Department of Human Services, Community Services and Gordon - [2010] FamCA 308

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF HUMAN SERVICES, COMMUNITY SERVICES & GORDON

[2010] FamCA 308

FAMILY LAW – CHILD ABDUCTION – Hague Convention - Children brought to Australia from New Zealand - Wrongful removal - Mother relied on defences including that the children object to their return to New Zealand and that return to New Zealand would expose them to a grave risk of harm - Defences not established - Children to be returned to New Zealand

Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Family Law Act 1975 (Cth) s 111B
Care of Children Act 2004 (New Zealand) ss 17, 97,

Cooper and Casey (1995) 18 Fam LR 433
De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640
DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401
DW and Director General, Department of Child Safety (2006) FLC 93-255
Gsponer v Director-General, Dept of Community Services, Victoria (1989) FLC 92-001
HZ v State Central Authority (2006) FLC 93-264
JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 40
LK v Director-General, DCS (2009) 40 Fam LR 495
Murray v Director of Family Services ACT (1993) FLC 92-416
Panayotides v Panayotides (1997) FLC 92-733
Police Commissioner of South Australia v Temple (No. 1) (1993) FLC 92-365
Povey v QANTAS Airways Ltd (2005) 223 CLR 189
Punter [2007] 1 NZLR 40
Re B (Minors) (Abduction No. 2) (1993) 1 FLR 993
Re F (a minor) (Child Abduction) (1992) 1 FLR 548
Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562
Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264

APPLICANT:

Director-General Department of Human Services, Community Services

RESPONDENT:

Ms Gordon

FILE NUMBER:

(P)SYC

962

2010

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

22 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:

Legal Services Unit

Department of Human Services, Community Services

RESPONDENT:

In person

Orders

The Court declares that the removal by the mother of the children L (female) born … May 2000 and A (female) born … August 2002 from New Zealand on 13 June 2009 and the retention of the children by her in Australia was wrongful within the meaning of Article 3 of the Abduction Convention.
That the applicant and respondent make such arrangements as are necessary to promptly ensure the return of the children L (female) born on … May 2000 and A (female) born on … August 2002 to New Zealand on a date no earlier than 14 days after the date of these orders.
That the applicant and respondent cooperate to the extent required to enable the abovenamed children return to New Zealand in the company of the mother should she, at her own expense, wish to accompany them.
That the father pay the costs of the children’s airfares to give effect to order (2) above.
That orders 1.1 and 1.4 of the orders dated 22 February 2010 are varied to allow the mother born … 1964 and the children L born … May 2000 and A born … August 2002 to depart Australia in accordance with the orders of this Court and the Australian Federal Police give effect to this order.
No later than 7 May 2010 the Registrar of the Family Court of Australia shall hand over the abovenamed children’s passports to the applicant and handover the mother’s passport and any air tickets which were deposited with the Registrar by the mother relating to herself and the children L born … May 2000 and A born … August 2002 to facilitate the return of the children named in this order to New Zealand.
That prior to the departure of the mother and the abovenamed children from the Commonwealth of Australia for New Zealand in accordance with these orders the Australian Federal Police shall remove their names from the P.A.S.S. alert system in operation at all Australian International arrival and departure points.
That following the departure of L born … May 2000 and A born … August 2002 from the jurisdiction of the Commonwealth of Australia all other orders made by this Court in relation to this matter are discharged.
Liberty to apply to vary, suspend or set aside any of the machinery orders contained above upon 24 written notice being given to a Registrar of the Court and the other party.

IT IS NOTED that publication of this judgment under the pseudonym Department of Human Services, Community Services & Gordon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)SYC 962 of 2010

