DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & FALCOUS
[2019] FamCA 64
•14 February 2019
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & FALCOUS | [2019] FamCA 64 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention – Where there is one child aged three years – Where the paternal grandmother relocated with the child from New Zealand to Australia in January 2018 – Where prior to the relocation the child was living with the paternal grandmother – Where in 2017 the mother signed a document stating that the paternal grandmother was the primary carer of the child – Where the mother asserts that in 2017 she consented to the paternal grandmother taking the child to Australia for a holiday of up to one month – Where the paternal grandmother asserts that the mother consented to her relocating with the child to Australia indefinitely – Consideration of reg 16 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) – Where the paternal grandmother argues that the mother was not exercising rights of custody prior to the retention in Australia – Where the mother had commenced parenting proceedings in New Zealand and subsequently initiated action under the Hague Convention – Where the mother was exercising rights of custody immediately prior to the time of retention and she would have exercised some of those rights but for the retention – Where the circumstances fall within the provision of the Abduction Regulations – Where the paternal grandmother sought to establish a defence that the mother consented to the child relocating to Australia – Where the note asserting that the paternal grandmother is the primary carer of the child does not amount to consent to relocation – Where the child is required to be returned to New Zealand. | |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) regs 4, 16, 29 Hague Convention on the Civil Aspects of International Child Abduction 1980 | |
| Director General, Department of Community Services v Crowe (1996) FLC 92-717 Jones v Dunkel(1959) 101 CLR 298; [1959] HCA 8 Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 Re K (Abduction: Consent) [1997] 2 FLR 212 Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 Regino and Regino (1995) FLC 92-587 Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445 Wenceslas & Director General, Department of Community Services (2007) FLC 93‑321; [2007] FamCA 398 |
| APPLICANT: | Secretary, Department of Family and Community Services |
| RESPONDENT: | Ms Falcous |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 7324 | of | 2018 |
| DATE DELIVERED: | 14 February 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 29 January 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hartstein |
| SOLICITOR FOR THE APPLICANT: | FACS Legal, Department of Family and Community Services |
| COUNSEL FOR THE RESPONDENT: | Mr Juhasz |
| SOLICITOR FOR THE RESPONDENT: | Grays Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Lawrence |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That within 48 hours after the making of these Orders, or such later time as is notified to Ms Falcous (“the paternal grandmother”) by officers of the Department of Family and Community Services (“the applicant”), the paternal grandmother shall deliver the child X born … 2015 (“the child”), or cause her to be delivered, to the applicant.
That upon delivery of the child to the applicant, the applicant shall facilitate her return to New Zealand in the company of the mother, as soon as is practicable and, for that purpose, the injunctions and Watch List orders made on 20 November 2018 are vacated. And the Court requests that the officers of the Australian Federal Police facilitate the removal of the names of the respondent, Ms Falcous, and of X from the Watch List at all points of international departure from Australia.
These Orders are made on the basis that upon the return of the child to New Zealand the mother will cause the child to live with her at the home of the maternal grandmother pending any order about the child’s living arrangements made by the Family Court at Suburb B, New Zealand.
The Court noted that the Independent Child’s Lawyer will notify the lawyer representing the child in the New Zealand proceedings of these Orders.
The Court noted that the mother will, as soon as practicable, notify the social worker in New Zealand who formerly assisted her with the care of the child, that the child is returning with her to New Zealand.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Falcous has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC7324 of 2018
| Department of Family and Community Services |
Applicant
And
| Ms Falcous |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed 15 November 2018, the Secretary of the Department of Family and Community Services (“DFACS”) seeks the return of X (“the child”), born in 2015, to New Zealand.
The respondent is the child’s paternal grandmother, Ms Falcous (“the paternal grandmother”).
The proceedings are brought under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) which are the expression in Australian law of the Hague Convention of the Civil Aspects of International Child Abduction 1980 (“the Convention”). Among other countries, Australia and New Zealand are signatories to the Convention and DFACS has been appointed under the Abduction Regulations as the Central Authority in NSW.
The Court is satisfied that the Abduction Regulations require the return of the child to New Zealand. The paternal grandmother was not able to establish that the mother consented or subsequently acquiesced to the retention of the child in Australia. Therefore the child must be returned to New Zealand. What follows are the reasons for that decision.
