Department of Family and Community Services and Valli

[2013] FamCA 1004

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & VALLI [2013] FamCA 1004

FAMILY LAW – CHILD ABDUCTION – Hague Convention –Where the mother waited over a year to bring her application – Whether Tongan traditional adoptions are recognised in New Zealand law – Rights of custody in New Zealand - Whether the mother was exercising rights of custody by giving the child to her carers – Whether the child was settled in Australia – Whether the exercise of judicial discretion warrants the return of the child to New Zealand.

Care of Children Act 2004 (NZ): ss 15, 16

Family Law (Child Abduction Prevention) Regulations 1986 (Cth): reg 16(1), 16(1)(A), 16(2)

De L v Director-General, NSW Department of Community Services & Anor (1996) 87 CLR 640
Director-General, Department of Community Services v Crowe (1996) FLC 92-717
LK & Director-General Department of Community Services (2009) 237 CLR 582

APPLICANT: Director-General, Department of Family and  Community Services

RESPONDENTS: Mr and Mrs Valli

FILE NUMBER: SYC 5229 of 2013

DATE DELIVERED: 17 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Legal Services Unit, Department of Community Services

COUNSEL FOR THE RESPONDENTS: Ms Boyle

SOLICITOR FOR THE RESPONDENTS: Legal Aid NSW, Sydney Central, Family Law

Orders

IT IS ORDERED

1. That the Application filed 6 September 2013 for the return of the child M (female) born … 2009 to New Zealand is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Valli 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 5229 of 2013

Director General, Department of Family and Community Services

Applicant

And

Mr and Mrs Valli

Respondents

REASONS FOR JUDGMENT

the proceedings  

1. On 17 December 2013 judgment in this matter was given ex tempore and Orders were made. Unfortunately as a consequence of an administrative error a draft rather than the settled form of the judgment was forwarded to the parties. I extend my apologies to the parties for any inconvenience this error may have occasioned.

2. The settled form of the judgement appears below.

3. On 6 September 2013 the Director -General of the Department of Family and Community Services (“the applicant”) filed an application seeking orders pursuant to the Family Law (Child Abduction Prevention) Regulations 1986 (Cth) (“the Regulations”). That application seeks the return to New Zealand of the child MM (female) born in 2009. That is not, in fact, the child’s name. Birth certificates annexed to the affidavits of the mother and of the respondents show that her birth name was changed to M. It is not clear when the name was changed but a birth certificate in that name issued on 13 May 2011. In these reasons, she is referred to as “the child”.

4. The Form 2 Application specifies the date of wrongful removal to be 16 January 2013.

5. At the commencement of the proceedings before me, the applicant sought leave to amend the application to assert that the date of wrongful removal was 28 April 2012. That leave was granted.

6. The respondents to the proceedings are the child’s paternal aunt and uncle Mrs Valli (“the aunt”) and Mr Valli (“the uncle”). Their response was filed on 14 October 2013 and subsequently amended.

7. The respondents, in the amended response, state:

   1.   The child has lived with the respondents since 19 June 2010, except for the period 17 January 2012 to 28 April 2012.

   2.   On 19 June 2010, at which time the respondents were living in
   New Zealand, the respondents adopted the child in accordance with Tongan customary practices.

   3.   The respondents assert that the effect of the adoption was that:

   a.   They acquired rights of custody in respect of the child; and

   b.   They acquired the right to determine the place of the child’s habitual residence.

   4.   The child left New Zealand and relocated to Australia to live on 28 April 2012. It is nearly 18 months since the child left New Zealand.

   5.   The child has been habitually resident in Australia since 28 April 2012.

   6.   At the time it is alleged by the mother that the child was wrongfully removed from New Zealand the mother was not exercising rights of custody.

   7.   In the alternative, or additional to the facts asserted in paragraphs 1 to 6, the mother consented to the child relocating to Australia with the respondent.

   8.   The child is settled in Australia.

   9.   In the alternative, or additional to the facts asserted in paragraph 7, the mother has subsequently acquiesced to the child remaining in Australia.

8. The applicant relies upon the application and the documents annexed thereto. The applicant also relies upon an affidavit of Emma Parsons, a Barrister of the High Court of New Zealand, as to the status of customary adoption pursuant to New Zealand legislation and an affidavit of the mother sworn on 3 December 2013.