DIRECTOR-GENERAL DEPARTMENT OF HUMAN SERVICES, COMMUNITY SERVICES

Applicant

And

MS GORDON

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth). By these regulations Australia ratified the Hague Convention on the Civil Aspects of International Child Abduction, (“the Abduction Convention”). The Abduction Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting states. The Director-General of the Department of Human Services, Community Services, as the relevant Central Authority (“the Central Authority”) in Australia, started these proceedings with an application filed in this Court on 17 February 2010. It is the application of the Central Authority that orders are made which would have the effect of returning two children, L born in May 2000 and A born in August 2002 (“the children”), to New Zealand.
On 13 June 2009, Ms Gordon (“the mother”) left the family home in Auckland, New Zealand with the children and travelled to Australia. The children’s father, Mr M, (‘the father’) had not been consulted by the mother about her intention to remove the children from New Zealand.
When the father discovered that the children were missing he immediately contacted police and reported them missing. About one week later, via the parties’ adult son, police informed him the mother and children were in Australia.
On 9 February 2010, the New Zealand Ministry of Justice requested Australia to return the children to New Zealand pursuant to the Abduction Convention. Australia accepted the New Zealand Central Authority’s request and commenced these proceedings.
The mother was self-represented in these proceedings. It is her contention that the application by the Central Authority should be dismissed. It was difficult to discern with certainty the basis for her dismissal application but, as I understood it, she did not assert that the Abduction Convention does not apply. The focus of her submissions seem to be upon possible defences including, that the children object to being return to New Zealand and that return to New Zealand would expose them to a grave risk of physical or psychological harm. If the mother established one of these defences, she said that the Court should exercise its discretion not to return the children to New Zealand. If the Court ordered that the children return to New Zealand, the mother said she would return with them.
The Central Authority carries the onus of establishing that the Abduction Convention applies to the child. As a threshold requirement reg 16(1A) provides that a removal or retention is wrongful if:
a)the child was under 16; and
b)the child habitually resided in the 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.
In this case if the Central Authority established those elements required by reg 16(1A), unless the mother was able to establish one of the Abduction Convention defences I am obliged to order the children’s return to New Zealand.

A hearing determined without cross-examination

The parties decided that the hearing would be determined without cross-examination. I contemplated whether it would nonetheless be appropriate for the Court to test contentious matters. However when I considered the limited nature and extent of the contentious matters it seemed to me nothing useful to the forensic process would be likely to result from so doing.
I have applied the approach adopted by Jordan J, which was cited with approval by the Full Court in Panayotides v Panayotides (1997) FLC 92-733 per Fogarty and Baker JJ (with whom Finn J agreed), namely:
The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the Court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F [1992] 1 FLR 548). As was submitted by counsel for the Central Authority, I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help to determine that issue.
See also HZ v State Central Authority (2006) FLC 93-264 where the Full Court accepted the trial judge’s approach which adopted Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F (supra), at page 554, as follows:-
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. If 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 however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.