Documents
The applicant relied on the following:
·the Application (Form 2) filed by DFACS on 15 November 2018; and
·the affidavit of Ms C filed on 23 January 2019 annexing the mother’s affidavit sworn on 23 January 2019.
The paternal grandmother relied on the following:
·Form 2A filed on 23 January 2019; and
·her affidavit filed on 23 January 2019.
The proceedings
The mother formally applied to the Central Authority of New Zealand on 9 August 2018 and on 15 November 2018 the Secretary of DFACS filed the application that commenced these proceedings.
The proceedings first came before this Court on 20 November 2018 when orders were made ex parte to retain the paternal grandmother and the child in Australia and fixing a hearing date of 29 January 2019.
After the service on the paternal grandmother of the application and the orders of 20 November 2018, on 3 December 2018 trial directions were made and an order was made for the appointment of an Independent Children’s Lawyer (“ICL”) for the child.
On 29 January 2019 the applicant and respondent were both represented by counsel, as was the ICL. The ICL’s counsel settled a trial plan and after the completion of the evidence and oral submissions, judgment was reserved.
I should record my thanks to the parties for their forbearance in what are, necessarily, summary proceedings, conducted as to the mother’s oral evidence, by telephone from New Zealand. I should also say something about the background to the proceedings to put in context any criticisms of the behaviour of the mother and paternal grandmother which appear in the evidence. The mother’s history is a heartbreaking one. She was raped by a member of her extended family at 12 years of age, gave birth to her older daughter when she was 15 years of age, has had a criminal conviction for robbery and a very difficult relationship with the child’s father, who himself has a serious mental health condition. Since the child’s birth, the paternal grandmother has stepped in for substantial periods, despite having other family responsibilities, to provide support for the parents and to directly assume the care of the child. But for the paternal grandmother, the child could well have been in less satisfactory circumstances during her short life, if not in danger.
Thanks are also due to the solicitors and counsel who presented the case on behalf of the parties and the child. They cooperated with the processes of a summary hearing, took no unnecessary points and focussed on the key issues.
The Evidence
Somewhat unusually for proceedings under the Abduction Regulations, the hearing included some oral evidence. By agreement across the bar table, both the mother and the paternal grandmother were cross-examined. Although there was some cross-examination, in a truncated hearing there was no opportunity for all of the evidence about contentious issues to be tested. This and other courts have considered the problem of resolving conflicting evidence in matters which are dealt with on the basis of affidavit evidence alone. The Court of Appeal of England and Wales addressed that issue in Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 at 553 and continuing at 554, where Butler-Sloss LJ[1] said:
If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. It the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.
[1] As Baroness Butler-Sloss then was.
In Regino and Regino (1995) FLC 92-587 at 81,814 Lindenmayer J said:
The resolution of the crucial factual issue in this case, which I have earlier identified, essentially involves a determination by me of the relative credibility of the parties' conflicting accounts of the events immediately preceding the wife's departure from the United States with M on 25 November, 1993, and particularly of their differing accounts of what the wife then informed the husband about her intentions as regards her future residence.
Before attempting that resolution, it is appropriate to acknowledge that it is particularly difficult for any court to resolve contested issues of fact on the basis of affidavit evidence only where the court does not have the opportunity, which the taking of viva voce evidence provides, of seeing and hearing the witnesses give their evidence and thus being able to assess their credibility in the light of their demeanour and general consistency, particularly when subjected to a searching cross-examination in the forensic context. Nevertheless, in a case such as this, where, by the very nature of the proceedings, one of the parties resides overseas, and it is therefore impracticable to secure his or her attendance before the court to give oral testimony, the court must necessarily undertake that difficult task and do the best it can to resolve the factual issues upon the material which is before it. In doing so, I believe that the court must be cautious not to unfairly disadvantage the absent party by presumptively giving greater credit to the testimony of the other party who happens to be within the jurisdiction and before the court.
For proceedings under the Abduction Regulations special provision is made for the rules of evidence that apply to certain proceedings. For example, and relevantly, reg 29(2) provides:
(2) The application under regulation 14, 19A or 25, or a request under regulation 13, 24 or 25 relating to that application, or any document attached to or given in support of that application or request, is admissible as evidence of the facts stated in that application, request or document.