9. The respondents rely upon an affidavit by each of them.

10. None of the deponents was required for cross-examination.

11. It should be noted that it is not disputed that both Australia and New Zealand are convention countries as defined by the Regulations. Further it is not disputed that the applicant is, at all relevant times, the State Central Authority for the State of New South Wales.

BACKGROUND FACTS

1. The mother of the child, Ms L, (“the mother”) was born in Tonga in 1969. The mother worked at a primary school in Tonga for 14 years and is a qualified teacher.

2. On 11 April 2005 the mother moved from Tonga to New Zealand to work as a pre-school teacher and became a member of the X Church (“the Church”). The members of the Church are predominantly members of the V family. The Reverend V leads the Church. Reverend V offered the mother a job in New Zealand.

3. Immediately upon the mother’s arrival in New Zealand it became apparent that the Reverend V had not obtained a work visa for the mother. That situation has not been resolved. There is no evidence that the mother has a right of residence in New Zealand.

4. In 2005 the mother met and formed a relationship with Mr V (“the father”). The father was at that time living with his wife and children and the relationship between the mother and the father was an extra marital relationship. At all relevant times the father continued to live with his wife.

5. The mother and the father had two children, K born in 2007 and the subject child, M born in 2009.

6. The father is the brother of Reverend V. When the mother arrived in New Zealand she lived with Reverend V and his wife until August 2008. She continued to live with Reverend V and his wife, after the birth of K, until August 2008 when she moved to live in another residence with another pastor of the Church, Pastor V. It was whilst the mother was living at the home of Pastor V that the child was born. The mother and the child lived in Pastor V’s home until April 2010 when they returned to live in Reverend V’s home.

7. The respondent uncle is the brother of the father. The respondent aunt is his wife. They have five children the youngest of whom was born in 2002. The respondents are also Tongan.

8. The respondent uncle moved to New Zealand in 1984 and became a

   
   

   New Zealand citizen in 1998. He moved to Australia in 1999. The respondent aunt moved to New Zealand in 1987 and became a New Zealand citizen in about 1992. The respondents have been living in Australia since 1999 but travelled regularly to New Zealand to visit family including their eldest son who still lives in New Zealand.

9. In May 2010 the respondents returned to New Zealand with their children intending to spend two years in New Zealand. They too were members of the Church.

10. The respondents gave evidence that on the morning of Saturday 19 June 2010 the mother came to their home with the child. Shortly thereafter the Reverend V (who is the brother both of the father and the respondent uncle) arrived at the home. The respondents alleged that, in the presence of Reverend V, a conversation took place where the mother said to them:

    The reason why I’ve come here today is to give you (the child) for her to be a sister to (the respondent’s children). I can’t look after her. I don’t have enough food to feed her, I don’t have clothes to clothe her. I don’t have a settled place to look after her.

11. The respondents gave evidence that they promised to look after the child but explained to the mother that “by giving (the child) to us today you are not going to come back to take her away at any time later on when my children love her and when (the child) loves my children as her own brothers and sisters.” The respondents gave evidence that the mother indicated that she understood and agreed with that condition. The respondents gave evidence that after the conversation took place the Reverend V spoke to the mother about the seriousness of her decision and then said a prayer and made a blessing.

12. The mother denies this version of events entirely.

13. Reverend V did not give evidence. An affidavit was sworn by the solicitor for the respondents as to her efforts to have him do so. She met with Reverend V in Sydney on 10 October 2013. She prepared an affidavit. Reverend V returned to New Zealand without swearing the affidavit. The solicitor made numerous unsuccessful attempts to contact him and arrange for the affidavit to be sent to him in New Zealand to be sworn. I draw no adverse inferences against the respondents for the failure to call Reverend V.

14. The Applicant asserts in the Form 2 Application “The mother had the day to day care of the child (named) since birth until her removal from New Zealand by the Respondents on 16 January 2013.”

15. It is the respondents’ case that the child commenced living with them on

    
    

    19 June 2010 when she was not yet 11 months old.

16. It is unfortunate that neither the applicant nor the respondents have sought to bring before the Court any independent evidence about the residence of this child in the relevant period. In the manner referred to later in these reasons, the applicant decided not to put before the court evidence from the New Zealand government authorities which may have clarified those matters.