Background facts

The father was born in 1964 in Auckland. He is a New Zealand citizen.
The mother was born in 1964 in Auckland. She is a New Zealand citizen.
In 1982 the mother and father began living together and thereafter resided in a de facto relationship until they separated. The mother and father resided in the same home, pooled their finances and regarded all expenses as joint expenses. Their relationship was sexually exclusive. Publically they presented as a couple.
In addition to the subject children, the mother and father have three elder children. They are N who is 27, J who is 24 and S who is 21.
The child L was born in Auckland in May 2000. The father was present at her birth. L is a New Zealand citizen.
The child A was born in August 2002 in Auckland. The father was present at her birth. A is a New Zealand citizen, who until her removal had always lived in New Zealand.
The father says that towards the end of 2008 the parents began to have difficulties in their relationship. The mother is of the view that their relationship difficulties were of longer duration. In any event they continued to live together in a de facto relationship.
It appears that during 2008 the mother formed an internet relationship with Mr H who lived in Australia.
In about February/March 2009 the father logged on to an internet poker site using the mother’s poker ID. It was the mother and the father’s practise to share this one ID for this purpose. The father was surprised to read a message from Mr H in which Mr H professed his love for the mother. It was apparent to the father that Mr H thought he was communicating with the mother. This discovery heightened the strain in the parents’ relationship.
The mother agrees with the father’s evidence they argued because he believed she had formed an internet based relationship with Mr H. According to her, matters came to a head in about March 2009 when the father hit her. Not long afterwards she decided to separate from the father and move to Australia.
In about late May 2009 there was an ugly altercation between the parties. They argued at length after which the father tried to hang himself in the subject children’s bedroom. The following morning he drank a considerable amount of bourbon. Afraid of the deteriorating situation in the home the mother and children went to a neighbour’s home. Apparently the neighbours had been able to hear the shouting and screaming coming from the parents’ home and called police. Police removed the father from the home.
Later that evening the father returned to the family home near Auckland. Upon his return he discovered the mother and children were gone. Unknown to the father they were in a women’s refuge. The father enquired of neighbours and police concerning the mother and children’s whereabouts.
About two weeks later, the mother and children departed New Zealand for Australia.
The father remained in contact with police until he was informed that the mother and subject children had departed New Zealand for Australia.
Within about a week the father contacted the Citizen’s Advice Bureau who provided him with the names of several lawyers. The process of retaining a lawyer and obtaining advice took some time and it was only in January 2010 that the father was advised he could obtain assistance through the Central Authority in Wellington.
On 9 February 2010 the New Zealand Ministry of Justice requested that Australia return the children to New Zealand pursuant to the Abduction Convention.
On 11 February 2010 Australia accepted the request by the New Zealand Central Authority and instructed the Department of Human Services, Community Services to institute these proceedings.
On 17 February 2010 the Director General of the Department of Human Services commenced these proceedings.
On 22 February 2010 this Court made ex parte interim orders. These orders are set out bellow:
IT IS ORDERED:
1.That orders are made in accordance with paragraphs 1, 4, 5, 6, 7 as amended, 8 and 10 of the Application by the Director-General of the Department of Human Services, Community Services filed on 17 February 2010 as set out hereunder:-
(1)That until further order the respondent Mother, [Mr Gordon] and/or any other person be restrained from removing the children [L] (female) born […] May 2000 and [A] (female) born […] August 2002 from the Commonwealth of Australia until further order of this Court and that the Australian Federal Police give effect to this order.
(4)That until further order, the respondent Mother, [Ms Gordon] born […] 1964 surrender forthwith to the Registrar of the Family Court of Australia, all current passports and air tickets relating to herself and the children [L] (female) born […] May 2000 and [A] (female) born […] August 2002.
(5)That until further order, the names of the respondent Mother, [Ms Gordon] born […]1964 and the children [L] (female) born […] May 2000 and [A] (female) born […] August 2002 be placed upon the P.A.S.S. alert system at all Australian international arrival and departure points as soon as possible.
(6)That unless the Court otherwise orders the names of the children and the respondent on the PASS Alert system shall lapse 12 months from the date the names were placed on the PASS Alert system.
(7)That the respondent Mother, [Ms Gordon] born […] 1964 be served with sealed copies of the application and the annexures and of these orders no later than 1 March 2010 and that the application be returnable before this court on 8 March 2010.
(8)That sealed copies of this Application and these orders be served upon the Commissioner, Australian Federal Police.
(10)That the parties are at liberty to apply herein on twenty-four hours notice.
The mother was served in accordance with the orders.
On 8 March 2010 the solicitor representing the Central Authority and the mother appeared before a Judicial Registrar. The Judicial Registrar made the following orders:
IT IS ORDERED:
1.That orders be made in accordance with the Minute of Order filed in Court today, signed by Judicial Registrar Johnston, placed with the Court papers and set out hereunder:
1.That the respondent mother file and serves her Form 2A and any material upon which she is seeking to rely on upon this matter by 29 March 2010.
2.That the Central Authority file and serves any material in reply by 12 April 2010.
3.That a report be prepared by a counsellor as to:
· Whether the children object to a return to New Zealand; and
· Whether the children have attained an age and degree of maturity at which it is appropriate to take into account the children’s views.
4.Leave be given to the applicant to release the report to the Commonwealth Central Authority, the New Zealand Central Authority, the father’s legal representative and the father.
5.That the matter be listed for a hearing before a judge on 19 April 2010. Time estimate 1 day.
On 23 March 2010 Ms F, who is a Family Consultant, interviewed the mother and children for a Hague Report. Ms F’s report, dated 6 April 2010, is attached to her affidavit of the same date. Ms F reached the following conclusion:
17.[L] and [A] both report a home environment in New Zealand which featured “fighting” between their parents which made them “scared” to the point that they would leave the house to be cared for by a neighbour. Both are anxious that returning would expose their mother to the fighting (and danger) again.
18.At the same time, the children very much miss their father, family and other people and pets in New Zealand and would like to visit their father as long as their mother was not also there because of their concerns for her safety.
19.Both children seem to have adjusted to their new life in Australia but both are “sad” and experiencing significant loss.
20.While both girls are articulate and reflective and do not appear to have been strongly influenced by anyone, their understanding of the totality of their circumstances is limited by their maturity which is commensurate with their ages. As one would expect of nine and seven year olds, they accept what has happened to them and do not seem to have remonstrated about it to any great degree. They clearly expect that adults will make decisions for them and that they will have to adapt. They have done so, at least outwardly. They are too young to understand complexities such as that it might be possible for them and their mother to return to New Zealand without their mother necessarily being exposed to danger from their father.
21.It could not be said that [L] or [A] “objected” to the idea of returning to New Zealand to live. They are both clearly ambivalent and confused about whether that would be a good or bad thing. Neither has, in any case, reached an age or maturity at which it is appropriate to take into account their views. Significantly, for them at this point in time, they are grieving the loss of loved ones with whom there has, according to them, been no contact since they left New Zealand. This is an unsatisfactory situation for them and could have long term consequences for their psychological well being if not addressed expediently.

