Department of Family and Community Services & Raho
[2013] FamCA 530
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & RAHO | [2013] FamCA 530 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Where two children were brought to Australia from New Zealand by their mother in July 2011 following the earthquakes in Christchurch – Whether the Court should make an order for the children to be returned to New Zealand – Whether the children are “settled” in Australia – Whether the Court has a discretion to order that the children be returned to New Zealand notwithstanding a finding that they are “settled” in Australia. |
| AC v PC [2004] HCMP 1238 |
| Care of Children Act 2004 (New Zealand) Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Hague Convention on the Civil Aspects of International Child Abduction |
| APPLICANT: | Department Of Family And Community Services |
| RESPONDENT: | Ms Raho |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 4512 | of | 2012 |
| DATE DELIVERED: | 1 May 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 8 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Burger |
| SOLICITOR FOR THE APPLICANT: | Australian Government Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Gitteris |
| SOLICITOR FOR THE RESPONDENT: | Willis Bowring Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Wearne |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
The application filed 31 July 2012 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Raho 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 4512 of 2012
| Department Of Family And Community Services |
Applicant
And
| Ms Raho |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) by the Secretary of the Attorney-General’s Department on behalf of the Central Authority against Ms Raho (“the mother”) for the return to New Zealand of two children: P R (“P”), born in 2000 and aged 12 years and 11 months; and T R (“T”), born in 2002 and aged 10 years and 9 months (together, “the children”).
The request from New Zealand was generated at the request of the children’s father, Mr G (“the father”). The mother opposes that order on a number of grounds.
Before the hearing was conducted the Court appointed an Independent Children's Lawyer for each of the children.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The children, the subjects of the application, were born as New Zealand citizens.
The mother and the father were in a de facto relationship between 1998 and 2004. Following their separation, there were a number of different parenting arrangements in place for the children. There were protection orders made in New Zealand and there were periods where the father spent little or no time with the children.
At the time the children left New Zealand, the father’s time with the children was as set out in interim orders of the Family Court of New Zealand made in Christchurch on 17 May 2011. Those orders provided as follows:
1. Monthly supervised contact periods between the applicant and the children of no less than three hours duration such contact is to be arranged as to place date and time through lawyer for child who is to circulate between the applicant and the respondent the agreed agreement in writing and the parties are to fully comply with the time, date and place so agreed. The contact to be supervised by … or other Court approved Supervisor as agreed.
On 22 February 2011, Christchurch, where the mother and children then resided, suffered a devastating earthquake. The earthquake caused widespread damage to the city. The mother’s evidence is that she and the children were forced to evacuate their home, which, she says, was declared uninhabitable (a disputed fact). After that time, they lived with the mother’s parents before moving to Australia.
On 3 July 2011, the children and the mother travelled to Australia, where they have since resided continuously. It is the applicant’s case that the children were wrongfully removed from New Zealand. This was not contested in the course of the hearing.
The proceedings were commenced in this Court by the applicant on 31 July 2012. The fact that the application was filed more than 12 months after the children were removed from New Zealand has created the most significant issue in the case. Whether the children are now “settled” in Australia is a matter of intense debate which is seen in the parties’ submissions.
Different interpretations of the word “settled”, as it is used in Regulation 16(2), have been promoted by each party. There is also a difference between the parties as to whether there still remains discretion in the Court to make the order for return if the Court is satisfied that the children are settled in Australia.
The Issues
The parties identified the issues at the commencement of the hearing as follows:
a)Whether the children are settled in Australia (see Regulation 16(2) of the Regulations).
b)Whether there is discretion to order the return of the children to New Zealand should the Court determine that the children are settled now in Australia.
Should there be findings against the respondents’ case in relation to (a) and/or (b) then the further issues are:
c)Whether there is a grave risk that returning the children to New Zealand will expose them to physical or psychological harm or otherwise place them in an intolerable situation (see Regulation 16(3) of the Regulations).
d)Whether the children object to being returned and, if so whether:
i)the children’s objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes (see Regulation 16(3)(c)(ii) of the Regulations); and
ii)the children have attained an age and a degree of maturity at which it is appropriate to take account of his views (see Regulation 16(3)(c)(iii) of the Regulations).
e)Whether the father was exercising his rights of custody at the time of the alleged removal or retention of the children (Regulation 16(1A)(e)(i) and (ii) of the Regulations). This issue was conceded by the respondent in her written submissions. She concedes the father had rights of custody in relation to the children and that he was actually exercising those rights.
Credit
In this case no party applied to cross-examine any witness, including the family consultant. The parties proceeded to argue their respective cases by submission. Should there be any issue of credit arising from the evidence relied upon by the parties I will refer to that as I develop these reasons.
The Evidence
The evidence of the applicant was primarily contained in the application filed on 31 July 2012. Some of the facts asserted in the application are uncontested.
The applicant recites that the children were born in New Zealand and that New Zealand was their habitual residence immediately prior to removal.
The mother and father commenced a de facto relationship in 1998. They never married.
On 24 February 2004, the mother applied for a temporary protection order against the father under the Domestic Violence Act 1997 (New Zealand). That order was granted by the Family Court of New Zealand on 24 February 2004. Sometime after the making of that order (unspecified in the application), the mother accepted an undertaking from the father not to effect any domestic violence against her and the Court was asked to discharge the temporary protection order.
Separation between the mother and father occurred in August 2004. There is some dispute about that date.
On 16 October 2004, the mother again applied to the Family Court of New Zealand for a temporary protection order against the father. That was granted on 19 October 2004 and became final on 19 January 2005.
After 19 January 2005, there was contact between the father and children on an unsupervised basis.
In mid-2005, the father was convicted on a charge of “wilful ill-treatment, possession of a weapon, and intentional damage”. The father was sentenced to 18 months imprisonment and was released in 2006. Thereafter, the mother agreed to regular unsupervised contact between the children and the father on the condition that the father did not use drugs or alcohol, or have the children associate with certain persons.
On 14 January 2007, the father was injured in a serious car accident. He was hospitalised for a significant period of time. Between January 2007 and January 2010, the father had little contact with the children. The mother did take the children to visit the father in hospital following his accident.
On 2 November 2009, a final parenting order was made pursuant to the Care of Children Act 2004 (New Zealand). The care of the children was vested in the mother and the father was permitted to have supervised contact with the children fortnightly for up to two hours.
On 21 June 2010, on the application of the father, the final protection order was discharged.
On 10 December 2010, again on the application of the father, the Family Court of New Zealand varied the final parenting order. The father was granted monthly supervised contact with the children of no less than three hours. There were conditions attached to the father’s time with the children, including that he attend alone, not be under the influence of alcohol or illicit drugs, and not expose the children to any type of violent behaviour. The order of 10 December 2010 was expressed to be a variation of a final parenting order.
