police will arrange a lawyer.

2. In March 2016, when the mother was in Australia living at her own mother’s home, an entry was recorded in the E notes as follows:

   Mother rang x 2 … Would like information from files, re documented behaviours of husband and reactions by children, [E] appointments, regarding Psychologist and emotional welfare of the children … Father drinks a lot of alcohol/4-6 beers a night and a carton at the weekend. [B] – hurts [C] ‘Because I love him!’. Mth was pulled by ankles by father in front of children. It was like ‘walking on eggshells’ when I lived with him I didn’t know what mood he would be in. Mth in law came over and didn’t believe [the father] was doing what I said.  

3. In her affidavit the mother states:

   My observation was that his level of anger and aggression was progressively escalating, particularly towards the end of 2015. I could see no hope of him changing. I really feared that the next time would be the time that either I or one of the children was actually physically injured by him. I did not think that it was good for the children to live in a household where they were constantly exposed to abuse and violence.

4. The father denies the allegations made by the mother. In his affidavit of 22 April 2016 he says:

   I acknowledge that at times I may be perceived as having a “short fuse” and sometimes say things out of frustration and stress however I have never laid a finger on either [the mother] or the children and I would never do that.

5. In the father’s more recent affidavit filed 24 June 2016, he states:

   I deny constantly putting the children or [the mother] down in an abusive kind of way as is quoted throughout her Affidavit. I am not saying that such words were never used, but if they were they were used in a softer way or a light-hearted fashion. It was not a regular part of our household.

6. The father also denies certain allegations made by the mother but states, “anything I do not mention specifically is not to be taken as an admission – apart from having the occasional argument with her, I deny the totality of what she says.” Generally, the father denies “drinking to excess, and being intoxicated in front of the children.”

7. I accept counsel for the mother’s submission that it is difficult to understand how some of the statements which the mother says the father has made, which apparently the father accepts he may well have made, could have been said in a light-hearted fashion. For example, where the father is recorded to have said to the mother to put a pillow over C’s face to stop him from crying. If it is found that the father said these words, it is a concern. How serious a concern would depend upon the context and tone in which the words were said and how they were received by the mother. The father generally admits that he did say some of the things alleged by the mother from time to time but they were not said in a serious way. On 28 September 2015 the mother told the E nurse that she did not believe the father would physically hurt her or the children, but that is not to suggest, that if those words were said by the father, the mother was not very upset by them even if she did not apprehend any physical danger to the children or herself arising from what she says the father said.

8. The father denies that the mother raised concerns about his temper and suggested he seek counselling prior to their telephone conversation on 16 March 2016 (when the mother had relocated to Australia). The mother says that she had raised this issue with the father on at least two occasions during 2015 and he had refused. There is a contemporaneous record of that in the E note of 28 September 2015. 

9. There are five specific acts of physical violence or threatened physical violence alleged by the mother:

   71.1.On 26 December 2015 the father pushed his right shoulder and right arm into the mother in the vicinity of her right shoulder and right arm causing her to lose balance momentarily

   71.2.The father threatened punching motions towards the face and the neck of the mother and B (the only date specified being 2 December 2016)

   71.3.On 13 or 14 February 2016 the father threatened the mother with boiling water

   71.4.On 13 or 14 February 2016 the father placed his forehead against the mother’s forehead

   71.5.On 21 February 2016 the father head butted the mother and picked the mother up and put her over his right shoulder and then dragged the mother for a short distance by the ankles whilst she was on the ground

10. None of the physical assaults alleged by the mother led to her sustaining a physical injury.

11. Counsel for the mother submitted that the mother’s evidence outlines in detail the family violence she has suffered at the hands of the father and that her account is credible and plausible. The mother asserts the family violence took place on a frequent basis over an extended period of time, often in the presence of the children. The verbal abuse alleged by the mother constituted demeaning if not controlling behaviour by the father.

12. Counsel for the mother urged the court to be mindful of the complexities of family violence and place little weight on the fact that the mother had failed to make any complaint to the police or expose herself to the New Zealand justice system prior to coming to Australia.

13. As I commented during submissions, if the E notes are to be accepted as an accurate record of what the mother told the E nurse from time to time, there is a glaring difficulty with the record of what the mother told the E nurse on 23 February 2016. There is no mention of any act of physical violence by the father against the mother in those notes which the mother subsequently said happened two days earlier. It is not until the mother gets back to Australia that she telephones E and adds the information about the physical assault on her.