Ms F was not cross examined. Based on the evidence to which Ms F had regard on the material available to the Court I am satisfied her opinion is well founded and warrants considerable weight.
The mother failed to comply with the trial directions the reason for which she explained related to her inability to obtain legal aid.
On 15 April 2010 I caused the proceedings to be listed. On that day the solicitor for the Central Authority appeared, as did the mother, before me by telephone. I made the following notations and directions:
THE COURT NOTES:
1.That of its own motion these proceedings were listed for mention at 2.00 pm today.
2.The mother has failed to comply with the directions made on 8 March 2010 that she file and serve a Form 2A and any material upon which she relied by 29 March 2010.
3.It is the mother’s intention to defend the application by the Central Authority.
4.The mother is presently unable to indicate the basis upon which she will defend the application by the Central Authority.
5.So as to give the mother additional time to prepare her case the Court of its own motion proposed an adjournment of the hearing from 19 to 22 April 2010.
BY CONSENT IT IS ORDERED:
6.The hearing of this matter is adjourned to 10.00 am on 22 April 2010.
On 19 April 2010 the mother filed an affidavit. The mother did not file a Form 2A. From her affidavit it appeared that the mother opposed the children’s return primarily reliant upon reg 13(b) and 13(c).

Applying the law to the facts

Both children are under the age of 16.
Although it did not appear to be at issue, it is appropriate to consider whether the children were habitually resident in New Zealand immediately prior to their removal to Australia.
The term “habitual residence” is not defined in the Regulations, which determine the operation of the Abduction Convention in Australia, or the Abduction Convention. One must look to the case law, both local and of other contracting states, for guidance. This is permissible because international treaties should be interpreted uniformly by contracting states. Povey v QANTAS Airways Ltd (2005) 223 CLR 189.
In a seminal decision concerning the term “habitual residence” Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578-579, Lord Brandon of Oakbrook said:
It follows, I think, that the expression is not to be treated as an expression of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to not take up long term residence in country B instead. Such a person, cannot however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.
In Cooper and Casey (1995) 18 Fam LR 433 at 435 the Full Court cited with approval Waite J in Re B (Minors) (Abduction No. 2) (1993) 1 FLR 993 at 994 where it was held:
Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F above the Court of Appeal approved the judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.
Reference to Re F is reference to a decision of the Court of Appeal in Re F (a minor) (Child Abduction) (1992) 1 FLR 548. There, Butler-Sloss LJ adopted Lord Brandon of Oakbrook’s above quoted opinion in support of her conclusion that: “A young child cannot acquire habitual residence in isolation from those who care for him. While (the subject child) lived with both parents, he shared their common habitual residence or lack of it”.
The Full Court considered the authorities on the question of habitual residence, citing with approval those referred to above in DW and Director General, Department of Child Safety (2006) FLC 93-255. There, at par 43, Finn and May JJ in the majority held:
Subsequently in Panayotides (1997) FLC 92-733 at 83,897 the Full Court majority (Fogarty and Baker JJ) quoted with apparent approval the following passage from the judgment of the trial Judge in that case, Jordan J (emphasis added):
The question of habitual residence has been the subject of much judicial deliberation, and I have been referred to numerous authorities in that regard. From those authorities, the following principles emerge:
(1)the expression “habitually resident” is not to be treated as a term of art with some special meaning, but rather it is to be understood according to the ordinary literal meaning of the two words used (see, In re J (a minor) (1990) 3 WLR 949);
(2)the question of whether a person is or is not habitually resident in a specified country is a question of fact to be determined by reference to all the circumstances of the case (see, In re J (a minor) (supra);
(3)the habitual residence of a child whose parents reside together is the habitual residence of those parents (see, Re B (minor) (1993) 1 FLR 993);
(4)it is not possible for one parent to unilaterally determine a child’s habitual residence by removing that child (see, State Central Authority v McCall (1995) FLC 92-552);
(5) habitual residence refers to the parents’ habitual abode in a country:
Which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being whether it is of short or long duration.’
(See, re B (minor) (supra) p.995).
I expressly adopt the aforementioned observations and those of Kay J in the Department of Health and Community Services v Casse (1995) FLC 92-629, wherein his Honour said:
All that the law requires for a “settled purpose” is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.’
I do not accept an interpretation of the proposition advanced in In re J [supra], wherein it might be argued that the reference in that decision to “an appreciable time” was intended to be construed as meaning a long time. In my view, once an intention to adopt an habitual residence has been reached and acted upon in a decisive way so as to provide a degree of certainty and continuity, then it may be open to a Court to find that habitual residence has been changed from that point.
It is important, we think, to observe that this emphasized passage is virtually a direct quote of the second of the three principles which Waite J in Re B extracted from the English authorities and which was approved and adopted for Australia by Nicholson CJ (with whom the other members of the Full Court concurred) in Cooper v Casey.
Habitual residence and the role of intention in the establishment of habitual residence was recently considered by the High Court in LK V Director-General, DCS (2009) 40 Fam LR 495. It is clear that the authorities cited above remain good law. Their Honours referred with approval to Punter [2007] 1 NZLR 40 and in particular quoted Anderson P, Glazebrook, William Young and O’Reagan JJ who said :
[88] Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at [22], the underlying connection between the child and the particular state.