That provision seeks to ameliorate the same mischief at which the Convention and, in turn, the Abduction Regulations, are partly aimed – the difficulty and unfairness of being required to litigate in a foreign jurisdiction. However, by that provision, one of the evidentiary safeguards of the common law, the scope for excluding unreliable evidence on objection, is not available in relation to the evidence filed in support of an application under the Abduction Regulations. The same latitude is not allowed for the evidence relied on by a respondent. There is an allowance in reg 29(3) in relation to the absence of overseas deponents. The Court retains, however, the capacity and obligation to weigh the evidence notwithstanding its source. No objections were taken to the written evidence.
An obvious witness was missing from the proceedings. The father was in a position to corroborate or refute the evidence about the main issue in the case, the terms of the mother’s consent about the child living with the paternal grandmother. He was not called as a witness by either party. In the normal course an inference can be drawn from the lack of evidence from a key witness who is available, that the evidence would not support the case of the person who could call the witness.[2] That issue was briefly addressed by learned counsel for the ICL who invited the Court not to draw such an inference in these proceedings. For the applicant, the mother gave evidence suggesting why the father was not called in the applicant’s case. That evidence was about her current, and apparently indefinite, estrangement from the father. Albeit something of a coincidence, it was the mother’s evidence that her most recent separation from the father occurred on the Wednesday before the hearing, on the very day that she swore an affidavit deposing, among other things, to that separation. The mother also deposed about her unfortunate and emotionally abusive relationship with the father.
[2]Jones v Dunkel(1959) 101 CLR 298 (“Jones & Dunkel”).
The situation was less clear for the paternal grandmother. She did not say that she is or was estranged from her son. Her telephone contact with her son is initiated by him and she said she had not spoken to him for two to three weeks. She was asked why she did not call him as a witness and she answered to the effect that she did not think of it. She later said something to the effect that he suffers from schizophrenia and “whenever he gets a lot of things in his mind that he needs to sort out he can’t really put things in order himself”. In light of that response the paternal grandmother was asked: “Did you decide not to ask him to prepare an affidavit?” and she repeated: “No, I just didn’t think of it.”
The submission on behalf of the ICL was to the effect that it is not necessary to rely on a Jones v Dunkel inference. Although it is frustrating that the only person able to give corroborative evidence about a critical issue in the proceedings was not called, I accept that no adverse inference should be drawn from that fact.
Short history
The child was born in 2015.
Her mother, Ms D, was born in E Town, New Zealand, in 1995 and at the time of hearing was aged 23 years. The mother has another daughter, Y, aged eight years. Y currently lives with the maternal grandfather in F Town, New Zealand. The mother lives with her mother and her sisters, aged five and one years, in her mother’s home in Suburb G, City H.
The paternal grandmother was born in 1967 in City H, New Zealand. At the time of the hearing she was 51 years of age. She lives in her adult daughter’s house in Sydney’s west, in a household of 10 people.
The father of the child is Mr J. He was born in City H, New Zealand, in 1991 and at the time of the hearing was 27 years of age. The father has a child of a previous relationship, Z, and that child lives with the paternal grandmother. I gather that the father continues to live in New Zealand.
In November 2017 the mother consented to the child being in the care of the paternal grandmother and to her taking the child to Australia. It is the mother’s evidence that her agreement to the removal of the child to Australia was only to facilitate a holiday there. The paternal grandmother brought the child to Australia with her youngest child and the father’s son, in late January 2018. The mother commenced parenting proceedings in the Family Court of New Zealand on 19 April 2018. On 15 November 2018, the Secretary of DFACS filed the application that commenced these proceedings.
Detailed Chronology
In 2014 the mother and father commenced their relationship.
In 2015 the child was born. Following the child’s birth the mother and father began living with the paternal grandmother so that she could help take care of the child.
In about August 2016 the mother and father ceased living with the paternal grandmother. The mother left the house with the child and initially moved in with a friend before moving to emergency housing. During this period the mother was depressed and sought counselling and medication from her general practitioner. The mother and paternal grandmother came to an arrangement whereby the child would spend time with the paternal grandmother. According to the mother[3] there was a shared care arrangement for the child between her and the paternal grandmother. Under that arrangement, the child was with the paternal grandmother each week from Friday afternoon to either Sunday or Monday and otherwise with the mother. The mother says that the paternal grandmother came to her house during the week and asked to have additional time with the child and that she (the mother) did not say “no”. That additional time was for only one night at a time. The mother says that the paternal grandmother asked for the arrangement to be reversed. The mother says that she did not agree and that the shared care arrangement then broke down. The mother says that the paternal grandmother kept the child for longer periods after that and that she (the mother) did not know how to stop her. According to the paternal grandmother[4] the child initially spent time with her during the week and then that was changed to weekends. She says that this was later changed so that she had the child from Wednesday to the weekend each week however the arrangement did not work.