14. It is probable that some of the mother’s perceptions may be affected by the pre-existing difficulties she has had with her mental status. It is also probable that the father is downplaying some of what has happened between he and the mother and that he lacks insight into the effect that some of his behaviour has had upon the mother.

15. Having said that, I acknowledge I suffer from the great disadvantage of not seeing the parents tested on their evidence in circumstances where the father has denied any act of physical violence against the mother. This hearing, however, is not about resolving those controversies. If a court ultimately hears a parenting dispute between the parties, the mother’s allegations of family violence will be ventilated. If the extent of what the mother alleges is ultimately established then the progressive escalation of the father’s behaviour towards the end of the parties’ time together is of considerable concern and it would then be clear that the father has denied the extent of the family violence and not understood that his behaviour was unacceptable.

INTOLERABLE SITUATION

1. Counsel for the mother submitted that the mother has no family support in New Zealand and that she will be essentially isolated if she is forced to return and that would create an intolerable situation for her and by extension, for the children.

2. I accept that the mother currently relies heavily for psychological support on her own mother who lives in Australia.

3. The father says that “we as a family were settled in [H Town] in that we own our own home and enjoy good family interaction and support from various extended family members”. B is enrolled in H Town Early Learning Centre and attends two to three days a week. C was to start attending the same Centre in late February early March 2016 upon his return from Australia. The mother was involved with their local Toy Library.

4. I accept from the mother’s point of view she has a fractious relationship with the paternal grandmother. The mother complains about the way the paternal grandmother assisted in B’s toilet training. The paternal grandmother refutes those complaints. I have no other evidence that the paternal grandmother has acted in any inappropriate way either towards the mother or the children. 

5. Counsel for the mother submitted that the mother may find limited and uncertain supports available to her in New Zealand through official or government channels. I do not accept that submission. The evidence would indicate that the support is not “limited” and that the mother has already availed herself of free services available to vulnerable women who are or who assert they are victims of family violence. The mother, through her contact with E, on more than one occasion was made aware of the support services that were available to her, including women’s refuges. The E notes indicated that prior to her leaving Australia, the mother was receiving advice from a lawyer associated with a women’s refuge in G Town.

6. It can be reasonably anticipated that upon her return to New Zealand, the mother would make, not only an application for a domestic protection order, but also applications under the New Zealand Family Law legislation for permission to permanently relocate with the children to Australia and for orders defining the times that the children would spend with their father and the circumstances, including possible supervision, of the children’s time with their father. Although I anticipate those applications, I make no assumptions about what interim or final parenting arrangements a New Zealand court would make. 

7. I do not place any significant weight on the submission that the mother’s isolation is “compounded by the geography of H Town” (where the father is living).

8. There is some evidence in the mother’s affidavit (annexures A and B) that since coming to Australia B has exhibited some regressive behaviours, including falling back into nappies after having previously been toilet trained in New Zealand. The mother’s vulnerabilities arising from her long standing mental status may possibly amplify the effect upon the mother of any negative behaviour by the father.

9. The mother submits that to return her and the children to New Zealand would place the children in an intolerable situation because they would be cared for by a mother who has issues with her mental status and would be isolated in New Zealand without support. It is the mother’s case that the reason that she left New Zealand with the children after misleading the father in respect of her true intentions was partly because only her mother knew about her mental health. She gives evidence that her mother had looked after her during the worst of her times. The maternal grandmother had stopped working for a number of years to care for her and was the mother’s best source of support, particularly in stressful times. The maternal grandmother helped fund the mother’s return to Australia and the mother’s legal representation in these proceedings.

10. I have no difficulty in finding that this litigation is stressful for the mother.  When she arrived back in Australia she said she was very emotional.

11. The mother’s written evidence indicates that she was able, when she got back to Australia, to attend a police station and make some inquiry as to what protection was available for her and the children. I accept that the mother is enormously worried about being forced to return to New Zealand and forced to move away from her mother.

12. On the other hand, Mr Guest gives evidence about the protections afforded in New Zealand for persons who require protection from domestic violence and the sanctions for those who breach domestic protection orders. The majority of protection orders in New Zealand are made in the first instance “without notice” and based on the allegations the mother makes, there would be little question that the mother would be able to obtain a protection order immediately upon her arrival in New Zealand. I accept Mr Guest’s opinion that the legal framework in New Zealand for people requiring protection from domestic violence is extensive, sophisticated and commonly used.