Reference to settled intention does not import the approach to intention used in the application of the law of domicile.
In LK v Director-General, DCS the High Court pointed out that a person’s intentions may be ambiguous and that “individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future may hold.” Because of the potential significance to this case it is appropriate to quote fully the remarks next made by their Honours:
[33] Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.
[34] Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
It follows that the authorities concerned with habitual residence do not comprise a closed list of considerations nor establish principles of general application which predetermine the weight to be given to particular factors.
Turning then to the facts in this case. Prior to the children’s removal to Australia they resided with their mother and father in the family home near Auckland. The mother and father lived in a long term de facto relationship. Although the father’s name is not recorded on either child’s birth certificate the mother agreed that he is their father. Thus the by virtue of s 17 of the Care of Children Act 2004 (New Zealand) the mother and the father are joint guardians of the children. Not only had the mother and father made their home in New Zealand, they also made this the children’s home. The evidence supports an inference that not only were the children born in New Zealand, but prior to their removal to Australia this is where they had always resided. The inference is consistent with the children’s discussion of their lives in New Zealand with the Family Consultant.
The mother did not consult the father about the children’s removal from New Zealand. Without forewarning him that she intended to remove the children there can be no doubt that he did not consent to the children’s removal. The point being that the father cannot be said to have agreed to change the children’s habitual residence unless he was aware there was a proposal to do so. It follows that the parents did not have a shared intention to abandon the children’s habitual residence in New Zealand.
When the mother left New Zealand on 13 June 2009, she abandoned New Zealand as her place of habitual residence. However, she was not able to make such a decision for the children unilaterally. In those circumstances I am satisfied that immediately prior to the children’s removal, they were habitually resident in New Zealand.
Although the issue did not appear contentious, it is appropriate to record my satisfaction that immediately prior to the children’s removal from New Zealand the father had rights of custody, as that term is used in the Abduction Convention, which he was then exercising. The Abduction Convention requires that the right of custody issue is determined by application of the laws of the place where the child is habitually resident. That is, in this case, by reference to New Zealand law. The Court received an affidavit sworn by Emma Parsons who is a barrister of the High Court of New Zealand. Having reviewed the father’s evidence about the nature of the parent’s relationship, Ms Parsons expressed the opinion that this relationship would constitute “a de facto relationship in terms of the Care of Children Act 2004. Consequently, as a guardian of the children she said:
9.….. he has the powers conferred to in section 15 which states:
“15 Guardianship Defined
For the purposes of the Act, guardianship o (sic) a child means having (and therefore a guardian of a 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 of, 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.”
10.The effect of guardianship at New Zealand law is defined by section 16 of the Care of Children Act 2004, which provides as follows:
“16 Exercise of guardianship
(1)The duties, powers, rights and responsibilities of a guardian of a child include (without limitation) the guardians:
(a)having the role of providing day to day care for the child (however, under section 26(5), no testamentary guardian of a child has that role just because of an appointment under section 26); and
(b)contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and
(c)determining for or with the child, or helping the child to determine, questions about important matter affecting the child.”
11.Furthermore subpart 4 containing sections 85 to 124 of the Care of Children Act 2004 was enacted to implement the Hague Convention on the Civil Aspects of International Child Abduction.
12.Section 97 of the Care of Children Act 2004 defines “rights of custody” as follows:
“For the purposes of this subpart, rights of custody, in relation to a child, include the following right attributed to a person, institution, or other body, either jointly or alone, under the law of the Contracting state in which the child was habitually resident immediately before the child’s removal or retention:
(a)rights relating to the care of the person of the child (for example, the role of providing day-to-day care for the child); and
(b)in particular, the right to determine the child’s place of residence.”
13.In the Court of Appeal case of Gross v Boda [1995] NZFLR 49, (1994) 12 FRNZ 564, [1995] 1 NZLR 569 the Court of Appeal determined as follows:
(a)That custody and access rights were not mutually exclusive;
(b)That parents who have joint rights to determine a child’s place of residence each has rights of custody irrespective of the existence of a custody or care order.
14.These findings were later refined by the Court of Appeal when the matter was revisited in Dellabarca v Christie [1999] NZFLR 97, (1998) 17 FRNZ 636, when the Court of Appeal held:
“(a)The right to determine the child’s residence is but one of many qualifying rights.
(a)It is not necessary to establish only that there is a right to determine the child’s residence;
(b)The expression “rights of custody” and the part definition of “rights relating to the care of the person of the child” are to be given their ordinary meaning. These two expressions are broad and not necessarily confined to national concepts of “guardianship” or “custody”.”
15.In the 2009 Court of Appeal decision of Fairfax v Ireton [2009] NZCA 100, the decisions of Gross v Boda and Dellabarca v Christie were confirmed.
I accept Ms Parson’s opinion that the father had rights of custody as defined in s 97 of the Care of Children Act 2004 (New Zealand) which included the right to determine the children’s place of residence. The father’s evidence of cohabitation with the children and mother establishes that immediately prior to the children’s removal he was exercising rights of custody.