On 17 May 2011, the Family Court of New Zealand made an interim parenting order. The interim order was to operate for one year and had the same conditions attached to it as the order of 10 December 2010. The evidence suggests that the latter order provided for the father to have unsupervised time with the children.
During 2011, the father had contact with the children on one occasion in each of the months of January, March, May and June.
The children left New Zealand on 3 July 2011 and have not returned.
All of the above evidence of the applicant is uncontentious, apart from the date of separation between the children’s parents.
The applicant relies on evidence from Ms B, barrister, who visited the mother at the mother’s house in Christchurch on 10 March 2011, after the initial earthquake struck in February 2011. Ms B’s evidence is as follows:
[T]here was no visible damage to the home and [the mother] did not mention anything to me about damage or loss of possession. She did mention that the earthquake had somehow disturbed the interior of the home and released the smell occasioned by an earlier fire. There was no suggestion that the home was uninhabitable. There was no sign of liquefaction that I could see.
This evidence is contentious.
On 14 December 2011, the father signed an application which was sent to the New Zealand Central Authority on 19 December 2011. The father was unaware of where the children were living in Sydney and therefore was unable to provide an address for service. He has received no contact from the mother or children in any form since they left New Zealand.
Whilst the father admits in his affidavit sworn on 14 July 2011 that there had been incidents of domestic violence between he and the mother, he specifically denies her allegations of significant violence and/or threats by him against her son, M. The father said no charges were ever laid against him in respect of those allegations. As against that there seems no other credible evidence to establish why M left the parties home.
There is an issue between the parties as to the date of separation. The father alleges August 2004, the mother alleges October 2002. The father relied on a decision of Judge Smith, dated 21 June 2010, which he annexed to his first affidavit, such decision noting separation in August 2004. There was no reference in that decision to any allegation that the father had been violent to the mother’s child, M.
The father denies any trauma being occasioned to the children as a result of the supervised contact he had with them in New Zealand before their departure. He relies on the reports of the supervisor to corroborate his evidence. He also denies that there was any evidence that the children were suffering as a result of having to live in Christchurch after significant earthquakes.
The father denies the assertion, or suggestion of the mother, that there was no contact between him and the children from 2005 to 2007. He asserts that he had regular and frequent contact with them.
The mother’s evidence is contained in her affidavits.
The mother’s evidence is that in August 2004 the father threatened to kill her son, M. She said that his threat was to run M over in a car. The mother also says that the father threatened M with an axe. As a result of this behaviour, the mother says it was necessary to relocate M at the age of 13 years to live in Australia with extended family.
The mother maintains that separation occurred in October 2002. She provides details of the various orders made post-separation. By way of differing evidence to that of the father, the mother alleges that during 2011 the father attended on two of six arranged visits with the children because he could not afford the cost of supervision. The father’s version is quite different.
The mother alleges that from July 2005 until the beginning of 2010, there was no contact between the father and the children. This fact is denied by the father. As will be seen later in these reasons there is a finding of a New Zealand court, relied upon by the mother which finds that between August 2006 and early 2007 the father had regular unsupervised contact time with the children.
The mother alleges that, as a result of a history of domestic violence, together with the earthquake in Christchurch in 2011, the children suffered from extreme trauma. When she left New Zealand on 3 July 2011, the mother says she was “emotionally fraught and depressed”.
The mother states there would be a grave risk of harm to the children were they to be returned to Christchurch. According to the mother, this harm would arise because of:-
a)recollections of early extreme domestic violence;
b)lack of engagement by their father during their younger lives;
c)a significant impact of the earthquakes in New Zealand;
d)the lack of stability and fear engendered by the above during their time in New Zealand;
e)a diagnosis of PTSD in the case of T;
f)the impact of all the above on T, who has learning and behavioural difficulties which she believes would be exacerbated.
The mother says that during the time she lived with the father, from 1998 to October 2002, they lived at five different addresses. They were required to move due to failure to pay rent and meet normal utility bills. During that period, the mother worked as a community support worker and the father did not work, except for a period of about 12 months from October 2002 to October 2003.
During the period of their relationship, the mother alleges that she was threatened, struck and abused by the father. On occasions she required medical treatment. The mother claims that the children witnessed these attacks.
Following separation in October 2002, the mother says that she and the father continued to have contact until August 2004; however, she denies that there was ever a reconciliation.
The mother alleges that throughout the period she has known the father he has “drunk to excess and used drugs on a regular basis”. She also alleges that he has numerous criminal convictions for offences related to drugs, theft and violence.
The mother asserts that, in July 2005, she received a telephone call from the father saying that he was about to be arrested and that he was going to kill himself. She later learned that this incident related to a “horrific slaughter of his then partner’s pet dog.” This incident is referred to in a judgment relied upon by the applicant. The father was sentenced to a term of imprisonment arising from that incident.
The next contact the mother says she received from the father was in January 2007, when he had been hospitalised following a road traffic accident. She took the children to see him in hospital. Thereafter, she refers to the orders made by the Court permitting the father to have contact with the children. The last order that was made before the mother left New Zealand was made on 17 May 2011. Notwithstanding the father’s evidence, the mother says that the visits were not successful. She maintained a notebook in which she kept information about the children and the impact of the visits upon them. She annexed “social work notes” dated 29 March 2011 relating to the impact on the children of the visits.
The mother reports that she lost her job as a result of the earthquakes. She claims that the home she had occupied was declared “uninhabitable by the Housing Department of New Zealand and the earthquake response team”. I note that this statement of the mother is the subject of contested evidence provided by the father. The mother also claims that the children’s school was frequently closed because of ongoing earthquakes. After the earthquake, she and the children moved to her parents’ home. When they attempted to obtain their belongings from their former residence, they found that it had been looted. This distressed the children because they lost many of their belongings.
The mother says that T has hearing aids in each ear. One of the side effects of his hearing loss, she explains, is that he is hypersensitive to movement. The aftershocks in Christchurch, therefore, had a significant impact upon T.
Since 2004, the children and the mother have visited Australia each April for M’s birthday, and also every second Christmas. In a discussion held in April 2011 by the mother, the subject children and M, the subject children expressed to their mother “a heartfelt desire to relocate to Sydney”.
The mother says that T now attends a specialist school for children with learning and behavioural difficulties. She says that P attends a public primary school (he has started high school this year) and that he is enjoying school. She describes some apparently enjoyable events in P’s life. She also describes a good and close relationship between the subject children and their brother, M.
The mother is now employed and has three jobs as a support worker. She says that the standard of living she and the children currently enjoy is the highest they have ever enjoyed as a family. According to the mother, the children have also been able to access specialist medical services in Australia. Annexed to the mother’s affidavit was a letter from Dr L of a paediatric health service which related to T and showed a diagnosis as follows:
1. Hearing Impairment
2. ADHD (Medicated)
3. Learning Difficulties
4. Post Traumatic Stress Disorder secondary natural disaster in New Zealand (hometown)
The mother also annexed to her affidavit a letter signed by Ms D of S Counselling, which advised that “[The children P and T] have attended regular counselling sessions since January 2012”. The letter is undated.