[3] Paragraph 11 of the affidavit of the mother annexed to the affidavit of Ms C filed 23 January 2019.
[4] Paragraph 12 of the affidavit of the paternal grandmother filed 23 January 2019.
It is the paternal grandmother’s evidence[5] that in October or November 2016 she told the father that she was going to leave for Australia. There was an agreement between the father and his mother that she would take his son with her.
[5] Paragraph 17 of the affidavit of the paternal grandmother filed 23 January 2019.
In November 2017 the mother moved out of her rental accommodation. At around this time the father asked the mother if the paternal grandmother could take the child to Australia and the mother agreed. It is the mother’s evidence that she was told by the father that the travel was for a holiday of up to one month. Following this conversation the mother allowed the father to take the child to the paternal grandmother. The paternal grandmother gave the following evidence at paragraph 18 of her affidavit filed 23 January 2019:
18.The three of us, [Mr J], [Ms D] and myself discussed my relocating to Australia and taking [the child] as well as my other grandchild. However, he [the father] and [Ms D] must have discussed it because shortly after asking me if I wanted to take [the child] as well and my response was “its up to you”, he went away to his room with [Ms D] and then came back and said “you can take [the child] too, mum”. …
It is the evidence of the paternal grandmother:
20.On 27 April 2018, My son signed a Statutory Declaration attached at ENF3 where he confirmed that he gave me primary carer for is [sic] son and the child on 7 December 2017, prior to [Ms D] signing the document. Attached at ENF2.
The document attached at ENF3 reads:
I [Mr J] (father) hereby states that from the day of 7/12/2017 have given [Ms Falcous] (my mother) to be the Primary Caregiver for my son [Z] and my daughter [X].
Signed by Dated: 27/4/18
In front of: … JP
Reg. …, City H
Justice of the Peacefor New Zealand
The document shows a signature for the father and for the JP. It is not apparent why that document was provided in April 2018 when the paternal grandmother brought the children to Australia in late January 2018.
It is the mother’s evidence that from a conversation with the father in either November or December 2017 she discovered that the paternal grandmother had not taken the child to Australia.
In April 2018 the mother told the New Zealand Family Court[6] that approximately between December 2016 and November 2017 the paternal grandmother asked through the father if she could take the child to Australia. The mother’s evidence goes on:
I agreed as I thought it was for a holiday. I then heard it was intended for them to move permanently. I could not go with them as I had fines and bills to pay. The respondent [Mr J] and I discussed paying off our debts and moving to be with [the child]. As it happened, [Ms Falcous] did not go to australia. She had me sign a letter giving my consent to her caring for [the child]. I do not have a copy. It was explained to me that it was necessary for decisions in Australia. That made sense so I signed it. It did not have an expiry date but I did not intend for [Ms Falcous] to take [the child] permanently away from me.
As soon as I handed [the child] over to [Ms Falcous], communication stopped. The respondent [Mr J] and I broke up. The respondent [Mr J] told me [Ms Falcous] would not want him to see. I would ask to see [the child] even with the respondent [Mr J] present, but all my attempts at communication were blocked. I did not know what to do next or who to speak to.
I left the respondent [Mr J] and [Ms Falcous] alone, hoping they would calm down and change their minds.
(As per the original)
[6] Care of Children Act 2004 (NZ) application signed 17 April 2018which is annexed to the application filed 13 November 2018 at page 40 of the annexures.
The mother says[7] that it was her perception from the discussions with the father that the holiday would be for about two weeks but for an absolute maximum of one month. In the mother’s affidavit sworn 23 January 2019 she says:
6.2Approximately two weeks before I signed the note for [Ms Falcous] to care for the child, I recall [Mr J] asking me if his mum could take [the child] to Australia for a holiday. I said I wanted to think about it. I decided I would agree to this as it was only for a holiday. I trusted [Mr J] and his family. I recalled one conversation where [Ms Falcous] told me that she would never keep [the child] away from me. I had no idea [Ms Falcous] would not return [the child] or stop communicating with me as soon as I signed the note.