Regulation 13 defences

By reg 13:
A court may refuse to make an order under sub-reg 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.
(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;
See also s 111B(1B) Family Law Act.
The mother carries the onus of proof in establishing the defences by reference to the balance of probabilities. In the event a defence is established this enlivens the Court’s discretion not to order the children’s return.
Consistent with my earlier findings concerning rights of custody, I am satisfied that at the time of the children’s removal the father was exercising rights of custody.
It was not contended by the mother that the father consented to her removal of the children.
The father has explained to the Court’s satisfaction the reason for the amount of time which elapsed between the children’s removal and completion by him of an application pursuant to the Abduction Convention for their return. The time taken, given the father’s explanation for it, would not support an inference that he acquiesced or allowed the mother to believe he acquiesced to the children’s retention in Australia. See for example, Police Commissioner of South Australia v Temple (No. 1) (1993) FLC 92-365.
The next issue that requires consideration is whether the children’s return to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation. To establish this defence the degree of risk to the children must be grave.
The leading authority on these issues is DP v Commonwealth Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) 206 CLR 401. There, Gauldron, Gummow and Hayne JJ [at pp 417-418] held:
[40] So far as reg 16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that ‘there is a grave risk that [his or her] return ... would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. If it does or if, on the evidence, one of the other conditions in reg 16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced.
‘Narrow construction’?
[41] In the judgment of the Full Court of the Family Court which gives rise to the first of the matters now under consideration (DP v Commonwealth Central Authority) it was said that there is a ‘strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed’ [37] . Exactly what is meant by saying that reg 16(3)(b) is to be narrowly construed is not self-evident. On its face reg 16(3)(b) presents no difficult question of construction and it is not ambiguous. The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in ‘an intolerable situation’. That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.
[42] Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description ‘grave’. Leaving aside the reference to ‘intolerable situation’, and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
[43] Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence [38] . The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