The mother asserts that she has not told the children about the proceedings. She asserts that they are happy in their current circumstances. She says that, since being in Australia, the children’s behaviour has developed to a point where “they speak freely, they laugh and joke and are full of joy.” The mother claims that she has “never seen the children so happy and joyous.”
On 30 November 2012, the mother signed a “supplemental affidavit”, the contents of which she swore to be true and correct.
In support of her case that the children are settled in their current environment, the mother says that the children both attend public schools. T has been referred to a specialist school in the local area. The mother says that:
[T]he specialist school operates a re-integrated program for students in years K-6 with emotional disturbances and students in years 5-12 with behavioural difficulties.
The mother asserts this system has assisted T significantly, with the two schools that he attends working collaboratively with her. She has observed that T’s behaviour has improved as a result of this educational system and, with the improvement in his behaviour, so too has his educational focus improved.
The mother says both boys attend a skateboarding park local to the home after school. There they interact with other children and have made friendships. Both boys participate in extracurricular activities. T is learning music within his school and P participates in athletic activities and softball, both sports being organised by his school. She says both of the boys are looking forward to Christmas. At that time of the year they are involved in functions at their schools as well as Christmas parties connected with their schools.
The mother has formed friendships within the area where she lives and, through those associations, socialises with the children with one or two groups of friends who they see on a weekly basis.
The mother reports both children are attending the same counsellor. From her observation, the counsellor has been able to develop a bond of trust with the boys.
The mother asserts that, prior to leaving New Zealand, the home in which she and the boys had been living became uninhabitable. I note that there is an issue between the parties about that assertion. The mother also asserts that she lost her employment at about that time and, further, that the house that she and the children had occupied was looted. She asserts that there was no alternative accommodation available (other than that which was provided by her parents. See above).
The mother asserts that, following the earthquake and disaster in Christchurch, “housing difficulties in the Christchurch area remain acute”. This is not a fact put in dispute by the applicant. The mother says that, should she be required to return to New Zealand, which would be the case if there were an order requiring the boys to return, it will be very difficult to find suitable accommodation and employment. She asserts that the father has not provided child support in the past and there is no indication that he will do so in the future.
The mother annexed a copy of an affidavit sworn by her on 19 October 2004. The following matters stand out in that affidavit.
In February 2004, the two children, T and P, were removed from the care of the mother and father for a period of six weeks by the Child Youth and Family Services (“CYFS”) Department in New Zealand. Following that, the children were returned to the care of the mother.
The mother and father had been “together” over a period of six years. The mother said that there were many separations and reconciliations during that period.
In April 2004, the father agreed to seek counselling in relation to his alcohol and drug abuse. The mother agreed to undertake counselling with Catholic social services and attended five sessions.
The father lost his driver’s licence, having been charged with driving under the influence of alcohol. Thereafter, the father pleaded guilty to a further charge of driving whilst disqualified. He was sentenced to a term of community work.
On 16 October 2004, the father smacked the mother on the face whilst she was driving a motor vehicle. He struck her two times. It caused her nose to bleed and one of her teeth to become lodged in her lip. He threatened to kill her if she did not drive home. When they arrived at home, the father came up behind the mother and grabbed her by the hand and walked her into the bedroom. He pushed her down onto the bed; she pushed him off herself. She persuaded him that he needed to attend PD (I suspect this is an acronym for Parole Department or such like), otherwise he would be imprisoned. Having delivered him to PD, the mother took the children to a friend’s house and then attended a police station and made a complaint. A charge was laid against the father.
In 2004, on two occasions after June, the father was convicted of two traffic offences. On one occasion, P was in the car with him. The father had been drinking at a hotel with P for a number of hours before he drove home.
Annexed to the mother’s affidavit and marked as “exhibit MR4” is a copy of the statement made by her on 16 October 2004 at the Christchurch police station. At that time, the mother was employed as a support worker. She described an arrangement whereby she collected the father from his home on “PD days” and took him to the PD centre. She described an assault upon her by the father while she was driving the car. Both children were in the car on the occasion. The balance of the statement is corroborative of what is set out in her affidavit and referred to earlier in these reasons.
Annexed and marked “exhibit MR5” to the mother’s affidavit is a copy of the judgment of the Family Court at Christchurch in the matter of “the Domestic Violence Act 1995”. The judgment is dated 21 June 2010. The judgment relates to an application of the father to discharge a final protection order against him. His application was opposed by the mother, who said at the time that “she [was] fearful without it and there may be a repeat of domestic violence against her and the children of the family.”
The judgment notes that the relationship commenced “very loosely” in about 1998; it also says that “They clearly separated from time to time.” Final separation occurred in August 2004. There was an earlier period of separation in February 2004.
The judgment refers to an incident which “really drove the application in February 2004”. That is reported as “the applicant smashing his way into the parties’ home post separation and purporting to remove the children from the respondent’s care.” There had not been domestic violence complained about, at least in any specific way, since that time, other than an incident on 16 October 2004.
The judgment records that, following the incident on 19 October 2004, the father had been charged with “male assaults female” and had pleaded guilty to that offence. He received a sentence of community work for that offence.
On 19 January 2005, the protection order became final.
The judgment records that between October 2004 and mid-2005, contact between the father and the children proceeded on an unsupervised basis. In mid 2005, the father committed a serious act of violence on a dog. While commenting that “On any view it was a violent act of extremity”, the judge accepted that at the time of committing the offence the father was intoxicated. The father was convicted of a charge of wilful ill treatment, possession of a weapon and intentional damage. The father was sentenced to imprisonment for 18 months. The judge further noted that, after the conviction of wilful ill-treatment referred to above, the father texted the mother, which was clearly a breach of the protection order for which he was convicted accordingly.
The father was released from prison in about mid-2006. Thereafter the mother agreed to the father exploring a relationship with the children on two conditions. Those conditions were that he was not to use alcohol or drugs, and that he was not to have the children associate with certain persons. The mother agreed to unsupervised but conditional contact between the father and the children.
Between August 2006 and early 2007, the father had regular unsupervised contact time with the children. The judge noted the evidence before him was to the effect that the mother and father were able to conduct a civil and cordial relationship during that time.
In January 2007, the mother informed the father that he would not have contact with the children again because he had used alcohol while the children were in his presence. She would not agree to him seeing the children, otherwise than as resolved through court.
On 14 January 2007, the judgment records that the applicant clearly drank alcohol to excess. As a result he had a “highly serious car accident”. He was hospitalised in a coma for a significant period of time, and his hospitalisation extended to a number of months. His rehabilitation was slow.
Between January 2007 and January 2010 the father had little or no contact with the children. The mother did take the children to visit him in hospital. The mother said that she was unable to further trust the father in relation to his use of alcohol.