[7] Paragraph 9 of the mother’s affidavit sworn 1 November 2018 and annexed to Form 2.
On 11 December 2017 the mother signed the following letter:
To whom it may concern,
I [Ms D], on this day of 11/12/17 hereby states that I have given Mother inlaw [Ms Falcous] to be the Primary caregiver of daughter [X].
(As per the original)
The mother says that she was not given any specific dates for the proposed holiday. The mother says that communication between her and the father stopped by January 2018.
During her cross-examination the paternal grandmother said that she and the children travelled to Australia in late January 2018.
In April 2018 the mother sought legal advice and was advised to file an application for a parenting order in New Zealand. She commenced proceedings in the Family Court at Suburb B on 19 April 2018. The mother named the father and the paternal grandmother as the respondents to the application and specified their address as K Street, Suburb G, City H, New Zealand. That was consistent with her contention that she thought the child was still in New Zealand at that time. The matter came before the Family Court of New Zealand and a lawyer was appointed to represent the child in those proceedings.
On 27 April 2018 the father signed the declaration referred to at paragraph 31 of these reasons.
It is the mother’s evidence that through reading the affidavit of the lawyer appointed for the child, dated 24 May 2018, she first became aware that the child and the paternal grandmother had already travelled to Australia.
On 23 July 2018 the mother told the Family Court in New Zealand that she would make a Hague application and the Court proceedings were adjourned.
At paragraph 15 of the mother’s affidavit sworn 1 November 2018, she says that she and the father were living together. I take it that was at the home of the maternal grandmother. However, at paragraph 12 of her affidavit sworn 23 January 2019 the mother says:
12.With my mother’s support I have separated from [Mr J]. He has moved out of our home. …
Approach
Generally speaking the Abduction Regulations require the return of children who were wrongfully removed or wrongfully retained from one convention country to another. The return is to the country from which the children were removed or retained, for the purpose of proceedings about the parenting arrangements for those children taking place in that country. In other words these proceedings are in the nature of forum proceedings, rather than proceedings about the merits of competing parenting proposals. These proceedings are conducted under the Abduction Regulations and, for example, unlike parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”), the best interests of the child is not the paramount consideration in the Court’s determination.
Regulation 16 of the Abduction Regulations relevantly provides:
16Obligation to make a return order
(1)If:
(a)an application for a return order for a child is made; and
(b)the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child’s removal or retention; and
(c)the responsible Central Authority or Article 3 applicant satisfies the court that the child’s removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
(1A)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.
(2)If:
(a)an application for a return order for a child is made; and
(b)the application is filed more than one year after the day on which the child was first removed to, or retained in, Australia; and
(c)the court is satisfied that the person opposing the return has not established that the child has settled in his or her new environment;
the court must, subject to subregulation (3), make the order.
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child’s return:
(i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(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; or
(c)each of the following applies:
(i)the child objects to being returned;
(ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
(iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
The effect of reg 16 of the Abduction Regulations, as it applies to the case argued by the parties in these proceedings, is that:
(a)the Court must order the return of the child to New Zealand if the applicant satisfies the Court that she was wrongfully retained in Australia. She was wrongfully retained if:
(i)she was habitually resident in New Zealand immediately before the retention;
(ii)her mother had rights of custody and was exercising those rights or would have been exercising them but for the retention; and
(iii)the retention of the child in Australia was in breach of the mother’s rights of custody.
(b)if the applicant can bring the circumstances within those requirements the Court must return the child to New Zealand save that it may consider not doing so, if and only if, the paternal grandmother establishes that the mother consented or acquiesced to the retention.
Wrongful Retention
On the applicant’s case, the retention occurred one month after the arrival of the paternal grandmother and child in Australia. It is the mother’s evidence that she consented to the child travelling to Australia for the purpose of a holiday that was to be no longer than one month in duration. The paternal grandmother cannot gainsay that evidence. She never spoke directly to the mother about the travel and the letter signed on 11 December 2017 does not conclusively support one interpretation or the other. For that reason, as the child travelled to Australia in late January 2018, it is the applicant’s case that she was wrongfully retained from late February 2018.