17. What is not in dispute is that in June 2011 the mother applied for and was issued a passport for the child. That is consistent with her having obtained the amended birth certificate in May 2011. The New Zealand passport was issued on 1 June 2011.

18. It is not disputed that the child travelled to Australia with the respondent uncle. The applicant says:

    In or about March 2012 the mother accompanied the respondent carers and other church members to the airport for the respondent carers (sic) flight to Australia with the child. In her affidavit of 20 June 2013 (page 20, paragraph 12) the mother states that she signed the departure card concerning the child.

19. The respondent uncle, in his affidavit says that on Saturday 28 April 2012 he collected the child from the mother. The mother packed the child’s clothes and went with the child and the respondent uncle to the airport. The respondent uncle had already purchased the child’s ticket and was in possession of the child’s passport. At the airport, the mother filled out the departure form for the child and the respondent uncle signed the form.

20. The respondent uncle says that he and the child arrived in Australia on

    
    

    28 April 2012. Thereafter, according to the respondents, the child lived as part of the family of the respondent uncle and aunt.

21. The respondents travelled, with the child, to New Zealand for holidays between 11 and 23 September 2012; 12 and 29 November 2012 and from late December 2012 until 16 January 2013. On each of those occasions, the respondents and the child stayed in the home of the respondent’s eldest son which was next door to the house in which the mother lived.

22. Until the commencement of the hearing, the applicant contended that the relevant date of the removal of the child was 16 January 2013.

23. On the respondents’ version of events, the child was removed from New Zealand on 28 April 2012, 23 September 2012, 29 November 2012 and 16 January 2013.

THE LAW

1. Regulation 16(1) provides the legislative framework. If the application for return is made and the application is filed within one year after the child’s removal or retention, and the court is satisfied that the removal was wrongful under sub-regulation 16(1A) then the court must make the order unless one of the defences in sub-regulation (3) is made out.

2. Regulation 16(1A) provides:

   For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

   (a) the child was under 16; and

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

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

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

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

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

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

3. The onus is on the applicant to establish each of the matters in Regulation 16(1A).

4. In LK & Director-General Department of Community Services (2009) 237 CLR 582 the High Court, dealing with the concept of wrongful removal said at [8]:

   Regulation 16(1A) provides:

   For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

   (a) the child was under 16; and

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

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

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

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

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

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

   It will be observed that the requirements of each of the five paragraphs of reg 16(1A) must be satisfied if it is to be shown that a child's removal to, or retention in, Australia is wrongful. The first two requirements look to the age of the child (par (a)) and to whether the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia (par (b)). The remaining requirements hinge about the notion of "rights of custody in relation to the child". The rights that are to be considered are rights "under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia".

Under 16 years of age

1. It is not disputed that the child is four years of age.

Habitually resident

1. Whether the child was habitually resident in New Zealand at the time of her removal is a matter of fact and of law. The child was born in New Zealand. She lived in New Zealand, whether with the mother or with the respondents, with the exception of a period of one week when she travelled to Australia with the respondents in August 2011. She remained in New Zealand until 28 April 2012 when she travelled with the respondent uncle to Australia.

2. At 28 April 2012, the child was habitually resident in New Zealand.

Rights of custody

1. The respondents in the documents filed, assert:

   On 19 June 2010, at which time the respondents were living in
   New Zealand, the respondents adopted the child in accordance with Tongan customary practices.

   The respondents assert that the effect of the adoption was that:

   (a)They acquired rights of custody in respect of the child; and

   (b)They acquired the right to determine the place of the child’s habitual residence.

2. The applicant relies on an affidavit of Emma Parsons, Barrister of the High Court of New Zealand, in relation to the effect of a Tongan traditional adoption pursuant to New Zealand law.

3. Ms Parsons was not required for cross-examination and no evidence was led by the respondents in relation to this issue. I therefore accept the evidence of Ms Parsons that customary adoptions are afforded no legal status in New Zealand.