On 2 November 2009, a final parenting order was made by consent. Care of the children was vested in the mother and the father was to have supervised contact fortnightly for up to two hours. Between January 2010 and May 2010, the father exercised that contact, although not necessarily regularly. The judgment goes on to explain why the judge discharged the protection order.
There were a number of documents which became exhibits in the present proceedings. The documents included two family reports prepared by Ms F (“the family consultant”), dated 30 November 2012 and 4 March 2013.
On 1 November 2012, I made the following order:
I order a report be prepared for the purpose of these proceedings, which, inter alia, is to consider the defences raised in this proceeding, so far as they relate to the children, and also to consider whether there is evidence within the children themselves and their circumstances which suggests they are settled in their new environment. In dealing with the aspect of any objection raised by the children to being returned, the report is to deal with whether such objections show strength of feeling beyond a mere expression of a preference or of ordinary wishes and whether children have attained an age and a degree of maturity at which it is appropriate to take account of his or her views.
I direct none of the parties provide any documentation to the family consultant, except in circumstances where it is agreed between all parties as to the material which should be provided to the Family Consultant other than that which has been filed in the court by any party.
On 3 December 2012, I requested that the family consultant provide an update or addendum to her report after she reviewed the further material provided to her. I then made an order as follows:
I grant leave to Independent Children’s Lawyer to provide to [the family consultant] copies of any documents produced under subpoena which she considers will be of assistance to [the family consultant] in the writing of her further report. Any such document is to be catalogued and a copy of the catalogue is to be provided to the parties at time they are provided to [the family consultant].
The first report, dated 30 November 2012, contains the following information which is of particular note in the circumstances of this case. The children presented as reserved and shy boys. Neither was particularly forthcoming. The boys asserted that they had not discussed the family situation with each other. They were pleased when, in a joint interview, they discovered that they had similar views.
The child P was 12 years and 6 months of age when he was interviewed. He attended year 6 at E Public School and was intending to enrol at H High School in 2013. His favourite activity at school is sport. He described Australia as “a lot different” from New Zealand. He said New Zealand is good but that he preferred Australia. This appeared to relate particularly to the lack of earthquakes. He described the earthquakes he experienced in Christchurch as “scary”. He liked his school in New Zealand. P appeared to experience difficulty in answering questions about his father. He referred to a prior visit to Auckland as being a pleasurable time with him; no time was placed in relation to that visit. Asked whether he would like to see his father now, P’s response was “I don’t know or I’m not sure”. In response to questions about being returned to New Zealand even for a holiday, he said that he would be “a bit scared” and also that “dad might kidnap us or something”. He would not like to speak to his father on the phone because he “might threaten us”. He wanted the judge to know that he does not want to go back to New Zealand and would be “pretty sad” if he was made to go. He noted that his mother was happier here.
In relation to the child T, who was aged 10 years and 4 months at the time of the interview, the family consultant noted that he attended K School, which is a specialist school for children with learning and behavioural problems. He attends that school on Mondays, Tuesdays, Thursdays and Fridays, and attends E Public School on Wednesdays. His explanation for attending K School was “because my behaviour was angry and aggressive”. T reported that he likes K School; he has friends there with whom he loves playing and he enjoys activities there.
The children live with the mother, M (their brother) and M’s girlfriend. He said his brother was “nice to us”. When asked about the differences he perceived between Australia and New Zealand, he said that New Zealand had a bad atmosphere, by which he seemed to refer to the earthquakes, floods and cold, which he experienced in Christchurch. He said Australia has a “cool” atmosphere. He prefers Australian animals and the Australian accent. He misses nothing in New Zealand. He has no friends there.
When asked about his father, he referred to a good and fun time he experienced with his father. Notwithstanding that, when asked to describe his father, the family report notes that he “spontaneously and vigorously said that his father is bad, adding he hit me and [P] and he was hitting my big brother.” He said he would like to see his father as long as “he wouldn’t hit me”. He thought that his mother would not like him to see his father. If he was required to see his father, he would like to see him in Australia. He would like to talk to his father on the telephone.
Under the heading “Evaluation” the family consultant stated that, although it is clear that the children do object to returning to New Zealand, it is difficult to ascertain whether their objections “show strength of feeling beyond a mere expression of a preference or of ordinary wishes”. She also noted that “the boys were not forthcoming children and were not inclined to elaborate on their reasons, or in fact on any other matters”.
The family consultant noted that the boys overwhelmingly and understandably associate New Zealand with earthquakes, which they experienced. With respect to them both, the family consultant opined that:
[N]either seemed to be of such maturity that they could properly consider the prospect of a return to New Zealand without that being to Christchurch and all that now represents to them.
The family consultant said it is clear that neither child has attained an age or degree of maturity at which it is appropriate to take account of his views.
In the final paragraph of this family report, the family consultant stated as follows:
The boys appear to be settled in their home and schools which is not surprising given that they have now been in Australia for 16 months, but it was not possible to ascertain the extent to which they are emotionally settled.
The report prepared by the family consultant and dated 4 March 2013 has the following matters which I have particularly noted.
In the interview with T the family consultant noted that he was “a little more forthcoming” than he had been in the previous interview. By contrast, he expressed on this occasion a greater preference for E Public School as the work at K School is harder and at E Public School he plays more games and has lots of friends. He professed to only having “got into trouble at school” on one occasion this year, and that was for “lying and arguing”. He has received two awards. He said he had a gold award for “improving my levels”.
T confirmed that he would like to speak to his father on the phone and when asked if he misses his father he said “a little bit”.
P was also reinterviewed by the family consultant. His presentation was similar to that when first seen.
P commenced high school this year at H High School and he described it as “good”. He described “lots of friends, some new, and his favourite subject technology in which he will learn woodwork, metalwork, etc.” He confirmed the advice given by his younger brother that he had received seven merit awards already this year. He said that his awards were for helping, finishing work and “stuff”.
P became more awkward when asked about New Zealand and his father. He said he never talks to his father and would not like to. He would not like to see his father if he returned to New Zealand because “he might hit us” and “he might take us away”. If he had to return to New Zealand, it would be both “good and bad”. It would be good because he could see his “nan and grandad” more and bad because “it takes a long time to get new friends, close friends”.
In relation to the written material provided by the Independent Children’s Lawyer the family consultant noted that both boys have had significant problems in their lives, both in New Zealand and since their arrival in Australia. She further said:
[I]t also demonstrates that they seem to have been well supported in both countries by their schools and other professionals who have organised additional supports – medical, psychological and related to their learning problems. The material about the supports in Australia is more abundant than that from New Zealand, however, there is a report relating to [P] dated 2008 which indicates his behaviour was of great concern. It also noted his hearing problems. A further report from the same school in mid-2011 reports [P] as exhibiting argumentative and physically violent behaviour, and as having a reading age of between 6 and 6 ½ when he was 11 years old at that time.
The family consultant noted that, in Australia, P was suspended from E Public School in September 2012. There are no records to indicate what his behaviour was like in the last term of 2012, nor so far this year.