In order to bring the circumstances within the scope of the Abduction Regulations the applicant must establish a number of propositions.
There is no issue about the following matters:
·for the purposes of reg 16(1)(a) and reg 16(1)(b) of the Abduction Regulations an application for return was made under the Abduction Regulations within 12 months of the time of the alleged retention; and
·the child is under 16 years of age which satisfies reg 16(1A)(a).
There is also no issue about the child being habitually resident in New Zealand at the relevant time. The child and her parents were born in New Zealand and the child lived in New Zealand until late January 2018. It is conceded that the child was habitually resident in New Zealand immediately before her removal from New Zealand albeit that the written submissions of the paternal grandmother refer to February 2018 whereas it was her evidence that the removal was in late January 2018. Nothing turns on that discrepancy. In this case, however, the relevant time is immediately before the time of retention. Again, on the applicant’s case that was one month after the removal, which would make it late February 2018. There was no express concession that the child was habitually resident in New Zealand, immediately before late February 2018. During the hearing this issue was canvassed with learned counsel for the applicant who responded to the effect that the issue of habitual residence had been conceded. The applicant’s counsel submitted that there was agreement from the respondent that the child was habitually resident in New Zealand and the Central Authority had taken that matter no further. It is true that the paternal grandmother’s case did not put habitual residence in issue in either the written or oral submissions. Her case was argued on the basis of rights of custody, exercising rights of custody and on the basis of the sole defence of consent or acquiescence. There was no contention on behalf of the ICL that the child was not habitual resident in New Zealand immediately before her retention in New Zealand in late February 2018.
I am satisfied that the child was habitually resident in New Zealand immediately before her retention in Australia in late February 2018.
Rights of Custody
The next step in assessing whether the child comes within the Abduction Regulations is to determine whether the mother had rights of custody in respect of her.
Regulation 4 of the Abduction Regulations provides:
4Meaning of rights of custody
(1)For these Regulations, a person, institution or other body has rights of custody in relation to a child if:
(a)the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and
(b)rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
(3)For the purposes of this regulation, rights of custody may arise:
(a) by operation of law; or
(b) by reason of a judicial or administrative decision; or
(c)by reason of an agreement having legal effect under a law in force in Australia or a convention country.
It is the applicant’s case that the mother has rights of custody for the child by reason of s 97 and s 17 of the New Zealand Care of Children Act 2004 (“the Care of Children Act”). As part of their Form 2 application, the applicant attached an affidavit of applicable law. This affidavit was prepared by Ms L[8] of City H New Zealand on 31 July 2018. Under New Zealand law a mother has rights of guardianship which include rights relating to the care of her children and their place of residence. That applies to the mother in these proceedings.
[8] A barrister and solicitor of the High Court of New Zealand who is experienced in family law and is familiar with the provisions of the Convention.
It is asserted in the paternal grandmother’s Form 2A Return Application that the mother did not have rights of custody. That contention was not repeated in the written submissions made on behalf of the paternal grandmother, where it is asserted that the mother was not exercising rights of custody (as opposed to her not having them). There is no doubt that the mother had rights of custody for the child.
Prior to November 2017 there is no doubt that the mother was the child’s guardian under New Zealand law and therefore had rights of custody. The Care of Children Act makes provision for the appointment of additional guardians, albeit only if they are a partner or spouse of a parent.[9] However, there is no indication in that legislation that the document signed by the mother on 11 December 2017 would meet the requirements of any of the provisions of the Care of Children Act for appointing an additional guardian. Even if it did, there is no indication or assertion that by executing that document the mother’s rights of custody were extinguished. Section 28 of the Care of Children Act deals with the time at which guardianship ends and it provides as follows:
[9] See the Care of Children Act ss 21, 23, 26 and 27.
28Time at which guardianship ends
(1) The duties, powers, rights, and responsibilities of a guardian of a child end when the first of the following events occurs:
(a)the child turns 18 years:
(b)the child marries or enters into a civil union:
(c)the child lives with another person as a de facto partner:
(d)the guardian is removed by an order under section 29:
(e)if the guardian was appointed under section 27(2) for a specific period or a specific purpose, the period expires or the purpose is achieved.
There is no suggestion that any of those circumstances have arisen for the child.
At all relevant times, the mother had rights of custody for the child.
Was the Mother Exercising Rights of Custody?