13. The mother says that after making enquiries on the website of the New Zealand Department of Human Services, she would not be eligible for social security benefits in New Zealand as she has not been a resident there for two consecutive years or more. She therefore says that she would be “desolated” as she would “have no funds or assets myself and no source of income.” She also submits that “Given the ages of the children and the length of time for which I have been out of the workforce, there is no practical likelihood of me being able to engage in income-producing employment for the foreseeable future.”

14. I do not accept the mother’s assertions in relation to the lack of financial support available to her upon her return to New Zealand. Annexure B to Mr Guest’s affidavit gives details of the availability to the mother of “the International Custody Dispute Payment” which would start from the date the mother applies for it upon her return to New Zealand and which would continue until she started work or could support herself financially some other way.

POSSIBLE PRECONDITIONS FOR A RETURN ORDER

1. Regulation 25A(1)(c) of the Regulations allows the court to include conditions by order if it considers those conditions appropriate to give effect to the Convention.

2. In order to create a “soft landing” for the mother back in New Zealand, the father has indicated that he would respect the mother’s decision that the marriage is over and that she wishes to separate from him and in those circumstances that he would do what he could in order to support her in terms of “living accommodation” if she does not want to return to the family home. He also confirmed in his evidence that he was willing to travel to Australia to accompany the children back and fund the cost of that return travel should an order for return be made. The mother has indicated that if a return order is made she will return with the children to New Zealand. The father’s evidence would indicate that he has the capacity to fund the costs of her return with the children (which would be less expensive for him than travelling over from New Zealand himself and then flying back to New Zealand with the children).

3. Ultimately the financial arrangements between the mother and the father are a matter for the New Zealand courts, including on an urgent, interim and final basis. Pending an order being made by the New Zealand courts, an order could be made requiring the father to pay the reasonable expenses of the mother’s accommodation but on the proviso that the father have no right to nominate where the mother would live. A further condition could be imposed requiring the Central Authority in Australia prior to the mother leaving for New Zealand, to be satisfied that the father has the ability to pay for the mother and the children’s costs of travel back to New Zealand and pay the costs of the mother’s reasonable accommodation.

CONCLUSION

1. The reason the mother left New Zealand, intending not to return, upon the pretext of needing to assist her mother with a non-existent operation, is reasonably clear upon the material. It arises from the mother’s perceptions of the father’s behaviour (the extent of which has not yet been established) and her vulnerability arising from her mental status.

2. The mother had the onus of establishing that the risk to the children must have reached such a level of seriousness as to be characterised as “grave” and although the word “grave” characterises the risk an ordinary interpretation of the language used in Regulation 16(3)(b) also links “grave risk” to the possible harm to the children.

3. Counsel for the Central Authority invited the court to infer that the mother was advised of the provisions of the Hague Convention and the ability for her to go to the police and to obtain a protective order or otherwise seek assistance that she knew was available to her in New Zealand prior to her leaving New Zealand. It is clear from the E notes that the lawyer associated with the women’s refuge did give advice to the mother relating to the mother’s intention to return to Australia without telling the father. It is a reasonable inference to draw that the mother was made aware of the services and remedies that were available to her in New Zealand prior to leaving New Zealand.

4. I accept the submission by counsel for the Central Authority that despite the constant monitoring by the E nurse, there was at no stage any evidence that either child was observed to be suffering any physical or emotional harm whilst living with both their parents in New Zealand.

5. Based upon the material that I have in this case, there is neither unacceptable risk of serious injury to the children at the hands of the father nor is there a higher level of risk of less serious forms of psychological harm perpetrated by the father on the children in respect to which the mother would be unable to obtain appropriate protective orders in New Zealand.

6. As to the mother’s arguments in relation to the children being placed in an intolerable situation because of her subjective perceptions arising from a mental illness, I find that the intensity of those perceptions will be ameliorated by the services available to the mother in New Zealand and the nature of the protections New Zealand law offers to the mother upon her return.

7. For those reasons, the mother has not satisfied the threshold test of “grave risk”. There is therefore no ground available to the mother upon which she could ask the court to exercise a discretion not to make a return order, particularly if the return order has attached to it the preconditions discussed above.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 6 July 2016

Associate: 

Date:  6 July 2016