The family consultant referred to the evidence of support for T from Dr L of the paediatric service and Ms D of S Counselling. The family consultant says:
Dr [L’s] role in coordinating the multiple supports for [T] seems to have been invaluable. It is her expressed opinion that it would not benefit [T] to be removed from those supports.
The family consultant had regard to the affidavit material filed in the Court. In relation to her report in respect of same, I note the following matters in particular.
The family consultant notes the differences which the parties have in relation to the circumstances in which the mother found herself living in the Christchurch area after the earthquake.
The family consultant notes as follows:
[P]resumably the mother’s claims about the impact of the earthquakes contributed to the diagnosis of [T] by Dr [L] of ‘PTSD secondary to natural disaster in New Zealand’. Similarly [Ms D] may have based her comments in her report (undated but understood to have been written in November 2012) that ‘the family had relocated to Australia after the Christchurch earthquakes in which they had lost their home and quality of life’ upon the mother’s accounts. … It is also unknown whether the specialists are aware of the extent to which the children may have been exposed to and involved in an extreme and frightening environment of family violence.
Under the heading “evaluation”, the following matters are of significant note from the report of the family consultant.
[P] and [T] are children who have been exposed to trauma. Some of the written material suggests that trauma dates back to when they were very young, is multifarious and includes what could be defined as severe abuse of them. In addition, they were involved in the Christchurch earthquakes and, even if the impact of these was not as dramatic as the mother claims, the treating support people in their lives have understandably approached them and dealt with them as if it was. It would probably be impossible now for [P] and [T] to have uncontaminated memories of what happened.
Child abduction is known to be a traumatic event for children, whatever the reasons for its occurrence. Even children removed for valid reasons experience trauma because the removal inevitably involves loss. Removal is often swift and does not allow for planned goodbyes or arrangements for maintaining relationships over geographical distances. Whatever other trauma [P] and [T] may have experienced, they have been removed from their home country and it would be important that, whatever supportive counselling they are receiving, or may receive in the future, addresses this and all other elements of their life which have been traumatic, not only the earthquake experience.
The family consultant continues to assess that the children are not yet of maturity such that their views should be given weight.
In the final paragraph of the report, the family consultant says as follows:
[I]t is also difficult to assess the degree to which [P] and [T] are settled in Australia. All the evidence would suggest that they have never really been settled if one defines settled as being relatively free of events and circumstances which might impede attention to normal developmental tasks. It seems that the boys benefitted from focussed and useful support from numerous sources in New Zealand as they have also benefitted from such in Australia. They may have been as settled as possible in New Zealand. They may now be as settled as possible in Australia notwithstanding the uncertainty which exists about where they will live and the inevitable stress they would feel about that. Certainly another move, albeit back to a country they are familiar with and where their grandparents at least live, would involve further significant and challenging adjustment for both boys on many levels.
This report highlights one of the issues in the case, which is: On what basis does the Court determine whether the children are settled in their current environment?
The Independent Children’s Lawyer tendered (marked “exhibit ICL2”) a report from Dr A, psychologist, dated 2 July 2009. By way of background, the report states that the father was gaoled for class A and C drugs, offensive weapons and supply in 1997. He was released from gaol in September 1999. In 1999, he underwent a drug and alcohol program. The father claimed that after his motor vehicle accident in January 2007, he gave up consuming alcohol and/or drugs completely. In 2009, the boys spent five weeks with their paternal grandfather in the North Island when the mother was overseas. This appeared to be at a time when there was a very restrictive order in relation to the time the father was to spend with the children. Given the information provided to the family consultant, it appears that the children spent time with their father whilst staying in Auckland in 2009. It is not known whether that contact contravened the court order at the time.
The report notes that the father had sent presents to the boys for Christmas via their Counsel, Ms B, however, those items still remain in Ms B’s office as the mother has been opposed to the gifts and cards being given to the children.
The report notes the mother’s opposition to the boys having a relationship with the father. The report refers to conversations with the mother, the father and the children, which impact upon the mother’s stated opposition.
The report is generally very negative in relation to the mother’s attitude toward the children having a relationship with their father and very positive in relation to the father’s parenting ability. However, on page 9 of the report, the reporter notes as follows:
[W]hile [the father] professes he does not use alcohol at all, half-way during my second interview on 12 March with [the father] I wrote ‘I smell beer on him’. It will be vital that [the father] continues to control his drinking so that none of his children and …’s children are adversely affected.
The report details evidence of the children’s sensitivities to their mother’s view in respect of them spending time with their father.
“Exhibit R1” consists of daily reports in respect of T for the period 14 February 2013 to 4 March 2013. Most of the reports indicate that T has been well behaved at school. Also included are folders for each of the boys which contain certificates and merit awards from their schools. The earliest award is dated 10 December 2011. The majority of the certificates and awards appear to relate to the 2012 year. In relation to P, he has received merit cards during February 2013, other awards during 2012 both for scholastic work and sporting achievements. There is a letter from the mother of a child who had been a “buddy” to P at the school; the letter is of praise for the task that P took on. There are awards for excellence in visual art and sporting awards. The folders contain certificates and awards which would be pleasing to most parents.
Tendered in the proceedings is a folder which was marked “Exhibit A”. It contained material which had been produced to the Court on subpoena during the course of the proceeding. That document has been flagged with green and pink flags. The green flags are those of the applicant and are designed to show evidence which suggests that the children are not settled in their current environment. The pink flags are relied upon by the Independent Children’s Lawyer to demonstrate that the children are settled in their current environment.
The first document marked by each of the applicant and the Independent Children’s Lawyer is an application dated 19 July 2012 seeking additional support to enable T to attend K School. It recites a history of T’s behaviour since commencing school there in 2011. It recites that support was provided in term 3 and term 4 of 2011 to support T following his suspension from E Public School for violence soon after enrolling. It recites that T can be unsafe in his own behaviour and in the way he treats other children. It notes that he does not work well in a group, however, he does respond very well to positive reinforcement (for example, points/certificates/prizes) and his attendance was very good. The final comment on the application is as follows:
[B]ehaviour management strategies provided by ISTB have been implemented and [T] has received support in 2011 through RSSSP program and this year through the high support needs funding program. [T] has certainly shown improvement in his overall peer interaction since his enrolment at [E] in 2011. However, he continues to be highly anxious about attempting work he feels is too difficult and his classroom behaviour and playground peer interaction require constant monitoring. Despite the additional support, [T] has had to be place on two suspensions this year following incidents of violence toward other students during term one. The school’s learning support team have recommended that the option of seeking increased support through placement in an ED support class setting such as [K] school should be discussed with [T’s] mother.
Contained in the application is a segment which requires information in relation to the following:
What behavioural/emotional assessment has been undertaken? Include relevant diagnosis, assessments summarised and provide the details. Also include implications for management, teaching and learning and general comments the placement panel ought to consider.