The next issue is whether the mother was exercising her rights of custody or would have been exercising them but for the retention of the child.
The mother exercised rights of custody when she prepared and signed the authority for the paternal grandmother to have “primary care” of the child.[10] As is set out earlier in these reasons, in April 2018 the mother told the New Zealand Court, among other things:
…
As soon as I handed [the child] over to [Ms Falcous], communication stopped.
The respondent [Mr J] and I broke up. The respondent [Mr J] told me [Ms Falcous] would not want him to see [sic]. I would ask to see [the child] even with the respondent [Mr J] present, but all my attempts at communication were blocked. I did not know what to do next or who to speak to.
I left the respondent [Mr J] and [Ms Falcous] alone, hoping they would calm down and change their minds.
[10] Director General, Department of Community Services v Crowe (1996) FLC 92-717 at 83,638.
By commencing proceedings in New Zealand and by subsequently initiating action under the Convention the mother was seeking to establish or enforce decisions within the scope of rights of custody.
In my view the mother was exercising rights of custody immediately prior to the time of the retention and she would have exercised those rights but for the retention.
Was the Retention in Breach of the Mother’s Rights of Custody?
The retention was in breach of the mother’s rights of custody if the child should have been returned to New Zealand and she was retained in Australia without the mother’s agreement.
I am satisfied that is the case. There is nothing in the letter signed by the mother on 11 December 2017 that suggests that she was agreeing to the child living with the paternal grandmother permanently, nor to her living in Australia permanently. The paternal grandmother does not assert that the mother did any more than sign the letter.
The Defences
The circumstances fall within the provisions of the Abduction Regulations that require an order for return.
If, and only if, the respondent establishes a defence, would the Court have discretion to consider not ordering the return of the child.
The paternal grandmother sought to establish the defence in reg 16(3)(a)(ii). That defence and no other. She does not assert that the return of the child to New Zealand would expose her to a grave risk of physical or psychological harm or otherwise place her in an intolerable situation (reg 16(3)(b)); that the child objects to being returned within the scope of reg 16(3)(c); nor that her return would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms (reg 16(3)(d)).
As to the defence to be made out by the paternal grandmother, reg 16 of the Abduction Regulations provides relevantly:
…
(3)A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)the person, institution or other body seeking the child’s return:
…
(ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
…
(4)For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.
(5)The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
Consent or Acquiescence
In order to establish this defence the paternal grandmother would need to establish that the mother consented to the retention or later acquiesced to it.
The determination of consent was discussed by the Full Court of this Court in the case of Wenceslas & Director General, Department of Community Services (2007) FLC 93-321 (“Wenceslas”).[11] At 81,559 the Full Court referred to the views of Justice Hale (as Baroness Hale then was) in Re K (Abduction: Consent) [1997] 2 FLR 212 at 217-8 (“Re K”). In Re K Justice Hale held as follows:
It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.
[11] See Secretary, Commonwealth Attorney-General’s Department & Wolford [2014] FamCA 445 at 46.
The Full Court in Wenceslas held at 81,560:
It seems to us that the views expressed by Hale J allow for the vagaries often associated with the way in which parents communicate in matters relating to their children. As presently advised (since the matter was not the subject of any submissions before us), we are of the view that consent can be inferred from conduct; however, we are also of the view that the consent must be real and unequivocal and can only be made out by clear and cogent evidence
It was held in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 (“Re M”) that consent does not imply that the person concerned is happy or content with the outcome that has been agreed.[12]
[12] See page 190 of the judgment of Justice Wall in Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171.
Each case must be decided on its own facts and, in any event, no two cases are the same.
Discussion
In order to determine whether the respondent could establish that the mother consented to the retention of the child in Australia, it is necessary to consider the evidence of the circumstances leading up to the retention.
The paternal grandmother says that she had the permission of the parents to take the child to live with her in Australia. She says that she and the mother and father discussed her relocating to Australia and taking the child with her. She says that apparently after he spoke to the mother, her son told her: “you can take the child too, mum.”
The mother agrees that she gave permission in November 2017 for the child to go with the paternal grandmother to Australia. In November 2017 the mother and father attended upon WINZ, the agency responsible for child support payments in New Zealand and advised that the mother’s benefit should be terminated.
On 11 December 2017 the mother signed a document saying the paternal grandmother was “to be the Primary caregiver of” the child.