4. It is not the subject of contention that pursuant to the law of New Zealand, since the mother and the father were not married to one another, the mother is the sole guardian of the child and has the powers confirmed in section 15 of the Care of Children Act 2004 (NZ) which is set out below:

   15. GUARDIANSHIP DEFINED

   For the purpose of the Act, guardianship of a child means having (and therefore a guardian of a child has), in relation to a child:

   a.All duties powers and rights and responsibilities that a parent of the child has in relation to the upbringing of the child;

   b.Every duty, power, right and responsibility that is vested in the guardian of a child by any enactment;

   c.Not relevant

5. The effect of guardianship in New Zealand law is defined by section 16 of the Care of Children Act 2004 (NZ) which provides as follows:

   16 exercise of guardianship (1) the duties, powers, rights and responsibilities of a guardian of a child, include (without limitation) the guardians:

   a)Having the role of providing day to day care for the child (however, under section 26(5), no testamentary guardian of a child has that role just because of an appointment under section 26); and

   b)Contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal developments; and

   c)Determining for or with the child, or helping the child to determine, questions about important matters effecting the child.

   2.   Important matters effecting the child (without limitation) –

   a.The child’s name (and any changes to it); and

   b.Changes to the child’s place of residence including, without limitation, changes of that kind arising from travel by the child (that may affect the child’s relationship with his or her parents and guardians); and

   c.   Medical treatment for the child (if that medical treatment is not routine in nature); and

   d.Where, and how, the child is to be educated; and

   e.The child’s culture, language, and religious denomination and practice.

6. Accordingly, I find that the mother had rights of custody in relation to the child.

Was the mother exercising rights of custody

1. The respondents argue that the mother was not actually exercising her rights of custody in that she had “given” the child to them.

2. The Full Court in Director-General, Department of Community Services v Crowe (1996) FLC 92-217, dealt with a similar fact situation where a mother had asked grandparents to care for a child. The Full Court held at [83,637]:

   Rights of custody for the purposes of the Regulations are set out in reg 4 thereof and include the right to determine the place of residence of the child. Thus, the rights of custody which the mother had under New Zealand law were rights of custody within the meaning of the Regulations. However, there would only be a breach of those rights if, at the time of retention, the rights of custody were actually being exercised, either jointly or alone, or those rights would have been so exercised but for the retention of the child.

   The question is not, as the Central Authority put, whether there is any evidence that the mother abandoned her rights of custody but rather whether, at the relevant time, the rights were actually being exercised or would have been but for the retention.

   The mother, in this case, in August 1989, made proper arrangements to have the grandparents care for C. By so doing, she was arranging to have them discharge, on her behalf, her duty to C. It would not have been open to the trial Judge, in our view, to find that by so doing, she was surrendering, abandoning, waiving or giving away her rights to custody or conferring such rights upon the grandparents, nor would it have been open to him to find that she was conferring such rights upon the father. Thus on this basis, in our view, the mother was, at the time of the retention, actually exercising rights of custody in relation to C.

   Additionally, at the date of retention, the mother had rights of custody within the meaning of the Regulations and those rights included the right to determine the place (including the country) of residence of C. The father had an equal right. The exercise of that right by the father does not, however, bring to an end the equal and separate right of the mother. The retention of C in Australia interfered with the right of the mother to determine the place of residence of C and was an interference with another incident of the mother's right of custody which would have been exercised but for the retention of the child. That the mother would have exercised that right, but for the retention, is clear beyond doubt from her letter to the grandmother of 26 November 1995, to which we have earlier referred.

   Thus, in our judgment, C was retained in Australia in breach of the mother's rights of custody under the Regulations. It follows that, in our view, the trial Judge erred in finding that, at the time of the retention, the mother's rights of custody were not actually exercised and in finding that they would not have been exercised but for the retention.

1. It is not necessary to determine whether the child was voluntarily given into the care of the respondents as they contend, or whether the mother was coerced to surrender the child as she contends.

2. By analogy with the reasoning in Crowe, the mother, by asking the respondents to care for the child, was arranging for them, on her behalf, to discharge her duties to the child. Thus, at the time of the child’s removal from New Zealand, the mother was exercising her rights of custody.

When a Court may decline to order a child’s return

1. Regulations 16(1) and (2)  provide:

   16. (1) Subject to sub-regulation (3), a court shall order the return of a child pursuant to an application made under sub-regulation 15 (1) if the day on which that application was filed is a date less than one year after the date of the removal of the child to Australia.