Thereafter the following appears:
Paediatric assessment by Dr [L] on 25 August 2011 determined that [T] was ADHD (for which he is now medicated), PTSD relating to experiences in the Christchurch earthquakes and ongoing learning and behavioural difficulties. [T] was referred initially to counselling at [E] community health centre and is now attending weekly sessions with [Ms D] from [S] counselling. In addition to behavioural and emotional issues, [T] has a history of hearing impairment and has been fitted with hearing aids. His most recent audiogram indicates mild middle frequency hearing loss. AP hearing [Ms W] has provided consultancy advice to the school re: strategies for teachers working with [T]. However, he is not eligible for placement in IST hearing caseload.
[T] is currently receiving some high support needs funding support based on mental health criteria. There has been overall improvement since his enrolment in [E] Public School in August last year. However, [T’s] behaviour can still be oppositional in class and there has been ongoing incidents of physical aggressiveness towards peers during term one of this year. [T’s] mother is very supportive of this application.
The above seems to be a summary of Te’s personal difficulties and circumstances. It is a matter to which I consider it important to have regard in determining whether he is settled in Australia.
In a report prepared by Ms R, school counsellor, in relation to T, she reports information from the mother in about May of 2012 in relation to T and his home environment. She said that “since the earthquake he has been unable to sleep in his own bed.” There is no current evidence from the mother as to whether that is still the case, however it is a matter which speaks to the circumstances of T at least as at May 2012.
There is a report dated 17 September 2012 in relation to P and his suspension from E Public School between 4 September 2012 and 17 September 2012. The reason for the suspension is said to be “persistent misbehaviour or serious misbehaviour.” It reports that:
[P] has significant learning difficulties, particularly with reading and receives support through the designated teacher learning assistance program during 2012.
There is a report dated 29 August 2012 in relation to P again in respect of the period of suspension from 4 September 2012 to 17 September 2012. The stated reason for suspension is “bullying and intent to hurt a fellow student.”
There is a report dated 18 June 2012 which each of the applicant and the Independent Children’s Lawyer relies upon. In the portion of the report on page 90, under the heading “program appraisal” the following appears:
[T] has started wearing hearing aids and has responded well to his supportive classroom environment. He is beginning to attempt literacy tasks and is forming friendships with some of his peers. [T] continues to struggle with issues such as losing games. His explosive outbursts have resulted in suspension on a few occasions. His outbursts are difficult to predict. SLSO support has been given whilst on playground. ISTB has continued to consult with [E] Public school throughout this intervention, giving suggestions as needs have arisen. ISTB has also team taught in his classroom, using literature and circle time as a means of discussing emotional issues and building class connectedness. This case is being finalised as a result of the ESES initiative.
There is a notice dated 22 March 2012 advising the mother that T had been suspended from school from 22 March 2012 to 28 March 2012. The reason given for the suspension was as follows:
[F]or physical violence when he attacked students by choking and frightening them on three separate occasions on Wednesday 21 March 2012.
The applicant relies on a document titled “[P] extracted from the behaviour database”. The entries start on 16 May and conclude on 13 September. The description of behaviours falls within the category of defiant, disruptive or violent. The applicant also relies on a similar extract from a behaviour database in respect of T for the period 4 May through to 17 September. The behaviours described fall into the categories of violence, disruptive defiant behaviour, and displaying disturbed behaviour after a severe storm.
A “home school integration sheet” from K School dated 7 November 2012 in relation to T described aggressive and defiant behaviour in T during the school day. The sheet shows that until the afternoon, his behaviour was largely satisfactory, although between recess and lunch there were aspects of his schooling which were unsatisfactory. Other reports in October demonstrate unacceptable behaviour.
On 31 October 2012, a phone call was noted as having been received from T’s mother to say that something had happened in the family that had affected the boys.
The Submissions
The applicant relied on the written submissions provided and dated 7 March 2013. The applicant then addressed the submissions of the respondent. The applicant addressed the stated defences of the respondent in five categories. Those are as follows:
a)Were the children wrongfully removed to Australia?
b)Was the father actually exercising his rights of custody at the time of removal?
c)Do the children object to being returned with a strength of feeling beyond the mere expression of preference or of ordinary wishes, and have they attained an age and degree of maturity at which it is appropriate to take account of their views?
d)Is there a grave risk that the return of the children under the convention would expose them to physical or psychological harm or otherwise place them in an intolerable situation? and
e)Has the respondent established that the children have become settled in their new environment?
Was the removal of the children from New Zealand on 3 July 2011 wrongful?
Regulation 16(1A) of the Regulations describes the circumstances in which removal to or retention in Australia is wrongful. That regulation provides as follows:
16 Obligation 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.
In relation to whether the removal of the children from New Zealand was wrongful, the applicant argues as follows.
The children were under 16 years of age. There is no argument to the contrary in this case.
The children were habitually resident in New Zealand immediately prior to the children’s removal to Australia.
In her answer and cross application filed on 15 November 2012, the respondent admits that the children were habitually resident in New Zealand immediately before their removal to Australia.
The applicant submits that the father (Mr G) had rights of custody in relation to the children under the laws of New Zealand immediately before the children’s removal to Australia. This matter is not the subject of dispute in the answer filed by the respondent on 15 November 2012.
The children’s removal from New Zealand was in breach of those rights of custody. This aspect is not the subject dispute in the answer filed 15 November 2012.
At the time of the children’s removal, the father was actually exercising the rights of custody (either jointly or alone). This is the subject of dispute raised in the answer filed on 15 November 2012.
It is submitted on behalf of the applicant that the law in New Zealand as to guardianship, day-to-day care and contact in respect of a child is provided by the Care of Children Act 2004 (New Zealand), which commenced on 1 July 2005.
The applicant sets out sections 15 to 17 of the Care of Children Act 2004 (New Zealand) as follows:
15 Guardianship defined
For the purposes of this Act, guardianship of a child means having (and therefore a guardian of the child has), in relation to the child,—(a)all duties, powers, 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)every duty, power, right, and responsibility that, immediately before the commencement, on 1 January 1970, of the Guardianship Act 1968, was vested in a sole guardian of a child by an enactment or rule of law.
Compare: 1968 No 63 s 3; Family Law Act 1975 s 61B (Aust)
16 Exercise of guardianship
(1) The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian’s—
(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 development; and
(c)determining for or with the child, or helping the child to determine, questions about important matters affecting the child.
(2) Important matters affecting the child include (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.
(3)A guardian of a child may exercise (or continue to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to the child, whether or not the child lives with the guardian, unless a court order provides otherwise.
(4)Court order means a court order made under any enactment; and includes, without limitation, a court order that is made under this Act and embodies some or all of the terms of an agreement to which section 40(2) or section 41(2) applies.
(5)However, in exercising (or continuing to exercise) the duties, powers, rights, and responsibilities of a guardian in relation to a child, a guardian of the child must act jointly (in particular, by consulting wherever practicable with the aim of securing agreement) with any other guardians of the child.