In the mother’s affidavit, which was filed after the Hague report was released, she gave evidence concerning pre-separation violence and abuse in the home. The mother spoke of the father’s emotional and verbal abuse of she and the subject children. The father is portrayed as moody and having made it hard for the mother “to keep a strong relationship with my family and friends.” She gave evidence about an incident where the parents argued about the mother’s request to visit her dying grandmother. The mother said the father “threw a chair onto my foot.” Her foot was bandaged and she required crutches. According to the mother the situation in the family home deteriorated during the five years preceding separation “to the point we were constantly arguing over any little thing and I could as a mother see it was affecting the kids. Seeing them in fear and hurting because of it.”
The mother said the situation came to a head in March 2009. According to her: “Out of the blue [the father] hit me. I had already warned him during our relationship if he ever hit me it was over. From that day on until we finally left I was living in fear of him. I couldn’t stand the thought of him touching me. It was so bad that I couldn’t stand the sight of him.” During this period the mother said: “He threatened to kill me and even hurt my kids.” According to the mother, this was the catalyst for her decision to separate. Two weeks before the mother planned to surreptitiously depart New Zealand with the children, the parties argued. The mother said: “He then goes into my girl’s bedroom where they were sleeping and tries to hang himself. How selfish is that and it wasn’t the first time he had done this in front of me and the girls. He even threatened me in front of the girls saying if I can’t have you no one can I will slit your throat.” The father does not challenge the mother’s evidence he threatened her and the children or that he tried to hang himself.
It appears the situation resolved somehow but that throughout the night the parties continued to argue. The following morning, having been abstinent for six years, the father began to drink a two litre bottle of bourbon. Concerned that the situation would deteriorate further the mother sent the subject children to a neighbour’s house. By then the father was in a rage and the mother went with them. The father deduced the mother was likely to be at the neighbour’s house and she saw him “pacing up and down outside [the neighbour’s] house and yelling abuse and threats.” Police were called and the father was taken away to sober up. When police released the father about four hours later he returned to the neighbour’s house where he paced outside yelling abuse. With the neighbour’s assistance, the mother and subject children left that night to a women’s refuge. There they remained for two weeks until the mother and children departed for Australia on 13 June 2009.
The father does not challenge the mother’s evidence of events on the day the parents separated. He said the situation was entirely out of character for him.
Through the children information was provided to the Court about domestic violence in the parent’s home prior to separation. For example, the Family Consultant reported that L:
5.Told me her mother had brought her and her sister to Australia because “Dad threatened Mum”. She said that her father “be’s really silly when he drinks” and that he was not supposed to drink because of this. She said that her parents had fought since she was “about five” and that when the fights were occurring she and her sister would go to a friend’s place and hide until the fighting had stopped. She also said that “Dad tried to hang himself”, more than once, and that she and [A] had seen this.
6.[L] described herself as “pretty scared” during all these episodes. She added that the fighting had been “annoying” and had made her feel angry at times.
8.[L’s] ambivalence and confusion about all of this was evident when she said that what she would most like would be for “Mum and Dad to make up and be friends and get back together” and for her, her mother and [A] to go back to New Zealand but then immediately added, “but I want Mum not to get hurt so no, I don’t want to go back. It would be better to stay here. Mum won’t get hurt … And she’d miss [Mr H]”. She added that her mother is “really happy” in Australia.
9.[L] said that when her father is not angry he is a “fun Dad”, that he gives her and [A] money to buy things and that he plays with them. She said that if she were to stay in Australia she would like [A] and herself to visit New Zealand and see their father. She thought her mother might not go too but that that would be alright. [L] misses her “Dad” “very much” but she would be scared if he were to be “violent”.
The Family Consultant reported that A said:
13.That she misses everyone in New Zealand but likes her new life in Australia and thinks that, if they were to go back, there would be fighting. She said that when she feels “sad” about missing everyone, she does not talk to anyone but deals with her feelings herself. She especially mentioned missing her nephews.
14.Again like her sister, [A] said that she misses her “Dad” and that he “loves us”. She added that she would like to visit him on holidays. She thinks that would be “kind of safe” because he does not fight with her and [L], but that it would be “better if Mum wasn’t there”.
To put this evidence in context it is noteworthy that the mother said in submissions that she does not allege the father had ever physically harmed the children. Of equal importance is the mother’s proposal for the children’s future contact with their father. She said: “My girls obviously miss their dad, brothers and nephews especially and also the rest of the family. I have no problem with the girls visiting their dad and family in New Zealand as I know that is what they would like to do. The only reason I have not done this is because I am scared he won’t return them and that would be devastating to the girls and myself as they have never been away for any period of time.” It appears the mother, in these remarks, puts into context the family violence of which she gave evidence. That is, the father’s physical violence and threats are put into the context of uncharacteristic acts by him when he began to realise the parents’ relationship was failing. I infer that the mother perceives the risk of family violence has substantially abated and that the children are not at risk of direct physical or psychological harm in their father’s care.
As I understood the mother’s submission if she was to return to New Zealand there may be a risk of physical harm and threats from the father to her, which given her primary role in the children’s care exposed them to risk of harm. She and the father agree they will not resume cohabitation. The mother is aware of domestic violence protection orders available in New Zealand which she said she would apply for. Thus while I accept there exists a risk of physical or psychological harm the gravity of the risk is relatively slight and insufficient to establish the defence. The nature and gravity of the risk is such I am satisfied that the courts and authorities in New Zealand would be able to protect the children. Murray v Director of Family Services ACT (1993) FLC 92-416; Zafiropoulos and the Secretary of the Department of Human Services State Central Authority (2006) FLC 93-264.
In Gsponer v Director-General, Dept of Community Services, Victoria (1989) FLC 92-001 it was held that the three reg 13(b) categories were to be read disjunctively. Thus if I am wrong about the risk of harm defence the evidence relied upon by the mother discussed above would also be relevant to a claim that a return order would place the child in an intolerable situation. The parents and children lived in a home owned by the mother’s parents. Following separation the father vacated the home and it is now occupied by the parents’ adult son and his family. This is where the mother would reside with the children if a return order is made. It is also her intention to commence parenting proceedings to regulate the children’s living arrangements and, as I understood it, obtain permission for the children to return to reside in Australia. The mother would be able to re-enrol the children in their prior schools and they would have the support of their siblings and other family members. The situation for the children should they return to New Zealand does not establish that they would be in an intolerable situation. Indeed the Hague report suggests that aspects of their situation if they were to return to New Zealand would find favour with them.
Although it was not strongly asserted by the mother that reg 16(3)(c) applied, the contents of the Hague report and aspects of the mother’s submissions, require that the Court considers the application of this defence. The leading authority for the interpretation of reg 16(3)(c) is De L v Director-General, New South Wales Department of Community Services and Anor (1996) 187 CLR 640. The effect of this decision is that the High Court made it clear that the words of reg 16(3)(c) are to be given their ordinary literal meaning. No additional gloss is to be supplied.
L is nearly 10 years old. The Family Consultant described her as “a delightful, articulate girl who answered questions thoughtfully and openly.” She spoke with the Family Consultant about feeling sad to have left everything behind in New Zealand by which
she meant friends, brothers, ‘dad’, relatives, cats and ‘everyone else’. She has not spoken to anyone in New Zealand since she left. She said that it has got a bit better but that she felt depressed at first about this. She thinks her father would be missing her and [A].
As earlier referred to, L also spoke about her desire for her parents to reconcile and for she, A and her mother to return to New Zealand. Her confusion and ambivalence became apparent from her discussion about her concerns for her mother because she would miss Mr H and, in Australia, her mother “won’t get hurt”.
Like her sister, A misses her family in New Zealand, particularly her father and nephews. A said she likes Mr H and is happy in her new school. The Family Consultant reported: “[A] expressed no clear view about whether she would object to being returned to New Zealand. It was clear that she was too young to understand this concept as separate from the remarks she made which are noted above.”
It was submitted on behalf of the Central Authority that the evidence does not establish an objection on the part of the children, or either of them, to return to New Zealand. To the extent that the children have expressed views about being returned, it was submitted their views were ambivalent. I agree with this submission. I am also satisfied for the reasons given by the Family Consultant that neither child has attained an age and degree of maturity at which it would be appropriate to attach significant weight to their views.
The mother has thus failed to establish a defence to the application by the Central Authority for a return order. The Court is thus mandated to order the children’s return to New Zealand.