   (2) Subject to sub-regulation (3), a court shall order the return of a child pursuant to an application for an order of the kind referred to in paragraph 15 (1) (d) if the date on which that application was filed is a date that is at least one year after the date of the removal of the child, unless it is satisfied that the child is settled in its new environment.

2. The child was removed from New Zealand on 28 April 2012, according to the respondents, or on 16 January 2013 according to the applicant. Thus the application was not filed within one year of the child’s first removal from New Zealand and the provisions of Regulation 16(2) are enlivened.

Is the child settled in Australia 

1. The onus lies with the respondents to establish that the child is settled.

2. Their evidence is unchallenged.

3. The child has lived in Australia with the respondents since 28 April 2012, a period at the time of hearing of 20 months.

4. With the respondents, she travelled to New Zealand for holiday periods between 11 September and 23 September 2012; 12 November and 29 November 2012 and late December 2012 until 16 January 2013 when she returned to Australia with the respondents.

5. Both of the respondents, although born in Tonga, are citizens of New Zealand. The respondent aunt and uncle have lived in Australia since 1999, although they often travel to New Zealand. In May 2010 the respondents and their younger children returned to New Zealand, intending to stay there for two years. On 3 April 2012, the respondents returned to Australia.

6. The respondent aunt’s evidence is that the child calls her “Mum” and calls the respondent uncle “Dad”. The child calls the mother “[mother’s first name]”. The child regards the respondents’ children as her brothers and sisters and they regard her as their sister.

7. When the child first came to Australia, the respondents lived in Brisbane. On their return to Australia in September 2012, they moved to Town G.

8. In about May 2013 (according to the respondent aunt) or July 2013 (according to the respondent uncle) the respondents moved with the children to Suburb T where they remain. They live in the home of the respondent uncle’s sister and brother-in-law. They hope to find a property in the same area to rent.

9. The move to T was motivated by the respondents’ perceptions that there would be greater opportunities for all of the children in Sydney, that they would be closer to family and friends and that there is a strong Tongan community in the local area.

10. The child is enrolled to attend pre-school in Suburb T in 2014.

11. The respondents and the children attend the Uniting Church and the child attends Sunday School at the Uniting Church.

12. The child has made friends at Sunday School with three little girls who are about the same age.

13. The respondent aunt receives the Partnered Parenting Payment which includes payment in relation to the child. This is a payment from Centrelink, a Commonwealth government instrumentality. I infer that this signifies the acceptance of Centrelink that the child is a dependent of the respondents.

14. The child has been added as a beneficiary on the respondents’ Medicare card. In order to obtain Medicare benefits for the child, the respondents needed to provide her birth certificate. The respondent aunt spoke to the mother and asked her to obtain a copy of the birth certificate. A relative brought a copy of the birth certificate to Australia. The respondent aunt does not know whether the certificate was obtained by the father or the mother.

15. The child shares a bedroom with N, to whom the respondent aunt refers as “[the child’s] big sister”. They each have their own bed and the child has a table and chairs in the bedroom for play. She has a favourite teddy bear and favourite items of clothing.

16. She is cared for by the respondent aunt and uncle. If she wakes in the night, she goes to her aunt’s bed for comfort.

17. This child has lived in the care of the respondents from the time she was 11 months old in June 2010, with the exception of the period between 17 January 2012 and 28 April 2012. For some, but not all of that time, the mother lived in the same house. Since 28 April 2012, the child has lived in the care of the respondents with only limited and brief contact with the mother. She is four years old and the respondents have been her most consistent carers.

18. I am satisfied, on the unchallenged evidence of the respondents, that the child is settled in Australia.

19. Having come to that conclusion, it is not necessary that I consider the respondents’ alternate defence, that the mother consented or acquiesced to the child’s removal to Australia.

Exercise of discretion

1. It is accepted that, even if the court determines that a child is “settled”, there remains a residual discretion to return, or not to return, the child.