(6) Subsection (5) does not apply to the exclusive responsibility for the child’s day-to-day living arrangements of a guardian exercising the role of providing day-to-day care.
Compare: 1968 No 63 s 3; Family Law Act 1975 s 61C (Aust)
17 Child’s father and mother usually joint guardians
(1)The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of subsection (2) or subsection (3).
(2)If a child is conceived on or after the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—
(a)married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor
(b)living with the father of the child as a de facto partner at any time during that period.
(3)If a child is conceived before the commencement of this Act, the child’s mother is the sole guardian of the child if the mother was neither—
(a)married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; nor
(b)living with the father of the child as a de facto partner at the time the child was born.
(3A) For the purposes of subsections (2) and (3), the mother and father of a child may be in a de facto relationship even if—
(a)either parent is under 16; or
(b)either parent is aged 16 or 17 and consent for the relationship (as referred to in section 29A(2) of the Interpretation Act 1999) has not been given.
(4)On the death of the father or the mother, the surviving parent, if he or she was then a guardian of the child, is the sole guardian of the child.
(5) This section is subject to sections 18 to 34, and therefore does not limit or affect the appointment of 1 or more additional guardians (for example, an additional testamentary guardian of the child appointed by the deceased parent under section 26(2)) or an order (relating to guardianship of the court) under section 33(1).
Compare: 1968 No 63 s 6(1), (2), (4)
The children have had established for them very good community supports. T has the benefit of attending upon Dr L. The children both receive counselling through a community centre. T is receiving specialist schooling through K School and the E Public school.
Both boys have expressed that they are happy living in Australia. The respondent describes the children as follows: “they speak freely, they laugh and joke and are full of joy”. P is clearly afraid of earthquakes having experienced them and that fear appears to be genuine and understandable.
The family consultant opines that the evidence seen by her suggests that the boys had significant difficulties in New Zealand before they came to Australia. She says the position may be that before they left New Zealand they were as settled as they could be, and that now in Australia they are as settled as they can be.
I agree with the assessment of the family consultant in that I conclude these children are as settled as they can be in Australia. I consider the evidence establishes that prior to the children’s wrongful removal from New Zealand they were unsettled. I consider that they are now far more settled both physically and emotionally than they were before they left New Zealand.
I have found that the children are now settled in Australia. I have determined there is discretion to order the return of the children to New Zealand even though I have found they are settled in Australia.
I will now turn to consider how that discretion should be exercised.
Exercise of the Discretion
What matters should be considered in determining whether to exercise discretion to return, or otherwise in this case?
The first truism which is found in W v W is the “All relevant factors must be examined”. In this case I consider the matters to be considered should include the following:
(a)The consequence which has occurred as a result of the children being in Australia since July 2011.
(b)The situation which would await the mother and children if they were required to return to New Zealand.
(c)The anticipated effect on the children of a peremptory return order.
(d)The differences in the forum.
(e)To the extent relevant the possible outcome of Family proceedings determined in either forum.
(f)Whether there are any circumstances surrounding the cause for delay in commencing the proceeding which should be considered.
(g)The extent to which the purpose and philosophy of the Convention would be at risk of frustration if a return order were to be refused in the particular circumstances of the case.
I propose to address each of the above factors.
(a)The consequence which has occurred as a result of the children being in Australia since July 2011.
The family consultant referred to the report of Dr L so far as her work with T is concerned. She said:
Dr [L’s] role in coordinating the multiple supports for [T] seems to have been invaluable. It is her expressed opinion that it would not benefit [T] to be removed from those supports.
As set out above, in the evidence of the report of the family consultant under the heading “Evaluation”, the following matters are of significant note:
[P] and [T] are children who have been exposed to trauma. Some of the written material suggests that trauma dates back to when they were very young, is multifarious and includes what could be defined as severe abuse of them. In addition, they were involved in the Christchurch earthquakes and, even if the impact of these was not as dramatic as the mother claims, the treating support people in their lives have understandably approached them and dealt with them as if it was. It would probably be impossible now for [P] and [T] to have uncontaminated memories of what happened.
Child abduction is known to be a traumatic event for children, whatever the reasons for its occurrence. Even children removed for valid reasons experience trauma because the removal inevitably involves loss. Removal is often swift and does not allow for planned goodbyes or arrangements for maintaining relationships over geographical distances. Whatever other trauma [P] and [T] may have experienced, they have been removed from their home country and it would be important that, whatever supportive counselling they are receiving, or may receive in the future, addresses this and all other elements of their life which have been traumatic, not only the earthquake experience.
Further to the above, the family consultant said:
Certainly another move, albeit back to a country they are familiar with and where their grandparents at least live, would involve further significant and challenging adjustment for both boys on many levels.
Although Kay J said in DOCS v CR at [51] “The question is not whether the return of the child will unsettle it, but simply whether the child is so settled” he was referring to the circumstances in which the court might determine if a child is “settled in a new environment” in circumstances where an application has been filed more than 12 months after the wrongful removal of a child. It seems to me that the impact on a child of returning the child to the convention country from which he/she was wrongfully removed is a matter which the court may properly have regard to when assessing whether to exercise the discretion to return a child notwithstanding the respondent has satisfied the court that the child is settled in the new environment.
As set out earlier I have determined that the children are settled in Australia. The time they have spent in Australia together with the circumstances in which they have been cared for by the mother and others during that period have led to that circumstance.
(b) The situation which would await the mother and children if they were required to return to New Zealand.
If I were to order the children to return then the respondent mother has said that she would also return. This is not a case where the mother has said she would not return to New Zealand even if there was a return order for the children. There is no evidence that the mother would have available to her any accommodation in New Zealand other than with her parents. It certainly seems that the children would be very apprehensive about returning to the earthquake area in Christchurch.
Further, the mother has employment in Australia. She did have employment in New Zealand in the Christchurch area however that employment was lost to her when the earthquakes hit. There is no evidence to suggest the father is able to provide any financial support. The evidence is that he was severely debilitated following a motor vehicle accident. Thus the mother would be, at least initially, dependant on the State of New Zealand to provide housing and financial support for herself and the children.
There is nothing to suggest that the children would be able to return to the schools they attended before they left New Zealand. P is now at High School and would probably have to attend a new school in any event.
Assuming that there are similar supports in the community in New Zealand wherever the mother and children might be able to find accommodation, the children would nonetheless have to establish new counselling and therapeutic relationships in that community or potentially re-establish former therapeutic relationships. They would also, probably, have to establish new friendships.
If the children were returned to New Zealand, it would be probable they could resume a relationship with their father. That relationship would have a greater prospect of face to face time than if the children remain in Australia. However, the frequency with which the children might be able to have face to face time with their father would be determined to some extent by factors such as where the mother was able to obtain accommodation and employment. If that happened to be on the North Island rather than in the Christchurch area where the father is living, then the financial capacity of the parents to be able to fund travel to enable face to face time for the children and the father could limit the opportunities significantly. Further there is nothing to say that travel for the children to New Zealand to spend time with the father or for the father to travel to Australia to see the children are unattainable.