Conditions

Regulation 15(1)(c) of the Abduction Convention provides, inter alia, that in making an order for return of children the Court may attach conditions which it considers to be appropriate to give effect to the Convention. The objectives of the Abduction Convention, in summary, are to secure the prompt return of children wrongfully removed to or retained in the Contracting State and to ensure that between Contracting States rights of custody and access are respected.
In De L v Director-General, New South Wales Department of Community Services and Anor (supra) it was held that in the exercise of its discretion regard must be had to the subject matter and purpose of the regulations. Depending upon the evidence in a particular case, it is likely that a Court would seek to ensure that there would be suitable interim arrangements for the children upon their return and, judicial proceedings able to be activated promptly. DP v Central Authority; JLM v Director-General New South Wales Department of Community Services (2001) FLC 93-881.
The father provided an undertaking that he would pay the children’s airfares back to New Zealand. I suggested to the Central Authority and the mother that it may be appropriate to delay the children’s return for 14 days to enable the mother to arrange her affairs in Australia and New Zealand in readiness for the children’s return. The mother indicated two weeks would be an appropriate amount of time for her to arrange accommodation with her family in New Zealand and commence proceedings in that country so as to resolve any dispute which may arise between her and the father concerning the children once they return to New Zealand. No opposition to this suggested period was raised by the Central Authority. Conditions of the type discussed strike the appropriate balance between implementing the objectives of the Abduction Convention and enabling suitable interim arrangements for the children upon their return to New Zealand.
For these reasons I make the orders identified at the commencement of this judgment.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 23 April 2010