2. In relation to the breadth of this discretion, the majority of the High Court in De L v Director-General, NSW Department of Community Services & Anor (1996) 87 CLR 640, the majority held at page 661that:

   The regulations are silent as to matters to be taken into account in the exercise of that discretion and the ‘discretion is, therefore, unconfined except insofar as the subject matter and the scope and the purpose of the [Regulations]’ enable it to be said that a particular consideration is extraneous.

3. In De L, Justice Kirby also addressed the scope of the court’s discretion and indicated that the only limitation required was that Judges exercise their discretion in a manner consistent with the Regulations. His Honour held at page 688 that:

   So long as the judge keeps clearly in mind the limited purpose of the jurisdiction conferred, the ordinary way in which the Regulations and the Convention are expressed to operate and the need for a clear and compelling case to sustain an objection which permits an exception to the ordinary duty to order the return of the child, it can be left to judges to deal with individual cases as the evidence requires;

4. In his written submissions, Counsel for the applicant wrote:

   In considering the “purpose of the jurisdiction”, it is submitted that the following is instructive: in the House of Lords case of In re M (FC) & Anor (FC) Children (FC) [2007] UKHL 55, Baroness Hale at paragraph 38 quoted the words of Ormrod LJ in In Re R (Minors) Wardship; Jurisdiction (1981) 2 FLR 416 at 425: “ ‘kidnapping’, like other kinds of unilateral action in relation to children, is to be strongly discouraged” and at paragraph 42 of the judgement, her Ladyship emphasised that: “In convention cases ...there are general policy considerations which must be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states”.

5. Consistently with the decision referred to above, that the general policy considerations must include the swift return of children, it follows that the summary and speedy nature of the process requires that parents do not delay in exercising their rights and seeking the assistance of the Convention. In this case the mother could have requested the assistance of the New Zealand Central Authority on 28 April 2012. She previously had legal advice and the assistance of the police in removing the child from the respondents in January 2012.

6. One of the matters I consider relevant to the exercise of the discretion is the mother’s immigration status in New Zealand. Her affidavit material indicates that she does not have the requisite visa to work in New Zealand and remains in that country on a visitor’s visa.

7. On 18 October 2013, Watts J made orders in relation to an Application in a Case filed by the respondents who were seeking to obtain information from the Department of Immigration in New Zealand, primarily in relation to the mother’s immigration status. The respondents also sought information from the Department of Internal Affairs in relation, inter alia, to applications for the child’s various birth certificates and applications for the issue of passports; from the Department of Child, Youth and Family for records relating to the child and from the Commissioner of New Zealand Police for records relating to the mother.

8. The Orders made 18 October 2013 included the following notation:

   6.I note the New Zealand Central Authority intends to make enquiries into whether or not:

   6.1The Department of Immigration

   6.2The New Zealand Police

   6.3The New Zealand Department of Internal Affairs, specifically Registrar Births Deaths & Marriages and the passport office

   6.4New Zealand Department of Child, Youth & Family

   can provide the relevant information to the parties and the court and if so, will request the provision of such information if both parties agree that this information should be obtained.

9. On 21 November 2013, the respondents’ solicitor wrote to the applicant detailing the information they sought and requesting that enquiries be made whether the information could be provided.

10. On 12 December 2013 (the hearing commenced on 16 December 2013) the applicant wrote to the  respondents’ solicitor in the following terms:

    The Director General for Family and Community Services has consulted with the New Zealand Central Authority. The Director-General disagrees that the information should be obtained from the abovementioned agencies on the basis that it is not relevant to the narrow ambit before the Family Court in the Hague Convention matter. Given that the time for filing of documents has ended, the Director General expresses concern that initiating such enquiries will be further grounds for adjournments in a matter which should be expedited.

11. The lateness of the disclosure of the applicant’s position had the effect that the respondents had no opportunity to make their own enquiries and therefore there was no evidence before the Court on these matters. I consider the immigration status of the mother to be a relevant matter.

12. The fact that the mother has not demonstrated that she can remain in New Zealand if the child is returned, is a matter relevant to the exercise of discretion and a factor that mitigates against return.

13. I also take into account the fact that the respondents have been the most consistent carers for this child and have been her sole carers since

    
    

    28 April 2013.

14. Those matters lead me to exercise my discretion against the return of the child.

15. The application will be dismissed.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 December 2013

Associate: 

Date:  17 December 2013