Both Australia and New Zealand subscribe to the philosophy, through their respective Family Law legislation, that children should be able to experience positive and fulfilling relationships with each of their parents absent there being any aspect of parenting which would see such a relationship as not in the children’s best interests. Subject to there being evidence that the father has controlled his alcohol intake, his drug use and his violence there seems no apparent reason why the children would not benefit from spending time with him.
The mother has raised the possibility of being prosecuted in New Zealand arising from her removal of the children on a permanent basis from New Zealand. Her concern appears to have arisen as a result of a comment made by a Judge in New Zealand who was considering the making of further parenting orders after the mother left with the boys. There is no detail of the basis upon which she might be charged or the penalty which might be imposed. Relevantly, if she was so charged it is reasonable to predict that she would suffer anxiety whilst ever the proceeding remained unresolved and that would affect the way in which she could best parent the children.
I need to consider that if I do make a return order then I can impose conditions on it, provided they are not too numerous and extensive. Those conditions can provide for matters such as the provision of accommodation for the mother and children, maintenance and/or support for the mother and children, provision for an early hearing of the mother’s application to be able to remove the children to live in Australia.
(a)The anticipated effect on the children of a peremptory return order.
As anticipated by the Family Consultant and Dr L, it would be reasonable to predict a return to New Zealand would involve significant and challenging adjustment for both boys. Clearly the circumstances of where they lived and the support their mother was able to receive in New Zealand would impact upon the severity for the children of that adjustment process.
A return would see a removal from the family environment which has included the children’s brother and his partner for nearly two years. The boys both clearly enjoy a warm relationship with their brother and his partner.
Another anticipated effect on the children would be at least a short term reducing of the standard of living they are enjoying in Australia. Their mother has employment and she is able to share expenses associated with accommodation with M and his partner. If she returns to New Zealand there is nothing to suggest that employment will be immediately available to her and she will not have the financial support she currently receives through M sharing her accommodation.
I take into account the mother’s evidence that the children now present as being able to “speak freely, they laugh and joke and are full of joy”. There is a reasonable inference that would change in the short term at least if the children were returned.
(b) The differences in the forum.
Australia and New Zealand have very similar legal and Government systems. Our Family Law is almost identical in relation to parenting cases. There is no evidence to suggest one forum would be more advantageous to the mother or father or to the children.
(c) To the extent relevant the possible outcome of Family proceedings determined in either forum.
It seems reasonably predictable that the only matter for consideration before a court in either Australia or New Zealand would be the circumstances in which the children might spend time with the father. Given the evidence already before the court it is reasonable to predict that the children would be able to spend time with the father either with or without supervision. The costs surrounding the children spending time with the father may be a problem given that the father apparently has no employment and has not been able to provide financial support for the children in the care of the mother.
(d) Whether there are any circumstances surrounding the cause for delay in commencing the proceeding which should be considered.
In this case the father applied to the Central Authority in New Zealand for action under the Convention in December 2011. There is no evidence that the mother has done anything to avoid detection in Australia. The children have been enrolled in schools under the same names they have used in New Zealand. The evidence suggests the mother did not make contact with the father to give him precise details of where she was living. The court knows that service was attempted on an address in X (a Sydney suburb) and after some initial difficulty the mother presented herself before the court.
There does not appear to be anything surrounding the circumstances giving rise to the late filing of the application which could be fairly visited upon either the father or the mother.
(e) The extent to which the purpose and philosophy of the Convention would be at risk of frustration if a return order were to be refused in the particular circumstances of the case.
The purpose and philosophy of the Convention includes the “prompt return” of children to their country of habitual residence. That cannot be achieved in this case because nearly two years has now expired since the children were removed to Australia.
There is nothing about this case which failure to make a return order is likely to see other parents take the risk of removing children from New Zealand or from Australia. The case will stand for no more than a finding of wrongful removal, a delay of more than 12 months before proceedings commenced and a finding that the children are settled in their current environment. It will also show that there are circumstances relating primarily to the particular circumstances of the children which would warrant the court refusing a return order should that be the result.
CONCLUSION
Having considered all those matters, I conclude that the balance falls against making an order for the return of the children. These children have significant emotional and/or psychological disturbances. They were significantly unsettled and disturbed children before they left New Zealand. The evidence satisfies me that they are as settled as they can be at the moment in Australia. The evidence satisfies me that if they were returned to New Zealand at this time, such a return would involve further significant and challenging adjustment for both boys on many levels. It would see their standard of living drop immediately and it may not re-achieve its current level. There is no guarantee that a return will see the children being able to enjoy frequent time with their father. It seems more probable than not that if the mother was required to return to New Zealand she would be reluctant to return to Christchurch because of the anticipated anxiety that would provoke in the children given their experience in living there during the earthquakes. If she was forced to seek work and housing on the north island of New Zealand that would predictably place a considerable hurdle in the ability of the father to see the boys frequently because of cost of travel and distance.
OTHER DETERMINATIONS TO BE MADE.
The parties identified issues for determination at the commencement of the hearing as follows:
a)Whether the children are settled in Australia (see Regulation 16(2));
b)Whether there is discretion to order the return of the children to New Zealand should the Court determine that the children are now settled in Australia.
c)Whether there is a grave risk that returning the children to New Zealand will expose them to physical or psychological harm or otherwise place them in an intolerable situation (see Regulation 16(3));
d)Whether the children object to being returned and, if so, whether the children’s objections show a strength of feeling beyond the mere expression of a preference or of ordinary wishes (see Regulation 16(3)(c)(ii)); and the child has attained an age and a degree of maturity at which it is appropriate to take account of his views (see Regulation 16(3)(c)(iii));
e)Whether the father was exercising his rights of custody at the time of the alleged removal or retention of the children (see Regulation 16(1A)(e)(i) and (ii)). This issue was conceded by the respondent in her written submissions. She concedes the father had rights of custody in relation to the children and that he was actually exercising those rights.
Having determined that an order will not be made to return the children to New Zealand, it becomes unnecessary for me to determine the remaining defences relied upon by the respondent. I am able to say that the evidence of the family consultant would convince me that the defence of “the child objects” would not be established.
In relation to the “grave risk” ground, I make no comment in relation to whether that ground may be able to be established. It seems to me that there are substantial arguments which may be put by both the applicant and the respondent. In fairness to the parties this ground was not the subject of extensive submission or oral argument because the focus of the Court and the parties was the issue of whether the children were settled and whether the Court should exercise any discretion it has, should it find the children are settled in Australia, to return them in any event.
The Orders to be Made
I therefore propose to make an order dismissing the application.
I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 1 May 2013
Associate:
Date: 1 May 2013
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