The paternal grandmother says that she travelled to Australia in late January 2018 with her youngest daughter, the father’s son and the child.
The paternal grandmother has had no communication with the mother since bringing the child to Australia.
The paternal grandmother concludes her affidavit with:
22.I did not remove [the child] without consent. I have authority from both parents who gave me signed documents allowing me to be the primary carer for her. I was therefore the custodian of her at the time when we left New Zealand and I remain the custodian of her whilst we are in Australia.
Each of those propositions may be true. However that does not address the issues before the Court. It is an agreed fact that the mother consented to the child being removed to Australia. The applicant contends that the consent was for the purposes of temporary travel which the mother understood would occur soon after she gave it, in November 2017. The mother signed the letter on 11 December 2017 because she was told that the paternal grandmother needed it. The paternal grandmother had no direct conversation with the mother and had only the reports made by her son as to the mother’s attitude about the travel to Australia. The paternal grandmother gives no probative evidence about when the mother first knew about her travel with the child to Australia in late January 2018. She confirms that she had no direct communication with the mother thereafter.
There is no evidence that the mother intended that the child would live with the paternal grandmother indefinitely, whether in Australia or in New Zealand, let alone that she consented to such an arrangement.
There is no evidence that the mother subsequently acquiesced to the retention. On the applicant’s case the retention occurred at the end of February 2018. There is no evidence that the mother did or said anything from which it could be inferred that she was sanguine about the child being kept in Australia indefinitely. Acquiescence cannot be inferred from any lack of activity by the mother. There is no evidence that the mother knew that the child was removed from New Zealand to Australia at the end of January 2018. For example, the paternal grandmother does not say that she told the mother of that removal. In April 2018 the mother commenced parenting proceedings in the New Zealand Family Court seeking to regain the custody of her daughter. There is no evidence to put in issue the mother’s evidence that she first became aware that her daughter was in Australia in May 2018. In July 2018 the mother told the New Zealand court that she was commencing proceedings under the Hague Convention and those proceedings were commenced in about August 2018.
Conclusion on Consent and Acquiescence
It falls to the respondent to establish a defence and she has failed to establish that the mother consented to the retention or that she subsequently acquiesced.
Conclusion
I am satisfied that the provisions of the Abduction Regulations requiring the return of the child to New Zealand apply. If the paternal grandmother was able to establish a defence, the Court could consider not ordering that return. The only defence raised is that the mother consented or later acquiesced to the retention of the child in Australia and the paternal grandmother has not been able to establish that defence.
The Court can impose conditions on return and that issue was canvassed with the parties at the conclusion of the hearing. After discussion with the parties I was invited by the applicant to order that upon her return to New Zealand with the child, the mother live with her mother pending further order of the New Zealand Family Court. The mother is not a party to these proceedings but I will note that the order for return is made on that basis. The mother indicated when giving evidence that she intended to continue to reside with her mother for the time being. I understood her to say that she would like to secure independent rented accommodation later in the year. I will also note that the mother will notify the social worker, who previously provided assistance to her with the child, that the child will be returning to New Zealand. The ICL’s counsel indicated that the ICL would communicate the outcome of these proceedings to the lawyer appointed for the child in the New Zealand proceedings.
As to the implementation of the order for return, the paternal grandmother said that in the event that the child had to return to New Zealand, she would not return with her but she had arranged for one of her sons (Mr M) to take the child back to New Zealand if that became necessary. The son would only deliver the child and would not be in a position to remain in New Zealand for a period nor to take part in the New Zealand proceedings. At the time of final submissions the paternal grandmother did not know whether she would contest the New Zealand proceedings or not. The issue about delivery is complicated because the child has not seen or spoken to her mother in more than a year. It is possible that she will not recognise her mother and that some assistance will be needed with the handover.
The applicant’s counsel advised that the mother would travel to Australia to collect the child. After discussing the matter with the parties I indicated that I would make an order that the child be delivered by the paternal grandmother to officers of the Applicant for delivery to the mother. In that way the timing can be arranged by the applicant and there will be no need to take up the kind offer from the child’s paternal uncle to accompany her back to New Zealand.
I also indicated that I would attempt to communicate the outcome of the proceedings directly to the New Zealand Family Court.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 14 February 2019.
Associate:
Date: 14 February 2019
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